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Nedarim, 18

1) MAKING A NEDER ON A PRE-EXISTING NEDER

QUESTION: The Mishnah says that a Neder can take effect upon another Neder, and it explains that this refers to a Nezirus which can take effect upon a pre-existing Nezirus. The RAN explains that only *Nezirus* can take effect on another Nezirus, but a Neder cannot take effect on another Neder to make a person Chayav twice for eating one object of Isur. He writes that although some explain that one can be Chayav twice for transgressing an Isur that he made with two Nedarim, there are a number of problems with that opinion. First, why does the Mishnah give the example of Nezirus, if a Neder also takes effect on another Neder? Second, why does the Gemara say that no verse is necessary to teach us that two oaths of Nezirus take effect when a person says, "Hareini Nazir ha'Yom, Hareini Nazir l'Machar" ("I am a Nazir today, I am a Nazir tomorrow")? If two Nedarim can take effect on one object at the same time, the verse *is* necessary, for we need it to teach us that one will be Chayav *twice* for drinking wine during the first thirty days of the Nezirus, since both oaths of Nezirus take effect at the same time!

How do the other Rishonim answer these questions?

ANSWER: The RAN, when he cites this other opinion, is apparently referring to the opinion of the RASHBA. The Rashba explains that although a Neder takes effect on a Neder and a person will be Chayav twice for transgressing the double Neder, in the case of Nezirus the second Nezirus cannot take effect on the first one. The first Nezirus must end, and then the second one will take effect. (See also SEFER HA'CHINUCH, Mitzvah 30.)

The reason for this is that a person, by making a Neder, creates an Isur, and it becomes as though there is another Lo Ta'aseh in the Torah prohibiting this item to him. Just like it is possible for the Torah to write multiple Isurim on one act (such as one who eats an ant is Chayav for up to five Isurim, see Makos 16b), a person -- by repeating a Neder -- can create multiple Isurim on one object. A Shevu'ah, though, does not create an Isur on the item, but it just prevents the person from doing the act of eating the item. Once the act is already prohibited, it cannot become prohibited again, since he is just saying that he will not do something, and he is already obliged not to do it. Nezirus, too, is like a Shevu'ah in that it is a change in the status of the person (see MAHARIT #53, 54, and as cited by the Shalmei Nedarim 2b), and once he is a Nazir he cannot become a Nazir again. If the duration of the second Nezirus continues beyond the first, then it takes effect (since "Ein Nezirus Pachos mi'Sheloshim Yom"). According to Shmuel, even if there is no extra days of the second Nezirus, the second Nezirus takes effect by being suspended until it can find a place to take effect (which occurs when the first Nezirus is over).

The Rashba himself later retracts this view and says, like the Ran, that a Neder cannot take effect on a pre-existing Neder.

QUESTION: The RAN writes that although a Shevu'ah cannot take effect on a Shevu'ah, and, similarly, a Shevu'ah cannot take effect on an Isur in the Torah to prohibit what is already prohibited by the Torah, a *Neder* can prohibit something that is already prohibited by the Torah. The reason is because the Isur of the Torah is an Isur on the person (an Isur Gavra), while the Isur of a Neder is an Isur on the object (an Isur Cheftza), besides being an Isur Gavra of "Bal Tachel."

The Gemara in a number of places (Shevuos 22b, Makos 22a) explains that a Shevu'ah cannot take effect on something that is already Asur by the Torah, and it says that the Shevu'ah does not take effect because the person is "Mushba v'Omed m'Har Sinai Hu, v'Ein Shevu'ah Chal Al Shevu'ah" -- the person is already bound by the Shevu'ah that he took at Har Sinai to observe the Torah, and a Shevu'ah cannot take effect on another Shevu'ah.

Why does the Gemara give this new reason of "Ein Shevu'ah Chal Al Shevu'ah" and not give the simple and common principle that "Ein Isur Chal Al Isur" (an Isur cannot take effect on another Isur)? (NODA B'YEHUDAH OC 36)

ANSWERS:

(a) The AVNEI MILU'IM (#12) answers that even though "Ein Isur Chal Al Isur," an Isur does not take effect on a pre-existing Isur, that applies only with regard to the punishment of Malkus for the second Isur. The Gemara in Yevamos (33b) says that a second Isur cannot take effect with regard to Malkus, but it does make the Isur on the item stronger and more severe. Accordingly, it could be that a second Shevu'ah does not take effect *at all* on a pre-existing Shevu'ah, and the second Shevu'ah has no effect even with regard to making a stronger Isur. That is why the Gemara says that "Ein Shevu'ah Chal Al Shevu'ah" -- because it wants to emphasize that a second Shevu'ah is even less effective that a second Isur.

Why, then, does Rava say that if a person makes two Shevu'os and then he annuls the first one that the second one takes effect? If the second Shevu'ah does not even create an Isur, it should be ignored completely even after he has annulled the first Shevu'ah (like the Ran indeed suggests at the beginning of the Daf)!

