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Nedarim, 22

1) SUGGESTING TO A MURDERER THAT HE KILL

QUESTION: The Gemara relates that when Ula came to Eretz Yisarel, his two escorts had a brawl and one of them killed the other. The murderer turned to Ula and asked if he acted properly. Ula, concerned for his own safety, responded affirmatively and said "Yes [you acted properly, and moreover,] you should cut open his next even more." Later Rebbi Yochanan told Ula that he did the right thing by encouraging the murderer, because his own life was in danger.

We know that Piku'ach Nefesh, saving one's own life, does not override the prohibition of the Torah against killing someone else (Sanhedrin 74a). How, then, could Ula -- in order to save his own life -- have told his escort to widen the cut and cause the victim to die quicker? A person is required to give up his own life and not kill someone else, and even taking away a moment of life of a dying person is tantamount to killing him!

ANSWERS:

(a) The ME'IRI writes that the victim was already dead. Ula was not suggesting that his escort kill him quicker.

However, all of the other Rishonim explain that Ula was indeed telling the murderer to help the victim die quicker.

(b) The TIFERES YISRAEL (BO'AZ, end of Yoma) suggests that the reason the prohibition against murder, Shefichus Damim, is more important to observe than saving one's own life is because of the logic presented by the Gemara in Pesachim (25b), which says that "who says that your blood is redder than the other person's?" However, when one person is already dying (Goses) and the other person is alive and healthy, this logic does not apply, and indeed the healthy person is entitled to assume that his blood is "redder." Therefore, it is permitted for a healthy person to kill a Goses for the sake of Piku'ach Nefesh.

However, this is a novel ruling and is not accepted by many authorities.

(c) RAV ARYEH LEIB SHTEINMAN shlit'a (in Ayeles ha'Shachar) writes that Ula was not actually considered to be killing the victim by suggesting to the murderer to speeden his death. Rather, by merely suggesting to the other person that he should speeden the victim's death, he was only being "Machzik Yeday Ovrei Aveirah" -- encouraging a transgressor. While murder is not permitted even to save one's life, encouraging a transgressor *is* permitted in order to save one's life. (The Tiferes Yisrael, on the other hand, proves that even giving someone information which he will use to kill someone is not permitted for the sake of saving one's own life. However, in the incident of Ula, Ula did not tell the murderer anything that made it easier for him to kill the victim.)

According to this, it is possible that the argument between the Me'iri and the other Rishonim whether it was permitted for Ula to tell his escort to kill the victim depends on the Machlokes Rishonim in Sanhedrin (end of Perek 8). The RAMBAN in Milchamos writes that when the Gemara says that a person must give up his life for the three cardinal Aveiros, it means not only the Aveiros themselves, but any of their related Aveiros ("Abizraihu"). (This is why the Gemara there says that a man was told to give up his life rather than even to speak to a woman from behind a fence. Even though it was not an actual act of Arayos, it was a related Aveirah.) According to the Ramban, perhaps even to recommend to a person that he kill someone would *not* be permitted for the sake of saving one's own life, since it is an "Abizraihu" of Shefichus Damim.

OPINIONS: The Gemara implies that Ever ha'Yarden (Transjordan) does not have the full Kedushah of Eretz Yisrael.

We know, however, that the Mitzvos of Terumos and Ma'aseros apply in Ever ha'Yarden just like they do in Eretz Yisrael (TOSFOS Yevamos 16a, based on Shevi'is 9:2, which states that Shemitah is observed in Ever ha'Yarden just like it is observed in Yehudah and Galil).

With regard to Bikurim, there is a Machlokes Tana'im in the Mishnah in Bikurim (1:10) whether or not the Mitzvah of Bikurim applies in Ever ha'Yarden. Rebbi Yosi, who says that we do *not* bring Bikurim from Ever ha'Yarden, cites a verse in the Parshah of Bikurim (Devarim 26:9) that specifically excludes Ever ha'Yarden from the Mitzvah of Bikurim. According to Rebbi Yosi, are there any other Halachos, besides the Mitzvah of Bikurim, in which Ever ha'Yarden differs from Eretz Yisrael, or do the areas differ only in their relative degree of inherent Kedushah but with regard to all other Mitzvos (besides Bikurim according to Rebbi Yosi) the two areas are the same?

(a) The RAN (DH ha'Hu Sha'ata) writes that Ever ha'Yarden was not sanctified with regard to bringing the Korban ha'Omer from its produce and nor with regard "to a few other Kedushos." (The Ran's view will be explained below.)

