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Nedarim, 53

1) BEING "MACHMIR" IN THE CASE OF A "ROV" THAT TELLS US TO BE LENIENT

QUESTION: The Gemara quotes a Beraisa that says that if a person makes a Neder prohibiting himself from oil, and he lives in a place where most people use olive oil and a few people use sesame oil, he is prohibited to use both oils. Even though most people (Rov) use only olive oil, he is still prohibited from using sesame oil because of "Safek Isura l'Chumra."

Why should the principle of Safek Isur l'Chumra apply in this case? Whenever there is a Rov, the situation is not considered to be one of Safek! The Rov itself tells us to act leniently! (See BEIS YOSEF YD 208 and SHACH YD 208:3.)

ANSWERS:

(a) The BEIS MEIR (EH 45) suggests that since a Neder is a "Davar she'Yesh Lo Matirin," therefore we are Machmir even because of a Mi'ut (minority) and we do not follow Rov.

However, the YAD SHAUL (YD 208:2) rejects this answer, because "Davar she'Yesh Lo Matirin" only applies when the object is already prohibited by the Neder and then it gets mixed into other objects. Before we know that the object is prohibited, though, it is not considered a "Davar she'Yesh Lo Matirin" and we are not Machmir, but rather we say that it is not prohibited in the first place.

(b) The SHITAH MEKUBETZES cites a number of Rishonim who answer that when our question is one of language usage, the laws of Rov and Mi'ut do not apply, since the usage of a word depends on a person's intention. Even though most people tend to use a word in one way, this person might use it in the way that the minority uses it. Since the matter depends on a person's conscious decision and intention, the laws of Rov and Mi'ut do not apply like they do to a case of an inadvertent mixture of Isur and Heter.

The AVNEI MILU'IM (EH 45:2) cites the RITVA in Kidushin (50a) who makes a similar statement. He also points out that this seems to be the intention of TOSFOS in Sanhedrin (3b, DH Dinei Mamonos).

The Avnei Milu'im asks that the Gemara in Bava Basra (92b) and Bava Kama (27b) presents a lengthy discussion whether we follow Rov in monetary matters, cases of Dinei Mamonos, he same way that we follow Rov in cases of Isur. The examples that the Gemara gives of Rov in cases of Dinei Mamonos are of the type that our Gemara discusses! For example, a person buys an ox and it turns out to be a Nagchan (with a tendency to gore other animals or people) such that it cannot be used for work but can only be used for its meat. In such a case, there is a Rov that most people who buy oxen buy them for plowing, while only a few people buy oxen in order to slaughter them. Shmuel says that since some people buy oxen for the meat, the seller may claim that he sold it for the sake of slaughtering it and not for using it for plowing. It seems clear from the Gemara that this type of Rov would suffice for Isurim!

The Avnei Milu'im answers that the case that the Ritva is discussing is a specific case of Safek Kidushin. Perhaps the Ritva is saying that because of the Chumra of *Kidushin* we do not rely on a weak Rov (since the question is one of a person's intention, and not a question of a mixture). This is what the RAMBAN (in Milchamos) writes in Kidushin.

From our Sugya, though, it is clear that even with regard to the Isur of *Neder* we also do not rely on such a Rov, not like the Avnei Milu'im says.

Perhaps the language used for a Neder is determined by the words that people use for commerce (selling and purchasing), since commerce depends on Lashon Bnei Adam. When selling something, even the Mi'ut can be included in his wording, and therefore in the case of a Neder, too, the wording one uses for his Neder includes even the Mi'ut. (Accordingly, this Sugya follows the view of Shmuel in Bava Basra that we do not follow Rov in matters of Mamonos.)

(c) However, the Rishonim cited by the Shitah Mekubetzes seem to rule that we never follow a Rov when we need to explain a person's expressions, neither for cases of Mamonos nor for cases of Isurim. Perhaps they understand that when the Gemara says that "we do not follow Rov in monetary matters," it does not mean that only with regard to buying and selling do we not follow such a Rov. Rather, it means that the type of Rov that is used to determine the meaning of a person's words when he buys and sells is *not* used even when some Isur is involved. The only type of Rov on which we rely is a Rov of Ta'aruvos, when the Rov is determining the nature of an object in a mixture. That might be what the Ritva in Kidushin means as well. (Again, our Sugya will have to be following the view of Shmuel, while Rav, who holds that we follow Rov in cases of Dinei Mamonos, will have to explain the Beraisa differently.)

