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Nazir, 62

1) A NOCHRI'S ABILITY TO BE "MA'ARICH" AND TO MAKE A NEDER

QUESTION: The Gemara discusses what Halachah is derived from the word "Ish" in the Parshah of Erchin (Vayikra 27:2). The words "Bnei Yisrael" (ibid.) teach, according to one opinion, that a Nochri cannot be Ma'arich, or according to another opinion, that a Nochri cannot be Ne'erach. The word "Ish," according to the opinion that holds that a Nochri may be Ma'arich but cannot be Ne'erach, teaches that a Nochri can be Ma'arich even when he is a Katan nearing adulthood ("Mufla Samuch l'Ish;" according to this opinion, a Nochri Katan of this age can be Ma'arich even though a Yisrael Katan of this age cannot be Ma'arich mid'Oraisa but only mid'Rabanan). The Gemara asks what does "Ish" teach according to the opinion that holds that a Nochri *cannot* be Ma'arich but can only be Ne'erach? The Gemara answers that it teaches that a Nochri who is an adult, but who does not understand the significance of a Neder ("Eino Yode'a l'Haflos"), cannot make a valid Neder.

TOSFOS explains that since this opinion holds that even an adult Nochri who *does* understand the significance of oaths is unable to be Ma'arich, the verse that is excluding an adult Nochri who is "*Eino* Yode'a l'Haflos" must be referring not to Erchin, but to Nedarim ("Im Eino Inyan..."), for it is obvious that such a Nochri cannot be Ma'arich (since *no* Nochri can be Ma'arich). The verse is teaching that if the adult Nochri is "Yode'a l'Haflos" then he can make a valid Neder, but if he is "Eino Yode'a l'Haflos" he cannot.

If, like Tosfos says, the verse is resorting to the mechanism of "Im Eino Inyan" and is teaching a Halachah about Nedarim and not about Erchin, then when the Gemara asks what the word "Ish" teaches, it should explain -- even according to the opinion that holds that a Nochri cannot be Ma'arich -- that the verse "Ish" teaches that a Nochri who is near adulthood may make a valid Neder (through using the mechanism of "Im Eino Inyan")! Since the verse is teaching a Halachah in the laws of Nedarim, it could just as well teach that a Nochri "Mufla Samuch l'Ish" can make a *Neder*, just like the other opinion holds that a Nochri "Mufla Samuch l'Ish" can be Ma'arich! (MISHNEH L'MELECH, Hilchos Erchin 1:11)

ANSWERS:

(a) The MISHNEH L'MELECH answers that since the verse cannot be discussing Erchin but must be teaching something about Nedarim through "Im Eino Inyan," it is more logical to learn a Mi'ut from the verse -- that an adult Nochri who is "Eino Yode'a l'Haflos" cannot make a Neder -- instead of learning a Ribuy, that a Nochri who is a Katan "Mufla Samuch l'Ish" can make a Neder, since the Ribuy would be a very big Chidush.

The Mishneh l'Melech seems to be saying, like TOSFOS (61b, DH Hanicha) says, that it is not logical to suggest that a Nochri is able to be Ma'arich or to make a Neder at a younger age than a Jew. Therefore, even though Tosfos suggests a logical way to justify such a phenomenon, we will only make such a Derashah if the verse clearly implies it. But if we must use the mechanism of "Im Eino Inyan," then we must say that just like the verse is not discussing only Erchin, so, too, it is also not teaching us to include (but rather to *exclude*) a certain person in the laws of Nedarim.

(b) The KEREN ORAH suggests that even when we use a Derashah of "Im Eino Inyan," we should not explain the verse in a way that would not be true if that law were applied to the Parshah in which it is written. Rather, we should explain the verse in a way that would make it true even if it were applied to the Parshah in which it is written (but it is just unnecessary to apply it to its own Parshah). Therefore, if a Nochri cannot be Ma'arich, it is preferable not to explain that the verse is teaching an additional way for a Nochri to be able to make a Neder, since that will not be applicable at all to the laws of Erchin, since a Nochri *cannot* be Ma'arich at all, at any age. Rather, we say that the verse is teaching that there is a time when a Nochri cannot make a Neder (i.e. when he is "Eino Yode'a l'Haflos"), and now the verse is true with regard to Erchin as well (i.e. it is true that an adult Nochri who is "Eino Yode'a l'Haflos" cannot be Ma'arich), but it is just unnecessary to apply the verse to Erchin since *no* Nochri can be Ma'arich. Since the verse is not necessary for the laws of Erchin, we use the verse to teach a law with regard to making a *Neder*, and thus the verse is teaching that a Nochri who is "Eino Yode'a l'Haflos" cannot make a Neder.