(b) RASHI in Sanhedrin (11b, cited by the GILYON HA'SHAS) writes that the Korban ha'Omer may be brought from produce of Ever ha'Yarden. It seems that Rashi learns that Ever ha'Yarden is equivalent to Eretz Yisrael with regard to all of the Mitzvos. (The CHAZON ISH points out that this also seems to be the view of the RAMBAM in Hilchos Kidush ha'Chodesh 4:3.)

The KEREN ORAH questions the Ran's statement. From where does the Ran learn that Ever ha'Yarden is not sanctified with regard to bringing the Korban ha'Omer from its produce?

Perhaps we may suggest that the source for the Ran's words is the Mishnah in Kelim (1:6). The Mishnah in Kelim states that Eretz Yisrael has more Kedushah than all other lands. "In what way is it holier," asks the Mishnah, "because we bring from there the Korban ha'Omer, Bikurim, and Shtei ha'Lechem" which cannot be brought from any land outside of Eretz Yisrael.

Why did the Mishnah not mention that Eretz Yisrael is also holier because of the obligation to separate Terumos and Ma'aseros from produce that grows in Eretz Yisrael? Perhaps the reason is because the Mishnah is listing the specific signs of the Kedushah inherent in Eretz Yisrael proper, which does not exist in Ever ha'Yarden. That is why the Mishnah lists Bikurim without listing any of the other "Mitzvos ha'Teluyos ba'Aretz" -- because Bikurim is the only one of those Mitzvos that is practiced in Eretz Yisrael proper and not in Ever ha'Yarden (and the Tana of the Mishnah in Kelim is Rebbi Yosi, who says that Bikurim is not brought from Ever ha'Yarden).

Accordingly, this might be the Ran's source that the Korban ha'Omer and Shtei ha'Lechem are not brought from Ever ha'Yarden, since the Mishnah there in Kelim is referring only to things that are brought from Eretz Yisrael proper. It is the Shtei ha'Lechem that is one of the "Miktzas Kedushos" mentioned by the Ran here that does not apply to Ever ha'Yarden.

Rashi, on the other hand, might have learned the Mishnah in Kelim differently. The reason the Mishnah does not mention the other "Mitzvos ha'Teluyos ba'Aretz" is because those Mitzvos are not an indication of the Kedushah of the land; rather, they are obligations that are incumbent upon the produce of Eretz Yisrael. That is, there is an Isur to eat fruit grown in Eretz Yisrael before separating Terumos and Ma'aseros, but the fact that Terumos and Ma'aseros must be separated is not a manifestation of the Kedushah of the land. The reason the Mishnah lists counts the Korban ha'Omer and Shtei ha'Lechem is because the fact that these items may be brought to the Beis ha'Mikdash only if they grew in Eretz Yisrael demonstrates the Kedushah of Eretz Yisrael. Regarding Bikurim, Rashi might hold that the reason Bikurim is practiced in Eretz Yisrael is *not* because it is a "Mitzvah ha'Teluyah ba'Aretz," but rather for a different reason. TOSFOS in Bava Basra (81a, DH ha'Hu, quoting Rashba) points out that the Gemara cites a special verse to teach that Bikurim is practiced only in Eretz Yisrael and not in Chutz la'Aretz. If it needs its own verse, then it must be that it is not in the category of "Mitzvos ha'Teluyos ba'Aretz." Rather, the Mitzvah of Bikurim is an obligation on the person who owns the fruit to bring it to the Mizbe'ach, and it is not a Mitzvah on the produce of Eretz Yisrael requiring that a certain act be done with the produce before it is permitted to be eaten.

Therefore, Rashi could learn that the Mishnah in Kelim is following the opinion that the Mitzvah of Bikurim *does* apply to Ever ha'Yarden (*not* like Rebbi Yosi), and that is why it groups the Korban ha'Omer and Shtei ha'Lechem together with Bikurim. It leaves out the other Mitzvos of Eretz Yisrael because those Mitzvos are Isurim and not "Kedushos." (See VILNA GA'ON in ELIYAHU RABAH there in Kelim.)

HA'GAON RAV YISRAEL ZEV GUSTMAN zt'l inferred from the words of Rashi in Kidushin (37a, DH Chovas Karka) that Rashi is in agreement with Tosfos in Bava Basra. Rashi in Kidushin there lists examples of Chovas Karka, Mitzvos related to the land, that apply only in Eretz Yisrael. Rashi provides a comprehensive list of all the Mitzvos, but with one prominent omission -- the Mitzvah of Bikurim!

