Ask A Question about the Daf

Previous daf

Nazir, 17

1) A PERSON WHO BECOMES A NAZIR WHILE STANDING IN A CEMETERY

QUESTION: The Gemara cites a Machlokes between Rebbi Yochanan and Reish Lakish regarding whether Nezirus takes effect when a person makes an oath of Nezirus while he is standing in a cemetery. Mar bar Rav Ashi concludes that both Rebbi Yochanan and Reish Lakish agree that the Nezirus takes effect, and the Machlokes is only concerning whether or not the person receives Malkus.

How can the person receive Malkus for becoming a Nazir while standing in a cemetery? Even though he transgressed the Isur Lav of a Nazir becoming Tamei, he did so passively, with no action, and therefore it is a "Lav she'Ein Bo Ma'aseh." The Halachah is that one who transgresses a "Lav she'Ein Bo Ma'aseh" does not receive Malkus!

ANSWERS:

(a) The RAN in Nedarim (4a, DH Chaila) explains that Rebbi Yochanan and Reish Lakish are not arguing about whether the person receives Malkus for transgressing the Isur of becoming Tamei, but rather whether he receives Malkus for the other prohibitions of Nezirus, such as consuming grape products or cutting his hair. Everyone agrees that he does not receive Malkus for becoming Tamei because, like we mentioned, there was no action involved.

The RASHASH there asks a number of questions on this explanation (see Insights to Nedarim 4:1). If the person does not get Malkus (according to Reish Lakish) for consuming grape products and for cutting his hair even though there is an action involved, then obviously Reish Lakish holds that the Nezirus has not yet taken effect at all. According to Mar bar Rav Ashi, though, the Nezirus *does* take effect when he accepts it upon himself while standing in the cemetery, and it is clear from the Gemara here in Nazir that he needs no further Kabalah when he leaves the cemetery!

The Ran apparently holds that according to Reish Lakish, the person cannot become obligated to observe the Nezirus of Taharah while he is in the cemetery (since he is Tamei in either case). Therefore, Reish Lakish holds that since one cannot effect a "partial Nezirus," the person is not obligated to observe Nezirus at all, even the laws of refraining from wine and cutting hair. However, that does not mean that the Nezirus has not taken effect. Rather, the Nezirus *does* take effect, but it is in a suspended mode, waiting for a moment at which the person can be obligated to refrain from Tum'ah. The moment that the Nezirus is able to take effect with regard to Tum'ah, the laws of Nezirus for refraining from wine and cutting hair will take effect as well. Hence, no new Kabalah is necessary when he leaves the cemetery.

(b) TOSFOS here (see next Insight) and the ROSH in Nedarim (4a) explain that when the Gemara says that Rebbi Yochanan and Reish Lakish argue regarding Malkus, it is indeed discussing Malkus for becoming Tamei. Both Rebbi Yochanan and Reish Lakish agree that Malkus is given for consuming wine and cutting hair, because there is no reason for the Nezirus not to take effect with regard to those laws. The Machlokes is only with regard to Malkus for becoming Tamei.

As far as our question that his becoming Tamei is a "Lav she'Ein Bo Ma'aseh," these Rishonim explain that Rebbi Yochanan and Reish Lakish are addressing the opinion of those who hold that one *does* receive Malkus for a Lav she'Ein Bo Ma'aseh. Alternatively, they do not mean literally that Malkus is administered, but rather that it is an *Isur* of Malkus (that is, becoming Tamei is Asur and it *would have been* punishable with Malkus had a Ma'aseh been involved).

Why, though, does Reish Lakish say that there is no Malkus for Tum'ah even according to the opinion that there is Malkus for a Lav she'Ein Bo Ma'aseh? It is because Reish Lakish holds that in order to take effect, the Isur of Tum'ah must take effect at a state where it prohibits the person from *becoming* Tamei, and not at a state where he is already Tamei. (That is, the Isur of Tum'ah for a Nazir is *becoming* Tamei, and not *being* Tamei.)

(c) The MEFARESH here explains that the argument between Rebbi Yochanan and Reish Lakish is with regard to Malkus for Tum'ah, like the Rosh and Tosfos explain. However, he explains that according to Reish Lakish, although the person is prohibited to consume wine and to cut his hair immediately, nevertheless he is not prohibited to become Tamei until he *re-accepts* upon himself the Isur Tum'ah of Nezirus after he becomes Tahor from his present state of Tum'ah. If so, when Rebbi Yochanan says that the Nazir is punishable with Malkus, it does not mean that he is given Malkus for *making* himself a Nazir while in the graveyard. Rather, he is given Malkus for making himself Tamei (in an *active* manner, Lav she'Yesh Bo Ma'aseh) after he leaves the graveyard and is Metaher himself. Reish Lakish exempts him from Malkus even in such a case, since the Nazir did not re-accept upon himself the Isur Tum'ah of Nezirus after becoming Tahor.

