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Nedarim, 54

1) VIOLATING A NEDER WITH A SECONDARY OBJECT

QUESTION: The Gemara says that according to Rebbi Akiva, when a person makes a Neder prohibiting a certain object to himself, that Neder also includes any other, secondary object that, if a person would appoint a Shali'ach to buy the primary object for him and the Shali'ach would not be able to find it, then he would ask the sender if he should buy the secondary object instead (based on the assumption that the name of the primary object includes the secondary object).

Abaye says that even though Rebbi Akiva holds that anything a Shali'ach asks the sender if he should buy in place of the primary object is included in the Neder, there is no Malkus if the Noder violates the Neder with that secondar object. This is the way most Rishonim rule.

The RAMBAM (Hilchos Nedarim 9:6), however, rules like Rebbi Akiva but makes no mention of the exemption from Malkus, implying that the Neder includes the secondary object for all purposes, even for Malkus. Why does the Rambam not cite the ruling of Abaye? (KESEF MISHNAH)

ANSWERS:

(a) The LECHEM MISHNAH (Hilchos Nedarim 9:10) answers that the Rambam understands that Abaye did not mean that *any object* that a Shali'ach asks the sender about is included in a Neder out of doubt. Rather, Abaye meant that Rebbi Akiva was unsure whether a Shali'ach -- when asked to buy Yerek (vegetables), asks about Dilu'in (gourds) or not. If we know for certain that a Shali'ach does ask about it, then there certainly will be Malkus according to Rebbi Akiva. Since the Rambam writes that an object that a Shali'ach asks about is included in the Neder, the Rambam is discussing something that we *know* a Shali'ach asks about, and that is why he rules that there is Malkus.

However, this approach is problematic in that the wording of the Mishnah implies that a Shali'ach *does* ask about Dilu'in, and there is no Safek about it.

(b) The Gemara says that the Mishnah in Me'ilah seems to contradict Rebbi Akiva's opinion. The Mishnah there says that when a Ba'al ha'Bayis tells a Shali'ach to give meat (which is Hekdesh) to guests. amd the Shali'ach instead gives them liver (which is Hekdesh), the Shali'ach is Chayav for Me'ilah since he did not carry out the will of the Ba'al ha'Bayis. The Gemara says that this Mishnah is not in accordance with the view of Rebbi Akiva, because liver is something a Shali'ach asks his sender about when he is sent to buy meat, and thus by giving the guests liver, the Shali'ach *fulfilled* the will of the Ba'al ha'Bayis and the *Ba'al ha'Bayis* should be Chayav for Me'ilah.

The Rishonim ask that Rebbi Akiva himself says that there is no Malkus for a person who makes a Neder to prohibit himself from meat (Basar) and then eats liver. The fact that he does not get Malkus indicates that the secondary object prohibited by the Neder (because it is something that a Shali'ach asks about) is only Asur mid'Rabanan or mi'Safek, and that is why there is no Malkus. However, this means that in the case of Me'ilah, mid'Oraisa the Shali'ach who gave the liver, and not meat, to the guests is *not* fulfilling the will of the Ba'al ha'Bayis even according to Rebbi Akiva! The Ba'al ha'Bayis should not be Chayav for Me'ilah even according to Rebbi Akiva! (See RAN and TOSFOS.)

Furthermore, Abaye himself explains that the Mishnah in Me'ilah could also be following the view of Rebbi Akiva, because the object (meat) that the Ba'al ha'Bayis mentioned only includes the secondary object (liver) when the Shali'ach *actually asks* about it. In the case in Me'ilah, the Shali'ach did not ask about the liver, and thus it was not included in the Ba'al ha'Bayis' behest, and that is why the Shali'ach is Chayav for Me'ilah. Why, though, does Abaye not answer according to his own reasoning, that the secondary object is only included in the person's Neder *mid'Rabanan*, and the fact that a Shali'ach asks about it does *not* make it part of the primary object mid'Oraisa? (See TOSFOS.)

It must be that Abaye changed his mind and decided that Rebbi Akiva holds that liver is included in "meat" mid'Oraisa and Malkus is administered for liver as well. That is why Abaye had to give a different answer for the Mishnah in Me'ilah, to explain how it can be in accordance with the view of Rebbi Akiva, and he did not say simply that its inclusion in the Neder is mid'Rabanan.

This might be why Rava announced afterwards that "Abaye's answer is a good answer." Why does the Gemara tell us that Rava approved of his answer? If Rava says the same answer, then the Gemara should simply say that "Rava and Abaye both say...." Rava must have meant to say that he was expecting Abaye to give a different answer and to say, according to his own reasoning, that the secondary object is only included in the Neder *mid'Rabanan*, while Rava himself disagrees and holds that something that a Shali'ach asks about is included in the Neder *mid'Oraisa*. Now, though, says Rava, Abaye is giving a different answer that I agree with! That is why the Rambam rules that the secondary object is included in the Neder mid'Oraisa, like the conclusion of Abaye and Rava.

54b

QUESTION: The Gemara explains that Rebbi Akiva and Raban Shimon ben Gamliel argue whether a Neder prohibiting meat (Basar) also includes chicken, liver, and other secondary forms of meat. They also argue whether a Neder prohibiting vegetables (Yerek) also includes gourds (Dilu'in). Raban Shimon ben Gamliel says that these objects are not included in the Neder, since liver and chicken are not called "Basar," and a gourd is not an actual Yerek. Rebbi Akiva says that they are included in the person's Neder, because when a person asks a Shali'ach to buy Basar (or Yerek) for him and the Shali'ach does not find any, the Shali'ach will return to the sender and tell him that there is no Basar (or Yerek), and he will ask the sender if he would like him to buy chicken (or gourds).

