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Nedarim, 15

1) PROHIBITING ONESELF FROM SLEEP

OPINIONS: The Gemara says that if a person makes a Neder prohibiting his eyes from sleeping indefinitely, Beis Din does not wait for him to fall asleep and then give him Malkus for violating his word, but rather Beis Din gives him Malkus immediately. This is because of the ruling of Rebbi Yochanan that a person who makes a Shevu'ah not to sleep for three days is given Malkus right away for making a Shevu'as Shav, and Beis Din does not wait for him to fall asleep, since it is not possible for him to stay awake for three days.

Although one will receive Malkus for violating his Neder, is it Asur to make such a Neder in the first place?

(a) The RAN (end of 14b) says that there is no Isur of "Neder Shav" like there is an Isur of Shevu'as Shav. When the Gemara asks rhetorically "do we leave him" alone for two days to transgress his Neder, it means that there is no Neder altogether. (The Gemara uses a terminology ("do we leave him [to transgress his Neder]") that implies that there is a Neder only because the Gemara is about to cite Rebbi Yochanan's ruling with regard to Shevu'ah, where there *is* an Isur to make such a Shevu'ah.)

(b) TOSFOS in Gitin (35a, as cited by the GILYON HA'SHAS) and the ROSH here rule that although there is no Malkus for a Neder Shav, it is still Asur to make a Neder that one cannot fulfill. The verse says, "Lo Yachel Devaro" -- "he shall not profane his word" (Bamidbar 30:3), and when he makes a Neder that he cannot fulfill, he is profaning his word.

If his transgresses the Isur of Bal Yachel, though, why is there no punishment of Malkus? There is no Malkus because his transgression is a "Lav she'Ein Bo Ma'aseh." Even though one gets Malkus for making a Shevu'as Shav which is also a "Lav she'Ein Bo Ma'aseh," there is a special verse in the Torah that teaches Malkus is given for that "Lav she'Ein Bo Ma'aseh."

The Machlokes between these Rishonim might depend on why we give Malkus to a person who prohibits himself from sleeping for three days. According to Tosfos, since a person cannot stay awake for three days, at the moment that he obligates himself to stay awake for three days it is as if he has already transgressed the Neder. He has transgressed "Lo Yachel Devaro" since his word is considered to have been profaned since is certainly going to sleep within three days.

According to the Ran, this is not the reason why the Neder does not take effect, because even though he will have to fall asleep within three days, he might do so b'Ones, against his will, and thus he will not be held accountable for violating the Neder. Rather, the Neder is invalid (or the Shevu'ah is a Shevu'as Shav) because the Torah does not allow a person to make a Neder or a Shevu'ah obligating himself for something that is not within his control. A person physically cannot keep himself awake for three days and therefore his Neder does not take effect. The Neder, though, is not considered to be a false statement or a violation of his word; rather it just does not take effect in the first place.

According to Tosfos, why should it be that he is considered to have violated his Neder already? Perhaps when he falls asleep, it will be b'Ones, against his will and beyond his control? Perhaps Tosfos learns that a person may not place himself in a situation where he will have to transgress a Mitzvah b'Ones, like the RAMBAN writes in Milchamos in Shabbos (19a and 134a; See Insights there).

Alternatively, when a person says that he will not sleep, since he does not specify the conditions under which he will not sleep, he means that he will not go to sleep even b'Ones. Although it is true that he will not be punished for violating his Neder b'Ones, nevertheless when he falls asleep he has profaned his word.

(REBBI AKIVA EIGER in Gilyon ha'Shas understands that the Ran (here and on 25a) is arguing with Tosfos. However, it is possible that the Ran agrees with Tosfos that it is Asur to make a Neder that cannot be fulfilled. When the Ran writes that the Torah does not prohibit a Neder Shav, he means that it is not included in the Lav that prohibits making a Shevu'as Shav for which Malkus is given even though it is a "Lav she'Ein Bo Ma'aseh," but certainly there is an Isur.)

OPINIONS: The Gemara discusses a case in which a husband, attempting to prevent his wife from visiting her father's house, prohibits her from having Hana'ah from him until Pesach if she visits her father's house from now until Sukos. If she has Hana'ah from her husband before Pesach, and, before Sukos, she goes to her father's house, the Hana'ah that she had from her husband retroactively becomes forbidden and a punishment of Malkus is administered. Who is punished with Malkus when the wife transgresses the husband's Neder -- the wife or the husband?