Apparently, the Mefaresh holds that a declaration of Nezirus in a cemetery is only an acceptance of *two thirds* of Nezirus (consuming grape products and cutting hair); the person did *not* accept upon himself to become a Nazir with regard to the Isur of Tum'ah of Nezirus in the first place. How can we say that a person is able to accept Nezirus only for some parts of the Nezirus and not for others? We know that there is no such thing as a partial Nezirus, and if a person accepts Nezirus then all of the Isurim must apply (11a)! The answer is that this axiom applies only if he is not in a cemetery, and the Isurei Tum'ah *can* apply. But if he is in a cemetery and the Isurei Tum'ah *cannot* apply to him, then indeed a person is able to accept upon himself a partial Nezirus.

(d) The SHA'AGAS ARYEH suggests that if the transgression of a prohibition must, by definition, be *preceded* by an action, then even when the transgression itself involves an inaction, it is called a "Lav *she'Yesh* Bo Ma'aseh." He proves this from examples of Isurim that are transgressed without an action, and yet Malkus is administered. For instance, he cites the Gemara later (17b, 43a) that discusses a Nazir who was carried inside of a box into a cemetery (according to the view that a box separates between him and the Tum'ah), and then another person came and removed the cover of the box. If the Nazir does not leave the cemetery immediately but stays in his place, he will transgress the Isur of becoming Tamei in a cemetery *and receive Malkus*. We see from there that the action of going into the cemetery -- even though done in a permissible manner -- makes the Isur into a "Lav she'Yesh Bo Ma'aseh." The Sha'agas Aryeh cites support for this explanation from TOSFOS in Shevuos (17a, DH O).

The Sha'agas Aryeh reasons that the requirement that a Nazir not enter a cemetery is that a Nazir may not *be* in a cemetery (for that is how the Torah describes the Isur), and not that a Nazir *must be outside of* a cemetery. For this reason, the Isur of a Nazir entering a cemetery is considered a "Kum v'Aseh," since it must be preceded by an action (entering the cemetery), and therefore Malkus may be administered.

This might be the reasoning of the RAMBAM (Hilchos Nezirus 5:21, see LECHEM MISHNAH), who rules l'Halachah that Malkus is given to a person who accepts Nezirus while standing in a cemetery.

QUESTION: Rava asks whether a Nazir who becomes Tamei while inside a cemetery receives Malkus right away or only after "Shehiyah," after waiting a certain amount of time, just like a person who becomes Tamei while in the Beis ha'Mikdash only brings a Korban for Tum'as Mikdash after waiting in the Mikdash for a certain amount of time before leaving. Rava's question remains unanswered ("Teiku").

According to both sides of the question, it is clear that a Nazir who becomes Tamei in a cemetery receives Malkus for standing in the cemetery -- even if the Nazir became Tamei without doing anything at all, such as where someone else removed the partition that separated between him and the cemetery, causing him to become Tamei. Why should he receive Malkus if he did not do an action? We know that one does not receive Malkus for doing a "Lav she'Ein Bo Ma'aseh!"

Although most Rishonim answer that this Sugya is following the opinion that one *does* receive Malkus for a "Lav she'Ein Bo Ma'aseh," TOSFOS (end of 17a) takes a different approach. Tosfos says a cryptic statement: although the acceptance of the Nezirus is not considered a Ma'aseh (that is, the person's statement, "I am a Nazir," which he says while in a cemetery, is not considered an action), because Dibur (speech) is not a Ma'aseh, nevertheless the act of *not leaving* after he accepts upon himself Nezirus in a cemetery *is* considered a Ma'aseh!

What does Tosfos mean that "not leaving" is considered an action?

ANSWERS:

(a) The ORACH MISHOR explains that the concept of a "Lav she'Ein Bo Ma'aseh" does not necessarily mean that the person is doing an Aveirah *with an action*. Rather, it means that the Aveirah was accomplished by using the person's body (as opposed to using something external, such as a certain amount of time passing, or by words that came out of his mouth). In this case, the Aveirah was done by the Nazir's body's presence in the cemetery. His being there with his body is considered a "Lav she'Yesh Bo Ma'aseh."

However, the BIRCHAS ROSH and others reject this answer based on logical grounds and on other Gemaras that imply that a "Lav she'Yesh Bo Ma'aseh" means that the Aveirah actually involves an *action* that the person does.

