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Nedarim, 47

47b

HALACHAH: The Mishnah later (57a) states that when one makes a Neder saying that "these fruits are prohibited to me," he is prohibited not only from eating the fruits, but also from eating the "exchange" ("Chilufeihen") of the fruits (if they are traded for other fruits) and from that which grows ("Giduleihen") from the fruits (if they are replanted and produce offshoots). In the Gemara here, Rami bar Chama asks what is the Halachah when a person makes a Neder prohibiting his fruits from *someone else*. Is the Mudar prohibited from eating the fruits that are received in exchange for the prohibited fruits? Perhaps one is only able to prohibit the Chilufin on himself, since the Chilufin is a "Davar she'Lo Ba l'Olam" (an item which does not yet exist in his possession) and a person is able to prohibit a "Davar she'Lo Ba l'Olam" on himself, just like he is able to prohibit someone else's item on himself. But when prohibiting his fruits to someone else, perhaps he cannot prohibit the Chilufin, since the Chilufin have not yet come into his possession and it is like prohibiting someone else's fruits on someone else, which one cannot do. On the other hand, perhaps the Chachamim decreed that the Chilufin has the same status as the Gidulin (which are considered to be an offshoot of the fruit itself and are Asur mid'Rabanan) and thus one can prohibit the Chilufin on someone else.

The RAN (47a, DH Ba'i Rami) explains that Rami bar Chama's question involves the reason behind the Halachah in the Mishnah (57a) that when one prohibits fruit on himself, the Chilufin are prohibited as well. If it is because he has *intention* to include the Chilufin in his Neder, then he can only prohibit Chilufin on himself, but not on someone else, since Chilufin is a "Davar she'Lo Ba l'Olam." If, however, the reason for the Isur of Chilufin has nothing to do with his intention, but rather it is because of an *Isur d'Rabanan* that the Chachamim enacted prohibiting the Chilufin of any Isur Hana'ah, then the Chilufin will be prohibited to his friend as well.

The Gemara attempts to answer this question from two different sources, but the Gemara rejects those proofs and comes to no conclusion.

What is the Halachah with regard to prohibiting one's fruit on someone else? Is the Chilufin also Asur, or only the fruit itself?

(a) The RAN (DH u'l'Inyan Halachah) reasons that we rule leniently, and the Chilufin of the fruits that one prohibited to his friend are *Mutar*. Likewise, the Chilufin of the fruits that one prohibited to *himself* (when he did not say, "*These* fruits are Asur on me," but only, "Fruits are Asur on me") are Mutar. This is based on his way of understanding Rami bar Chama's question. Since the only reason to say that the Chilufin are prohibited is because of an Isur d'Rabanan, when we are unsure whether or not there is an Isur d'Rabanan, we invoke the principle of "Safek d'Rabanan l'Kula" and rule leniently. This is also the ruling of the RASHBA.

This ruling is problematic, though, based of the ruling of the Gemara in Beitzah. In the Gemara in Beitzah (4b; see Insights there) Rav Ashi states, with regard to an Isur d'Rabanan, that an Isur that is a "Davar she'Yesh Lo Matirin" (there is a way for it to become Mutar) cannot become Batel (if it becomes unidentifiable in a mixture of permitted items), and the same applies to a *Safek* Isur (see Rashi there). If so, since a Neder is a "Davar she'Yesh Lo Matirin" since one can have a Neder annulled (59a), the Chilufin should be *Asur* to his friend, even though it is a Safek d'Rabanan! (MITZPEH EISAN, PORAS YOSEF)

This question does not apply to the Ran's ruling regarding the Chilufin of fruits that one person prohibited to *another* person, since, in such a case, the Neder is *not* a "Davar she'Yesh Lo Matirin." In such a case the Mudar himself cannot have the Neder annulled since he is not the one who made the Neder. Hence it makes sense that we rule leniently in that case. But in the case where one prohibited the fruits on himself, the Neder *is* a "Davar she'Yesh Lo Matirin" and we should be Machmir!

REBBI AKIVA EIGER (Teshuvos #65 and end of Yoreh Deah 15) and the MITZPEH EISAN answer that this rule of Rav Ashi -- that a "Davar she'Yesh Lo Matirin" is Asur even when it is a Safek -- applies only in situations of doubt concerning what actually happened (Safek b'Metzi'us), such as the case in Beitzah where there is a doubt whether the egg was laid on Yom Tov and is Asur or was laid on the weekday and is Mutar. However, in cases of doubt regarding the Halachic ruling (Safek b'Din), such as when there is a Machlokes and we do not know like whom to rule, or when the Gemara asks a question and does not answer it, then we rule leniently in a case of a Safek d'Rabanan, even though it is a "Davar she'Yesh Lo Matirin." The Mitzpeh Eisan cites the PRI CHADASH (Hilchos Yom Tov, OC 497:3) and the SHA'AGAS ARYEH (#90) who also express this difference. The PRI MEGADIM (introduction to Hilchos Yom Tov 2:1:27) writes this as well, proving it from the words of the RAN himself in Beitzah (6b and 26b).

