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Nedarim, 13

1) MAKING HATFASAH "B'IKRO" OR "B'HETERA"

QUESTION: Rami bar Chama asks (11b) whether one's Neder takes effect when he compares (with Hatfasah) the object to the meat of a Korban Shelamim that is resting in front of him, and the blood of the Korban has already been sprinkled (l'Achar Zerikas Damim) on the Mizbe'ach, so that the meat itself is Mutar. Does the person have intention to be Matfis to the Korban in its original state, "b'Ikro Ka Matfis," before Zerikas Damim when it was Asur, in which case the Neder does not take effect because he is being Matfis to a Davar ha'Asur? Or does he have intention to be Matfis to the Korban in its present state, "b'Hetera Ka Matfis," after the Zerikas Damim when it is Mutar, in which case the Neder takes effect because he is being Matfis to a Davar ha'Nadur?

The Gemara does not resolve the question of whether one is Matfis "b'Ikro" or "b'Hetera." The RAN, in the name of the RAMBAN, rules that "b'Hetera Ka Matfis."

Regarding a Neder made by being Matfis to a Bechor, the Gemara concludes that this is the subject of a Machlokes Tana'im. Rebbi Yosi holds that a Bechor is sanctified from birth, Kadosh m'Rechem, and it does not need to be sanctified by the owner. Hence, it is a Davar ha'Asur and the Neder does not take effect. Rebbi Yakov argues and says that although a Bechor is Kadosh m'Rechem, there is still a Mitzvah for the owner to be Makdish it, and thus it is considered a Davar ha'Nadur and the Neder does take effect.

The RAMBAM (Hilchos Nedarim 1:13) rules that a Neder in which one is Matfis to a Bechor does *not* take effect, because a Bechor is Kadosh m'Rechem.

Regarding the question of whether one is Matfis "b'Ikro" or "b'Hetera," the Rambam (1:15) rules that if one is Matfis to the meat of a Korban Shelamim after Zerikas Damim that is resting in front of him, the Neder takes effect and the object becomes Asur, because a person is Matfis "b'Ikro." This is contrary to the ruling of the Ran in the name of the Ramban.

However, the Rambam adds that if one is Matfis to the meat of a Bechor that is resting in front of him, then it depends whether it is before Zerikas Damim has been done or after Zerikas Damim has been done. If it is before Zerikas Damim, then the Neder takes effect and the object becomes Asur. If it is after Zerikas Damim, then the Neder does not take effect and the object is Mutar.

This ruling of the Rambam is very puzzling, as the RA'AVAD points out. Why should the Neder take effect if one is Matfis to the meat of a Bechor before Zerikas Damim? The Rambam himself rules that one cannot be Matfis to a Bechor because it is Kadosh m'Rechem and is not a Davar ha'Nadur!

Second, if the Neder takes effect when one is Matfis to the meat before Zerikas Damim, then why should the Neder *not* take effect when one is Matfis to the meat *after* Zerikas Damim? The Rambam himself rules that "b'Ikro Ka Matfis," and thus one intends to be Matfis to the meat of the Bechor in its original state -- *before* Zerikas Damim, and thus the Neder should take effect!

Moreover, what is the Rambam's source for his ruling that differentiates between being Matfis to the meat of a Bechor before Zerikas Damim and after Zerikas Damim (for which we do not say "b'Ikro Ka Matfis")? No mention is made of that difference in our Sugya!

ANSWERS:

(a) The SHA'AR HA'MELECH explains, like the Ra'avad, that the Rambam learns the Gemara earlier (end of 12b) to be saying that if one makes a Neder by being Matfis to the meat of a Bechor that is resting in front of him and it is before Zerikas Damim, the Neder will take effect, while if Zerikas Damim was already done, the Neder will not take effect (contrary to the way the RAN learns the Gemara in DH Heichi Dami). The Gemara concludes that the Beraisa is discussing the meat of a Bechor *before* Zerikas Damim, and Rebbi Yakov's reason for saying that the Neder takes effect is because there is a Mitzvah for the owner to be Makdish the Bechor, even though it is already Kadosh m'Rechem, and thus the Bechor has the status of a Davar ha'Nadur.

