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Nedarim, 19

NEDARIM 19 & 20 (7 Av) - has been dedicated to the memory of Dr. Simcha Bekelnitzky (Simcha Gedalya ben Shraga Feibush) of Queens N.Y., by his wife and daughters. G-dfearing and knowledgeable, Simcha was well known in the community for his Chesed and Tzedakah. He will long be remembered.

1) THE DIFFERENCE BETWEEN A DOUBTFUL NEDER AND A DOUBTFUL NEZIRUS

QUESTION: The Mishnah (18b) says "Stam Nedarim l'Hachmir." When a person makes a statement of a Neder and it is not clear whether he intended to create an Isur or not, we treat his statement stringently and the Neder takes effect. The Gemara questions this from another Mishnah (Taharos 4:12) that says "Safek Nezirus l'Hakel" -- when a person makes a statement that might be an oath of Nezirus but it is doubtful what he meant, we treat his statement *leniently* and the Nezirus does *not* take effect. Why should Nezirus be different from Nedarim?

Rava answers that the Mishnah in Taharos that says "Safek Nezirus l'Hakel" is the view of Rebbi Yehudah, who, we find in a Beraisa, is lenient in a case of Safek Nezirus. Rava explains that since a Safek Nezirus is more severe than a Vadai (definite) Nezirus, a person never has intention to become a Safek Nazir according to Rebbi Yehudah. In contrast, a person does have intention to obligate himself to observe a Safek Neder, since a Safek Neder is not any more stringent than a Vadai Neder. (According to Rava, it appears that the principle of "Stam Nedarim l'Hachmir" means that the Neder is a *Safek* Neder and not a Vadai Neder, and consequently one would not receive Malkus for violating such a Neder.)

Rava explains that this is why Rebbi Yehudah in our Mishnah (18b) rules stringently with regard to a case of Stam Nedarim (where one says "this object is Terumah," and it is not clear whether he means Terumas ha'Lishkah (a Davar ha'Nadur) or Terumas ha'Goren (a Davar ha'Asur)), while he rules leniently in the case of a Nazir who made his Nezirus dependent upon there being a certain amount of grain in a certain pile.

Rav Huna questions this from another Beraisa in which Rebbi Yehudah says that if a person makes himself a "Nazir Shimshon" on condition that there is a certain amount of grain in a certain pile, and the pile is found to be lacking, Rebbi Yehudah says that he is not a Nazir out of doubt. This is problematic, though, because a Safek Nazir Shimshon is no more severe than a Vadai Nazir Shimshon (for a Vadai Nazir Shimshon has none of the leniencies that a normal Nazir has). Why, then, in this case should Rebbi Yehudah be lenient? Rava has no answer for this question (see RAN).

The Gemara then quotes Rav Ashi who says that the Beraisa in which Rebbi Yehudah is lenient in the case of a person makes himself a "Nazir Shimshon" on condition is Rebbi Yehudah expressing the view of his rebbi, Rebbi Tarfon. Rebbi Tarfon holds that Nezirus must be made with "Hafla'ah," with certainty and clarity and with no ambiguity, and thus a person cannot make himself a Nazir with a Tenai.

What is Rav Ashi answering? Although he gives a logical reason why Rebbi Yehudah is lenient in the case of a Nazir Shimshon with a Tenai, his answer does not explain Rebbi Yehudah's opinion in the Mishnah (18b) where Rebbi Yehudah says that Stam Nedarim are l'Hachmir. If Rebbi Yehudah holds that Nezirus cannot take effect when there is a Safek, because of the requirement for Hafla'ah as based on the verse "Ki Yafli" (Bamidbar 6:2), then the same should apply to Nedarim, because the verse says "Ki Yafli" with regard to Nedarim as well (see 3a)!

We might suggest to answer that the statement of the Safek Neder in our Mishnah is considered to have clarity and "Hafla'ah." This is because Rav Ashi holds that "Stam Nedarim l'Hachmir" means that the Neder takes effect not out of Safek, but it is a Vadai Neder, for we assume that the person did intent to make a Neder and he was not unsure about it (nor did his statement make the Neder conditional on anything). But if this is why Stam Nedarim are l'Hachmir, then we are back to the question of who wrote the Mishnah in Taharos that says that "Safek Nezirus l'Hakel!" Since a case of Stam Nezirus does not involve a lack of "Hafla'ah" (like the Nedarim mentioned in our Mishnah do not involve a lack of "Hafla'ah"), why should they be l'Hakel?

