By Chaim Weber

Needless to say, hiring a hitman is one of the worst things someone can do.

The Gemara in Kiddushin (43a) says that for causing murder (gram retzichah), one is liable in the hands of Heaven.

The Rambam (Rotzeach U’shmiras Hanefesh 2:2) adds that for hiring someone to kill someone else, one is deemed a bona fide murderer (shofech damim) and is liable for the death penalty in the hands of Heaven.

That said, would the hirer also be liable in beis din?

Normally, halacha has a concept of ein shliach l’dvar aveirah – that for sinful actions, there’s no concept of agency and only the transgressor is liable. Not the sender who asked the transgressor to sin. (See Mishnah in Bava Kamma 59b)

Would ein shliach l’dvar aveirah apply to a hired hitman? Let’s explore.

Ein Shliach L’dvar Aveirah – The Reason and Source

The Gemara in Kiddushin (42b) says that the reason for ein shliach l’dvar aveirah is that the agent is expected to ignore the sender’s command.

After all, one should listen to Hashem who prohibited the action and ignore the request of the sender. In the words of the Gemara: “Divrei harav v’divrei hatalmid, divrei mi shom’in – between the words of the master and the words of the student, to whom should you listen?”

Therefore, the sender can tell the agent “I wasn’t expecting you to listen to me.”

Additionally, the Gemara provides a source in the Torah proving ein shliach l’dvar aveirah based on something we say every morning in davening.

Every morning, we recite the 13 rules the chachamim use to learn the Torah. One of these 13 rules is called binyan av.

This means that when the Torah enunciates a rule by Mitzvah A, the rule also applies to Mitzvah B unless there’s another difference between the two mitzvos showing them to be distinct.

Therefore, if the Torah enumerates a rule by Mitzvah A and then repeats it by Mitzvah B, the repetition is unnecessary. We could have learned it on our own through binyan av! Thus, the repetition tells us that this rule applies only to these two mitzvos and it can’t be applied to other areas of the Torah.

This rule is called shnei kesuvim habaim k’echad, ein melamdim – when two verses come as one, they cannot be learned from.

There are two areas where the Torah specifically enumerates that one has the capacity to appoint a shliach to perform a sin and that the sender is liable:

1. By me’ila (misappropriating consecrated property), and
2. A thief who slaughters or sells a sheep or an ox that he stole.

Since the Torah enumerates by these two specific prohibited actions that there is agency and the sender is liable, this shows that for other transgressions, there’s no concept of agency and the sender is exempt.

(There’s an opinion in the Tannaim who disagrees and requires three enumerations of a rule in order to limit its applicability to other mitzvos. The Gemara provides an alternate source for ein shliach l’dvar aveirah according to this opinion.)

What Prevails? The Source or the Reason? The Debate Between Tosfos and the Ritva

Tosfos (Bava Kamma 79a) says that although the Gemara did provide a source for ein shliach l’dvar aveirah, the Gemara also provided the reason of divrei harav v’divrei hatalmid – that since the action was forbidden, the sender can say “I wasn’t expecting you to listen to me.”

Based on this, what’s the halacha if someone appointed an agent to perform a sinful action and the agent didn’t know the action was sinful? In this case, the sender can’t say “I wasn’t expecting you to listen to me,” as the agent didn’t know the action was sinful!

Tosfos says that in this case, we don’t say ein shliach l’dvar aveirah, as the reasoning of divrei harav v’divrei hatalmid doesn’t apply. Therefore, the sender is liable. Not the agent.

The Ritva (Kiddushin 42b) disagrees.

The Ritva notes that while the Gemara does give the reason of divrei harav v’divrei hatalmid, the Gemara only provided it to explain most cases where an agent is appointed to perform a sin. However, even where the reasoning doesn’t apply, the rule of ein shliach l’dvar aveirah stands and the sender won’t be liable.

Returning to the Hitman – What About a Known Violator?

This disagreement between Tosfos and the Ritva has another major ramification:

What if a sender appoints an agent to commit a sin and the agent is a known violator? For example: lo aleinu, hiring a hitman.

In this case, the sender can’t say “I wasn’t expecting you to listen to me,” as it’s common knowledge that the agent doesn’t care.

According to Ritva, the rule of ein shliach l’dvar aveirah would still stand and the sender wouldn’t be liable in beis din. Only the hitman is liable.

However, according to Tosfos, the rule of ein shliach l’dvar aveirah wouldn’t apply, as the sender can’t say “I wasn’t expecting you to listen to me.” Therefore, the sender would be liable.

How do we rule?

The Rema (Choshen Mishpat 388:15) rules like Tosfos that the sender is responsible.

The Shach disagrees and sides with the Ritva.

Of course, as noted in the introduction, the sender remains liable in the hands of Heaven for causing murder and according to the Rambam, this liability is a death penalty.

Additionally, the Rambam notes that should beis din see a timely need (hora’as sha’ah), beis din can take action to punish the perpetrator, as needed. Furthermore, the Rambam says that there’s no prohibition that the Torah cares more about than the crime of murder (Rotzeach U’shmiras Hanefesh 1:4),

In conclusion, the Gemara in Sanhedrin (71a) notes that there are certain mitzvos that the Torah gave that will never be practical. Nevertheless, the Torah still gave these mitzvos lidrosh v’kabel sachar – to learn and receive reward.

Similarly, we look forward to the day when the above discussion will be purely l’drosh v’kabel sachar.