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Nedarim 2

1) THE "KINUYIM" OF NEDARIM AND CHARAMIM

QUESTION: The Mishnah states that "all Kinuyim of Nedarim are like Nedarim, [Kinuyim] of Charamim are like Charamim, and [Kinuyim] of Shevu'os are like Shevu'os." We know that a Neder is a vow which a person makes in order to make an object prohibited to him or to someone else, and that a Shevu'ah is an oath through which a person makes himself prohibited to an object. What, though, is a "Cherem?" A Cherem is a type of Kodshei Bedek ha'Bayis; when a person makes an item into Cherem, he is dedicating it either to be given to the Beis ha'Mikdash (Bedek ha'Bayis) or to the Kohanim.

Why does the Mishnah mention Charamim? The Mishnah does not list any of the other various types of Hekdesh (e.g. it does not say that "the Kinuyim of *Korbanos* are like Korbanos," even though Kinuyim certainly work for Korbanos, like the Gemara says later on 10a). On the other hand, if the concept of Cherem in the Mishnah refers to a word used for making something prohibited through a Neder by comparing the item to an item of Cherem ("this object is Asur to me like Cherem"), then why mention it at all? The Mishnah already says that "all Kinuyim of Nedarim are like Nedarim," which includes all types of phrases that are used to make a Neder!

ANSWERS:

(a) The RAN explains that "Cherem" -- besides referring to Chermei Bedek ha'Bayis -- also means a Neder that makes something Asur (Nidrei Isur). The Ran cites the Mishnah later (47b) which says that the phrase, "Hareini Alecha Cherem" -- "I am hereby Cherem to you," is a way of prohibiting another person from benefiting from oneself.

It would seem that the Ran is saying that there are three types of Charamim -- the two normal types of Chermei Bedek ha'Bayis and Chermei Kohanim, and a third type that is not explicitly discussed in any Mishnah but which can be inferred from the Mishnah later (47b) to be a type of Cherem where the word "Cherem" is used to create an Isur, rather than to make something into Kodshei Bedek ha'Bayis.

However, this cannot be the intention of the Ran, because the Ran himself (47b) explains that the expression of "Hareini Alecha Cherem" does not mean that "I am hereby Cherem to you," making himself "Cherem" to the other person, but that it means that "I am making myself *like* Cherem to you" -- he is making himself like Cherem of Bedek ha'Bayis, which is Asur, to the other person. Cherem, according to the Ran there, is just being used as a Hatfasah for a Neder by comparing the subject of the Neder to Kodshim (like when one compares it to Korban). The Ran even says this expressly about the Kinuyim of Charamim of our Mishnah. When the Mishnah (10a) discusses the Kinuyim of Charamim, the Ran says that the reason Cherem creates an Isur is because Cherem implies Chermei Bedek ha'Bayis, and when one says that an object is Asur like Cherem, he is saying that it should be Asur like an item of Chermei Bedek ha'Bayis. Hence, when the Mishnah here says that the Kinuyim "of Charamim are like Charamim," it means that if one compares the object of the Neder to something that is Asur like Cherem, then a Kinuy works.

Why, then, does the Mishnah say that the Kinuyim of Charamim work, if it already teaches that Kinuyim of Nedarim work?

The Ran must mean that when the Mishnah says that Kinuyim of Nedarim are like Nedarim, it does not mean that Kinuyim help to create a Neder. Rather, it means that Kinuyim are able to be used as substitutions for a *particular word* that is used in a Neder. The first word that could be substituted is the word "Korban," which could be substituted with "Konam" (this is what the Mishnah means when it says "Kol Kinuy Nedarim k'Nedarim"). The Kinuyim "of Charamim are like Charamim" means that one may substitute the word "Cherek" for the word "Cherem" in a Neder in which one is comparing the item to a Cherem. The reason the Mishnah mentions only Kinuyim for these two words (Korban and Cherem), even though one can make a Neder by comparing the item to any number of other types of items of Hekdesh (see 10b), is because these are the most popular forms of Hatfasah for a Neder. As the Ran quotes from the Mishnah later (47b), when a person makes himself prohibited to derive benefit from his friend or v.v., he usually uses the word Cherem.

