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Chagigah, 10

1) IT'S THE THOUGHT THAT COUNTS

QUESTION: The Mishnah states that the laws of Heter Nedarim, annulling one's oaths, "flutter in the air with nothing to support themselves upon," meaning that there is no explicit verse that serves as the support for Heter Nedarim, but the laws were transmitted to the Chachamim through Torah sh'Ba'al Peh.

The Gemara cites a Beraisa (which argues with our Mishnah) in which a number of Tana'im give various sources for the laws of Heter Nedarim. Rava rejects these sources for various reasons.

One of those sources, says Rebbi Yitzchak, is the verse, "Kol Nediv Libo" (Shemos 35:5). This verse implies that one's oath is only binding if one still has in his heart the desire to fulfill it, but if one no longer desires to fulfill his oath, he may have a Chacham annul it for him. Rava rejects this source because perhaps the verse is needed for a different reason. Perhaps "Kol Nediv Libo" is needed to teach us not to learn like Shmuel, who maintains that in order for a Neder to be valid, one must verbalize it aloud and it does not suffice just to think it in one's heart. "Kol Nediv Libo" teaches that it is a valid Neder even if one only thinks it in his heart and does not verbalize it.

RASHI (DH Gamar b'Libo) explains that when Shmuel said that one must verbalize one's intention in order for it to take effect, he was referring to taking upon oneself a "Shevu'ah, Neder, or Hekdesh."

How can Rashi say that Shmuel was referring to Hekdesh as well, and maintained that if one decided in his heart to sanctify something to Hekdesh, it is not valid until he speaks out his intention? The Gemara in Shavuos (26b) says explicitly that even Shmuel agrees that when it comes to oaths of Hekdesh, a person's thoughts in his heart is enough to obligate him! Why, then, does Rashi write that Shmuel's statement that one's thoughts are *not* binding was said also in reference to Hekdesh? (SI'ACH YITZCHAK)

ANSWER: The Gemara in Shavuos derives that oaths of Hekdesh are binding even when not verbalized from the verse cited here, "Kol Nediv Libo" (as Tosfos here points out). Hence, Rashi here means to say that if we did not have the verse of "Kol Nediv Libo," then Shmuel's ruling *would have* applied also to Hekdesh. Now that the verse says "Kol Nediv Libo," it teaches that the thoughts in one's heart suffice to make one obligated, at least with regard to Hekdesh, even according to Shmuel. Rashi is not explaining what Shmuel *actually* holds, but what Shmuel *would have held* had there been no verse. (M. Kornfeld)

OPINIONS: A fundamental argument concerning the liability for performing Melachah on Shabbos concerns a "Melachah she'Einah Tzerichah l'Gufah," a Melachah "that is not needed for itself." Rebbi Yehudah and Rebbi Shimon argue whether one is Chayav for performing such a Melachah that is "not needed for itself." Rebbi Yehudah says that one is Chayav, and Rebbi Shimon says that one is Patur. What exactly defines a Melachah "that is not needed for itself?"

(a) TOSFOS (10b, DH Meleches; see also TOSFOS in Shabbos 94a, DH Rebbi Shimon Poter) understands Rashi to be saying that a Melachah she'Einah Tzerichah l'Gufah is any Melachah that one did in order to *prevent* something else from happening, or in order to *rectify* something that was already done wrong. For example, a person who carries a dead body out of a house is interested in correcting an uncomfortable situation (the dead body being in his house), and would have preferred that the dead body never have been brought *into* the house in the first place.

However, Tosfos refutes this explanation. When a curtain has a wormhole and one tears some more above and below the hole in order to mend it neatly, he is Chayav (this is the classic example of Meleches Kore'a Al Menas Litfor, Shabbos 75a). Similarly, if one destroys a building in order to build another structure in its place, one is Chayav for "Soser Al Menas Livnos." Rashi, asks Tosfos, should maintain that one is Patur in these cases. The person tore the curtain only in order to fix the damage done by the wormhole, and destroyed the building only in order to make room for another. He would have preferred that the wormhole or building not be there in the first place!

(b) TOSFOS himself (10b, DH Meleches, and Shabbos 94a, DH Rebbi Shimon) defines a Melachah she'Einah Tzerichah l'Gufah as any Melachah not performed for the same reason that that Melachah was performed *in the Mishkan*.

(c) The RAMBAN (94b) and BA'AL HA'ME'OR (106a) write that a Melachah must be performed with the objective for which that activity is *normally performed*. If one is doing the Melachah for a purpose other than its normal objective, it is a Melachah she'Einah Tzerichah l'Gufah.

