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Nazir, 11

1) ACCEPTING WHAT A PERSON SAYS WAS IN HIS HEART ("DEVARIM SHE'B'LEV") WITH REGARD TO NEZIRUS

QUESTION: The Mishnah states that if a person accepts upon himself an oath of Nezirus and says that he did not know that a Nazir is prohibited from drinking wine, it is as if he accepted to become a Nazir only with regard to Tum'ah and shaving. Accordingly, the Rabanan say that he becomes a Nazir for all matters and may not drink wine, and Rebbi Shimon says that he is not a Nazir at all.

Why do we believe the person when he says that he did not know that a Nazir is prohibited from wine? Since he pronounced a normal oath of Nezirus ("I am hereby a Nazir"), we should apply the rule of "Devarim she'b'Lev Einam Devarim" and not accept what he later says was in his heart when he accepted to become a Nazir, but he realized the full ramifications of his statement. How, then, can he revoke his Nezirus, according to Rebbi Shimon, by claiming afterward that he did not know what Nezirus entails?

ANSWERS:

(a) The MEFARESH implies that the person mentioned that he does not know that a Nazir is prohibited from wine *before* he made his statement accepting Nezirus upon himself. Therefore, it is clear that his statement of Nezirus did not include a prohibition of wine. (KEREN ORAH)

(b) The Gemara in Shevuos (26b) says that if a person says that he will not eat wheat bread, and then he says that his tongue slipped and that he had intended to say that he will not eat barley bread, he is believed and is *not* prohibited from wheat bread. The reason is because what a person says by accident is not considered a Halachically valid statement; unintentional speech is not considered "Dibur."

How can we know that he intended to say something other than what he said? We should apply the rule of "Devarim she'b'Lev Einam Devarim!" The answer is that what slipped out of his mouth accidentally is not considered Dibur, and therefore according to his statement now, he said no Dibur. We trust the person when he tells us what his intentions were, as long as they are not contradicted by a Dibur (and here there was no Dibur). Perhaps in the Mishnah's case as well, if he thought that a Nazir is permitted to drink wine, then his usage of the word "Nazir" was a misnomer; what he intended was not expressed by the word he used. Perhaps such a word is not called a Dibur, just like the case in Shevuos, and therefore he is believed to say what was in his mind since it is not contradicting a Dibur.

The RASHBA (Teshuvos 4:108) suggests a similar explanation for the next case in the Mishnah. If a person makes himself a Nazir and then claims that he thought that the Chachamim would permit him to become Tamei since he cannot support himself without becoming Tamei (his employment requires him to bury corpses), he is *not* a Nazir according to the Chachamim. According to one explanation in the Gemara (11b), he is not a Nazir because the Neder is considered a Neder that he is forced to violate (Nidrei Onsin, according to some Rishonim). How can we believe him, though, when he says later that he did not intend to become prohibited from Tum'ah since he thought the Chachamim would permit the Isur for him? The rule of "Devarim she'b'Lev Einam Devarim" should say that he is not believed!

Some Acharonim (MAHARIT 1:68, DH Ach Kasheh) explain that it is known to all that he makes a Parnasah as an undertaker, and hence it is no longer "Devarim she'b'Lev" when he says that he had intended the Chachamim to permit him to become Tamei since his employment involves becoming Tamei. However, it is possible that even if we do not know that his employment involves being Metamei l'Mesim, he still should be believed, for the following reason.

The RASHBA explains that the reason the person is believed is because when it comes to Isur, a person is trusted regarding an Isur that applies to himself. If he would not be trusted, we could never be Matir a person's Neder, since we could never trust a person's Pesach -- we could never know for sure that the person would not have made a Neder had he known that he would have been in such a situation.

Therefore, writes the Rashba, if a person claims that his statement was made under duress (b'Ones), we believe him. The Rashba might mean to say something similar to what we wrote above. The Rishonim in Nedarim (28a) explain that when a person makes a statement b'Ones, we do not apply the rule of "Devarim she'b'Lev Einam Devarim," because the Ones, the situation of duress, provides an Umdena to show that he did not really mean to say the Neder the way he expressed it. That is, the Ones annuls his Dibur, and that is why the Rashba says we may trust the person to tell us what his thoughts were and to follow what he says was in his mind with regard to the Neder.

