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Shevuos, 21

1) LEARNED FROM AN INFERENCE

QUESTION: Ravin disagrees with Rav Dimi (see previous Insight). He quotes Rebbi Avahu in the name of Rebbi Yochanan as saying that the verse of "ve'Lo Sishav'u vi'Shmi la'Shaker" (Vayikra 19:12) prohibits a Shevu'as Sheker l'she'Avar (swearing falsely about a past action). A Shevu'as Sheker l'ha'Ba (an oath to do, or not to do, something in the future), on the other hand is learned from "Lo Yachel Devaro" (Bamidbar 30:3).

Rav Papa states that Rebbi Avahu did not say this teaching explicitly, but rather Ravin deduced it from Rebbi Avahu's statement in a different context. Rebbi Yochanan taught that a person is punished with Malkus for making a Shevu'as Sheker because the verse of Shevu'as Shav (Shemos 20:7) teaches that the transgression of making a Shevu'as Shav is punishable with Malkus. The verse says "la'Shav" a second time in order to teach that a second type of Shevu'ah is also punishable with Malkus. Since the second type of Shevu'ah cannot be a Shevu'as Shav (which is already mentioned in the verse), it must be referring to a Shevu'as Sheker. Rebbi Avahu explains that the only Shevu'as Sheker to which Rebbi Yochanan can be referring is a Shevu'as Sheker *l'she'Avar*, and yet Rebbi Yochanan refers to such a Shevu'ah as a Shevu'as *Sheker*, implying that it is prohibited by the verse of "ve'Lo Sishav'u vi'Shmi la'Shaker" (Vayikra 19:12) and *not* by the verse of "Lo Sisa Es Shem Hashem... la'Shav" (Shemos 20:7), the verse that prohibits Shevu'as Shav.

Normally, when the Gemara writes that an opinion expressed in the Gemara was deduced from a different statement ("Michlala Itmar"), it is understood to be an unreliable teaching. The Gemara always asks what difference does it make that it was deduced from another statement, and the Gemara goes on to explain how the inference may have been incorrect (see, for example, Berachos 12a, Shabbos 40a, Yevamos 60b). In what way is the deduction from Rebbi Avahu's words in our Sugya incorrect?

ANSWERS:

(a) The RITVA writes that the term "Michlala Itmar" in our Sugya is used in a unique manner. It does not mean to say that the deduction was incorrect, but rather that Rebbi Avahu's statement was not explicit. This is why the Gemara does not conclude by explaining what was incorrect about what we deduce from Rebbi Abahu's words.

(b) The CHASAM SOFER suggests that the term "Michlala Itmar" in our Sugya may be interpreted in the normal manner. It is true that according to Rebbi Avahu, Rebbi Yochanan requires the second word "la'Shav" to teach that a Shevu'as Sheker l'she'Avar is treated the same way as a Shevu'as Shav. However, after we know that the second "la'Shav' is referring to a Shevu'as Sheker l'she'Avar, such a Shevu'ah may indeed be included in the prohibition of "Lo Sisa..." that is written in the beginning of the verse. (That is, "la'Shav" is not just a Ribuy for Malkus, but rather it is placing Shevu'as Sheker l'she'Avar into the verse of "Lo Sisa.") Therefore, Rebbi Avahu might be expressing the same opinion as Rav Dimi: Shevu'as Sheker l'she'Avar is learned from "Lo Sisa," as well as "Lo Sishav'u." Shevu'as Sheker l'ha'Ba is learned from "Lo Sishav'u," and "Lo Yachel Devaro" is teaching Konamos (Neder), as Rav Dimi taught in the name of Rebbi Yochanan. (The Gemara does not ask what is incorrect about making this inference from Rebbi Avahu's words, because the weakness of this inference is so obvious.)

This indeed is consistent with the ruling of the Rambam, who rules that a Shevu'as Sheker l'she'Avar and a Shevu'as Sheker l'ha'Ba are both included in the prohibition of "Lo Sishav'u."

