Who Owns The Mishloach Manos?

Q: I gave my son some mishloach manos to deliver. After he left, I called him and told him not to deliver one of them since I wanted to send it to someone else. My son pointed out that the Gemara (Gittin 14a) indicates that once I gave him the mishloach manos to deliver I may not renege on that gift. Am I permitted to cancel that one?

A: The essential question is whether your son acquired the mishloach manos on behalf of the intended recipients. If one instructs an agent to “acquire” (zechi) a gift or repayment for someone, the intended recipient acquires that item when the agent received it, and the sender may not recall the gift (C.M. 125:6, 243:1).

If one instructs the agent to “deliver” (holeich) the gift or payment [or “give” it (tein) (Shach 125:2)], it depends on whether the sender is sending a gift, making a payment, or returning the recipient’s object.

Regarding gifts, “deliver” is not comparable to “acquire.” If the sender told the agent to “deliver” a gift, it may be recalled (C.M. 125:5, 243:2).

When returning an object or repaying a loan, “deliver” is comparable to “acquire.” Therefore, if a lender instructs an agent to “deliver” his payment, he may not recall that payment (C.M. 125:1).

One explanation of this distinction maintains that when the sender is obligated to send the item, even when he says “deliver,” his intent is for the agent to acquire it for the recipient. Consequently, if one instructs an agent to deliver money to a poor person, the poor person acquired the gift. Since a tzedakah pledge obligates one by virtue of a vow (neder) to give that money, “deliver” means “acquire” (Ketzos 243:1, 125:2; Nesivos 243:1). Others explain that it is easier for the agent to acquire for the recipient when the item previously belonged to or was owed to the recipient.

In contrast, sending a gift that never belonged to the recipient requires clearer language for the agent to acquire it for him (Sma 125:22; Shach 25). Accordingly, an agent sent to “deliver” money that was pledged to tzedakah does not acquire it for him since he never possessed those funds (Sma ibid.; Shach 27).

According to the second rationale, since the recipient never possessed any rights to the mishloach manos, “deliver” does not mean “acquire.” However, according to the first approach, one could argue that since there is a rabbinic obligation to send mishloach manos, “deliver” is comparable to “acquire,” and the sender may not recall them.

On the other hand, one could argue that it should be compared to a gift since there is no obligation to give any specific person mishloach manos and thus one could recall it even after instructing an agent to “deliver” it (Chug HaAretz, Algazi 18).

The same uncertainty applies if one instructed an agent to “deliver” mishloach manos and they became lost or stolen. If it is considered as though the recipient received it already, the mitzvah was fulfilled (Eshel Avraham, Tinyana 695) but if not, the sender has not yet fulfilled the mitzvah (Erech Shai 694). See also regarding this issue: Shaarei Teshuvah 695:7; Yafeh Lalev 695:19.

Regarding the original question, if your child is an adult, there is a debate whether you can recall the gift (see O.C. 366:10). It seems that one may adopt a lenient approach. If your child is a minor you may certainly recall the mishloach manos since a minor cannot acquire property on behalf of others. (Regarding mechusar amanah, see Minchas Pitim 204:8; 243:2; Pri Yitzchak 51.)

This article is intended for learning purposes and not to be relied upon halacha l’maaseh. There are also issues of dina d’malchusa to consider in actual cases.

Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, which is headed by HaRav Chaim Kohn, shlita, a noted dayan. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, please call the confidential hotline at 877-845-8455 or e-mail ask@businesshalacha.com. To receive BHI’s free newsletter, Business Weekly, send an e-mail here.


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