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Nazir, 22

NAZIR 21 & 22 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.


QUESTION: The Gemara cites a Beraisa that discusses the case of a woman who become a Nazir and then became Tamei. If the husband of the woman who became a Nazir Tamei annuls her Nezirus, then she brings a Chatas ha'Of but not an Olas ha'Of. The Gemara explains that if the husband's Hafarah is "Meigiz Gayiz" (see previous Insight), she should have to bring an Olas ha'Of as well. Since the Hafarah is "Meikar Akar," she does not bring an Olas ha'Of, and she brings a Chatas ha'Of only because of the principle of Rebbi Elazar ha'Kafar who says that a Nazir is considered a sinner, and, therefore, even though the Neder was uprooted retroactively, she needs a Kaparah (see previous Insight). Even though Rebbi Elazar ha'Kafar's principle does not allow her to sanctify a Chatas ha'Of if she has not yet sanctified one (as the Gemara implies at the end of 21b, regarding Nazir Tahor, where it says that if she is a Nazir Tahor at the time her husband annuls her Nezirus, she does not bring a Chatas ha'Of), nevertheless, if she already has a Chatas ha'Of that she has designated for the Nezirus, it remains Kadosh and may be brought as a Korban since her sin still needs a Kaparah. The need for Kaparah is not strong enough to permit the fats of a Korban to be offered on the Mizbe'ach; however, the fats of a Chatas ha'Of are not offered on the Mizbe'ach but rather eaten by the Kohanim after the blood has been sprinkled on the side of the Mizbe'ach. Therefore, she brings her Chatas ha'Of for atonement for her Nezirus.

The Gemara earlier (end of 21b) cites a Mishnah regarding a woman who was a Nazir Tahor when her husband annulled her Nezirus. The Mishnah says that if she already designated an animal to bring as her Chatas (as part of the Korban of a Nazir Tahor), then the animal must be left to die, even if Hafarah works retroactively. The Gemara explains that the animal must be left to die because it is comparable to a "Chatas she'Mesah Ba'alehah" (a Chatas whose owner has died), and a Halachah l'Moshe mi'Sinai teaches that such a Chatas must be left to die (25a). Even though the owner did not actually die in this case, nevertheless since her Nezirus was removed and she is no longer fit to bring the Korbanos of a Nazir, the Korban cannot effect its atonement for her, and any Korban Chatas that cannot atone for what it was designated to atone for must be left to die.

Why, then, can the woman sacrifice her Chatas ha'Of if she was a Nazir Tamei? Why is it not like a "Chatas she'Mesah Ba'alehah" which cannot be offered? Even though she needs Kaparah, like Rebbi Elazar ha'Kafar says, nevertheless this animal should not be able to fulfill that need since it is like a "Chatas she'Mesah Ba'alehah!"


(a) The MEFARESH (21b, DH v'Hainu Ta'ama, and 22a, DH ha'Ishah she'Nadrah) was bothered by this question. He explains that the Halachah l'Moshe mi'Sinai which teaches that a "Chatas she'Mesah Ba'alehah" is put to death applies only to animals (Chatas Behemah) and not to birds (Chatas ha'Of). RAV YOSEF ENGEL in GILYONEI HA'SHAS points out that a source for this ruling can be found in the Tosefta in Temurah (1:9). The Tosefta there lists a number of differences between the Korban of an animal and the Korban of a bird, and one of those differences is that an animal has a Halachah of Chatas Mesah (the animal is left to die), and a bird does not have such a Halachah.

Even though we find in the Mishnah that certain types of Chatas ha'Of *are* left to die (Kinim 1:2), that applies when the Chatas ha'Of becomes mixed up with an Olas ha'Of. The bird is put to death simply because we do not know what to do with it, and we cannot redeem it with Pidyon since there is no Pidyon for a bird (Yoma 41b). The same applies in the other places that discuss a Chatas ha'Of that is left to die (see Yoma 41b). The Halachah l'Moshe mi'Sinai, though, does not tell us that a Chatas ha'Of is left to die. Therefore, if the bird is still fit to be offered on the Mizbe'ach for another Kaparah, such as Rebbi Elazar ha'Kafar's Kaparah in our Gemara, then the bird may be offered.

