THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) MAKING A NEDER ON A PRE-EXISTING NEDER
QUESTION: The Mishnah says that a Neder can take effect upon another Neder,
and it explains that this refers to a Nezirus which can take effect upon a
pre-existing Nezirus. The RAN explains that only *Nezirus* can take effect
on another Nezirus, but a Neder cannot take effect on another Neder to make
a person Chayav twice for eating one object of Isur. He writes that although
some explain that one can be Chayav twice for transgressing an Isur that he
made with two Nedarim, there are a number of problems with that opinion.
First, why does the Mishnah give the example of Nezirus, if a Neder also
takes effect on another Neder? Second, why does the Gemara say that no verse
is necessary to teach us that two oaths of Nezirus take effect when a person
says, "Hareini Nazir ha'Yom, Hareini Nazir l'Machar" ("I am a Nazir today, I
am a Nazir tomorrow")? If two Nedarim can take effect on one object at the
same time, the verse *is* necessary, for we need it to teach us that one
will be Chayav *twice* for drinking wine during the first thirty days of the
Nezirus, since both oaths of Nezirus take effect at the same time!
2) A SHEVU'AH CANNOT TAKE EFFECT ON A PRE-EXISTING SHEVU'AH
How do the other Rishonim answer these questions?
ANSWER: The RAN, when he cites this other opinion, is apparently referring
to the opinion of the RASHBA. The Rashba explains that although a Neder
takes effect on a Neder and a person will be Chayav twice for transgressing
the double Neder, in the case of Nezirus the second Nezirus cannot take
effect on the first one. The first Nezirus must end, and then the second one
will take effect. (See also SEFER HA'CHINUCH, Mitzvah 30.)
The reason for this is that a person, by making a Neder, creates an Isur,
and it becomes as though there is another Lo Ta'aseh in the Torah
prohibiting this item to him. Just like it is possible for the Torah to
write multiple Isurim on one act (such as one who eats an ant is Chayav for
up to five Isurim, see Makos 16b), a person -- by repeating a Neder -- can
create multiple Isurim on one object. A Shevu'ah, though, does not create an
Isur on the item, but it just prevents the person from doing the act of
eating the item. Once the act is already prohibited, it cannot become
prohibited again, since he is just saying that he will not do something, and
he is already obliged not to do it. Nezirus, too, is like a Shevu'ah in that
it is a change in the status of the person (see MAHARIT #53, 54, and as
cited by the Shalmei Nedarim 2b), and once he is a Nazir he cannot become a
Nazir again. If the duration of the second Nezirus continues beyond the
first, then it takes effect (since "Ein Nezirus Pachos mi'Sheloshim Yom").
According to Shmuel, even if there is no extra days of the second Nezirus,
the second Nezirus takes effect by being suspended until it can find a place
to take effect (which occurs when the first Nezirus is over).
The Rashba himself later retracts this view and says, like the Ran, that a
Neder cannot take effect on a pre-existing Neder.
QUESTION: The RAN writes that although a Shevu'ah cannot take effect on a
Shevu'ah, and, similarly, a Shevu'ah cannot take effect on an Isur in the
Torah to prohibit what is already prohibited by the Torah, a *Neder* can
prohibit something that is already prohibited by the Torah. The reason is
because the Isur of the Torah is an Isur on the person (an Isur Gavra),
while the Isur of a Neder is an Isur on the object (an Isur Cheftza),
besides being an Isur Gavra of "Bal Tachel."
The Gemara in a number of places (Shevuos 22b, Makos 22a) explains that a
Shevu'ah cannot take effect on something that is already Asur by the Torah,
and it says that the Shevu'ah does not take effect because the person is
"Mushba v'Omed m'Har Sinai Hu, v'Ein Shevu'ah Chal Al Shevu'ah" -- the
person is already bound by the Shevu'ah that he took at Har Sinai to observe
the Torah, and a Shevu'ah cannot take effect on another Shevu'ah.
Why does the Gemara give this new reason of "Ein Shevu'ah Chal Al Shevu'ah"
and not give the simple and common principle that "Ein Isur Chal Al Isur"
(an Isur cannot take effect on another Isur)? (NODA B'YEHUDAH OC 36)
(a) The AVNEI MILU'IM (#12) answers that even though "Ein Isur Chal Al
Isur," an Isur does not take effect on a pre-existing Isur, that applies
only with regard to the punishment of Malkus for the second Isur. The Gemara
in Yevamos (33b) says that a second Isur cannot take effect with regard to
Malkus, but it does make the Isur on the item stronger and more severe.
Accordingly, it could be that a second Shevu'ah does not take effect *at
all* on a pre-existing Shevu'ah, and the second Shevu'ah has no effect even
with regard to making a stronger Isur. That is why the Gemara says that "Ein
Shevu'ah Chal Al Shevu'ah" -- because it wants to emphasize that a second
Shevu'ah is even less effective that a second Isur.