Why, though, does the Mishnah say "Kol Kinuyei *Nedarim k'Nedarim*" and not "Kol Kinuyei *Korbanos k'Korbanos*?" Perhaps the Mishnah wants to make it clear to us that it is not referring to making a Korban itself (since the Mishnah is not discussing topics of Kodshim, like the Ran says), but that it is referring to making a Neder by comparing an item to a Korban.

It could be that the Ran is following his own opinion that he expresses later, that the basic form of wording of a Neder is, "This item is Asur," without comparing it to anything. Hence, the word "Korban" is not an integral part of the Neder itself. When the Mishnah says that one may use a Kinuy for the word "Korban," it is not really teaching a Halachah about the Neder itself (that Kinuyim work to make a Neder), but it is merely teaching a Halachah in the *wording* that may be used in a Neder if the Neder is done with Hatfasah. That is why the Ran learns that when the Mishnah mentions "Charamim," it is also just discussing a word used in a Neder.

In contrast, the Rishonim (Ritva and others -- see below) who say that the word "k'Korban" is integral to the Neder (see following Insight) follow their view that the words in the Mishnah, "Kinuyei Nedarim k'Nedarim" are teaching that a Kinuy may be used for formulating *any* type of Neder (not just one in which one intends to compare the item to a Korban), and therefore they explain that the words "[Kinuyei] Charamim k'Charamim" refer to Chermei Bedek ha'Bayis.

(b) The RITVA, ROSH, TOSFOS and other Rishonim say that the word "Charamim" refers to Chermei Bedek ha'Bayis or Chermei Kohanim. They say that there is nothing wrong with mentioning Nidrei Hekdesh in this Mishnah even though the Mishnah is not discussing the laws of Kodshim, because it is clear that Kinuyim work for Kodshim, and since there is no other Mishnah in Shas that mentions this, it is perfectly acceptable to mention it here, when teaching that Kinuyim help for Nidrei Isur.

According to this view, why does the Mishnah not simply say "Kinuyei Korbanos k'Korbanos?" Why does it have to choose the specific type of Hekdesh known as Charamim as the prime example of Kinuyim for Kodshim? The Ritva explains that the reason it mentions Charamim is because the word "Cherem" literally means prohibition, or Isur (as in the verse, "Yacharam Kol Rechusho," Ezra 10:8). Since the wording of that type of Hekdesh is similar to the wording of Nidrei Isur, the Mishnah expresses that Kinuyim work for Hekdesh with regard to that specific form of Hekdesh.

The Ran might not have accepted this line of reasoning because he might have learned like the RE'AH in SEFER HA'CHINUCH (Mitzvah 357) who says that the word "Cherem" literally means "curse" and not Isur. Therefore, it is no more similar to Nidrei Isur than any other type of Neder of Hekdesh.

Practically, though, there is no difference between these opinions, since everyone agrees that a Kinuy may be used to make an item Hekdesh.

OPINIONS: The Mishnah alludes to three different types of Nedarim -- the basic form of Neder, a Kinuy, and a Yad l'Neder. The RAN points out that there are two ways to make a Neder without resorting to Kinuyim or Yados (that is, there are two ways to make a basic form of a Neder). Those two ways to make a Neder are "Ikar Neder" (the essence of Neder) and "Hatfasah."

