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Nedarim, 14

1) THE STATUS OF A NEDER MADE WITH "HATFASAH" TO A "DAVAR HA'ASUR"

OPINIONS: The Mishnah discusses cases of Nedarim which a person makes by being Matfis to a Davar ha'Asur. Such Nedarim do not take effect because we learn from the verse (Bamidbar 30:3) that one must be Matfis to a Davar ha'Nadur. If a person makes a Neder by being Matfis to a Nadar ha'Asur, does the Neder not take effect at all, or is one required mid'Rabanan to have his Neder annulled?

(a) The RAN proves from our Gemara that even mid'Rabanan, annulment is not necessary. This is because the Gemara points out that the Mishnah only mentions a need for annulment in the case of the end of the Mishnah (where one makes a Neder against one's wife), implying that in all other cases, one does not need annulment even mid'Rabanan. Only when one makes a Neder against his wife does the Neder need to be annulled (when the man who made the Neder is an Am ha'Aretz), since a husband commonly makes Nedarim against his wife and the Rabanan did not want him to become lax and treat a real Neder (made with Hatfasah to a Davar ha'Nadur) leniently. (The PERISHAH says that the reason the Rabanan are stringent in such a case is in order to prevent the husband from refraining from the Mitzvah of Piryah v'Rivyah.) This is also the ruling of the ROSH.

(b) However, the RAMBAM (Hilchos Nedarim 2:13) rules that when a person makes a Neder by being Matfis to a Davar ha'Asur, the Neder needs to be annulled mid'Rabanan, if the person is an Am ha'Aretz, regardless of what he prohibited with his Neder (that is, not only a Neder against one's wife needs to be annulled, but all Nedarim made by being Matfis to a Davar ha'Asur need to be annulled). The TOSFOS YOM TOV and VILNA GA'ON (on the Shulchan Aruch) point out that the Rambam had a different Girsa in the Gemara (beginning of 14a). Instead of asking how could we even suggest that a Neder made by being Matfis to Avodas Kochavim needs to be annulled mid'Rabanan, the Gemara is asking how could we suggest that a Neder made by being Matfis to Avodas Kochavim does *not* need to be annulled mid'Rabanan -- the end of the Mishnah says that a Neder made by being Matfis to a Davar ha'Asur needs to be annulled mid'Rabanan! The Gemara, according to the Rambam's Girsa, is saying that the Mishnah itself is teaching us that all Nedarim made with Hatfasah to a Davar ha'Asur need to be annulled mid'Rabanan.

HALACHAH: The SHULCHAN ARUCH (YD 205:1) rules like the Rambam, that an Am ha'Aretz who makes a Neder by being Matfis to a Davar ha'Asur needs to annul his Neder mid'Rabanan. The REMA cites the opinion of the RAN and ROSH, that only when one prohibits his wife by being Matfis to a Davar ha'Asur does he need to annul the Neder, and only when he is an Am ha'Aretz. The Rema adds in the name of the RASHBA that nowadays everyone is considered an Am ha'Aretz with regard to this Halachah.

The RAN writes that if a person makes a Neder with Hatfasah by saying, "Meat shall be prohibited to me today like the day on which my father died," being Matfis to the day his father died, then he is prohibited to eat meat if he had made a Neder prohibiting himself from eating meat on the day his father died. The Ran adds that if on the day his father died he had made a *Shevu'ah* not to eat meat and now he makes a Neder being Matfis to that day, then the Hatfasah does not work because on the day his father died there was no Isur on the day (Cheftza) per se, but only on the person (Gavra).

It is clear from the Ran that when a person does make a Neder not to eat meat "like on the day my father died," the Neder takes effect, since there was a Neder on the day that his father died. How, though, can a Neder take effect on a *day*? A Neder can only take effect on a "Davar she'Yesh Bo Mamash," a tangible item, and a day is not a tangible item!

ANSWER: The Gemara (15a) rules that if someone makes a Neder prohibiting an intangible item (Davar she'Ein Bo Mamash) on himself and then he violates his Neder, he transgresses an Isur of Bal Yachel mid'Rabanan. The Ran there (end of 15b) understands that this means that his Neder has all of the Halachos of a Neder but on a d'Rabanan level.

Here, too, apparently the Ran learns that when the Gemara earlier (12a) and in Shevuos says that the Neder takes effect when one is Matfis to the day on which his father died, it is a Neder on a Davar she'Ein Bo Mamash and it takes effect mid'Rabanan. The Gemara here (12a; see Ran on 12a and here on 14a) and in Shevuos (20b) says that even if one made a Neder not to eat meat on the day on which Gedalyah ben Achikam died, then now he can make a Neder being Matfis to that day -- the Neder takes effect even though meat (and all food) is already Asur on that day because of the decree of the Rabanan making that day a Ta'anis. Why should the second Isur, the Isur of Neder, take effect if eating on that day is already Asur mid'Rabanan? The reason must be that the Isur Neder mid'Rabanan is an Isur *Cheftza*, while the Isur Ta'anis of the Rabanan is an Isur *Gavra*, and an Isur Cheftza can take effect on an Isur Gavra. (RASHI in Shevuos 20b cites a Girsa that says that the Neder takes effect on the day on which Gedalyah died because the person is only prohibited to eat mid'Rabanan because of the fast, while the Neder makes it prohibited to eat mid'Oraisa. Rashi rejects that Girsa (even though Tosfos supports it) because even if the Ta'anis had been an Isur d'Oraisa, a Neder could take effect on it. The Ran (18a), too, who rules like Rashi, must also not have had the Girsa that the Isur Neder takes effect because it is an Isur d'Oraisa while the Ta'anis is only mid'Rabanan, since he says that the Isur Neder is Asur only mid'Rabanan.)

14b