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) ACCEPTING WHAT A PERSON SAYS WAS IN HIS HEART ("DEVARIM SHE'B'LEV") WITH
REGARD TO NEZIRUS
QUESTION: The Mishnah states that if a person accepts upon himself an oath
of Nezirus and says that he did not know that a Nazir is prohibited from
drinking wine, it is as if he accepted to become a Nazir only with regard to
Tum'ah and shaving. Accordingly, the Rabanan say that he becomes a Nazir for
all matters and may not drink wine, and Rebbi Shimon says that he is not a
Nazir at all.
2) BECOMING A NAZIR WITH A CONDITION THAT CONTRADICTS THE TORAH
Why do we believe the person when he says that he did not know that a Nazir
is prohibited from wine? Since he pronounced a normal oath of Nezirus ("I am
hereby a Nazir"), we should apply the rule of "Devarim she'b'Lev Einam
Devarim" and not accept what he later says was in his heart when he accepted
to become a Nazir, but he realized the full ramifications of his statement.
How, then, can he revoke his Nezirus, according to Rebbi Shimon, by claiming
afterward that he did not know what Nezirus entails?
(a) The MEFARESH implies that the person mentioned that he does not know
that a Nazir is prohibited from wine *before* he made his statement
accepting Nezirus upon himself. Therefore, it is clear that his statement of
Nezirus did not include a prohibition of wine. (KEREN ORAH)
(b) The Gemara in Shevuos (26b) says that if a person says that he will not
eat wheat bread, and then he says that his tongue slipped and that he had
intended to say that he will not eat barley bread, he is believed and is
*not* prohibited from wheat bread. The reason is because what a person says
by accident is not considered a Halachically valid statement; unintentional
speech is not considered "Dibur."
How can we know that he intended to say something other than what he said?
We should apply the rule of "Devarim she'b'Lev Einam Devarim!" The answer is
that what slipped out of his mouth accidentally is not considered Dibur, and
therefore according to his statement now, he said no Dibur. We trust the
person when he tells us what his intentions were, as long as they are not
contradicted by a Dibur (and here there was no Dibur). Perhaps in the
Mishnah's case as well, if he thought that a Nazir is permitted to drink
wine, then his usage of the word "Nazir" was a misnomer; what he intended
was not expressed by the word he used. Perhaps such a word is not called a
Dibur, just like the case in Shevuos, and therefore he is believed to say
what was in his mind since it is not contradicting a Dibur.
The RASHBA (Teshuvos 4:108) suggests a similar explanation for the next case
in the Mishnah. If a person makes himself a Nazir and then claims that he
thought that the Chachamim would permit him to become Tamei since he cannot
support himself without becoming Tamei (his employment requires him to bury
corpses), he is *not* a Nazir according to the Chachamim. According to one
explanation in the Gemara (11b), he is not a Nazir because the Neder is
considered a Neder that he is forced to violate (Nidrei Onsin, according to
some Rishonim). How can we believe him, though, when he says later that he
did not intend to become prohibited from Tum'ah since he thought the
Chachamim would permit the Isur for him? The rule of "Devarim she'b'Lev
Einam Devarim" should say that he is not believed!
Some Acharonim (MAHARIT 1:68, DH Ach Kasheh) explain that it is known to all
that he makes a Parnasah as an undertaker, and hence it is no longer
"Devarim she'b'Lev" when he says that he had intended the Chachamim to
permit him to become Tamei since his employment involves becoming Tamei.
However, it is possible that even if we do not know that his employment
involves being Metamei l'Mesim, he still should be believed, for the
The RASHBA explains that the reason the person is believed is because when
it comes to Isur, a person is trusted regarding an Isur that applies to
himself. If he would not be trusted, we could never be Matir a person's
Neder, since we could never trust a person's Pesach -- we could never know
for sure that the person would not have made a Neder had he known that he
would have been in such a situation.
