Moses Isserles: Rema

Rema's glosses emended and enhanced the Shulhan Arukh, offering halakhic options for Ashkenazic Jews.

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Rema added a gloss at the beginning of Hilkhot Sheluhin in the Shulhan Arukh, in which he set forth and elaborated on the principle stated in the Turim:

"In all matters, a person's agent is like himself [and binds him], except for the commission of wrongdoing, for the rule is, 'There is no agency for wrongdoing.' This applies only when the agent has the capacity to be liable [for the wrong], but if he does not have the capacity to be liable, he can be an agent even to commit wrongdoing."

Rema, following the Turim, thus introduced the laws of agency with the general principle that a person's agent is like himself except in regard to the commission of wrongdoing, and then added the qualification, also well established, that if the agent does not have the capacity to be responsible for his acts, the agency, even for wrongdoing, is effective, because the principal should have known that the agent would carry out the agency inasmuch as the agent would not thereby be committing any wrong himself.†

Undoubtedly, a legal code, notwithstanding the desirability of brevity and conciseness, should begin the laws of agency with the basic principle governing that subject; in this gloss, Rema briefly and aptly filled this gap in the Shulhan Arukh.

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Menachem Elon

Justice Menachem Elon has had a long and distinguished career as a legal scholar. He is a retired professor of Jewish Law at the Hebrew University in Jerusalem, and a prolific author on Jewish Law. In 1977 Justice Elon was appointed to the Supreme Court of Israel and served as its Deputy President from 1988 until 1993. He lives in Jerusalem.