21b

QUESTION: The Gemara quotes a Mishnah which teaches that if a person makes a Shevu'ah not to eat and then he eats Neveilos (which the Torah prohibited even before he made his Shevu'ah), he is punished for violating his Shevu'ah as well as for transgressing the Isur of Neveilos. The Gemara asks that he should not be Chayav, because he is "Mushba v'Omed me'Har Sinai." An oath cannot take effect to enforce an act for which one is already bound by oath. A person is considered bound by the Mitzvos as if he took an oath at Har Sinai to keep them).

Why does the Gemara use the words "Mushba v'Omed..." to explain why a Shevu'ah does not take effect on what the Torah prohibits? It should instead give as the reason the normal principle of "Ein Isur Chal Al Isur!"

The same point may be made about the Gemara's statement that if a person prohibits an object with a Shevu'ah and then repeats the Shevu'ah, the second prohibition does not take effect because "Ein Shevu'ah Chal Al Shevu'ah" (Nedarim 18a). Why does the Gemara not simply say, "Ein Isur Chal Al Isur?" (NODA B'YEHUDAH OC 1:36; see also Insights to Nedarim 18:2.)

ANSWERS:

(a) The NODA B'YEHUDAH suggests that it seems that the rule of "Ein Isur Chal Al Isur" applies only to what the Torah itself prohibits; it does not apply to what a person prohibits upon himself through a Shevu'ah.

The Noda b'Yehudah does not explain his hypothesis. What is the logical distinction between a Shevu'ah and any other Isur in the Torah? Perhaps his intention is that an Isur does not address a particular person and a particular situation. It does not *need* to take effect when there is already another prohibition, and in fact we are taught that the Torah does not *intend* for the second prohibition to be applied when a first is already in place. A Shevu'ah, however, is stated with the explicit intention of having it apply to a particular person and a particular situation. Since the one who swore did not intend for the Shevu'ah to be limited to what was not previously prohibited to him, perhaps it should apply even where a prohibition of the Torah (or another Shevu'ah) is already in force.

The Gemara therefore explains that a Torah prohibition is also a form of Shevu'ah, and therefore a second Shevu'ah cannot take effect and reinforce it. (This logic may not apply to a Neder, since the prohibition created by a Neder must be based on the Torah's prohibition of Korban. Therefore, it does not depend on the person's specific intent any more than does the Isur of Korban. That is why Tosfos (20b, DH d'Chi) applies the rule of "Ein Isur Chal Al Isur" to a Neder.)

(b) The KOVETZ HE'OROS (#33) suggests that a Shevu'ah does not create an actual prohibition per se. Rather, when a person makes a Shevu'ah that he will do a particular act, he is asserting that such an act will certainly take place. If that act does not take place (that is, if he does not fulfill his Shevu'ah), then he has lied. He is thus obligated to fulfill his Shevu'ah simply in order to prevent himself from having lied retroactively. (Hear an in-depth discussion of the nature of the prohibition of a Shevu'ah in the Shi'ur of Rav Dov Zupnik to Shevu'os 22a at length.)

Accordingly, the Isur of Shevu'ah is not at all similar to any other Isur of the Torah, since it takes effect neither on a particular object nor on a particular act. Rather, it forces a person to act in a certain way to prevent himself from lying. The reason an Isur cannot take effect where a previous Isur exists is because the second Isur is not adding a new dimension to the Isur that already exists (see Insights to 20b). The Shevu'ah, however, does add a new dimension and does not simply reinforce the previously-existing Isur.

Both of these approaches, however, are not consistent with the words of the Rishonim who explicitly use the principle of "Ein Isur Chal Al Isur" when discussing a Shevu'ah. (See, for example, the BA'AL HA'ME'OR, end of third Perek.)

(c) The AVNEI MILU'IM (#12) suggests that the logic of "Ein Isur Chal Al Isur" *does* apply with regard to a Shevu'ah. However, when the rule of "Ein Isur Chal Al Isur" is applied, we normally say that the second Isur cannot obligate the transgressor to receive a second set of Malkus or a Korban, but, nevertheless, it does increase the strength of the prohibition. The Gemara in Yevamos (33b) explains that because the prohibition becomes stronger, the transgressor is considered a greater Rasha, and, when he is buried, he is buried among similar Resha'im.

