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Nazir, 32

1) "SHE'EILAH" OF HEKDESH AND "HEKDESH TA'US"

QUESTION: Rebbi Yirmiyah asserts that we can deduce the opinion of Beis Hillel from the opinion of Beis Shamai. Beis Shamai, who holds that Hekdesh Ta'us is Hekdesh, nevertheless agrees in a case where a Nazir designated his Korbanos Nezirus and then annulled his Nezirus (through She'eilah), the animals become Chulin (see previous Insight). From Beis Shamai's opinion in that case we can infer that Beis Hillel similarly agrees with Beis Shamai in a case of Temuras Ta'us. Although, normally, a Temurah made in error retains its Kedushah, in a case where a person sanctifies an animal as Temurah for an Olah and then he annuls the Kedushah of the Olah (through She'eilah), the Temurah animal does *not* remain Kadosh and it becomes Chulin.

How can Rebbi Yirmiyah assume that Beis Hillel agrees with Beis Shamai on this point? The entire purpose of the Mishnah is to show that Beis Hillel does not differentiate between She'eilah of Hekdesh (where the She'eilah works and the item is not Hekdesh) and every other form of Hekdesh Ta'us (where, according to Beis Hillel, the item is not Hekdesh)! Beis Hillel is challenging Beis Shamai, saying that if Beis Shamai agrees that She'eilah removes Hekdesh, then the same should apply to Hekdesh Ta'us and the item should not be Hekdesh! It follows that Beis Hillel should hold, with regard to She'eilah of the original animal in a case of Temurah, that She'eilah is the same as Hekdesh Ta'us and the Temurah animal should remain Kadosh even after the original animal's Kedushah is annulled through She'eilah. (TOSFOS RABEINU PERETZ; REBBI AKIVA EIGER asks the same question and leaves it unanswered ("Tzarich Iyun Gadol").)

ANSWERS:

(a) TOSFOS RABEINU PERETZ suggests that Beis Hillel did not realize that Beis Shamai's source for his ruling (that Hekdesh Ta'us remains Hekdesh) was from Temurah. That is why Beis Hillel argued that if Hekdesh Ta'us is Hekdesh, then even when a Nazir is Sho'el on his Nezirus, the Hekdesh should remain Hekdesh. Had Beis Hillel known that Beis Shamai's source was from Temurah, then he certainly would have agreed with Beis Shamai that when a Nazir is Sho'el on his Nezirus, the Kedushah of the animals is also annulled. (See the words of Tosfos Rabeinu Peretz. It is not clear what Tosfos Rabeinu Peretz means when he implies that Beis Shamai allows a Neder of Hekdesh or of Nezirus to be repealed through "Charatah," since the Gemara says clearly that "Ein She'eilah b'Hekdesh" according to Beis Shamai.)

The ARZEI HA'LEVANON (fn. 34) asks how does Rebbi Yirmiyah know that Beis Hillel misunderstood the source for Beis Shamai's ruling? (The Arzei ha'Levanon suggests that Rebbi Yirmiyah received a tradition to that effect.) The answer must be that had Beis Hillel known that the source is from Temurah, and he still held that even She'eilah on the Kedushah of the original animal does *not* revoke the Kedushah of the Temurah, we would be left with no way of answering Beis Hillel's question on Beis Shamai. Since Beis Shamai does *not* consent to Beis Hillel, Beis Shamai must have had an answer to Beis Hillel's question. The answer is that Beis Shamai's ruling is learned from the case of Temurah. Since there is no reason to create a new argument between Beis Shamai and Beis Hillel regarding She'eilah on the original animal revoking the Kedushah of the Temurah, therefore it is more logical to explain that Beis Hillel did not realize that Temurah was the source for Beis Shamai's ruling.

However, this approach cannot be used according to Tosfos, because Tosfos implies that Beis Hillel asked a valid question on Beis Shamai, and Beis Shamai had a logical response to Beis Hillel which is not recorded in the Mishnah (Tosfos 31b, DH Amru Lahem and DH Nish'al; see previous Insight).