QUESTION: In a case where a person makes himself a Nazir on condition that he can drink wine, Ravina says that the condition is ignored and he is a complete Nazir, because he is being "Masneh Al Mah she'Kasuv ba'Torah" -- he is making a condition against what is written in the Torah, in which case the condition is invalid and the action takes effect.

TOSFOS (DH d'Havi) asks how a condition can be made for Nezirus altogether. There is a rule (Kesuvos 74a) that a condition can only be made for the type of action that can be done through a Shali'ach. Nezirus, though, cannot be done through a Shali'ach! How, then, can one make a Tenai for Nezirus if Nezirus cannot be carried out through a Shali'ach?

ANSWERS:

(a) TOSFOS explains that Nezirus also can be carried out through a Shali'ach, since a Shali'ach could bring the Korbanos of Nezirus at the end of the Nezirus instead of the Nazir himself.

The Acharonim raise a number of questions on this answer.

1. What difference does it make if the Korbanos of a Nazir can be brought by a Shali'ach? The actual Nezirus (i.e. the Isurim of Tum'ah, cutting one's hair, and consuming grape products) cannot be carried out by a Shali'ach!

2. The Nezirus of a Nazir Shimshon never brings Korbanos, and yet we find (Nedarim 19b) that one can make a Tenai for a Nezirus of Nazir Shimshon! (KASA D'HARSENA #204)

3. REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that Nedarim can be made with a Tenai (Nedarim 79a), even though no Korbanos are brought for a normal Neder of Isur! How can a Neder be made with a Tenai, if a Neder cannot be carried out by a Shali'ach?

Perhaps we can answer as follows. There is a logical reason why a Tenai can be made only for something that can be carried out by a Shali'ach. When the action is one for which one can appoint a Shali'ach, that shows that one has control over that action since he can delegate it to someone else. In order to make a Tenai in the action, one must have the same measure of control over the action that he is performing as is necessary for appointing a Shali'ach to do the action. Hence, perhaps it suffices to have control over part of the action that one is doing, such as bringing the Korbanos, even though he does not have control over the rest of it. This is because the fact that he has control over part of it shows that the action is under his control and we may assume that the reason why he cannot make a Shali'ach for the rest of the action is not because he does not have control over it but because of some other reason. The part that he does have control over reveals that he has control over this action and thus he may make a Tenai.

This answers the question from the case of a Nazir Shimshon. Even though a Nazir Shimshon does not have Korbanos, the Nezirus takes effect upon him like it takes effect on any normal Nazir. There is no reason to assume that he has less control over his Nezirus of Nazir Shimshon than he has over a normal Nezirus, and therefore he may make a Tenai on it.

This answers the third question as well. Since Nezirus is a type of Neder, and we see that the Nazir has control over part of the action (because he may appoint a Shali'ach to bring the Korbanos), that shows that a person has control over every Neder and can therefore make a Tenai on it. (The RASHASH adds that there is a Hekesh between Nedarim and Nezirus.)

However, Tosfos' answer is unclear for another reason. When the Gemara says that a Tenai can be made for an action if the action can be done through a Shali'ach, it means that the action which was contingent upon the Tenai can be done through a Shali'ach. However, in the case of the Gemara, the person is making his *acceptance* of Nezirus contingent upon a Tenai, and Tosfos does not show that a Shali'ach could *accept* a Nezirus to take effect on someone else! He merely shows that once the Nezirus has taken effect, it can be practiced (in part) by someone else.

(b) The RAMBAN in Bava Basra (126b) cites others who answer Tosfos' question as follows. It is possible to *make* a Nezirus or a Neder through a Shali'ach by telling the Shali'ach, "Whenever you say that you want me to be a Nazir, I will become a Nazir." (This is not the normal use of a Shali'ach to perform an action, since the Nezirus is clearly being made by the person himself and his friend is just deciding when the Nezirus will take effect. Nevertheless, this shows that Nezirus can be made contingent on external factors, and therefore the Nezirus could also be made contingent upon a Tenai.)

