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Nedarim, 35

1) "ME'ILAH" FOR "KONAMOS"

OPINIONS: The Gemara discusses whether "Yesh Me'ilah l'Konamos" or "Ein Me'ilah l'Konamos" -- is there a Chiyuv of Me'ilah when one makes a Neder ("Konam") and then violates the Neder?

There are two obligations included in the Chiyuv of Me'ilah, when one uses the property of Hekdesh for his personal benefit. First, he has to pay Hekdesh for the benefit that he received, just like he has to pay his friend when he steals his friend's object. Second, he is required to bring a Korban Asham.

When the Gemara says that one who violates a Neder is Chayav Me'ilah, does it mean that the item prohibited by the Neder is treated as property of Hekdesh and therefore one who uses it must pay Hekdesh? Or does it mean that he must bring a Korban Me'ilah but does not have to pay Hekdesh, since the item is not actually in the property of Hekdesh.

(a) The Gemara proves that there is Me'ilah for violating a Neder from our Mishnah. The Mishnah says that if one finds a lost object and returns it to the owner who is prohibited to receive Hana'ah from the finder, and the finder does not accept the compensation he deserves, the owner of the lost item should give the money of the compensation to Hekdesh instead. We see from here that an item prohibited by a Neder is treated like Hekdesh, and just like there is Me'ilah for Hekdesh, there is Me'ilah for Konamos.

The ROSH explains that if one receives monetary gain from violating the Neder, it is not enough to destroy the money that he gained so that he not receive further pleasure from it, but it must be paid to Hekdesh. The Rosh seems to understand that we treat an item prohibited by a Neder like the property of Hekdesh, and the person must pay Hekdesh.

The RAMBAM (Hilchos Me'ilah 4:10) writes that the laws of Me'ilah apply to a Neder only if the person received a Perutah's worth of benefit from the item. He seems to understand that Me'ilah of Konamos has all of the laws of Me'ilah of Hekdesh.

(b) The RAN writes that the Gemara is asking only whether he must bring a Korban Me'ilah. The Ran explains that when the Gemara proves from the Mishnah that "Yesh Me'ilah l'Konamos," it does not mean to say that the money must be given to Hekdesh. Rather, when the Gemara says "it should go to Hekdesh" it means that we treat the item prohibited by a Neder like Hekdesh (so that one must bring a Korban). The Ran agrees that the violator must destroy the monetary gain so that he will not have pleasure from it, but he says that he does not have to give it to Hekdesh.

TOSFOS (34b) says that if there is Me'ilah for Konamos, then one is Chayav Me'ilah even if the benefit that he receives from the item that is Asur is worth less than a Perutah. For benefiting from normal Hekdesh, one is Chayav Me'ilah only when one receives benefit worth at least a Perutah. It seems that Tosfos learns like the Ran, that the laws of Me'ilah for Konamos differ from the laws of Me'ilah for Hekdesh. The Chiyuv of Me'ilah for Hekdesh is for stealing and misusing the property of Hekdesh, and therefore there is no Me'ilah when the benefit is worth less than Perutah since no monetary claim can be made against one who steals less than a Perutah. In contrast, personally benefiting from an item of Konam is not considered stealing property of Hekdesh, and therefore as long as one receives personal benefit from the item he has transgressed the prohibition of the Neder, even if the benefit he received was worth less than a Perutah.

OPINIONS: The Gemara asks which person is Chayav Me'ilah when one person declares to his friend, "My loaf of bread is Konam to you" and then he gives the loaf to his friend. The Gemara says that the one who gives the loaf is certainly not Chayav Me'ilah, since the loaf is not prohibited to him, but is prohibited to his friend.

(a) The RAN says that this disproves the opinion of the RAMBAM, who says that if one made a Neder prohibiting his friend from having benefit from his object, and then he gave the object to his friend, the owner of the object transgresses the Isur of "Lo Yachel Devaro," violating his word. The Ran seems to equate the Isur of Me'ilah (using a sanctified item for personal benefit) with the Isur of "Lo Yachel;" hence, since our Gemara says that the owner of the object is not Chayav Me'ilah, so, too, learns the Ran, that he does not transgress the Isur of "Lo Yachel."