(c) According to the opinion that holds that a Nochri can be Ma'arich but not Ne'erach, we find no reason why a Nochri should be unable to make a Neder. Therefore, we can explain that the verse is teaching that he is even *better* than a Jew with regard to making a Neder while he is a Katan "Mufla Samuch l'Ish."

However, if the Nochri *cannot* be Ma'arich, then we find that his ability to make a Neder is indeed weaker than a Jew's ability. If so, it is certainly counter to logic that the verse would be teaching that a Nochri may make a Neder in more ways than a Jew (i.e. even when he is a Katan "Mufla Samuch l'Ish"), since we see that he has *less* ability to make a Neder than a Jew. (M. Kornfeld)

QUESTION: The Gemara cites verses to prove whether a Nochri Katan who is nearing adulthood ("Mufla Samuch l'Ish"), or a Nochri Gadol who does not understand the meaning of a Neder ("she'Eino Yode'a l'Haflos"), can make a Neder. The RAMBAM (Hilchos Melachim 9:10) writes that a Nochri is Chayav Misah for eating even a minute amount of Ever Min ha'Chai, because, the Rambam explains, the Shi'urim for prohibitions were given only to Yisrael, and not to Nochrim. However, the ROSH (Teshuvos, Klal 16) writes that the source for the Halachah that a person is a Gadol only when he reaches the age of thirteen (or twelve for a girl), or upon the growth of two Se'aros, is also one of the Shi'urim that the Torah gives, and it is a Halachah l'Moshe mi'Sinai just like all of the other Shi'urim (such as k'Zayis and k'Beitzah). Some Acharonim point out that according to this, a Nochri should become a Gadol even before he reaches the age of thirteen or obtains two Se'aros! As soon as his mind is developed he should attain the status of a Gadol, since the Shi'urim do not apply to Nochrim according to the Rambam!

Why, then, should we need a verse to teach that a Nochri who is "Mufla Samuch l'Ish" can make a Neder? A Nochri does not have to be thirteen years old to be a Gadol, and therefore there should be no such concept of "Mufla Samuch l'Ish" for a Nochri! If he is "Mufla," then he is intelligent enough to understand the meaning of a Neder and he should be Chayav in the Mitzvos of Nochrim already! (CHASAM SOFER, YD 317, citing TESHUVAH M'AHAVAH vol. 3, Perek ha'Ta'aroves, Siman 432)

ANSWERS:

(a) The CHASAM SOFER and the NETZIV (in Meromei Sadeh here) explain that although Bnei Noach do not have Shi'urim for the Mitzvos that were given to them as *their* Mitzvos, with regard to Nedarim perhaps they should have Shi'urim. The reason is because Nedarim is a Mitzvah given to Bnei Yisrael, in which Nochrim are included only because of the extra word "Ish" in the Parshah. That extra word gives the Nochrim the Jew's Mitzvah of Neder, rather than giving the Nochrim their own Mitzvah of Neder. Hence, just like a Jew has a Shi'ur of thirteen years to be considered an adult, so, too, a Nochri should have a Shi'ur of thirteen years to be considered an adult with regard to Nedarim.

The Netziv points out that according to this, there is a much stronger logic to explain why the Gemara concludes that a Nochri *is* able to make a Neder when he is a "Mufla Samuch l'Ish" even though a Jew is not able to make a Neder at that age. The verse is merely saying that the Halachah of Nedarim is indeed the same as the Nochri's other Halachos, and if he is "Mufla" -- he is intelligent enough to understand the Mitzvos -- then his Neder is a valid Neder. (According to the opinion that holds that a Nochri is *not* Ma'arich, the verse is teaching a Halachah which can be similarly justified by such logic: even though the Halachah of thirteen years (and two Se'aros) applies to a Nochri with regard to the Mitzvah of Nedarim, and he cannot make a Neder before he is thirteen since this is a Mitzvah stemming from the Jew's Mitzvah, nevertheless the verse teaches that the Shi'ur of thirteen years is given only as an additional condition for a Nochri to make a Neder, but the additional condition that the Nochri must be intelligent in order to be considered an adult still remains.)