(b) The MISHNAH L'MELECH (Hilchos Bi'as Mikdash 3:21) and the SHA'AGAS ARYEH (#32) explain that a "Lav she'Yesh Bo Ma'aseh" means that a person did an Aveirah which could only come about through an action that he did, regardless of whether the action itself was an Aveirah at the time that he did it, or it merely enabled him to be transgress the Aveirah at a later time (when he is no longer doing an action). In either case, it is called a "Lav she'Yesh Bo Ma'aseh" since he brought about the Aveirah through an action that he did. In our case, the only for the Nazir to transgress the Aveirah is by walking into the cemetery. Therefore, the act of walking into the cemetery is considered the Ma'aseh, even though he walked into the cemetery before he accepted upon himself to be a Nazir, or he entered the cemetery while there was a partition separating him from the cemetery, and he only become Asur to be there while he was in the cemetery (either because he accepted the Nezirus upon himself while he was there, or because someone removed the partition). Since his entry into the cemetery was accomplished though his Ma'aseh, this transgression of being in a cemetery is considered a "Lav she'Yesh Bo Ma'aseh."

This seems to be the approach of the RAMBAM as well. The Rambam rules in many places that one does not receive Malkus for a "Lav she'Ein Bo Ma'aseh" (see Hilchos Avodah Zarah 11:11), and yet the Rambam (Hilchos Nezirus 5:18) writes that if a Nazir goes into a house and waits for a person to die there, or if he travels into a cemetery in a box and asks someone to remove the partition between him and the cemetery, he receives Malkus for being Metamei himself! How can he receive Malkus? What action did he do at the time? He just stood in the house and remained there after the person died, or he just stood in the cemetery after someone else removed the partition!

It must be that the Rambam does not learn like those Rishonim who say that our Sugya follows the view that one does receive Malkus for a "Lav she'Ein Bo Ma'aseh," but rather he holds that even though, normally, one does not receive Malkus for a "Lav she'Ein Bo Ma'aseh," he nevertheless receives Malkus for being there b'Tum'ah when someone in the house dies or when the partition is removed, because the Nazir did an action by entering the house or the cemetery. Similarly, the Rambam (Hilchos Nezirus 6:8) writes that if a person accepts upon himself Nezirus while in a cemetery, he receives Malkus for being there if he had received Hasra'ah (warning) not to become a Nazir in the cemetery (this is according to the Girsa that the KESEF MISHNAH proves correct -- that the words of the Rambam should read "Im Hisrah" and not "v'Im Hisrah").

Similarly, the Rambam (Hilchos Nezirus 5:19) rules that if a Nazir accidentally (b'Shogeg) goes into a cemetery or a house with a corpse, and people warn him that it is a place of Tum'ah, he receives Malkus if he waits there a certain amount of time ("Kedei Hishtachava'ah") just like a person who is Tamei who enters the Beis ha'Mikdash. The fact that the Rambam rules that the person must wait "Kedei Hishtachava'ah" implies that he is ruling leniently with regard to the question of our Gemara. Since there is a doubt whether Malkus is given only after one has waited "Kedei Hishtachava'ah," he rules l'Kula that Malkus is not given until the person has tarried in the cemetery. The same should apply if someone else removed the partition between him and the cemetery.

However, the Rambam elsewhere (Hilchos Nezirus 6:9) seems to interpret our Gemara in an entirely different way. The Rambam there writes that if a person goes into a cemetery while in a box, and someone else removes the partition separating him from the cemetery (which is exactly the case of Rava's question in our Gemara), even if he waits there a long time he does not receive Malkus mid'Oraisa (rather, he receives Malkus d'Rabanan)! Why does he not receive Malkus? He should either receive Malkus right away or after waiting there "Kedei Hishtachava'ah!" Why should he not receive Malkus at all? The Rambam himself rules that if he goes into a cemetery b'Shogeg, he receives Malkus after waiting "Kedei Hishtachava'ah!" Why should this case be different?

The Acharonim discuss this Rambam at great length.