(a) The RAN and most Rishonim explain that the wife gets Malkus for having Hana'ah from her husband. Since he made himself Asur to her, it is as if he is Hekdesh to her, and thus she gets Malkus as though she had personally benefited from Hekdesh.

(b) The Ran cites the RAMBAM (Hilchos Nedarim 5:1, 5:12) who argues and says that the only one who can get Malkus is the one who made the Neder, because the verse says "Lo Yachel Devaro" -- "he shall not profane *his* word" (Bamidbar 30:3), but there is no Isur of Bal Yachel for violating someone else's word. Hence, the person who made the Neder will receive Malkus only if he helps the other person have pleasure from him in violation to his Neder. (See also Insights to Nedarim 35:2.)

Nevertheless, the Rambam writes that it is still Asur for the wife to have pleasure from her husband, even when he does not give it to her. She does not get Malkus, though, if she does have pleasure from him.

QUESTION: If "Lo Yachel Devaro," according to the Rambam, means that one may not violate his own word and thus only the person who made the Neder will get Malkus, then why is the other person, the Mudar Hana'ah, prohibited from violating the other person's Neder?

ANSWER: The Rambam rules that it is prohibited mid'Oraisa to derive any benefit from a mixture of meat and milk, but there is no punishment of Malkus for one who does. The reason, says that the Rambam, is because the Isur is learned from a Derashah and is not written explicitly in the Torah, and Malkus is given only for an Isur that is written explicitly in the Torah.

Likewise, it could be that the Rambam holds that since the simple meaning of "Lo Yachel Devaro" prohibits only the person who makes the Neder from breaking his word, and it was the Chachamim who learned from a Derashah that a Neder creates an Isur Cheftza making the item prohibited to the Mudar, that there is no Malkus for the Mudar if he violates the Neder. The Rambam holds that the Isur Cheftza is what prohibits the Mudar Hana'ah to have Hana'ah from the person who made the Neder, even though the Mudar Hana'ah did not make a Neder himself. No Malkus is given, though, since this Isur is not explicitly written in the Torah but is learned through a Derashah.

The Rambam (Hilchos Shevu'os 5:4, 6:7) writes that if a person makes a Shevu'ah prohibiting another person from doing a certain action with his object, the other person is obligated to abide by the Shevu'ah. The TUR (YD 238) asks how can a person make an Isur Gavra on another person? One can only make an Isur Cheftza on an object, which then becomes Asur to another person! The KESEF MISHNAH writes that the Rambam does not mean that the Mushba (the person who is prohibited by the other person's Shevu'ah from doing a certain act) will receive Malkus for violating the Shevu'ah, but rather that "the Shevu'ah takes effect on him a little" with regard to being Asur. (See RADVAZ on the Rambam there, and TAZ to YD 236 and BACH; see also KUNTRUSEI SHIURIM 4:12 of RAV YISRAEL ZE'EV GUSTMAN zt'l.)

The Rambam's logic might be that a Shevu'ah creates not only an Isur Gavra, but it also creates an Isur Cheftza as well, like Tosfos says in Shevuos (25a; see Insights to Nedarim 2:3). The Isur Cheftza, however, might not be any more severe than a normal Isur Cheftza created by a Neder, and therefore it creates only an Isur on the other person but not a Chiyuv Malkus.

The Acharonim point out that this might explain another ruling of the Rambam. The Rambam (Hilchos Shevu'os 2:8) rules like Rava (Shevuos 20a) that Hatfasah works for a Neder but not for a Shevu'ah. However, the Rambam (Hilchos Shevu'os 2:9) rules that Hatfasah of a Shevu'ah does create an Isur, even though it does not create a Chiyuv Malkus (see BEIS YOSEF YD 239). Why does a Shevu'ah made with Hatfasah work to create an Isur?

The KEHILOS YAKOV (Nedarim #1) explains that the Rambam holds that a Shevu'ah is able to create not only on Isur Gavra, but an Isur Cheftza as well. However, that Isur Cheftza is not punishable with Malkus, just like the Isur Cheftza of a Neder made on someone else. Therefore, if one is Matfis to that Isur Cheftza, one can create another Isur Cheftza that will only be Asur with an Isur but not with a Chiyuv Malkus. (The Isur Cheftza is created even if he expresses the Shevu'ah in completely Shevu'ah-related terms, without referring at all to the object but only to the person.)

15b