These two types of Neder are not only different in their wording, but are inherently different, as the Gemara in Shevuos (20a) says. The Gemara there says that according to Rava (the Halachic opinion), Hatfasah will not work for a Shevu'ah. The Rishonim also cite the Mishnah in Nazir (20b) that says that if one person makes himself a Nazir and another person says, "I am like him," then if the first person is Sho'el on his Nezirus and uproots it retroactively, the second person loses his Nezirus as well, because his Nezirus was made to replicate the Nezirus that was present at the time that he compared himself to his friend. We see that Hatfasah means not only that a person is comparing an object or himself to something or someone else that is Asur, but he is actually "drawing" the status of the other item or person onto his own item or onto his own self.

However, it is unclear from the Gemara what the defining difference is between the wording of an Ikar Neder and the wording of Hatfasah. In addition, a Beraisa (Shevuos 20a and Nedarim 12a) says that a Neder *only* works if it is done by comparing the object of the Neder to another object that has already been prohibited through a Neder (or through Hekdesh), i.e. a "Davar ha'Nadur." Another Beraisa (Shevuos ibid.) inquires what is the form of an Isur of a Neder that is prohibited by the Torah; it answers that the Neder that is prohibited by the Torah is when a person says, "I will not eat meat or drink wine like the day on which my father died," and, as Shmuel adds, on the day his father died he had prohibited himself from eating meat with a Neder. Both of these Beraisos seem to imply that the Ikar Neder is done through Hatfasah, and that there is no Ikar Neder that does not have Hatfasah. What is the difference, then, between Ikar Neder and Hatfasah?

There are a number of opinions in the Rishonim on this matter:

(a) The RAN here, the RAMBAN (14a) in his explanation of the Rif, and the ROSH (in Shevuos 20b) in his explanation of the Rif, among others, explain that the Ikar Neder is when one says, "This item is Asur to me." Hatfasah is when one says, "This item is like a Korban," or, "This item is Asur like a Korban," comparing it to something that is already Asur.

When the Beraisa (14a) says that a Neder must be made by comparing the item to a Davar ha'Nadur, the Beraisa does not mean to say that one *must* compare it to a Davar ha'Nadur and that without comparing it to a Davar ha'Nadur the Neder is lacking. Rather, *if* one is making a Neder with Hatfasah, then the Hatfasah must be with a Davar ha'Nadur and not with a Davar ha'Asur (something intrinsically Asur by the Torah and not Asur through one's Neder). The point of the Beraisa is to teach what type of Hatfasah does *not* work; the Beraisa is not teaching that Hatfasah is required.

The other Beraisa (12a) that discusses what Neder is binding according to the Torah is not describing Ikar Neder. Rather, the Beraisa is asking what is a *secondary* Isur of Neder, besides the main type of Neder, that the Torah also prohibits. It answers that the secondary Isur is a case of Hatfasah.

According to the Ran, when the Gemara discusses whether there is Me'ilah for Konamos if a person violates a Neder by eating something that he prohibited upon himself with a Neder (35a), the Gemara is probably referring only to a Neder made through Hatfasah to a Korban, and thus the Hatfasah transfers the potential for Me'ilah. However, if a Neder is made simply by saying, "This item is Asur," then the type of Isur that is created does not seem to be an Isur Hekdesh at all, but one that is exclusively an Isur of Neder, and thus there will be no Chiyuv of Me'ilah.

(b) RASHI (Shevuos 20b), TOSFOS and the RITVA here explain that the Beraisos are to be understood at face value, that an Ikar Neder is accomplished only by comparing the item to Hekdesh -- there is no Neder that does not draw the Isur of Hekdesh onto the item. However, they explain that not every time that one draws the Isur of Hekdesh onto an item will it be considered Hatfasah. When one says that "this object is Asur like a Korban," which is the wording the Beraisa uses, that is *not* called Hatfasah. The word "k'Korban" there is just describing the type of Isur that he is making, but the Neder is not "drawing" the Isur from the Korban. Similarly, when one says, "This piece of meat is Asur like that piece of meat" while pointing to a piece of meat of Kodshim, the second piece of meat is just providing a description of the Isur of the first piece, but the first piece does not actually draw the Isur from the second piece. Hatfasah is only when a person says, "I want this piece of meat to be like that piece of meat" *without* mentioning the word "Asur."