The logic of the Rambam's ruling in differentiating between the case of a Nazir who went into a cemetery in a box where someone else removed the partition, and the case of a Nazir who entered a cemetery b'Shogeg, may be explained as follows. The Rambam perhaps learns that if a person makes himself a Nazir while in a cemetery, the reason it is not a "Lav she'Ein Bo Ma'aseh" is not exactly like Tosfos says (that it is not an action), but because the Rambam holds that Hasra'ah does not have to be given before the person starts the action of the Aveirah in order to be effective; it can be given at any point before the person finishes the Aveirah (see PANIM YAFOS, end of Parashas Shelach, with regard to "Mekoshesh"). Therefore, if a person walks into a cemetery and makes himself a Nazir, the Aveirah is considered to have started at the moment that he walked into the cemetery, and it is considered to be complete when he makes himself a Nazir there. Even if, at the time he walked in, he did not intend to become a Nazir, we say that it is all one long action of an Aveirah since he eventually does make himself a Nazir. Therefore, if he is given Hasra'ah before he makes himself a Nazir in the cemetery, it is Hasra'ah before the end of the Aveirah. The Aveirah is considered "Yesh Bo Ma'aseh" because of the beginning of the Aveirah (walking into the cemetery), and the Hasra'ah was given before the end of the Aveirah (accepting upon himself Nezirus while in the cemetery) when there is no more Ma'aseh but the Aveirah has not yet been completed because he has to say "I am a Nazir." Similarly, if a Nazir enters a cemetery b'Shogeg and he is given Hasra'ah that he must leave, the Aveirah is not completed since he has until "Kedei Hishtachava'ah" before he is Chayav Malkus, which means that the Aveirah involves entering the cemetery *and waiting* "Kedei Hishtachava'ah" after he has been notified of the Aveirah. Even though he does no Ma'aseh after the Hasra'ah, the Aveirah is considered to have been done with a Ma'aseh since the beginning of the Aveirah (which was done b'Shogeg) was with a Ma'aseh.

When the Rambam writes (5:18) that if a Nazir enters a house and waits for someone to die there he receives Malkus immediately, and if he goes into a cemetery in a box and asks someone to remove the partition that separates him from the cemetery, he receives Malkus right away, why is that? The moment that the person dies in the house or that the Mechitzah is removed, the Aveirah is entirely completed! Why should Hasra'ah at that point be able to make him Chayav Malkus?

The answer is that the Rambam does not say in that Halachah that the Hasra'ah was given only before the person died or before the partition was removed; perhaps the Hasra'ah was given when the Nazir walked into the house and there is a dying person in the house, or when the Nazir goes into the cemetery in a box. At that point he was told, "Do not go into this house, lest the dying person die," or, "Do not go into the cemetery, lest someone remove the partition."

However, in the case of a Nazir who goes into a cemetery with a partition separating him from the cemetery, with no intention to remove the partition, and someone else comes and removes it against his will, then the act of his Aveirah does not start when he walks into the cemetery. Rather, his Aveirah starts when he refrains from leaving the cemetery right now. There is absolutely no action (neither b'Shogeg nor b'Mezid) involved in the person's Aveirah, since another person came and, b'Ones, against his will, removed the partition. Therefore, his Aveirah (whether it be b'Shogeg or b'Mezid) only starts *after* the partition is removed. Since the Nazir does no action at that point, the Rambam rules that he does not receive Malkus.

However, this still does not explain how the Rambam learns this from our Gemara. Our Gemara says that he gets Malkus either immediately, or after he waits there! Also, why does the Rambam write that the person receives Malkus d'Rabanan -- what is his source for this?

The answer is that the Rambam seems to have had a different Girsa in our Gemara. Instead of saying that Rava's question was, "Does he *need* (Mahu Ba'i) Shehiyah for Malkus," the Girsa of the Gemara according to the Rambam says that the question was, "Does Shehiyah *work* (Mehani) to give a Nazir Malkus." That is, it is obvious to the Gemara that Shehiyah is necessary for a Nazir, just like Shehiyah is necessary for Tum'as Mikdash. The Gemara's question is whether Shehiyah will be enough to give him Malkus, or will it be a "Lav she'Ein Bo Ma'aseh?" The Gemara's question, according to the Rambam, is whether the logic of Tosfos is correct -- when the Shehiyah is not part of a Ma'aseh or part of a Hasra'ah for an Aveirah done with an action, but rather when the Shehiyah is just the Aveirah itself without an action, then does he receive Malkus for the Shehiyah, like Tosfos says (since he entered the cemetery with a Ma'aseh and he could not have entered without a Ma'aseh), or does he not get Malkus for Shehiyah because the Aveirah itself did not include a Ma'aseh?

The Rambam rules leniently, that he does not receive Malkus (because "Safek Onshim l'Hakel"). However, the Rambam holds that he receives Malkus d'Rabanan either because it is a Safek in the Gemara, or because the Rambam rules, in general, that the Rabanan decreed that Malkus should be given for any Lav for which the Torah does not give Malkus (such as a "Lav sh'Ein Bo Ma'aseh").

17b