Therefore, writes the Rashba, if a person claims that his statement was made
under duress (b'Ones), we believe him. The Rashba might mean to say
something similar to what we wrote above. The Rishonim in Nedarim (28a)
explain that when a person makes a statement b'Ones, we do not apply the
rule of "Devarim she'b'Lev Einam Devarim," because the Ones, the situation
of duress, provides an Umdena to show that he did not really mean to say the
Neder the way he expressed it. That is, the Ones annuls his Dibur, and that
is why the Rashba says we may trust the person to tell us what his thoughts
were and to follow what he says was in his mind with regard to the Neder.
QUESTION: In a case where a person makes himself a Nazir on condition that
he can drink wine, Ravina says that the condition is ignored and he is a
complete Nazir, because he is being "Masneh Al Mah she'Kasuv ba'Torah" -- he
is making a condition against what is written in the Torah, in which case
the condition is invalid and the action takes effect.
TOSFOS (DH d'Havi) asks how a condition can be made for Nezirus altogether.
There is a rule (Kesuvos 74a) that a condition can only be made for the type
of action that can be done through a Shali'ach. Nezirus, though, cannot be
done through a Shali'ach! How, then, can one make a Tenai for Nezirus if
Nezirus cannot be carried out through a Shali'ach?
(a) TOSFOS explains that Nezirus also can be carried out through a
Shali'ach, since a Shali'ach could bring the Korbanos of Nezirus at the end
of the Nezirus instead of the Nazir himself.
The Acharonim raise a number of questions on this answer.
1. What difference does it make if the Korbanos of a Nazir can be brought by
a Shali'ach? The actual Nezirus (i.e. the Isurim of Tum'ah, cutting one's
hair, and consuming grape products) cannot be carried out by a Shali'ach!
Perhaps we can answer as follows. There is a logical reason why a Tenai can
be made only for something that can be carried out by a Shali'ach. When the
action is one for which one can appoint a Shali'ach, that shows that one has
control over that action since he can delegate it to someone else. In order
to make a Tenai in the action, one must have the same measure of control
over the action that he is performing as is necessary for appointing a
Shali'ach to do the action. Hence, perhaps it suffices to have control over
part of the action that one is doing, such as bringing the Korbanos, even
though he does not have control over the rest of it. This is because the
fact that he has control over part of it shows that the action is under his
control and we may assume that the reason why he cannot make a Shali'ach for
the rest of the action is not because he does not have control over it but
because of some other reason. The part that he does have control over
reveals that he has control over this action and thus he may make a Tenai.
2. The Nezirus of a Nazir Shimshon never brings Korbanos, and yet we find
(Nedarim 19b) that one can make a Tenai for a Nezirus of Nazir Shimshon!
(KASA D'HARSENA #204)
3. REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that Nedarim can be made with
a Tenai (Nedarim 79a), even though no Korbanos are brought for a normal
Neder of Isur! How can a Neder be made with a Tenai, if a Neder cannot be
carried out by a Shali'ach?
This answers the question from the case of a Nazir Shimshon. Even though a
Nazir Shimshon does not have Korbanos, the Nezirus takes effect upon him
like it takes effect on any normal Nazir. There is no reason to assume that
he has less control over his Nezirus of Nazir Shimshon than he has over a
normal Nezirus, and therefore he may make a Tenai on it.
This answers the third question as well. Since Nezirus is a type of Neder,
and we see that the Nazir has control over part of the action (because he
may appoint a Shali'ach to bring the Korbanos), that shows that a person has
control over every Neder and can therefore make a Tenai on it. (The RASHASH
adds that there is a Hekesh between Nedarim and Nezirus.)
However, Tosfos' answer is unclear for another reason. When the Gemara says
that a Tenai can be made for an action if the action can be done through a
Shali'ach, it means that the action which was contingent upon the Tenai can
be done through a Shali'ach. However, in the case of the Gemara, the person
is making his *acceptance* of Nezirus contingent upon a Tenai, and Tosfos
does not show that a Shali'ach could *accept* a Nezirus to take effect on
someone else! He merely shows that once the Nezirus has taken effect, it can
be practiced (in part) by someone else.
(b) The RAMBAN in Bava Basra (126b) cites others who answer Tosfos' question
as follows. It is possible to *make* a Nezirus or a Neder through a
Shali'ach by telling the Shali'ach, "Whenever you say that you want me to be
a Nazir, I will become a Nazir." (This is not the normal use of a Shali'ach
to perform an action, since the Nezirus is clearly being made by the person
himself and his friend is just deciding when the Nezirus will take effect.