22b

OPINIONS: The Gemara discusses the Halachah of "Poschin b'Charatah" -- may a Chacham or Beis Din annul a person's Neder on the basis of the person's Charatah, regret, about making the Neder. The Gemara concludes in the name of Rav Nachman that the Halachah is that we are "Poschin b'Charatah." What is the practical Halachah concerning Hataras Nedarim?

(a) The RAN explains that according to the Gemara, it should be permitted to be Matir both a Neder and a Shevu'ah with Charatah. However, the GE'ONIM were stringent with regard to the annulment of Nedarim and Shevu'os. RAV HAI GA'ON ruled that a Neder may only be annulled with a Pesach (a factor that was extant at the time of the Neder but which the person did not take into account when he made his Neder, and had he been aware of that factor he would not have made the Neder) and not with Charatah, and a Shevu'ah should not be annulled even with a Pesach unless it is necessary for a Mitzvah, and even then one must use a very clear Pesach.

RAV YEHUDA'I GA'ON was even more stringent, ruling that both a Neder and a Shevu'ah may be annulled only with a Pesach and not with Charatah and only for the sake of a Mitzvah.

(b) The ROSH (3:2) writes that the rulings of Rav Hai Ga'on and Rav Yehuda'i Ga'on were simply extra stringencies that they adopted as a reaction to the environment in which they lived, in which people were careless about making Nedarim. Therefore, they made it difficult to remove the Neder so that people would be more cautious about making Nedarim.

(The RAMBAM in Perush ha'Mishnayos (end of Perek 10) writes that the practice not to annul a Neder was due to the pressure of the Minim (who did not believe in Hataras Nedarim) who lived in those areas.)

The Rosh continues and writes that in his time, people were not only careless about making Nedarim, but they were even careless about observing Nedarim, so much that if they were not allowed to annul the Nedarim then they would certainly transgress them. Therefore, says the Rosh, it is better to once again allow them to annul their Nedarim.

This is also the ruling of the RITVA and NIMUKEI YOSEF who write that the Rav of each city should decide the policy of annulment of Nedarim in accordance with the way the people in each city treat Nedarim.

The SHULCHAN ARUCH (YD 228:7, 230:1) rules leniently and says that nowadays we may be Matir Nedarim and we may even be Matir a Shevu'ah made with the Name of Hashem. This is based on the RASHBA (Teshuvos 4:108).

The REMA adds, though, that we should not be Matir a Shevu'ah made with the Name of Hashem except under pressing circumstances.

(c) The MORDECHAI cites RABEINU YOSEF BECHOR SHOR who gives a different interpretation of our Sugya. "Poschin b'Charatah" does not mean that with Charatah alone we may be Matir a Neder. Rather, it refers to a certain type of a weak Pesach which the Gemara calls "Charatah" and not "Pesach." A strong Pesach is one which involves a factor that the person had no reason to expect when he made the Neder (even though it did exist at the time). A weak Pesach means that some factor caused him to change his mind about his Neder, but that factor occurred only after he made the Neder, but it is the type of occurrence that should be expected (hence it is not considered "Nolad"). This kind of Pesach is what the Gemara refers to as "Charatah." The Gemara does not mean "Charatah" in the sense that one merely feels differently than he felt at the time he made the Neder and now he wants to annul it.

This opinion is cited by the REMA (YD 228:7) in the name of "Yesh Mefarshim." The Rema, because of this opinion, writes that when being Matir a Neder, it is preferable not to be Matir solely based on Charatah, but to make the Charatah into a Pesach. For example, after the person tells the Chacham that he wishes that he never made the Neder (Charatah), the Chacham asks him, "Had you known that you would regret your Neder (Pesach), would you have made the Neder," and the person responds, "No, I would not have made the Neder," then he may be Matir the Neder based on that Pesach. (The Girsa in the Gemara of the RAMBAM and others was "Hilchesa *Ein* Poschin b'Charatah." Accordingly, they rule that we do *not* annul Nedarim based on Charatah. However, they explain that this does not mean that Charatah cannot be used for Hataras Nedarim. Rather, it means that the Chacham cannot initiate the Hatarah through suggesting that the person who made the Neder feels Charatah; to be Matir with Charatah it must be initiated by the Noder (see Insights to 21b).)