(b) Perhaps Beis Hillel is not asking Beis Shamai that the state of Hekdesh after She'eilah is the same as every other Hekdesh Ta'us. Rather, Beis Hillel is asking that the state of Hekdesh after She'eilah is similar to one particular type of Hekdesh Ta'us -- that of the Mishnah earlier (31a) of "Shor Shachor." However, there is another type of Hekdesh Ta'us which even Beis Hillel would agree differs from the Hekdesh Ta'us that results from She'eilah. That Ta'us is the classic case, where a person says, "This animal shall be an Olah," when he intended to say "Shelamim." In that case, the person certainly wanted to make the animal Hekdesh; his error was in the kind of Hekdesh that he made. In contrast, in the case of She'eilah, the mistake was that the person did not want to make Hekdesh in the first place (he did not want to become a Nazir and he did not want the animals to become Hekdesh). Beis Hillel maintains that the case in the Mishnah ("Shor Shachor") is similar to the case of the Nazir who was Sho'el on his Nezirus. In the case of "Shor Shachor," just like in the case of a Nazir who was Sho'el on his Nezirus, no Kedushah can take effect at all, due to the way the person expressed himself when he sanctified "a black ox, that will be the first to come out of my house," because no black ox that left his house first. Even though he wanted the Hekdesh to take effect, it is a Hekdesh Ta'us, similar to the Hekdesh Ta'us of a Nazir who was Sho'el on his Nezirus. Beis Shamai disagrees with this point and maintains that the case of the Mishnah is more similar to the case of the person who says, "This animal shall be an Olah," when he intended to say "Shelamim," since he at least wants the Hekdesh to take effect. Hence, Rebbi Yirmiyah is justified in saying that Beis Hillel agrees with Beis Shamai that there are two different types of Ta'us with regard to Temurah as well. If a person accidentally says, "This is a Temurah for an Olah," instead of saying, "This is a Temurah for a Shelamim," the Temurah will take effect b'Ta'us. But if a person says, "This is a Temurah for an Olah," and then is Sho'el on the Kedushah of the Olah, then the Temurah will not take effect b'Ta'us. Beis Hillel and Beis Shamai only argue where a person says, "A black ox, that will be the first to come out of my house, will be a Temurah for an Olah," and a white ox exits first, where Beis Hillel will consider that a total Ta'us and will hold that the animal is not Kadosh, and Beis Shamai will say that the animal is Kadosh. (M. Kornfeld)

32b

QUESTIONS: Tosfos writes that if a person accepts Nezirus upon himself with the assumption that he will use a certain animal for his Korbanos Nezirus, and he finds out later that the animal had been stolen at the time that he became a Nazir, his Nezirus does not take effect because it is a Neder Ta'us. Tosfos adds that even Beis Shamai, who normally rules that Nazir Ta'us is a Nazir, agrees that in such a case the person is not a Nazir.

(a) Why should Beis Shamai agree in this case? Tosfos writes earlier that this type of mistake is considered a Charatah and that a Chacham must be Matir it. We know that Beis Shamai (9a) holds "Ein She'eilah b'Nezirus," and thus Hatarah will not work to remove the Nezirus! Why, then, should the Nazir be able to be Sho'el on this Nezirus? (See KEREN ORAH)

(b) Moreover, we find in the following Mishnah which discusses the case of six people who were traveling on the road, that if one of the people says, "I am a Nazir if the person approaching us is Reuven," and it turns out that the person is not Reuven, Beis Shamai says that the person is nevertheless a Nazir. However, since it turned out that the approaching person is not the one he thought it was, it should be the same as the case of a person who makes himself a Nazir relying on bringing a certain animal and it turns out that that animal was stolen -- he should not be a Nazir! (KEREN ORAH)

ANSWERS:

(a) "Ein She'eilah b'Nezirus" is not an absolute rule (according to Tosfos) as we learned earlier (see previous two Insights). When a person makes something Hekdesh or accepts Nezirus based on a total error, Beis Shamai agrees that the Hekdesh or Nezirus does not take effect, and even Temurah will not take effect under such circumstances (32a). Therefore, a She'eilah that is based on a total error can indeed remove the Neder of Nezirus according to Beis Shamai.

RAV HUTNER, zt'l, in TORAS HA'NAZIR (2:2), explains why this type of She'eilah is different. His explanation is based on the words of the Rishonim in Nedarim (21b; see Insights there). It seems from the RAN and the ROSH there that Charatah does not remove a Neder the same way that a "Pesach" does. A Pesach makes a Neder into a Neder Ta'us, a Neder made in error. In contrast, Charatah does not make a Neder into an error; it is just a Gezeiras ha'Kasuv that states that through Charatah a Chacham can remove a Neder altogether without making it into a Neder Ta'us. Consequently, it should be possible to remove even Hekdesh through Charatah, since Charatah does not need to make it into a Hekdesh Ta'us. Rav Hutner zt'l suggests that every Neder that involves a mistake based on a lack of knowledge of past events can be removed through Charatah, through the Gezeiras ha'Kasuv, without making it a Ta'us. It is only when the Chacham removes a Neder because of later (and common) developments that he must make it into a Neder Ta'us. That is why Tosfos says that in the case of our Mishnah it is possible to remove the Neder through She'eilah, meaning through Charatah and not through a Pesach. (This explanation, however, needs further clarification, because when the Rishonim write that Charatah does not remove a Neder through making it a Neder Ta'us, it is in the context of explaining that Charatah is a *weaker* form of removal of a Neder than is a Pesach. It applies when the person simply regrets making his Neder and cannot identify any actual mistake that he made. See Insights to Nedarim 21b.)

(b) The case of six people traveling on the road is not a case of a total error, since the Mishnah is discussing a situation where the person later says explicitly that even had he known that the person approaching was not the one he thought he was, he still would have made himself a Nazir (Tosfos, end of DH Shishah; see, however, Insights to 33a in the name of the RAMBAM). In the case of our Mishnah, though, the person would not have wanted to become a Nazir had he known that his animal had been stolen.