With regard to using Hatfasah for a Shevu'ah, we learned that if a person says an expression of a Shevu'ah with Hatfasah by saying, "This piece of meat should be like that piece of meat as a Shevu'ah," Rava says that it does not work. The Rishonim argue whether Hatfasah can be used even for a Neder. RASHI (Shevuos 20b) and the RITVA (Nedarim 14a) write that Hatfasah cannot be used for a Neder either, and that one can only make an Ikar Neder; there is no such thing as Hatfasah (where one said "this piece of meat is like that Kodshim piece of meat" without saying that "it is Asur"). The RIF (in Shevuos), the RAMBAN (Nedarim 14a), TOSFOS (Shevuos 20b) and many other Rishonim write that Hatfasah *is* able to create an Isur of Neder although it cannot creat an Isur of Shevu'ah (i.e. since a Neder is an Isur Cheftza it is possible to make a Neder through Hatfasah).

(c) The RAN, in his explanation of the Rif in Shevuos (20a), gives a third explanation. He explains the Beraisos at face value and says that the *only* way to make a Neder is through Hatfasah, either by saying, "This object is Asur on me *like a Korban," or just, "This object is *like a Korban*." The Beraisa that explains that the Isur of Neder of the Torah is when one prohibits meat on this day "like the day on which my father died" is indeed describing Hatfasah, and it is saying that there is no such thing as an Ikar Neder aside from Hatfasah. If a persons says, "This object is Asur" without saying "like a Korban," then the object will only be Asur because of Yados of Nedarim.

This differs from the previous explanation ((b) above), because the RAN requires every Neder to be made by comparison to a Korban or other such item, and he considers every Neder made by comparison to a Korban to be "Hatfasah," even of the word "Asur" is used.

The MISHNAH L'MELECH and many other Acharonim (see SHALMEI NEDARIM) point out that the Ran in Shevuos seems to contradict his words in the beginning of Nedarim (cited in (a) above). However, close examination of the Ran in Shevuos shows that this explanation is only the second of two possible explanations that the Ran gives for the Rif there. The first explanation that he gives there is identical to what he writes here. Although the Ran in Shevuos initially refutes his first explanation (the one that he says here), later the Ran justifies that explanation and suggests a defense for it. Therefore, the Ran here is siding with the other explanation that he gives for the Rif there, which is the more standard explanation and the one that all of the other Rishonim uses to explain the Rif there.

2b

OPINIONS: The Gemara says that the difference between a Neder and a Shevu'ah is that a Neder takes effect on the object (Cheftza), while a Shevu'ah takes effect on the person (Gavra). That is, when a person makes a Neder, he creates a prohibition upon the object ("this bread is prohibited [to me]"). When a person makes a Shevu'ah, he creates a prohibition upon himself ("I am prohibited to eat this bread"). What is the source for this difference? The ROSH here and TOSFOS in Shevuos (25a) explain that we learn that a Neder is an Isur Cheftza from the verse, "If a man vows a vow (Neder) to Hashem..." (Bamidbar 30:3), which teaches that one must make a Neder by comparing it to a Davar ha'Nadur (see Beraisa on 14a, and previous Insight). The Rosh adds that we learn from the rest of the verse there, "... or he swears an oath (Shevu'ah) to create a prohibition upon himself," that a Shevu'ah must be an Isur Gavra, because the verse says "upon himself" ("Al Nafsho"), which means that a Shevu'ah prohibits the person to the object.