Why, then, does Rava say that if a person makes two Shevu'os and then he
annuls the first one that the second one takes effect? If the second
Shevu'ah does not even create an Isur, it should be ignored completely even
after he has annulled the first Shevu'ah (like the Ran indeed suggests at
the beginning of the Daf)!
The answer is that She'eilah, the annulment of a Shevu'ah, removes the
Shevu'ah *retroactively* ("l'Mafrei'a"), so that retroactively the second
Shevu'ah was pronounced on an item that had no Shevu'ah on it and was
permitted. Therefore, that second Shevu'ah can take effect immediately from
that time. In contrast, if a woman makes two Shevu'os and her husband annuls
the first one with Hafarah, then the second Shevu'ah does *not* take effect,
because the Hafarah of a husband works only from now on ("mi'Kan u'l'ha'Ba")
and not retroactively. Consequently, since at the time that the second
Shevu'ah was pronounced it did not create any Isur, it cannot take effect
later when the first Shevu'ah is removed. (See HAGAHOS REBBI AKIVA EIGER to
YD 238 who cites the MAHARAM MINTZ who reaches a similar conclusion based on
Rashi in Shevuos 27a. However, Rebbi Akiva Eiger argues that even after the
Hafarah of the husband, the second Shevu'ah *will* take effect with regard
to Malkus for "Bal Yachel," but not with regard to obligating her to bring a
Korban for violating the Shevu'ah.)
This explains why the Gemara does not say "Ein *Isur* Chal Al Isur" but
rather "Ein *Shevu'ah*." However, it does not explain why the Gemara refers
to the pre-existing Isur as a "Shevu'ah" and not as an "Isur." If the Gemara
is emphasizing that a second Shevu'ah's inability to take effect on a
pre-existing Isur is weaker than a second Isur's ability, it should have
sufficed to say "Ein Shevu'ah Chal Al Isur." Why does the Gemara say "Ein
Shevu'ah Chal Al *Shevu'ah*?" The Avnei Milu'im is only explaining why the
second "Isur" is called a "Shevu'ah" and not an Isur.
Also, the Acharonim point out that the RAMBAM (Hilchos Shevu'os 4:10) seems
to hold that the second Shevu'ah *does* take effect to make a more severe
(b) The Avnei Milu'im suggests further that the Gemara says "Ein Shevu'ah
Chal Al Shevu'ah" to show that even if the Isur of the Torah and the
person's Shevu'ah come into effect at the same time ("b'Bas 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. That is why
the Gemara changes the wording of the principle of "Ein Isur Chal Al Isur"
and says instead, "Ein Shevu'ah Chal Al Shevu'ah."
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,
(c) There are two types of Mitzvos -- a Mitzvah which prohibits a person
from doing something (Mitzvas Lo Ta'aseh), and a Mitzvah which obligates a
person to do something (Mitzvas Aseh). A Shevu'ah can take effect on
neither. Perhaps in the case of a Mitzvas Lo Ta'aseh, the Gemara indeed
could have said "Ein Isur Chal Al Isur" (indeed, the Rishonim use this
wording here). However, in case of a Mitzvas Aseh, where a person attempts
to make a Shevu'ah to obligate himself to do something which a Mitzvah
already obligates him to do, the principle of "Ein Isur Chal Al Isur" does
not apply, since there is no Isur to be discussed. Therefore, in cases where
a person makes a Shevu'ah to fulfill a Mitzvas Aseh, the Gemara has to say
"Mushba v'Omed... v'Ein Shevu'ah Chal Al Shevu'ah." Indeed, the Gemara in
Shevuos (25a) and Nedarim (8a) is referring to making a Shevu'ah to fulfill
a Mitzvas Aseh, and therefore it has to say "Ein Shevu'ah Chal Al Shevu'ah"
and not "Ein Isur Chal Al Isur." Since the Gemara has to use that phrase in
reference to a Shevu'ah made to fulfill a positive Mitzvah, it also uses
that phrase in reference to a Shevu'ah made to fulfill a negative Mitzvah.
Alternatively, it could be that a Neder can take effect to reinforce a
negative Mitzvah because -- like the Ran says -- a Mitzvas Lo Ta'aseh is an
Isur on the person, an Isur Gavra, while a Neder is an Isur Cheftza. One
might think, though, that a Shevu'ah could be made to reinforce an Isur
Torah that is an Isur Cheftza the same way a Neder can be made to reinforce
an Isur Gavra. This is not true, because every Mitzvah in the Torah -- even
an Isur Cheftza (such as Neveilah) -- also includes an Isur Gavra, like the
Ran tells us. Perhaps that is what the Gemara means when it says that all of
the Isurim of the Torah are "Mushba v'Omed m'Har Sinai" -- it means that
even an Isur like Neveilah, which is an Isur on the Cheftza, is also an Isur
on the Gavra like a Shevu'ah and therefore a Shevu'ah cannot take effect on
it. (See a similar answer to this in MALBUSHEI YOM TOV, volume II, Kuntrus
Kal v'Chomer #7.)