(c) The RAMBAN himself answers that all of the rules of Tenai are not necessary for an action that affects only oneself. The rules of Tenai that we learn from "Tenai B'nei Gad u'Vnei Reuven" teach us how a Tenai is to be made for an interaction between two people (such as buying and selling, marriage and divorce). However, a Tenai that is stipulated in Nezirus, which is a personal matter involving no one else but the Nazir, is not learned from the rules of "Tenai B'nei Gad u'Vnei Reuven," but it is understood from logic: since the person only made his oath with such a stipulation, it should take effect only when the stipulation is fulfilled. Therefore a Tenai can take effect for Nezirus even though the action cannot be performed by a Shali'ach.

RABEINU AZRIEL in the SHITAH MEKUBETZES here says, similarly, that all of the rules of Tenai only apply to an *action* but not to something that takes effect through speech alone. The PNEI YEHOSHUA (Kesuvos 57a) explains that the logic for this is that a Tenai which is a Dibur (speech) cannot annul an action, since an action is stronger than speech. However, a Dibur could annul something else that was made with Dibur (Kidushin 59a-b). (See also KEREN ORAH here.)

According to the Ramban and Rabeinu Azriel, why does our Sugya say that if a person accepts Nezirus on condition that he not be prohibited from wine, the Tenai is not valid because it is contradicts the Torah and is thus "Masneh Al Mah she'Kasuv ba'Torah." If the laws of Tenai do not apply to Nazir, it should not make a difference -- even a Tenai that is "Masneh Al Mah she'Kasuv ba'Torah" should be valid!

The answer is that the Ramban holds like RABEINU TAM and many other Rishonim in Kesuvos (56a) who rule that the Halachah that a Tenai cannot contradict what is written in the Torah is not learned from the "Tenai B'nei Gad u'Vnei Reuven." Rather, it is based on logic -- a person is not really serious about the condition if it contradicts the Torah. This might explain why Tosfos asks his question, how a Tenai can be made for Nezirus, only in our Sugya. We find many Mishnayos that mention Nezirus, and even Nedarim (see Gilyon ha'Shas), being made with a Tenai, and yet Tosfos only asks his question on the Mishnah here. The reason Tosfos does not ask his question elsewhere is because Tosfos knows that one might propose an answer similar to the Ramban's -- that the rules of Tenai do not apply to Nedarim and Nezirus. However, our Gemara says that the rule that a Tenai cannot contradict what it says in the Torah *does* apply to Nezirus! Tosfos in Kesuvos (56a, DH Harei Zu) disagrees with Rabeinu Tam and explains that this rule is also learned from the "Tenai B'nei Gad u'Vnei Reuven" (see Insights to Kesuvos 56a). If so, this Gemara disproves the Ramban's approach, and therefore a reason must be given for why a Tenai can be made for Nezirus even though a Shali'ach cannot be appointed to fulfill the Nezirus for the Nazir.

This might also be the answer to the question of the Gilyon ha'Shas mentioned above (3). Even though Nedarim do not involved Korbanos, a person could make a Tenai in a Neder because of the reason the Ramban gives -- the rules of Tenai do not apply to Nedarim. A Neder simply requires a person to keep his word; if he made his word conditional, then once he fulfills the condition, he has kept his word and the Neder takes effect, in accordance with what the person said. From our Gemara we see that Nezirus, though, is different, and the rules of Tenai do apply. This is because Nezirus is not just a requirement to keep one's word (like a Neder), but rather it involves making a certain Kedushah take effect on the person so that he acquires the new status of "Nazir" (see Insights to 4a). This is not just a "Dibur," but a "Dibur d'Asi Lidei Ma'aseh" (Kidushin 59a), a speech that has an element of action in it. Therefore, Nezirus is comparable to Kinyanim which involves the change of status of an object and for which the rules of Tenai apply.

11b