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 does not resolve the question of whether one is Matfis "b'Ikro"
or "b'Hetera." The RAN, in the name of the RAMBAN, rules that "b'Hetera Ka
Matfis."
Regarding a Neder made by being Matfis to a Bechor, the Gemara concludes
that this is the subject of a Machlokes Tana'im. Rebbi Yosi holds that 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 and the Neder does not
take effect. Rebbi Yakov argues and says that although a Bechor 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.
The RAMBAM (Hilchos Nedarim 1:13) rules that a Neder in which one is Matfis
to a Bechor does *not* take effect, because a Bechor is Kadosh m'Rechem.
Regarding the question of whether one is Matfis "b'Ikro" or "b'Hetera," the
Rambam (1:15) rules that if one is Matfis to the meat of a Korban Shelamim
after Zerikas Damim that is resting in front of him, the Neder takes effect
and the object becomes Asur, because a person is Matfis "b'Ikro." This is
contrary to the ruling of the Ran in the name of the Ramban.
However, the Rambam adds that if one is Matfis to the meat of a Bechor that
is resting in front of him, then it depends whether it is before Zerikas
Damim has been done or after Zerikas Damim has been done. If it is before
Zerikas Damim, then the Neder takes effect and the object becomes Asur. If
it is after Zerikas Damim, then the Neder does not take effect and the
object is Mutar.
This ruling of the Rambam is very puzzling, as the RA'AVAD points out. Why
should the Neder take effect if one is Matfis to the meat of a Bechor before
Zerikas Damim? The Rambam himself rules that one cannot be Matfis to a
Bechor because it is Kadosh m'Rechem and is not a Davar ha'Nadur!
Second, if the Neder takes effect when one is Matfis to the meat before
Zerikas Damim, then why should the Neder *not* take effect when one is
Matfis to the meat *after* Zerikas Damim? The Rambam himself rules that
"b'Ikro Ka Matfis," and thus one intends to be Matfis to the meat of the
Bechor in its original state -- *before* Zerikas Damim, and thus the Neder
should take effect!
Moreover, what is the Rambam's source for his ruling that differentiates
between being Matfis to the meat of a Bechor before Zerikas Damim and after
Zerikas Damim (for which we do not say "b'Ikro Ka Matfis")? No mention is
made of that difference in our Sugya!
ANSWERS:
(a) The SHA'AR HA'MELECH explains, like the Ra'avad, that the Rambam learns
the Gemara earlier (end of 12b) to be saying that if one makes a Neder by
being Matfis to the meat of a Bechor that is resting in front of him and it
is before Zerikas Damim, the Neder will take effect, while if Zerikas Damim
was already done, the Neder will not take effect (contrary to the way the
RAN learns the Gemara in DH Heichi Dami).
The Gemara concludes that the Beraisa is discussing the meat of a Bechor
*before* Zerikas Damim, and Rebbi Yakov's reason for saying that the Neder
takes effect is because there is a Mitzvah for the owner to be Makdish the
Bechor, even though it is already Kadosh m'Rechem, and thus the Bechor has
the status of a Davar ha'Nadur.
Why, though, does the Gemara not say the same thing about the meat of a
Bechor *after* Zerikas Damim? Such meat was also sanctified by the owner and
should be considered a Davar ha'Nadur! It must be that after Zerikas Damim,
everyone agrees that one cannot be Matfis to the Bechor (we will explain why
shortly). This way of learning the Gemara is the source for the Rambam's
ruling that the Neder does not take effect when one is Matfis to the Bechor
after Zerikas Damim, while the Neder does take effect when one is Matfis to
the Bechor before Zerikas Damim. The Rambam is ruling like Rebbi Yakov in
the Beraisa, according to his way of learning the Gemara's explanation of
Rebbi Yakov's opinion.
What, though, is the logic for Rebbi Yakov's distinction between the meat of
a Bechor after Zerikas Damim and before Zerikas Damim?
The answer is that Rebbi Yakov holds that a Bechor before the owner is
Makdish it is certainly a Davar ha'Asur, and Hatfasah with it will not make
a valid Neder. Only after the owner is Makdish it does it become a Davar
ha'Nadur. That is what the Rambam means when he says (1:13) that if one
says, "This object is like a Bechor," the object is Mutar; when one says
only that the object is "like a Bechor," one is referring to the Bechor the
way it is before anything is done to it -- before the owner is Makdish it.
If a person is Matfis to a Bechor *after* the owner was Makdish the Bechor,
then the Neder *would* take effect.
Therefore, if one is Matfis to the meat of a Bechor after Zerikas Damim when
it is no longer Asur to Kohanim, then even though the Rambam rules that
"b'Ikro Ka Matfis," "b'Ikro" means the way it was originally, *before* the
owner was Makdish it, and that is why the Neder does not take effect. Hence,
whether the Halachah is "b'Ikro Ka Matfis" or "b'Hetera Ka Matfis," the
Neder will not take effect, because the only two possibilities are that he
is being Matfis to the Bechor the way it is *now* (and now it is Asur to
Kohanim and is a Davar ha'Asur), or that he is being Matfis to the Bechor
the way it was *originally* before he was Makdish it, when it first became a
Bechor (by being born as a Bechor). We do not say that he is Matfis to a
Bechor in its interim stage (after the owner was Makdish it and before
Zerikas ha'Dam).
However, when he is Matfis to the Bechor and says explicitly that he is
being Matfis to eat before Zerikas Damim and after the owner was Makdish it,
then since right now it is Kadosh, we do not say that "b'Ikro Ka Matfis" to
be lenient and say that the Neder does not take effect, but rather the Neder
does take effect. This is because the concept of "b'Ikro Ka Matfis" is based
on the principle of "Stam Nedarim l'Hachmir," which says that the Neder
takes effect out of doubt. Hence, when there is a doubt, we are Machmir and
not Mekel.
(b) The BRISKER RAV, cited by AYELES HA'SHACHAR and CHIDUSHEI REBBI SHMUEL,
explains that when the Bechor is slaughter as a Korban, the very fact that
it is brought as a Korban puts it into the category of a Davar ha'Nadur.
This is because once it is slaughtered it becomes like every other Korban
Shelamim (and a normal Korban Shelamim is a Davar ha'Nadur), even though
this particular Shelamim did not require that the owner make it Hekdesh
since it was Kadosh m'Rechem. Hence, even though a Bechor is not a Davar
ha'Nadur like Rebbi Yosi says, the Rambam still rules that once it is
slaughtered it becomes a Davar ha'Nadur, until the Zerikas Damim is
performed.
When he is Matfis to a Bechor *after* Zerikas Damim, we cannot apply the
rule "b'Ikro Ka Matfis" and say that he is being Matfis to the original
state of the Bechor -- before the Zerikas Damim (when it was a Davar
ha'Nadur) -- for the same reason that the Sha'ar ha'Melech says. A person is
either Matfis to the Bechor's original state or to its present state, but
not to its interim state (i.e. after the Shechitah but before Zerikas
ha'Dam).