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Nedarim, 28

1) MAKING A NEDER TO EVADE A BANDIT

QUESTION: The Mishnah (27b-28a) says "Nodrim l'Haragin..." -- a person is allowed to evade a bandit or a tax collector by making a Neder stating that he prohibits on himself all fruit in the world if a certain object (that the bandit wants to take) is not the king's property. Even though the object is not really the king's property, the Neder does not take effect and the fruit is Mutar, because we know that he only made the Neder to evade the bandit.

Beis Shamai says that one may make such a Neder only when the bandit himself initiates it and says, "Vow to me that all fruit will be Asur to you if the object is not the king's." Beis Hillel argues and says that one may initiate the Neder himself, and, moreover, when the bandit does initiate it, one may even prohibit objects in his Neder that the bandit did not mention in order to convince the bandit of his sincerity. Hence, if the bandit says to him, "Vow to me that your wife will be prohibited to you if that object is not the king's," and he says, "My wife *and children* should be Asur to me...," Beis Shamai rules that only his wife remains Mutar to him but his children are Asur to him, because he added them to the Neder on his own accord. Beis Hillel, though, rules that they are all Mutar to him, because he included them all in the Neder only because of the bandit.

However, we learned earlier (25b) that Beis Hillel holds that "Neder she'Hutar Miktzaso, Hutar Kulo" -- once part of a Neder is annulled, the entire Neder is annulled as well. Why, then, in the case in the Mishnah here, does Beis Hillel have to teach that the Noder's children are Mutar to him because he made the Neder only to evade the bandit? Even if one is not allowed to add objects to his Neder to evade a bandit, the Isur on the children should not take effect because the Neder does not take effect with regard to his wife, and "Neder she'Hutar Miktzaso, Hutar Kulo!" (KEREN ORAH)

ANSWERS:

(a) The SHALMEI NEDARIM answers that the Mishnah is not teaching that the children are Mutar; indeed, we would have known that the children are Mutar because of "Neder she'Hutar Miktzaso, Hutar Kulo." Rather, the Mishnah is teaching that a person is permitted *l'Chatchilah* to add other objects to his Neder.

However, the wording of the Mishnah does not imply that the point is to teach that one is permitted l'Chatchilah to add to the Neder. The Mishnah says, "Keitzad" -- "In what way [does Beis Hillel permit adding items to the Neder]," and it explains that according to Beis Hillel, when a person adds items to the Neder, the Neder does not take effect on anyone, neither the wife nor the children. Moreover, why, logically, should it be permitted l'Chatchilah to add other objects to the Neder if doing so is not necessary?

(b) The KEREN ORAH answers that the rule of "Neder she'Hutar Miktzaso, Hutar Kulo" applies only when the Neder originally included a large group of people or objects, and then it was discovered that one (or part) of those people or objects was included in the Neder by mistake. Since all of the objects were part of the same Neder, and the part of the Neder that was made by mistake is annulled, the entire Neder is broken and annulled. In contrast, in the case of our Mishnah it can be assumed that the person never wanted to prohibit himself from the object that the bandit told him to prohibit. Hence, that object (in this case, his wife) was never part of the Neder in the first place. It was not even a Neder made by mistake. Rather, it was not a Neder at all. Hence, if he is Mutar to his wife because no real Neder was ever made to prohibit her, that Heter will not annul the rest of the Neder, because his wife was never an actual part of the Neder.

QUESTION: Shmuel asks how can the Mishnah say that it is permitted to evade a tax collector if a Jew is obligated to abide by the law of the land ("Dina d'Malchusa Dina"). The Gemara answers that the tax collector mentioned in the Mishnah is one who is operating illegally, not in accordance with the law of the land (either he levies unlimited taxes, or he took the position by force and was not appointed by the king).

The RAN writes in the name of TOSFOS that the principle of "Dina d'Malchusa Dina" applies only to laws made by non-Jewish kings in their kingdoms. "Dina d'Malchusa Dina" does not apply to laws made by a Jewish king, though, who rules over Eretz Yisrael (and follows the Torah). The logic of Tosfos, as the Ran quotes, is that one must follow the laws made by the sovereign of a foreign country because that sovereign is entitled to demand any payment that he wants as compensation for allowing people to live in the land under his jurisdiction (as he has the legal right to expel from his land anyone he wants). In contrast, no Jewish king has that right in Eretz Yisrael, because every Jew is entitled by the Torah to live in Eretz Yisrael, and the king cannot legally deny any Jew that right. Consequently, a Jewish king may not demand payment from the people for permission to live in Eretz Yisrael, because it is not the king who is granting them permission to live there.

How could it be that a Jewish king does not have right to demand tax from his constituents? In Shmuel I (ch. 8), we read in the "Parshas ha'Melech" that the Navi tells the Jewish people that the king that they will appoint will take away their property for himself, and he will take away their children for the army. If he can take away property and people, then certainly the Jewish king also has the right to demand a tax! In fact, the RAMBAM (Hilchos Melachim 4:1) writes that a Jewish king has the right to levy any tax he wants for this reason -- since he is permitted to take away property, the same authority of eminent domain permits him to levy a tax. How, then, can the Ran say that a Jewish king does not have the right to levy a tax?

ANSWERS:

(a) The Gemara in Sanhedrin (20b) records a Machlokes Tana'im whether or not the Navi meant what he said literally, that the king may take away the property of the Jews. Rebbi Yosi maintains that it is indeed permitted for the king to take away property, while Rebbi Yehudah says that the Navi did not mean his words literally, but he was merely saying them in order to arouse fear of the king among the people.

It is possible that the Ran writes that "Dina d'Malchusa Dina" does not apply to Jewish kings only according to Rebbi Yehudah's opinion, that the king is *not* permitted to take whatever he wants from the people.