ANSWERS:

(a) From the SHITAH MEKUBETZES in the name of the RIF (Rabeinu Peretz), it seems that Rav Ashi is not answering the question of who wrote the Mishnah of "Safek Nezirus l'Hakel." Rather, he is merely answering why Rebbi Yehudah is stringent in our Mishnah regarding a Safek Neder, while he is lenient in the case of a person trying to become a Nazir Shimshon by making his Nezirus dependent on the amount of grain in the pile. Rav Ashi is answering that when the person makes his Nezirus dependent on the pile, it is lacking "Hafla'ah" and therefore Rebbi Yehudah is lenient, while in the case of Stam Nedarim there is no lack of "Hafla'ah" and therefore he is Machmir.

Who, then, is the author of the Mishnah in Taharos who says that "Safek Nezirus l'Hakel?" The answer is that the Gemara is relying on the previous answer of Rava, that the Tana of our Mishnah holds that a person willfully creates upon himself a Safek Neder, because a Safek Neder is not more severe than a Vadai Neder, but a person does not make himself a Safek Nazir, because the laws of a Safek Nazir are much more stringent than those of a Vadai Nazir.

(b) TOSFOS (in the margin and as cited by the SHITAH MEKUBETZES) also explains that Rav Ashi is only answering the contradiction in Rebbi Yehudah's own statements. To answer the contradiction between our Mishnah ("Stam Nedarim l'Hachmir") and the Mishnah in Taharos ("Safek Nezirus l'Hakel"), we have to rely on the previous answer of Rava, that since a Safek Nezirus is more stringent than a Vadai Nezirus, a person does not have intention to make himself a Safek Nazir.

However, Tosfos explains that Rav Ashi is only discussing the statement of Rebbi Yehudah in the Beraisa that discusses Nazir Shimshon. Rebbi Yehudah there is following the opinion of Rebbi Tarfon. In contrast, in the first Beraisa that discusses a person who conditionally accepts upon himself a normal Nezirus, Rebbi Yehudah is not expressing the opinion of Rebbi Tarfon. Rather, Rebbi Yehudah is lenient in that case for a different reason and not because there is a lack of "Hafla'ah" -- but rather because a Safek Nezirus is more stringent than a Vadai Nezirus. Accordingly, Rebbi Yehudah is the author of the Mishnah in Taharos that says "Safek Nezirus l'Hakel" even though he himself says in our Mishnah that "Stam Nedarim l'Hachmir."

This also appears to be the opinion of the RAN (19b, DH Ein and DH Ela). This is why the Ran writes that in the Beraisa, where Rebbi Yehudah expresses Rebbi Tarfon's view in a case where the grain from the pile turned out to be lost or stolen, there was no point in Rebbi Yehudah stating this Halachah (that the Nezirus does not take effect) in a case where the grain was *not* lost or stolen. This is because the only possible reason he could be lenient in such a case would be because of the lack of "Hafla'ah," and not because Safek Nezirus is more stringent than Vadai Nezirus (because he is discussing a case of a Nazir Shimshon, where a Safek Nezirus is *not* more stringent than a Vadai Nezirus). Since he is discussing a case of a Nazir Shimshon, even though he is discussing a case of grain that was stolen, it is immediately obvious that his reasoning is because of the lack of "Hafla'ah."

(c) The SHITAH MEKUBETZES, citing "Miktzas Mefarshim," explains that according to Rebbi Tarfon, every Safek Nezirus and Stam Neder is lacking "Hafla'ah," and therefore the Halachah is l'Hakel, and it is Rebbi Tarfon who is the author of the Mishnah in Taharos who argues with our Mishnah. Our Mishnah that rules "Stam Nedarim l'Hachmir" holds that Stam Nezirus is also l'Hachmir, because it argues with Rebbi Tarfon and holds that "Hafla'ah" is not necessary.

Rebbi Yehudah in our Mishnah is expressing his own opinion and not that of Rebbi Tarfon, while Rebbi Yehudah in the Beraisa is expressing the view of his rebbi, Rebbi Tarfon, but he himself disagrees with it.

According to this, why does our Mishnah only discuss Stam Nedarim and not Nezirus, and why does the Mishnah in Taharos discuss only Safek Nezirus and not Nedarim? Perhaps each Tana in each place was simply saying over the words that he heard from his rebbi, as the Ran writes (beginning of 20a).


19b

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