The answer is that She'eilah, the annulment of a Shevu'ah, removes the Shevu'ah *retroactively* ("l'Mafrei'a"), so that retroactively the second Shevu'ah was pronounced on an item that had no Shevu'ah on it and was permitted. Therefore, that second Shevu'ah can take effect immediately from that time. In contrast, if a woman makes two Shevu'os and her husband annuls the first one with Hafarah, then the second Shevu'ah does *not* take effect, because the Hafarah of a husband works only from now on ("mi'Kan u'l'ha'Ba") and not retroactively. Consequently, since at the time that the second Shevu'ah was pronounced it did not create any Isur, it cannot take effect later when the first Shevu'ah is removed. (See HAGAHOS REBBI AKIVA EIGER to YD 238 who cites the MAHARAM MINTZ who reaches a similar conclusion based on Rashi in Shevuos 27a. However, Rebbi Akiva Eiger argues that even after the Hafarah of the husband, the second Shevu'ah *will* take effect with regard to Malkus for "Bal Yachel," but not with regard to obligating her to bring a Korban for violating the Shevu'ah.)

This explains why the Gemara does not say "Ein *Isur* Chal Al Isur" but rather "Ein *Shevu'ah*." However, it does not explain why the Gemara refers to the pre-existing Isur as a "Shevu'ah" and not as an "Isur." If the Gemara is emphasizing that a second Shevu'ah's inability to take effect on a pre-existing Isur is weaker than a second Isur's ability, it should have sufficed to say "Ein Shevu'ah Chal Al Isur." Why does the Gemara say "Ein Shevu'ah Chal Al *Shevu'ah*?" The Avnei Milu'im is only explaining why the second "Isur" is called a "Shevu'ah" and not an Isur.

Also, the Acharonim point out that the RAMBAM (Hilchos Shevu'os 4:10) seems to hold that the second Shevu'ah *does* take effect to make a more severe Isur.

(b) The Avnei Milu'im suggests further that the Gemara says "Ein Shevu'ah Chal Al Shevu'ah" to show that even if the Isur of the Torah and the person's Shevu'ah come into effect at the same time ("b'Bas Achas"), the Shevu'ah still does not take effect, even though, normally, when two Isurim come into effect at the same time they do take effect. For example, if a person makes a Shevu'ah prohibiting himself from eating Neveilah, and after he makes the Shevu'ah his animal dies, then even though the animal becomes Asur to him because of the Isur Torah of Neveilah and because of his Shevu'ah at the same time, the Shevu'ah does not take effect. That is why the Gemara changes the wording of the principle of "Ein Isur Chal Al Isur" and says instead, "Ein Shevu'ah Chal Al Shevu'ah."

The Acharonim point out, based on the Gemara in Makos (22a), that even before the animal dies and becomes Neveilah, it seems that the Isur Torah was already in effect and therefore the Isur of Shevu'ah will not take effect at the same time as the Isur Torah even if the animal died after the Shevu'ah was made (MISHNAS REBBI AHARON, Yevamos 19; SHI'UREI REBBI SHMUEL, Yevamos 32:270).

(c) There are two types of Mitzvos -- a Mitzvah which prohibits a person from doing something (Mitzvas Lo Ta'aseh), and a Mitzvah which obligates a person to do something (Mitzvas Aseh). A Shevu'ah can take effect on neither. Perhaps in the case of a Mitzvas Lo Ta'aseh, the Gemara indeed could have said "Ein Isur Chal Al Isur" (indeed, the Rishonim use this wording here). However, in case of a Mitzvas Aseh, where a person attempts to make a Shevu'ah to obligate himself to do something which a Mitzvah already obligates him to do, the principle of "Ein Isur Chal Al Isur" does not apply, since there is no Isur to be discussed. Therefore, in cases where a person makes a Shevu'ah to fulfill a Mitzvas Aseh, the Gemara has to say "Mushba v'Omed... v'Ein Shevu'ah Chal Al Shevu'ah." Indeed, the Gemara in Shevuos (25a) and Nedarim (8a) is referring to making a Shevu'ah to fulfill a Mitzvas Aseh, and therefore it has to say "Ein Shevu'ah Chal Al Shevu'ah" and not "Ein Isur Chal Al Isur." Since the Gemara has to use that phrase in reference to a Shevu'ah made to fulfill a positive Mitzvah, it also uses that phrase in reference to a Shevu'ah made to fulfill a negative Mitzvah.

Alternatively, it could be that a Neder can take effect to reinforce a negative Mitzvah because -- like the Ran says -- a Mitzvas Lo Ta'aseh is an Isur on the person, an Isur Gavra, while a Neder is an Isur Cheftza. One might think, though, that a Shevu'ah could be made to reinforce an Isur Torah that is an Isur Cheftza the same way a Neder can be made to reinforce an Isur Gavra. This is not true, because every Mitzvah in the Torah -- even an Isur Cheftza (such as Neveilah) -- also includes an Isur Gavra, like the Ran tells us. Perhaps that is what the Gemara means when it says that all of the Isurim of the Torah are "Mushba v'Omed m'Har Sinai" -- it means that even an Isur like Neveilah, which is an Isur on the Cheftza, is also an Isur on the Gavra like a Shevu'ah and therefore a Shevu'ah cannot take effect on it. (See a similar answer to this in MALBUSHEI YOM TOV, volume II, Kuntrus Kal v'Chomer #7.)

18b