The Rishonim rule like Rebbi Akiva, who says that chicken and liver are included in a Neder prohibiting Basar, and that gourds are included in a Neder prohibited Yerek. The Gemara explains that according to Rebbi Akiva, fish are also included in a Neder prohibiting Basar unless circumstances indicate that the person did not intend to prohibit fish (for example, in a situation where he would not have eaten fish anyway). The meat of Chagavim (grasshoppers) is not included in a Neder prohibiting Basar.

The RAMBAM (Hilchos Nedarim 9:6, as cited by the Ran here), however, gives a strange ruling. The Rambam rules like Rebbi Akiva and writes that Chagavim are not included in a Neder prohibiting Basar, and that fish are included in a place where a Shali'ach would normally return to the sender to ask if he would like fish when sent to buy Basar. Regarding chicken and liver, though, the Rambam writes that chicken and liver are *always* included in the Neder! How can the Rambam rule this way? The Gemara clearly equates fish with chicken and says that a Shali'ach asks about both of them! Why, then, does the Rambam differentiate between the two? (Many Acharonim discuss this issue and give forced answers.)

ANSWER: Perhaps the clearest answer to this question is that of the KESEF MISHNAH (which is based on the RADBAZ). The Kesef Mishnah points out that that the Gemara seems to be unnecessarily wordy when it compares chicken to fish. The Gemara asks why the Tana includes chicken in a Neder prohibiting Basar, and it answers because a Shalia'ach sent to buy Basar asks if he should buy chicken when he cannot find any Basar. The Gemara then asks that if chicken is included in "Basar" for that reason, then "fish, too -- it is normal for a Shali'ach, if he does not find meat, to ask about it, saying saying, 'If I do not find meat, shall I bring fish?'"

Why does the Gemara not say simply that "fish, too -- it is normal for a Shali'ach, if he does not find meat, to ask about it." Why does the Gemara have to repeat at length what the Shali'ach asks? (See SHALMEI NEDARIM in the name of TESHUVOS MAHARIK.)

The Kesef Mishnah answers that it is evident from the apparent repetitiveness that there are two different inquiries that a Shali'ach might ask his sender about what he wants him to buy. In the case of chicken (or liver), as soon as the Shali'ach is appointed to buy meat for the sender, the Shali'ach asks, "Do you want animal mear or chicken meat (or liver)?" When it comes to fish, though, the Shali'ach will *not* ask, "Do you want fish meat," for he assumes that the sender does not want fish meat. Only in the event that there is no meat in the market will he have to ask the sender if fish will suffice.

Raban Shimon ben Gamliel holds that in both cases of the different inquiries of the Shali'ach, the word Basar does not include the secondary type of meat (chicken or fish). Neither type of food is included in "Basar." Rebbi Akiva, on the other hand, holds that even in the latter inquiry, where the secondary food is only bought when there is no other Basar in the market, the secondary food is also included in "Basar," as is evident in the Mishnah.

(The Kesef Mishnah does not explain why Raban Shimon ben Gamliel should argue with the first category of inquiry. If the Shali'ach normally asks "do you want animal meat or chicken meat (or liver)" because both can be called meat, then why should Raban Shimon ben Gamliel say that the word Basar means only animal meat? The answer might be that animal meat is more desirable and important to people, and thus they mean animal meat when they say "Basar." Raban Shimon ben Gamliel holds that the word Basar includes only the more desirable type of Basar and not the less desirable type of Basar such as chicken or liver. See KEREN ORAH.)

This is why the Rambam rules that whether fish is included in "Basar" depends on the place: does a Shali'ach in that place normally ask if fish will suffice when he is sent to buy meat, like the Gemara says. However, the Rambam says that chicken and liver are included in the word "Basar" in all places (according to Rebbi Akiva), because they are considered to be types of meat (even though animal meat is generally more desirable).

Strong support for this approach can be found in the wording of the Gemara. Earlier (54a), when the Gemara explains the Machlokes between the Rabanan and Rebbi Akiva, it says that the Rabanan hold that an item which a Shali'ach *must* ("d'Tzarich") ask about is not included in the object of the Neder, while Rebbi Akiva holds that anything that a Shali'ach *asks* about is the same as the object in the Neder. Then (54b), when the Gemara compares fish with chicken, it says that according to Rebbi Akiva fish are included in the Neder because it is *normal* for a Shali'ach ("d'Avid Shelicha") to ask about it. Why does the Gemara use three different phrases?

According to the Kesef Mishnah's approach in the Rambam, it makes sense. The first type of food -- a food which is called "Basar" and may well have been included in the command of the sender (such as chicken and liver) -- which a Shali'ach needs to ask about immediately is called something that a Shali'ach *must* ask about, since the term "Basar" includes both meat and chicken, and thus the Shali'ach must ask what the sender wants. The Rabanan say that even those items are not included in the Neder prohibiting "Basar." Rebbi Akiva, on the other hand, holds that even when the Shali'ach does not have to ask, but it is merely *normal* for him to ask, such as when he does not find any Basar and comes back and asks if the sender wants fish instead, that item is included in the Neder. Since Rebbi Akiva holds that both (chicken/liver, and fish) are included, the Gemara does not say that the Shali'ach "must" ask ("d'Tzarich") or it is "normal" for him to ask ("d'Avid").

When the Gemara (54b) attempts to show that fish should be included in a Neder of "Basar" just like chicken is included (according to Rebbi Akiva), it is referring only to the second type of inquiry, where the Shali'ach asks if he should buy fish if he cannot find any Basar. Therefore, the Gemara uses the appropriate term and says it is "normal" ("d'Avid") for a Shali'ach to ask! (The Gemara also uses the term "d'Avid" with regard to chicken only because it must use that term with regard to fish.)