However, we find that the source for the Ran's words are the words of the RASHBA. The Rashba cites proof that "Dina d'Malchusa Dina" does not apply to Jewish kings from the opinion that says that the "Parshas ha'Melech" in Shmuel was only said to scare the people. He says that if "Dina d'Malchusa Dina" applies to a Jewish king, then why should the king not be able to take whatever land he wants? It seems from the Rashba that the statement of Tosfos quoted by the Ran that "Dina d'Malchusa Dina" does not apply to a Jewish king was made according to *both* opinions in the Gemara in Sanhedrin, and the Rashba is merely bringing a proof from one of the opinions.

(b) Perhaps Tosfos maintains that a king is only allowed to *take* things from the people, but he cannot *obligate* them to *give* things to him willingly (that is, if they want to hide it from him, they are not obligated to give it to him because of "Parshas ha'Melech"). The Rambam, though, does not agree, as we mentioned above, for he rules that the Jewish king is allowed to levy a tax because of "Parshas ha'Melech."

(c) Perhaps our question is not a question at all, but is actually the *source* and logic behind the opinion of Tosfos! Tosfos was bothered by a question: why did the Navi have to expressly give permission to a Jewish king to take whatever things he wants merely because of a special Divine grant ("Parshas ha'Melech")? The same law applies to all kings because of "Dina d'Malchusa Dina!" ("Dina d'Malchusa Dina" is a logical Halachah that applies with the force of a Din d'Oraisa.) We might have answered that "Parshas ha'Melech" allows a king to take objects even when he has no valid excuse for taking them, whereas "Dina d'Malchusa Dina" does not allow a king to take objects without a valid excuse (see the Girsa of Tosfos as recorded in Chesronos ha'Shas, included in the margins of some printings of the Gemara).

However, it could be that Tosfos did not accept this answer, because even "Parshas ha'Melech" only permits a king to take advatnage of the property of his subjects when it is beneficial to the country or to the kingship. Otherwise, why was Achav punished for taking the orchard of Navos (Melachim I 21)? (See Tosfos in Sanhedrin 20b.) This is also implied by the Rambam.

Hence, why was it necessary to expressly give the king rights to take his subjects' property through "Parshas ha'Melech?" His rights should come through "Dina d'Malchusa Dina!"

Tosfos is answering that it must be that the Jewish king does not have rights of "Dina d'Malchusa Dina" in Eretz Yisrael, because "Dina d'Malchusa Dina" only gives the king rights when the king is able to expel people from his land.

It seems that a practical difference between the Jewish king's rights coming from "Dina d'Malchusa Dina" or from "Parshas ha'Melech" applies when the ruler of Eretz Yisrael is not a king, but rather some sort of governor who has rights over the land. If the rights of a Jewish king come only from "Parshas ha'Melech," then those rights would *not* apply to a governor, or anyone who is not an absolute monarch (see Tosfos in Sanhedrin, ibid.).

QUESTION: The Gemara cites the opinion of Beis Shamai who says, "Lo Yiftach Lo b'Shevu'ah" -- literally, "he should not be Posei'ach for him for his Shevu'ah." The Gemara explains that this means that a person cannot have his Shevu'ah annulled through She'eilah, asking a Chacham to find a Pesach to serve as grounds for annulling the Shevu'ah.

How can Beis Shamai say such a thing? The verse says, "Lo Yachel Devaro" (Bamidbar 30:3), from which we learn that "*he* may not desecrate his word, but *others* may desecrate (i.e. annul) it for him*" (Chagigah 10a). This verse, though, mentions both Neder and Shevu'ah, and thus the annulment of a Chacham of a person's word should apply both to Nedarim and to Shevu'os!

Also, if Beis Shamai means to say that one cannot be Sho'el on his Shevu'ah, then why does Beis Shamai say, "Lo Yiftach Lo b'She'eilah?" Beis Shamai should have said simply, "Ein Sho'alin b'Shevu'ah!"

ANSWERS:

(a) The RAN (22b) and the ROSH here explain that Beis Shamai holds that it is permitted *mid'Oraisa* to be Sho'el on a Shevu'ah and annul it, and it is only mid'Rabanan that She'eilah of a Shevu'ah is not permitted. Perhaps this also explains why Beis Shamai says, "Lo Yiftach Lo b'She'eilah," since he wants to emphasize that it is the Rabanan who instituted that a Shevu'ah not be annulled. Had he said, "Ein She'eilah b'Shevu'ah," we might have mistakenly thought that he means that there is no such thing as She'eilah for a Shevu'ah, when indeed mid'Oraisa there is She'eilah for a Shevu'ah.

(b) The RAMBAM has an original approach to all of the Gemaras that use the term "Posei'ach" or "Poschin." The Rambam (Hilchos Shevu'os 6:10-12) learns that "Posei'ach" means tt when a person himself does not want to remove his Neder, the Chacham sometimes looks for a way to convince the person that he regrets having made the Neder so that he may be Sho'el on it and have it annulled. "Posei'ach" always refers to the initiative of the Chacham in annulling someone's Neder, even when the Noder was not interested in removing his Neder.

According to the Rambam, the intention of our Gemara is clear. Beis Shamai does not say "Ein She'ilah..." because one *could* be Sho'el. Rather, he says "Ein Poschin...," meaning that when it comes to a Shevu'ah, a Chacham should never try to convince the person who made the Shevu'ah that he regrets it. This is because of the severity of Shevu'os. Accordingly, Beis Shamai's opinion certainly does not contradict the Derashah of "Lo Yachel Devaro," since a Shevu'ah *could* be annulled, but only with the initiative of the person who made the Shevu'ah and not with the initiative of the Chacham.

28b