For example, digging a pit in order to use the dirt is a Melachah she'Einah Tzerichah l'Gufah because, normally, the objective of digging is in order to have a pit, and not to use the dirt. The pile of dirt produced is a secondary outcome of the digging. Similarly, a Melachah performed in order to prevent damage from happening, such as capturing a snake, is considered a Melachah that is not needed for itself, because the normal objective of capturing is to use the animal. The same is true for carrying an object to Reshus ha'Rabim in order to keep oneself from becoming soiled (or Tamei) from the object.

This might be RASHI's opinion as well, unlike TOSFOS' understanding of Rashi (see (a)). This is why ripping the garment to repair a wormhole is considered a true Melachah. The person ripping the garment is interested in having the garment ripped apart (the primary effect of the Melachah) and is not trying to accomplish a secondary outcome of the ripping. The same applies to demolishing a building in order to build in its place. The demolisher is interesting in the removal of the building, and that is the primary outcome of the Melachah.

10b

QUESTION: The Mishnah states that the laws of Me'ilos are "like mountains suspended from a hair, with many Halachos based on very few verses." The Gemara asks what Halachah the Mishnah is referring to, since all of the Halachos of Me'ilah are written clearly in the Torah. Rava answers that the Mishnah is referring to a case of Me'ilah that is not written in the Torah: if a Ba'al ha'Bayis appoints a Shali'ach to take money that, unbeknownst to them, is Hekdesh and to buy something with it, and then the Ba'al ha'Bayis realizes that the money he sent was Hekdesh but the Shali'ach did not realize it and spent the money, the *Shali'ach* is Chayav for Me'ilah and not the Ba'al ha'Bayis. The Gemara says that this is a law which "suspends by a hair," because there is no strong logical basis for saying that the poor, helpless Shali'ach is Chayav (since he had no reason to know that the money he is spending is Kodesh).

Rav Ashi rejects this answer and says that this is not a law suspended by a hair, because *every* case of Me'ilah involves *unknowingly* spending money of Hekdesh.

The Gemara concludes that this indeed is the case that is suspended by a hair. It cannot be compared to a normal case of Me'ilah, because the Shali'ach is indeed different than a normal person accidentally spending his own money of Hekdesh. In the case of a Shali'ach he has no way of knowing that the money was Hekdesh, whereas in a normal case the person knew at one point that the money was Hekdesh and he just forgot that it was Hekdesh at the time that he spent it.

RASHI explains the reason for this Halachah, that if the Ba'al ha'Bayis remembers that the money is Hekdesh he is Patur while the Shali'ach is Chayav. Since the owner remembered that the money was Hekdesh, we assume beyond a doubt ("Anan Sehadei") that he certainly does not want the person to be his Shali'ach anymore and he annuls the Shelichus in his heart. Since the person is no longer his Shali'ach, the sender cannot be Chayav.

Why does Rashi give this reason for why the Ba'al ha'Bayis is Patur? We know that a person is only Chayav for Me'ilah if he spent the Hekdesh money *accidentally*. If he knows that the money is Hekdesh when he spends it, although he has transgressed Torah prohibition, he is not Chayav to bring a Korban Me'ilah. Accordingly, Rashi should have explained that the Ba'al ha'Bayis is Patur because *he remembered* and therefore he cannot be Chayav for Me'ilah, since he was Mezid! Indeed, that is how Rashi himself explains in Kidushin (50a, DH Shali'ach Ma'al) and in Meilah (21a, DH ha'Chenvani, DH u'Reminhu)! Why does Rashi explain the reason here one way, and in Kidushin and Me'ilah he explains it another way?

ANSWERS:

(a) The Acharonim explain that Rashi here presents a different approach from the one he used in Me'ilah and in Kidushin because this approach has an advantage over the other approach. REBBI AKIVA EIGER (Pesachim 29a) and the KETZOS HA'CHOSHEN (348:4) point out that TOSFOS in Kidushin (42b DH Amai) proposes that although the normal rule is "Ein Shali'ach l'Dvar Aveirah" -- "a Shali'ach cannot be appointed to do an Aveirah" (such that when the Shali'ach does the Aveirah, it is attributed to the *sender* and not to the Shali'ach), this applies only when the Shali'ach *is aware* that he is doing an Aveirah. If he does not know that he is doing an Aveirah, then "*Yesh* Shali'ach l'Dvar Aveirah" -- the Aveirah *is* attributed to the person who sent the Shali'ach.

Tosfos himself questions this view. If the sender is attributed with the Aveirah that the Shali'ach does when the Shali'ach does not know that he is doing an Aveirah, why do we need a special verse to teach that in the laws of Me'ilah "Yesh Shali'ach l'Dvar Aveirah?" The whole essence of the sin of Me'ilah is that it is done unknowingly, b'Shogeg, and in every case of sending a Shali'ach to do an Aveirah -- and not just Me'ilah -- when the Shali'ach does the Aveirah unknowingly, the sender is Chayav and not the Shali'ach! Why, then, is a special verse needed to teach us this with regard to Me'ilah?

