Ezra had volunteered for the summer at a camp for severely retarded adolescents. He was assigned to Shlomi.
At a special ceremony the last day of camp, the director granted a gift to each of the campers.
Shlomi was sick in the infirmary, and could not participate in the ceremony. When Shlomi's name was called, Ezra went up. "Shlomi is not feeling well today," he said. "However, I will be happy to accept the gift for him."
The camp director gave Ezra the gift. "Please receive this from us on behalf of Shlomi, and wish him a refuah sheleimah," he said warmly.
After the ceremony was over, the counselors headed back to the bunks with their respective campers. Ezra walked along with his friend, Nachman. While they were walking, Nachman's camper dropped his gift and it broke. Although unable to verbally express his feelings, he seemed visibly distraught. Nachman tried to comfort his camper, but not with great success.
"Would you be able to give me Shlomi's gift?" Nachman asked Ezra. "Shlomi has no idea that it's coming, and won't miss it at all. I can probably get another one from the camp director, and you can give it later to Shlomi."
"I normally wouldn't mind," said Ezra, "but I don't know whether I can."
"What do you mean?" asked Nachman. "Why shouldn't you be able to?"
"The gift is not mine," said Ezra. "It's Shlomi's. How can I give it away?"
"Are you serious?!" Nachman asked. "Shlomi doesn't have any mental capacity to acquire, nor to make you an agent of his. It can't really be his anyway."
"Even so, the gift was for Shlomi!" Ezra insisted.
"It wouldn't be responsible to give it away if I don't have an immediate replacement. I need to check."
Ezra called Rabbi Dayan and asked:
"Do I acquire on behalf of my mentally incompetent camper?"
"As you know, a person can acquire something on behalf of another, even not in his presence, based on the principle of zachin l'adam shelo b'fanav," replied Rabbi Dayan. "The Gemara (B.M. 71b) teaches that one can acquire also on behalf of a minor, even though a minor cannot appoint an agent.
“The Rambam, cited by the Shulchan Aruch, writes that it is also possible to acquire on behalf of a shoteh (mentally incompetent person). Maggid Mishneh cites proof from the fact that one can obligate in a kesubah to a shotah woman, whereas Beis Yosef writes that the halachah is obvious and does not require proof (C.M. 243:16).
“Nonetheless, Ketzos (243:6) asks: The Gemara explains that it is possible to acquire for a minor because he will grow to achieve the ability of agency, unlike a non-Jew, who will not achieve agency (unless he converts), and therefore one cannot acquire for him. Thus, there should not be zachin for a mentally incompetent person who, similarly, will not achieve agency.
“Ketzos further cites from Rosh, that the Ramah seemingly indicates that one can acquire on behalf a mentally incompetent person only if he is sometimes lucid.
“Machaneh Ephraim (Hil. Zechiyah Umatanah #32) suggests that perhaps the ability to receive gifts is not based on the concept of shelichus of the recipient, as implied in Bava Metzia. Some explain that there is a dispute between different sugyos (passages in the Gemara) on this issue. According to the Gemara Kiddushin (42a) the concept of zachin is not based on agency, but rather is an independent concept based on the verse, ‘nasi echad,’ regarding the inheritance of the Land, which teaches that the princes of each tribe were able to acquire on behalf of minors in their tribe. This can be applied also to those mentally incompetent (see "B'din Zachin l'Shoteh," Mikavtziel, vol. 22 p. 148ff).
"Thus, the gift is already Shlomi's," concluded Rabbi Dayan. "You should not give it away."
Verdict: Shulchan Aruch rules that one can acquire on behalf of a mentally incompetent person based on zachin.