Why, though, does the Gemara not say the same thing about the meat of a Bechor *after* Zerikas Damim? Such meat was also sanctified by the owner and should be considered a Davar ha'Nadur! It must be that after Zerikas Damim, everyone agrees that one cannot be Matfis to the Bechor (we will explain why shortly). This way of learning the Gemara is the source for the Rambam's ruling that the Neder does not take effect when one is Matfis to the Bechor after Zerikas Damim, while the Neder does take effect when one is Matfis to the Bechor before Zerikas Damim. The Rambam is ruling like Rebbi Yakov in the Beraisa, according to his way of learning the Gemara's explanation of Rebbi Yakov's opinion.

What, though, is the logic for Rebbi Yakov's distinction between the meat of a Bechor after Zerikas Damim and before Zerikas Damim?

The answer is that Rebbi Yakov holds that a Bechor before the owner is Makdish it is certainly a Davar ha'Asur, and Hatfasah with it will not make a valid Neder. Only after the owner is Makdish it does it become a Davar ha'Nadur. That is what the Rambam means when he says (1:13) that if one says, "This object is like a Bechor," the object is Mutar; when one says only that the object is "like a Bechor," one is referring to the Bechor the way it is before anything is done to it -- before the owner is Makdish it. If a person is Matfis to a Bechor *after* the owner was Makdish the Bechor, then the Neder *would* take effect.

Therefore, if one is Matfis to the meat of a Bechor after Zerikas Damim when it is no longer Asur to Kohanim, then even though the Rambam rules that "b'Ikro Ka Matfis," "b'Ikro" means the way it was originally, *before* the owner was Makdish it, and that is why the Neder does not take effect. Hence, whether the Halachah is "b'Ikro Ka Matfis" or "b'Hetera Ka Matfis," the Neder will not take effect, because the only two possibilities are that he is being Matfis to the Bechor the way it is *now* (and now it is Asur to Kohanim and is a Davar ha'Asur), or that he is being Matfis to the Bechor the way it was *originally* before he was Makdish it, when it first became a Bechor (by being born as a Bechor). We do not say that he is Matfis to a Bechor in its interim stage (after the owner was Makdish it and before Zerikas ha'Dam).

However, when he is Matfis to the Bechor and says explicitly that he is being Matfis to eat before Zerikas Damim and after the owner was Makdish it, then since right now it is Kadosh, we do not say that "b'Ikro Ka Matfis" to be lenient and say that the Neder does not take effect, but rather the Neder does take effect. This is because the concept of "b'Ikro Ka Matfis" is based on the principle of "Stam Nedarim l'Hachmir," which says that the Neder takes effect out of doubt. Hence, when there is a doubt, we are Machmir and not Mekel.

(b) The BRISKER RAV, cited by AYELES HA'SHACHAR and CHIDUSHEI REBBI SHMUEL, explains that when the Bechor is slaughter as a Korban, the very fact that it is brought as a Korban puts it into the category of a Davar ha'Nadur. This is because once it is slaughtered it becomes like every other Korban Shelamim (and a normal Korban Shelamim is a Davar ha'Nadur), even though this particular Shelamim did not require that the owner make it Hekdesh since it was Kadosh m'Rechem. Hence, even though a Bechor is not a Davar ha'Nadur like Rebbi Yosi says, the Rambam still rules that once it is slaughtered it becomes a Davar ha'Nadur, until the Zerikas Damim is performed.

When he is Matfis to a Bechor *after* Zerikas Damim, we cannot apply the rule "b'Ikro Ka Matfis" and say that he is being Matfis to the original state of the Bechor -- before the Zerikas Damim (when it was a Davar ha'Nadur) -- for the same reason that the Sha'ar ha'Melech says. A person is either Matfis to the Bechor's original state or to its present state, but not to its interim state (i.e. after the Shechitah but before Zerikas ha'Dam).


13b

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