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Nedarim, 12

1) WHY IS TERUMAH NOT A "DAVAR HA'NADUR"

QUESTION: The Gemara says if a person makes a Neder by comparing an object to Terumah, the Neder is not valid, because Terumah is a Davar ha'Asur and is not a Davar ha'Nadur.

Why is Terumah not a Davar ha'Nadur? Terumah seems to be no different than Hekdesh, whereby a person declares the fruits to be Terumah and makes them Asur for a Yisrael to eat. Why is it not a Davar ha'Nadur like Hekdesh?

ANSWERS:

(a) The RAN explains that had the Terumah been Asur because of the person's declaration, it should have been Asur to everyone. The fact that it is only Asur to Yisraelim and is Mutar to Kohanim shows that it is not the person who made the Isur, but the Torah that made the Isur. The person just gives the fruits a status of Terumah by separating them and calling them Terumah, and the Torah then makes them Asur to Zarim and Mutar to Kohanim. In contrast, when a person declares an item to be Hekdesh, he directly creates the Isur and makes the item Asur to everyone in the world.

(b) TOSFOS and the ROSH explain that even before Terumah is separated from the fruits, the fruits are Asur as Tevel. If anything, when one separates the fruits and declares them to be Terumah, he is making them *permitted* and not prohibited, since they become permitted where they previously were prohibited (that is, to Kohanim). Therefore, a person does not create the Isur when he separates Terumah, and thus Terumah is not a Davar ha'Nadur.

RAV YOSEF ENGEL (in ASVUN D'ORAISA) explains that the argument between the Ran and Tosfos might be based on the nature of the Isur of Tevel. Tosfos holds that the reason why Tevel is Asur is because of the Terumah that is mixed with all of the other fruits. The Ran, on the other hand, holds that Tevel is an independent Isur that is not related to the Isur of Terumah; the Isur of Tevel is merely removed when one separates fruits from it and calls those fruits Terumah and creates a new Isur of Terumah on those fruits. According to Tosfos, though, who says that the Isur of Tevel is merely the Isur of Terumah that is mixed in with the fruits, why is Tevel forbidden even to Kohanim, if Terumah is permitted to Kohanim? According to Tosfos, Terumah is also forbidden to Kohanim, since it belongs to Hashem, but the Torah gives the Kohanim the rights to eat it when it is separated from the rest of the fruits, because "mi'Shulchan Gavoha Ka Zachu" (see TOSFOS Shabbos 24b, DH l'Fi). The Ran might disagree with this because he holds that "mi'Shulchan Gavoha Ka Zachu" applies only to Kodshim and not to items such as Terumah (like the RI cited by Tosfos in Shabbos there says).

(c) The RAMBAM explains that even though a person chooses what fruits will be Terumah, a person cannot create Terumah by himself on fruits that have no obligation of Terumah. Since the status of Terumah comes about only through an obligation, it is called a Davar ha'Asur and not a Davar ha'Nadur.

However, if an Isur that comes about only as a result of an obligation is a Davar ha'Asur, then why may a person make a Neder by comparing an object to a Korban Chatas (13a)? Such a Korban also comes about through an obligation, and thus it should be considered a Davar ha'Asur and not a Davar ha'Nadur!

The Rambam answers that there exists a Chatas that is brought voluntarily, and that is the Chatas that a Nazir brings, because a person can voluntarily make himself a Nazir and then bring a Chatas when the Nezirus is over. Since all Korbanos Chatas are in the same category, a person may make a Neder even by comparing an object to a Chatas Chelev, since there exists a type of Chatas that *is* brought voluntarily.

12b

QUESTION: Rami bar Chama asks (11b) whether one's Neder takes effect when he compares (with Hatfasah) the object to the meat of a Korban Shelamim that is resting in front of him, and the blood of the Korban has already been sprinkled (l'Achar Zerikas Damim) on the Mizbe'ach, so that the meat itself is Mutar. Does the person have intention to be Matfis to the Korban in its original state, "b'Ikro Ka Matfis," before Zerikas Damim when it was Asur, in which case the Neder does not take effect because he is being Matfis to a Davar ha'Asur? Or does he have intention to be Matfis to the Korban in its present state, "b'Hetera Ka Matfis," after the Zerikas Damim when it is Mutar, in which case the Neder takes effect because he is being Matfis to a Davar ha'Nadur?

The Gemara here (12b) cites a Beraisa in an attempt to show that this question is the subject of a Machlokes Tana'im. The Beraisa discusses a case in which a person makes a Neder by being Matfis to a Bechor. Rebbi Yakov prohibits the item (the Neder takes effect), and Rebbi Yosi permits it (the Neder does not take effect). The Gemara suggests that the case of the Beraisa is referring to when one makes a Neder by being Matfis to the flesh of a Bechor after Zerikas Damim, and the Machlokes between Rebbi Yakov and Rebbi Yosi is whether "b'Ikro Ka Matfis" or "b'Hetera Ka Matfis." The Gemara refutes this explanation of the Beraisa and gives a different explanation for the case in the Beraisa. It says that being Matfis to a Bechor is different than being Matfis to a normal Korban, because a Bechor is sanctified from birth, Kadosh m'Rechem, and it does not need to be sanctified by the owner. Hence, it is a Davar ha'Asur according to Rebbi Yosi and the Neder does not take effect. Rebbi Yakov says that although it is Kadosh m'Rechem, there is still a Mitzvah for the owner to be Makdish it, and thus it is considered a Davar ha'Nadur and the Neder does take effect.

How could the Gemara have thought that the argument in the Beraisa is whether a person is Matfis "b'Ikro" or "b'Hetera?" If that is what they were arguing about, then they should have expressed their views in the more general and broader case of one who makes a Neder by being Matfis to the meat of a Korban Shelamim after Zerikas Damim!

ANSWER: Perhaps the Gemara thought that the Tana'im discussed a case of being Matfis to a Bechor because a Bechor may not be eaten by non-Kohanim (according to Beis Hillel in Bechoros 32b). One might think that since it is Asur for Zarim, it is a Davar ha'Nadur and a person may make a Neder by being Matfis to it, even if everyone holds that a person is Matfis "b'Hetera." The Beraisa therefore teaches that Rebbi Yosi says that one cannot be Matfis to it, just as we find that one cannot be Matfis to Terumah which is also Asur for Zarim, since it is Mutar to Kohanim (see previous Insight).