(b) It is possible to say that the Ran's proof is based on his understanding that even if there is Me'ilah for benefiting from an item prohibited by a Neder, this is not because it is treated like the property of Hekdesh, but rather simply that the transgression of a Neder requires a Korban Me'ilah, as we wrote in the previous Insight. Based on this view, the Ran proves that if the Gemara says that the owner of the loaf is not Chayav for Me'ilah, this is a proof that he also does not transgress the Isur of "Lo Yachel," because the Chiyuv of Me'ilah is dependent on the Isur of "Lo Yachel."

The Rambam, though, may hold that the two issues (Me'ilah and "Lo Yachel") are not related. There is one issue of violating the Neder ("Lo Yachel"), and there is a separate issue of obtaining forbidden pleasure from the Neder, which is considered like having pleasure from Hekdesh (see Rambam as cited in the previous Insight). Even if the owner of the loaf transgresses his Neder by giving it to the one to whom it is prohibited, he still is *not* Mo'el, since he did not have any forbidden pleasure from it.

35b

QUESTION: The Gemara inquires whether the Kohanim who offer our Korbanos for us in the Beis ha'Mikdash are considered to be our messengers, or they are considered to be the messengers of Hashem.

The Gemara in Yoma (19a) and Kidushin (23b) discusses the same issue and immediately resolves it by saying that the Kohanim must be the messengers of Hashem, since there is a rule that one cannot make a Shali'ach for something he cannot do himself. Since we, as non-Kohanim, cannot offer our Korbanos in the Beis ha'Mikdash on our own (a Yisrael is only permitted to perform the Shechitah and nothing else), we cannot make the Kohanim our messengers to do so. Why, then, does the Gemara here in Nedarim have a lengthy discussion on this issue? Why does it not resolve the question like the Gemara does in Yoma and Kidushin?

ANSWERS:

(a) The RAN and TOSFOS here write that although there is a logical resolution to this question (like the Gemara in Yoma and Kidushin presents), our Sugya is searching for a a proof from a Mishnah or from a Beraisa.

(b) TOSFOS in Yoma and Kidushin (see Maharsha there) offers another answer. Tosfos understands that the Gemara in Yoma is discussing whether the Kohanim are *only* the messengers of Hashem or *only* our messengers. Our Sugya, on the other hand, is based on the conclusion of those Gemaras that the Kohanim must be the messengers of Hashem, and it is now asking whether they are *also* our messengers! Although the Gemara knows that we do not have the power to appoint the Kohanim as our messengers since we cannot offer the Korbanos ourselves, the Gemara is asking that perhaps once the Kohanim are appointed by Hashem, they are doing the Avodah directly for us as well and thus they are also our messengers.

Based on the Tosfos, we can answer another question. Our Gemara states that the practical difference of this question is whether a Kohen is permitted to bring a Korban on behalf of someone to whom he is prohibited to give pleasure. Why does the Gemara not give the simple practical difference that if Kohanim are our messengers, then they cannot offer the Korbanos without being appointed by the owners?

The answer is that according to Tosfos, our Gemara assumes that Hashem appoints them and there is no need to be appointed by the owner. The only issue that is being discussed is whether the Kohen is doing a service for the owner of the Korban (in which case he would be prohibited to bring the Korban for him if there was a Neder prohibiting him from giving the owner pleasure), or whether he is doing it solely for Hashem and the fact that the owner of the animal gains from the fact that his Korban was offered is only an indirect result ("Grama") of the Kohen's act and not its primary purpose. Therefore, the practical ramification of the Gemara's question is not whether the owners need to appoint the Kohanim as their messengers, but whether or not it is permitted for a Kohen to bring the Korban of a person prohibited to receive Hana'ah from the Kohen.