Tosfos answers that indeed, the verse is not needed for a case when the Shali'ach does not know that the money is Hekdesh. Rather, the verse is needed for a case when the Shali'ach *does* know that the money is Hekdesh, but the sender does not. In such a case, the verse teaches that the sender will be Chayav for Me'ilah.

Rebbi Akiva Eiger and the Ketzos ha'Choshen point out that according to this opinion of Tosfos, it is impossible to apply to our Gemara the reasoning of Rashi in Kidushin and Me'ilah. Rashi there writes that if the Ba'al ha'Bayis remembers that the money is Hekdesh and the Shali'ach does not, the Ba'al ha'Bayis cannot be Chayav for Me'ilah because his act of Me'ilah would be b'Mezid, since he is aware that the money is Hekdesh (and the Chiyuv of Me'ilah is only when it is done b'Shogeg). This explains why the Ba'al ha'Bayis is Patur, but still, why should the *Shali'ach* be Chayav? If we say "Yesh Shali'ach l'Dvar Aveirah" for the Aveirah of Me'ilah and consequently the transgression is attributed to the Ba'al ha'Bayis, who is not Chayav a Korban (because he is doing it b'Mezid), then the Shali'ach should also not be Chayav a Korban (because the Aveirah is being done on behalf of somebody else and is attributed to the Ba'al ha'Bayis)!

Rashi in Kidushin (DH Shali'ach Ma'al) explains that since the Ba'al ha'Bayis is not Chayav for Me'ilah, the verse that teaches that "Yesh Shali'ach l'Dvar Aveirah" for Me'ilah does not apply. The verse applies that principle only when, as a result, the Ba'al ha'Bayis would be Chayav to bring a Korban Me'ilah. Here, the Ba'al ha'Bayis will not be Chayav for Me'ilah even if the Shelichus is valid and the Aveirah is attributed to the Ba'al ha'Bayis. Therefore, since the application of "Yesh Shali'ach l'Dvar Aveirah" will not make the Ba'al ha'Bayis Chayav, we revert back to the rule of "Ein Shali'ach l'Dvar Aveirah" (and the Shali'ach bears the sole responsibility for the Aveirah).

This is true, however, only if normally, when the Shali'ach unknowingly does an Aveirah, "*Ein* Shali'ach l'Dvar Aveirah," and the verse is needed to teach that "*Yesh* Shali'ach l'Dvar Aveirah" for Me'ilah. According to Tosfos, though, we do not need a special verse to teach us Yesh Shali'ach l'Dvar Aveirah in this case, because in every case of Shelichus we say "Yesh Shali'ach l'Dvar Aveirah" when the Shali'ach was unaware of the Aveirah. Thus, according to Tosfos, the Shali'ach here should also be Patur because "Yesh Shali'ach l'Dvar Aveirah" (and the Ba'al ha'Bayis gets the Aveirah, but since he remembered that the money was Hekdesh, making his Aveirah "b'Mezid," he is Patur from bringing a Korban Me'ilah)! It must be that the reason why the Shali'ach is Chayav is because of a different reason -- not because the Ba'al ha'Bayis was Mezid, but because the Ba'al ha'Bayis annulled the Shelichus altogether, as Rashi here says, and the Shali'ach was no longer acting on behalf of the Ba'al ha'Bayis.

In summary, the Ketzos and Rebbi Akiva Eiger propose that the advantage of Rashi's explanation here is that it explains the Gemara even according to the opinion which holds that "Yesh Shali'ach l'Dvar Aveirah" whenever the Shali'ach did not know about the Aveirah. Here, even that opinion will agree that the Shali'ach is Chayav for Me'ilah -- because the Ba'al ha'Bayis annulled the Shelichus. (In Kidushin and Me'ilah Rashi presumably sided with the dissenting opinion, that maintains we do *not* say Yesh Shali'ach l'Dvar Aveirah in cases when the Shali'ach was not aware of the Aveirah in other cases other than Me'ilah. That is why he did not find it necessary to explain as he does in our Sugya.)

This explanation is difficult, though, because Rashi here does not seem to be saying that. According to this explanation, the purpose of saying that the Ba'al ha'Bayis annulled the Shelichus is to explain why the Shali'ach is Chayav. The Ba'al ha'Bayis would be Patur regardless of whether he annulled the Shelichus or not, since he was Mezid. However, Rashi here clearly writes that the *Ba'al ha'Bayis is Patur* (and not that the Shali'ach is Chayav) because he annulled the Shelichus!