QUESTION: The Gemara quotes a Beraisa that says that if a person makes a Neder prohibiting himself from oil, and he lives in a place where most people use olive oil and a few people use sesame oil, he is prohibited to use both oils. Even though most people (Rov) use only olive oil, he is still prohibited from using sesame oil because of "Safek Isura l'Chumra," and we ignore the Rov (see previous Insight).

Earlier in Nedarim (18b), we learned that when a person makes a Neder prohibiting something upon himself like "Yayin Nesech," and we do not know whether he meant to compare the object to Yayin Nesech of a Korban or Yayin Nesech of Avodah Zarah, the Mishnah says that the Neder takes effect and the item is Asur because of "Stam Nedarim l'Hachmir." The Gemara there (19a) cites an opinion that argues with the Mishnah and says that "Safek Nedarim l'Hakel."

Why does our Gemara apply a different rule -- that of "Safek Isur l'Chumra" (with which all of the Tana'im agree), instead of the rule of "Stam Nedarim l'Hachmir?" Conversely, if the rule of "Safek Isur l'Chumra" applies here, then why does the Mishnah earlier (18b) not prohibit the Yayin Nesech because of this reason?

ANSWER: There are two different types of Safek Neder. In the case of our Gemara, the person made a valid Neder that takes effect, and we are just unsure of the *extent* of the Neder and how much he intended to include in the Neder. This Safek is treated like every other Safek Isur and we are Machmir.

In the case of the Gemara earlier (18b), though, there is a doubt whether the person is expressing a Neder at all! If he means to say that "this item is like Yayin Nesech *of Avodah Zarah*," then he is not making a Neder at all. If he means to compare the item to Yayin Nesech of a Korban, then he *is* making a Neder. In that case, the Neder takes effect not only because of a Safek, but it takes effect for certain, and one will even receive Malkus for violating such a Neder. The reason is that since he did not remain quiet, we assume that he intends to make a Neder, and we do not assume that he is making a meaningless statement, like the ROSH explains. That is the rule of "Stam Nedarim l'Hachmir."

However, this does not explain the other cases cited in the Gemara (18b and 19a) where the Tana'im discuss whether the principle of "Stan Nedarim l'Hachmir" applies. The Gemara cites a case where a person declares that all of his Chayos and Behemos are Hekdesh. The Tana'aim argue whether the person's Koy, which is a Safek whether it is a Chayah, Behemah, or independent entity, is Hekdesh (mi'Safek). The person is Makdish his other animals, so he certainly is not saying words in vain. Why should we assume that he also intends to be Makdish the Koy just because he pronounced a Neder? That case should be the same as our case! Similarly, the Gemara cites a case in which a person says that he will become a Nazir if there is a certain amount of grain in a certain pile, and then the grain in that pile was stolen and he could not determine how much there was. In that case, too, the Tana'im argue whether he becomes a Nazir mi'Safek. In that case, though, the person said the Nezirus *not* because he wanted to be a Nazir, but because he wanted to prove that he knew how much grain was in the pile! Why should we make him be a Nazir because he did not remain quiet? Moreover, the Gemara says that even if he is a Nazir, he is only a *Safek* Nazir and not a Vadai Nazir. We see clearly that the logic of the Rosh is not being applied. Why, then, do the Tana'im argue in those cases there, while in our Gemara they all agree that the Safek Neder is Asur because of "Safek Isur l'Chumra?"

The answer seems to be that the Safek in each case of the Gemara earlier (18b and 19a) was independent of the person's Neder. In one case, the Safek was whether a Koy is a Chayah. In another case, the Safek was how much grain was in the pile. In such cases, there are Tana'im who hold that a person does not want his Neder to take effect if it will only take effect out of Safek ("a person does not put himself into a situation of Safek"). In the case of our Gemara, though, there is no independent Safek. The Safek is the intention of the Noder himself! In such a case we cannot say that the person does not want to put himself into a situation of Safek and the Neder should take effect on sesame oil, because the Safek was created by his very expression of the Neder. That type of Safek certainly takes effect because he said his Neder with no qualifications, without saying what it should *not* take effect upon. The principle of "Safek Isur l'Chumra" will certainly apply to a Safek that he creates himself. If it is not a Safek that he creates, then he does not have intention for his Neder to take effect because of the Safek. (Only when he knows that he is getting involved in a Safek is it possible to say that he intends to create an Isur even though there is a Safek; when he has no idea that there is a Safek and he is merely trying to make an innocent Neder, we certainly cannot say that he intends to make something Asur mi'Safek.)

53b