(b) Another possibility is that a Nochri is only an adult when his mind is developed fully enough to understand the responsibility of all the Mitzvos. "Yode'a l'Haflos," which means that he understands to Whom he is making the Neder, refers to a lesser amount of intelligence. Therefore, if the Nochri's mind is not yet fully developed but it is partially developed such that he understands to Whom he is making a Neder, then he can be considered a "Mufla Samuch l'Ish" (that is, he understands the Mitzvah of Nedarim, but he is not yet an adult).

(c) The Rambam might not be saying that *no* Shi'urim at all apply to a Nochri (although the RADVAZ understands the Rambam that way). The Rambam might mean that Shi'urim that describe the amount that is required to transgress an Isur do not apply to a Nochri, because the Gemara teaches that "Azharasan Zo Hi Misasan" (Sanhedrin 58b) -- they are killed for transgressing any amount of Isur, and we rule like Rebbi Yochanan (Yoma 73b) that "Chatzi Shi'ur" is Asur mid'Oraisa. Therefore, if a Nochri eats even a minute amount he has transgressed the Isur, and the Shi'ur does not apply; any amount of Isur is enough to punish him. However, Shi'urim that describe the age of the person at which he is Chayav, or at which he can make a Neder, have nothing to do with "Chatzi Shi'ur Asur Min ha'Torah" and will apply to a Nochri as well. If the Nochri is younger than that Shi'ur, he will be exempt (or his Neder will not be valid). (See Insights to Kesuvos 11a.)

62b

QUESTION: The Mishnah states that an owner of an Eved may remove an oath of his Eved by forcing, "Kofeh," the Eved to go against his oath, but he cannot annul with Hafarah the oaths of his Eved. However, in the next sentence, the Mishnah says that when one is "Mefer" the Nezirus of his Eved, when the Eved goes free he completes his Nezirus (i.e. the obligation to observe the Nezirus returns). Why does the Mishnah discuss a situation where the owner is "Mefer" his Eved's oath? An owner cannot be Mefer his Eved's oath! The Mishnah should discuss a situation where the owner is *Kofeh* his Eved!

ANSWERS:

(a) TOSFOS, the ROSH and others explains that the word "Hefer" in the Mishnah is Lav Davka, and that the Mishnah really means "Kofeh." This is also the third explanation of the RA'AVAD (Hilchos Nezirus 2:19).

(b) In the RA'AVAD's first and second explanations, though, he suggests that the Mishnah does not say "Kofeh" because if the Eved had actually been forced by the master to transgress his Nezirus, then he would not have to complete it after he goes free. The Nezirus would no longer be binding since it did not take effect at the time that he accepted it. Instead, the Mishnah is saying that if the master was not Kofeh the Eved, or he was Kofeh the Eved but the Eved did not yet transgress the Nezirus, then the Eved must complete the Nezirus when he goes free. (This is why the Mishnah writes that he must be "Mashlim" -- "he completes" -- the Nezirus, implying that the Nezirus has already started.)

(c) The Mishnah does not actually say that *when* the Eved goes free he must then complete his Nezirus. Rather, the wording of the Mishnah is, "He goes free and completes his Nezirus." The RAMBAM (Hilchos Nezirus 2:19, and Perush ha'Mishnayos) understands the Mishnah in its most literal sense. He explains that if a master says to his Eved, "Your oath is hereby Mufar," instead of just forcing him to break his Nezirus, the master has effectively freed his Eved. By using Hafarah, and not Kefiyah, to annul the Eved's oath, the master is treating the Eved like a free person who has the choice of not complying. The Mishnah then continues and says that if a master is Mefer (and not Kofeh) the oath of his Eved, the Eved goes free immediately, and since he is free he must complete the observance of his Nezirus.