(b) Rashi might mean as follows. Even though the Ba'al ha'Bayis is now Mezid, if he does not annul the Shelichus he should be Chayav for Me'ilah, because *at the time that he appointed the Shali'ach*, he was Shogeg. Once he appoints the Shali'ach, the Shali'ach takes over for him in his place, and now the act is no longer in the hands of the Ba'al ha'Bayis. When the Shali'ach does the act, it is as if the act is being done according to the conditions that were present at the time of the appointment of the Shali'ach. (This goes well with the words of the OR SAME'ACH in Hilchos Gerushin 2:15, who points out that this appears to be the view of Rashi elsewhere, in the case of a husband who appoint a Shali'ach to give a Get to his wife, and then the husband died. Rashi implies that since he was alive and sane at the time he appointed the Shali'ach, it does not make a difference what happens to the husband afterwards and the Get will be valid upon its delivery -- if not for the fact that his death already ended the marriage.)

That is why Rashi has to say that the Ba'al ha'Bayis annulled the Shelichus. Once the Shelichus is annulled, the Shali'ach can no longer act for the Ba'al ha'Bayis. (M. Kornfeld; see also Shi'urei Hagaon Rav Shmuel Rozovsky, Kidushin 50a)

We may bring further support for what Rashi says here from the Sugya itself, from which we can deduce that the reason the Ba'al ha'Bayis is Patur is because he annulled the Shelichus, and not because he acted b'Mezid. The Gemara asks that the Halachah that the Shali'ach is Chayav is not "suspended by a hair" (i.e. baseless). Rather, it is very logical and is no different than any other case of Me'ilah, wherein a person inadvertently spends money of Hekdesh.

The Gemara would have no question if the Shelichus was not annulled and the Shali'ach was still acting on behalf of the Ba'al ha'Bayis. In such a case, the only reason the Shali'ach would be Chayav is because the Ba'al ha'Bayis acted b'Mezid, and thus "Yesh Shali'ach l'Dvar Aveirah" is not applied (since it would not be making the Ba'al ha'Bayis bring a Korban, for he was Mezid). The fact that the Shali'ach would be Chayav in such a case is indeed very different from a normal case of Me'ilah. We would normally say "Yesh Shali'ach l'Dvar Aveirah" and exempt the Shali'ach. If so, it is a very big Chidush to attribute the Aveirah to the Shali'ach and say that the Shali'ach is Chayav for Me'ilah, *just because* the Ba'al ha'Bayis is not Chayav. It is indeed a Halachah that is like a mountain suspended by a hair, as the Gemara says, "The Shali'ach is a poor, helpless person -- what did he do?" -- that is, why should the Shali'ach be Chayav just because the Ba'al ha'Bayis cannot be Chayav? If the Ba'al ha'Bayis had not remembered that the money was Hekdesh, then the Shali'ach would have been Patur. Now that the Ba'al ha'Bayis remembers that the money is Hekdesh, why should that affect the Shali'ach? It is no reason to say that the Shali'ach is now Chayav! That is a very big Chidush, and it certainly qualifies as a "mountain suspended by a hair" (as Rashi himself says explicitly in Me'ilah 21a)!

If so, why does the Gemara, in the name of Rav Ashi, reject this logic and say that it is the same as every other case of being Mo'el with Hekdesh? It must be that the Gemara understood that the reason why the Shali'ach is Chayav is *not* because the Ba'al ha'Bayis was Mezid, but because the Ba'al ha'Bayis annulled the Shelichus when he remembered that the money was Hekdesh. Since the Shali'ach is no longer a Shali'ach, he is like any other person who commits Me'ilah inadvertently, and that is why the Gemara asks that this is not a case of "mountains suspended by a hair."

Why, then, did Rashi in Kidushin and Me'ilah give a different explanation for why the Shali'ach is Chayav? This is a difficult point.

Apparently, Rashi learned that Rava, who is the one who suggests here that this *is* the case of a "mountain suspended by a hair," does not accept Rav Ashi's reasoning (that the Shali'ach must be Chayav because the Ba'al ha'Bayis annulled the Shelichus). Rather, Rava understood that the reason the Shali'ach is Chayav is because the Ba'al ha'Bayis was Mezid, in which case it *is* a Chidush that the Shali'ach is Chayav, as stated above. (Perhaps the reason Rashi learns like this is because according to the reasoning of Rav Ashi, if the Ba'al ha'Bayis says explicitly that he does not want to annul the Shelichus even after he remembers that the money is Hekdesh, then the Shali'ach should *not* be Chayav -- yet we never find any Mishnah or Beraisa that lists an exception to the standard ruling; the Mishnah implies that in all cases, the Shali'ach is Chayav.) (M. Kornfeld)