Nevertheless, this shows that Nezirus can be made contingent on external
factors, and therefore the Nezirus could also be made contingent upon a
(c) The RAMBAN himself answers that all of the rules of Tenai are not
necessary for an action that affects only oneself. The rules of Tenai that
we learn from "Tenai B'nei Gad u'Vnei Reuven" teach us how a Tenai is to be
made for an interaction between two people (such as buying and selling,
marriage and divorce). However, a Tenai that is stipulated in Nezirus, which
is a personal matter involving no one else but the Nazir, is not learned
from the rules of "Tenai B'nei Gad u'Vnei Reuven," but it is understood from
logic: since the person only made his oath with such a stipulation, it
should take effect only when the stipulation is fulfilled. Therefore a Tenai
can take effect for Nezirus even though the action cannot be performed by a
RABEINU AZRIEL in the SHITAH MEKUBETZES here says, similarly, that all of
the rules of Tenai only apply to an *action* but not to something that takes
effect through speech alone. The PNEI YEHOSHUA (Kesuvos 57a) explains that
the logic for this is that a Tenai which is a Dibur (speech) cannot annul an
action, since an action is stronger than speech. However, a Dibur could
annul something else that was made with Dibur (Kidushin 59a-b). (See also
KEREN ORAH here.)
According to the Ramban and Rabeinu Azriel, why does our Sugya say that if a
person accepts Nezirus on condition that he not be prohibited from wine, the
Tenai is not valid because it is contradicts the Torah and is thus "Masneh
Al Mah she'Kasuv ba'Torah." If the laws of Tenai do not apply to Nazir, it
should not make a difference -- even a Tenai that is "Masneh Al Mah
she'Kasuv ba'Torah" should be valid!
The answer is that the Ramban holds like RABEINU TAM and many other Rishonim
in Kesuvos (56a) who rule that the Halachah that a Tenai cannot contradict
what is written in the Torah is not learned from the "Tenai B'nei Gad u'Vnei
Reuven." Rather, it is based on logic -- a person is not really serious
about the condition if it contradicts the Torah. This might explain why
Tosfos asks his question, how a Tenai can be made for Nezirus, only in our
Sugya. We find many Mishnayos that mention Nezirus, and even Nedarim (see
Gilyon ha'Shas), being made with a Tenai, and yet Tosfos only asks his
question on the Mishnah here. The reason Tosfos does not ask his question
elsewhere is because Tosfos knows that one might propose an answer similar
to the Ramban's -- that the rules of Tenai do not apply to Nedarim and
Nezirus. However, our Gemara says that the rule that a Tenai cannot
contradict what it says in the Torah *does* apply to Nezirus! Tosfos in
Kesuvos (56a, DH Harei Zu) disagrees with Rabeinu Tam and explains that this
rule is also learned from the "Tenai B'nei Gad u'Vnei Reuven" (see Insights
to Kesuvos 56a). If so, this Gemara disproves the Ramban's approach, and
therefore a reason must be given for why a Tenai can be made for Nezirus
even though a Shali'ach cannot be appointed to fulfill the Nezirus for the
This might also be the answer to the question of the Gilyon ha'Shas
mentioned above (3). Even though Nedarim do not involved Korbanos, a person
could make a Tenai in a Neder because of the reason the Ramban gives -- the
rules of Tenai do not apply to Nedarim. A Neder simply requires a person to
keep his word; if he made his word conditional, then once he fulfills the
condition, he has kept his word and the Neder takes effect, in accordance
with what the person said. From our Gemara we see that Nezirus, though, is
different, and the rules of Tenai do apply. This is because Nezirus is not
just a requirement to keep one's word (like a Neder), but rather it involves
making a certain Kedushah take effect on the person so that he acquires the
new status of "Nazir" (see Insights to 4a). This is not just a "Dibur," but
a "Dibur d'Asi Lidei Ma'aseh" (Kidushin 59a), a speech that has an element
of action in it. Therefore, Nezirus is comparable to Kinyanim which involves
the change of status of an object and for which the rules of Tenai apply.