The Gemara wants to teach us that when a Shevu'ah is made to prohibit something that is already prohibited by the Torah, not only do we say that the Shevu'ah does not obligate a new set of Malkus or a Korban, but we say that the Shevu'ah does not even strengthen the prohibition. That is, "Mushba v'Omed me'Har Sinai" is a more effective way of stopping the Shevu'ah from taking effect than "Ein Isur Chal Al Isur."

(The logic for this seems to be that we do not find that the Torah gives a person the right to prohibit himself with a Shevu'ah from doing something which is already prohibited for him to do with a Shevu'ah ("Mushba v'Omed..."). If the second Shevu'ah creates a new prohibition, or even adds a Chiyuv of Malkus or Korban to a pre-existing Shevu'ah, then we can learn from the verses that discuss Shevu'ah that the Shevu'ah should take effect. However, when the Shevu'ah creates no new obligation of any sort but merely strengthens a prohibition that already exists, we have no source to say that the Torah recognizes such a Shevu'ah as binding. Consequently, because of the principle of "Ein Isur Chal Al Isur" -- which teaches that the Shevu'ah cannot create a Chiyuv of Malkus or Korban when an Isur Torah already exists -- we must conclude that a Shevu'ah made to prohibit something that is already prohibited by the Torah will not be valid.)

The Avnei Milu'im points out a number of practical consequences of the fact that the Shevu'ah does not even strengthen the pre-existing Isur.

1. The obvious consequence is that we will not bury a person who transgresses such a Shevu'ah among the more wicked Resha'im.

2. If a person is so ill that that the doctors say that he will die unless he eats Neveilah, then it is permitted for him to eat Neveilah. What is the Halachah in a case in which the sick person previously prohibited himself with a Shevu'ah from eating Neveilah? The law of Piku'ach Nefesh does not permit a person to violate his Shevu'ah, since he can instead repeal his Shevu'ah through "She'eilah." If we would apply the normal rule of "Ein Isur Chal Al Isur," then the person would be required to perform "She'eilah" before eating the Neveilah, in order to remove at least one of the Isurim. However, because of the principle of "Mushba v'Omed," the Shevu'ah will not take effect at all and it will not be necessary to do "She'eilah" in order to repeal the Shevu'ah.

3. The Gemara (24a) tells us that according to Reish Lakish, even if we normally use the principle of Isur Kollel to teach that a second Isur which includes more than the first Isur takes effect, this rule does not apply to a self-created Isur such as Shevu'ah. The Avnei Milu'im asserts that this is also based on the principle that "Mushba v'Omed" is more limiting that the principle of "Ein Isur Chal Al Isur." An Isur Kollel takes effect only because of the fact that the second Isur would exist even if it cannot obligate the transgressor to receive Malkus; since the Isur creates Malkus with regard to other objects, the rule of Isur Kollel tells us that there will be Malkus as well for the Isur that was created on top of the pre-existing Isur. However, since the Shevu'ah does not create an Isur at all on what was previously prohibited, the principle of Isur Kollel will not apply.

4. The Avnei Milu'im suggests further that when the Gemara says "Mushba v'Omed me'Har Sinai" and "Ein Shevu'ah Chal Al Shevu'ah," it is showing that even if the Isur of the Torah and the person's Shevu'ah come into effect at the same time ("b'Vas 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.

The logic for this seems to be similar to what we wrote above (in #3). The reason two Isurim normally can take effect "b'Vas Achas" is because even if they would not create a Chiyuv of Malkus (because of "Ein Isur Chal Al Isur"), nevertheless the Isurim co-exist. However, because of the principle of "Mushba v'Omed me'Har Sinai" (or "Ein Shevu'ah Chal Al Shevu'ah"), the Shevu'ah itself cannot take effect if there is a pre-existing Isur. Therefore, even if the Shevu'ah and Isur take effect simultaneously, the Isur will take effect and the Shevu'ah will not take effect. (This might be true even according to those who argue with Reish Lakish and maintain that a Shevu'ah *does* take effect through Isur Kollel.)

However, 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).

However, the Acharonim point out that the approach of the Avnei Milu'im is not consistent with the RAMBAM (Hilchos Shevu'os 4:10), who seems to hold that the second Shevu'ah *does* take effect to make a more severe Isur.