What, though, is the reason to differentiate between the two different types of Safek? (The Acharonim mentioned above do not explain the reason behind the difference.) It seems that in a case where there is a doubt about what happened (such as in the case of an egg that might have been laid on Yom Tov), one must be Machmir since there is a possibility that the item is Asur. That possibility that the egg was born on Yom Tov creates a reason for doubt, and when in doubt one must be Machmir in order to avoid eating an object that is Asur. If he eats the item, he will have eaten an item that might very well have been Asur. In contrast, when there is a Machlokes ha'Poskim regarding how to rule in a certain case (or an unanswered question about how to rule, such as in our Gemara), there is no object involved that is undeniably Asur. If "Safek d'Rabanan l'Kula" applies in such a case, the Halachah is decided leniently and one may be assured that he is is *not* eating an object of Isur at all (there is not even a doubt), since the Halachah tells us to rule leniently! If he eats the item, he will have eaten an item that was certainly permissible. (M. Kornfeld)

2. The PORAS YOSEF gives another answer. According to the way the Ran learns the Gemara, Rami bar Chama's question applies not only to Nedarim, when one person prohibited his fruits on someone else, but to all situations of Isurei Hana'ah. Since his question is whether or not there is an Isur d'Rabanan prohibiting the Chilufin of the fruits that are Asur, the question applies to any case of an item from which it is prohibited to derive benefit (such as Chametz on Pesach, or a Shor ha'Niskal). In all cases of Isurei Hana'ah, the item received in exchange for the prohibited item might also be Asur b'Hana'ah if there is an Isur d'Rabanan prohibiting Chilufin of an object that is an Isur Hana'ah. Since most other Isurei Hana'ah are *not* "Devarim she'Yesh Lo Matirin," the principle of "Safek d'Rabanan l'Kula" certainly applies, and therefore the same ruling will apply to Nedarim.

3. In the Gemara in Beitzah (4b), it is Rav Ashi alone who teaches that a "Davar she'Yesh Lo Matirin" remains Asur even when it is an Isur d'Rabanan. There are Poskim who do not rule like Rav Ashi (see BACH, beginning of Yoreh Deah 102 in the name of "the RASH from Bonburg"). If the Ran holds like these Poskim, then there is no question.

However, the Ran himself in Beitzah (4b) and the other Rishonim there rule like Rav Ashi, that the stringency of "Davar she'Yesh Lo Matirin" applies even to an Isur d'Rabanan! Nonetheless, some hold that in the case of an Isur d'Rabanan, when there is a *Chezkas Heter* we are not Machmir even when the item in question is a "Davar she'Yesh Lo Matirin" (MORDECHAI in Beitzah, #685, and TZELACH in Pesachim 17b). According to that opinion, there is no question on the ruling of the Ran.

(b) The RAMBAM (Hilchos Nedarim 5:16), however, rules stringently, writing that "when one prohibits his fruits on his friend... the... Chilufin are a Safek. Therefore, his friend is *prohibited* from the... Chilufin of these fruits...."

It is clear from the Rambam's ruling that even b'Di'eved, if one exchanges those fruits, the Chilufin is Asur. Why does the Rambam rule stringently regarding the Chilufin if it is only a Safek d'Rabanan? It cannot be, the LECHEM MISHNAH points out, that the Rambam is Machmir because the Isur Neder is a "Davar she'Yesh Lo Matirin," because the Rambam is clearly discussing a case where one person made a Neder prohibiting his fruits from another person and such a Neder is *not* a "Davar she'Yesh Lo Matirin" (as we explained above)!

Apparently, the Rambam learns that Rami bar Chama's question of whether the Chilufin is Asur to the other person is a question of an Isur d'Oraisa. However, the Gemara itself states clearly that, b'Di'eved, if one exchanged the item of Isur, he is permitted to use the Chilufin! Why, then, does the Rambam rule that even b'Di'eved a person cannot use the Chilufin?

Moreover, since the Halachah of Chilufin applies to other Isurei Hana'ah as well, the Rambam should rule with regard to other Isurei Hana'ah that the Chilufin cannot be used b'Di'eved, and not only with regard to the Chilufin of Nedarim. We find, however, that the Rambam (Hilchos Ma'achalos Asuros 8:16) rules that the Chilufin of other Isurei Hana'ah (such as the money received for selling an Isur Hana'ah) are *Mutar*!

ANSWER: The SHA'AR HA'MELECH (Hilchos Chametz u'Matzah 1:2, DH v'Da) and the VILNA GA'ON (OC 443:3; see also RAV SHACH, shlit'a, in AVI EZRI) explains that the Rambam understands the Sugya like the RITVA (59a). The Ritva explains that the Isur to exchange an Isur Hana'ah for money or another item is an Isur d'Oraisa. If the Isur is mid'Oraisa, then why should the Chilufin be Mutar to use b'Di'eved (LECHEM MISHNAH)?

The Ritva answers that Isurei Hana'ah have no inherent value, since they can be used for nothing. Hence, if money is payed in exchange for them, that money does not represent the value of the item, but is just a gift or a loan being given by the recipient of the item. However, since it is prohibited to receive Hana'ah from the item itself, one is prohibited mid'Oraisa to sell the item, because the fact that he is receiving money for the item is a form of deriving Hana'ah from the item. However, if he transgressed and sold the item, then the money is certainly permitted, since the money was just a gift and does not represent the value of the item that was Asur.

An item that is Asur because of a Neder, on the other hand, might be different. When a person makes a Neder prohibiting his fruits on someone else, the fruits are only Asur to the Mudar. When the fruits are sold, perhaps the Isur of the Neder is transferred to the money, since the money represents the value of the fruit, and is not just a gift. Therefore, the money (the Chilufin) might remain Asur to the Mudar.

This is Rami bar Chama's question according to the Rambam. Perhaps the Chilufin of a *Neder* are Asur mid'Oraisa, since the money or items received in exchange for the prohibited fruits might indeed acquire the status of Isur that the Neder created on the fruits. The Rambam rules stringently because of "Safek d'Oraisa l'Chumra."

In contrast, the Isur of other Isurei Hana'ah certainly is not transferred to the money received in return for them (but it is Asur mid'Oraisa to sell the item in the first place, because one gets Hana'ah from the item by selling it), and that is why the Rambam rules that the Chilufin of other Isurei Hana'ah are Mutar b'Di'eved!