However, the Rishonim point out that there are a number of Gemaras that seem to describe a Neder as making oneself Asur to the object, and that seem to describe a Shevu'ah as making the object Asur upon oneself. There are a number of different opinions among the Rishonim as to how to reconcile these anomalies:

(a) The RAN cites RABEINU CHANANEL and the RASHBA who rule that if the Neder or Shevu'ah is misworded, it will not create an Isur at all. This is also the opinion of RABEINU TAM cited by Tosfos (Shevuos 25a). All of the Gemaras that express a misworded Neder or Shevu'ah were simply not being particular about the wording because their main point was to teach different Halachos that are not related to the specific wording of the Neder or Shevu'ah.

(b) The RAMBAN (12a, and as cited by the Ran here) and RITVA (12a) rule that although a Neder by definition is an Isur on the object and a Shevuah is an Isur on the person, if a person miswords his Neder and expresses it as an Isur on the person, the Neder will be considered as having been rephrased and it will take effect through the principle of Yados of Nedarim. Similarly, if a person says a Shevu'ah and expresses that the object should be Asur (and not the person), the Shevu'ah will create an Isur on the person through the principle of Yados. The Ran himself (end of 4b) seems to accept this view. This is also the opinion of RABEINU ELCHANAN in Tosfos (Shevuos 25a).

(c) The MEFARESH (16b, DH Amar Abaye) also learns like the Ramban who says that a misworded Neder or Shevu'ah takes effect through Yados. However, he says that the Yad works in the exact opposite way from the way that the Ramban says: we say that the word "Neder" or "Shevu'ah" that he mentions is not as important as the way that he says that the Isur should take effect. Hence, if he expresses an Isur Cheftza, then his statement creates a Neder even if he said the word "Shevu'ah." Likewise, if he expresses that the Isur should be an Isur Gavra, then his statement creates a Shevu'ah even if he said the word "Neder," because of the laws of Yados.

(d) TOSFOS in Shevuos (25a, DH Mah), in his first answer, explains that a Shevu'ah does not have to be an Isur Gavra, but it may be an Isur Cheftza as well, depending on how the person expresses it. When our Gemara says that a Shevu'ah differs from a Neder because a Neder is an Isur Cheftza, it means that a Neder can *only* be an Isur Cheftza, whereas a Shevu'ah can be either an Isur Cheftza or an Isur Gavra.

The SHITAH MEKUBETZES, citing the RITZ, also explains that a Shevu'ah can be either an Isur Gavra or an Isur Cheftza, but he adds that a Neder can also be an Isur Gavra or an Isur Cheftza, depending on how it is worded! What, then, does the Gemara mean when it says that the difference between a Shevu'ah and a Neder is that a Neder is an Isur Cheftza? *Both* a Shevu'ah and a Neder can be either an Isur Gavra or an Isur Cheftza!

The Gemara means that one cannot make an Isur Cheftza through a Shevu'ah by using the same words that create an Isur Cheftza of a Neder. This is because a Neder can only create a prohibition, while a Shevu'ah can create either a prohibition or an obligation (see RAN 8a, DH v'ha'Lo). Therefore, if a person makes a Neder saying, "This loaf of bread is like a Korban," he clearly means to prohibit the loaf upon himself. But if a person says, "This loaf is a Shevu'ah," or, "Shevu'ah is this loaf," he might mean either that this loaf is Asur for him to eat, or that he is *obligating* himself to eat it! Therefore, since Safek Nedarim and Shevuos are treated leniently (l'Hakel), he may do what he wants (i.e. he may choose whatever is more lenient for him; if he wants to eat the loaf, then he may eat it and we say that his Shevu'ah was to *obligate* him to eat it).

It seems that the Ritz and the Tosfos agree in principle. Their argument about whether a Neder can make an Isur Cheftza might be related to the Machlokes mentioned earlier, whether a Neder can be done without comparing an object to another Davar ha'Nadur. The Ritz obviously holds that a Neder could be done without comparing to a Davar ha'Nadur, and that is why one can make a Neder that creates an Isur Gavra. Tosfos, though, might learn that an Ikar Neder is made by comparing something to a Korban, in which case a Neder can only be made as an Isur Cheftza.