(b) However, the Mefaresh himself (12a, DH Kan Setumah) writes that the Chata'os Mesos (the types of Chatas offerings that must be left to die) mentioned in Maseches Kinim indeed refer to a Chatas ha'Of that must die because of the Halachah l'Moshe mi'Sinai of the five types of Chata'os Mesos. (The SHA'AR HA'MELECH in Hilchos Pesulei ha'Mukdashin 4:1 discusses this contradiction in the Mefaresh, as Rav Betzalel Ransburg in his Hagahos here points out.) This seems to the opinion of RASHI in Menachos (4b, DH Lo Yavi'u). The Sha'ar ha'Melech says that this is the opinion of the RAMBAM as well. How, though, do these Rishonim explain the Tosefta? They might explain that the Halachah l'Moshe mi'Sinai only teaches us to let the animal die in the case of a Chatas Behemah, since an animal normally has Pidyon, and the Halachah l'Moshe mi'Sinai teaches not to be Podeh something that was designated for Kaparah. But in the case of a Chatas ha'Of, we could not be Podeh it even without the Halachah l'Moshe mi'Sinai telling us not to, because "Ein Pidyon l'Of," a bird does not have Pidyon. That is why the Tosefta says that we only find this Chidush -- that one cannot be Podeh a Korban which is normally fit for Pidyon -- with regard to an animal, because with regard to a bird, in any case it is going to have to die and cannot be redeemed. That is what the Tosefta means.

What about the case of a woman who became a Nazir Tamei whose husband did Hafarah? Why does the Halachah l'Moshe mi'Sinai in that case not teach us that the bird must die and cannot be brought as a Korban? The answer is that these Rishonim hold that the Halachah l'Moshe mi'Sinai only applies when the Korban is no longer fit to be brought for any Kaparah, even a "Miktzas Kaparah" (for example, in a case where the owner dies since "Ein Kaparah l'Mesim," or in a case where the owner brought another animal instead). However, the Chatas ha'Of after Hafarah is still fit to be brought for a "Miktzas Kaparah" -- the Kaparah required because of Rebbi Elazar ha'Kafar's principle -- and therefore the Halachah l'Moshe mi'Sinai does not apply to it.


QUESTIONS: The Mishnah teaches that if a husband says, "I am a Nazir," and then he turns to his wife and says, "And you," and she says, "Amen," he may annul her Nezirus and his Nezirus remains. The Gemara questions this from a Tosefta which says that in the same case, both the husband and wife are Asur, implying that he cannot annul her Nezirus. The Tosefta adds that if she does not say, "Amen," they are both Mutar because he made his Neder of Nezirus dependent on hers.

Abaye answers that the Beraisa is discussing a case where the husband makes a directive statement saying, "I am a Nazir, and I want you to be also." In such a case he is making his own Nezirus contingent upon hers, and thus he cannot annul her Nezirus because doing so would uproot his Nezirus as well. The Mishnah is discussing a case where the husband makes an inquisitive statement, asking her if she, too, is willing to become a Nazir. He wants to make himself a Nazir regardless of whether or not his wife wants to make herself a Nazir, and thus his Nezirus is independent of hers and that is why he may annul her Nezirus.

This is the way all of the Rishonim explain Abaye's answer. However, as the KEREN ORAH points out, according to this interpretation Abaye is learning that the husband's Hafarah is "Meikar Akar," which is not the Halachic opinion.

The RAMBAM (Hilchos Nedarim 13:13-14 and in Perush ha'Mishnayos), however, has an entirely different explanation and Girsa in both the Mishnah and the Gemara. In the Mishnah (and in the Gemara that quotes the Mishnah), instead of the words "Mefer Shelah v'Shelo *Kayam*" ("he may annul hers and his is remains in force," his Girsa is, "Mefer Shelah v'Shelo *Batel*" ("he may annul hers and his is *annulled*")! In the Mishnah, the Rambam explains, the husband is making his Nezirus dependent on hers, and when he annuls her Nezirus, he uproots his own as well.

This is also the Girsa of the Mishnah in the Yerushalmi (see footnotes of Perush ha'Mishnayos, Kapach edition; the classic commentators on the Rambam were apparently not aware of this Girsa). The Rambam apparently had a different Girsa in the Gemara as well. He had the words "d'ka'Tali Nidro b'Nidrah" ("he makes his Neder dependent upon her Neder") in the explanation of our Mishnah's opinion, and not in the explanation of the Beraisa's opinion (see ORACH MISHOR).

According to the Rambam's Girsa, though, a number of points remain unclear.

(a) How could the Mishnah rule that the husband is allowed to annul the wife's Neder even when it removes his own Neder? That should be a violation of "Lo Yachel Devaro" (he may not annul his own Neder), like the Gemara (21b, 22b) says! (ORACH MISHOR)

(b) Since we rule that the husband is "Meigiz Gayiz," l'Halachah the husband should not be uprooting his own Nezirus when he annuls his wife's Nezirus! At the time that he made his own Nezirus dependent upon hers, she was indeed a Nazir, because her status of Nazir was not removed retroactively by the Hafarah! Why, then, does the Rambam rule, l'Halachah, that the husband removes his own Nezirus by annulling his wife's Nezirus?

(c) Why does the Beraisa rule that if he does not make his Nezirus dependent upon hers, but he says, "I am a Nazir, and I want you to be one also," and she says, "Amen," that the husband cannot annul her Nezirus ("Shneihem Asurim")? Why should he not be able to annul her Neder? The RAMBAM in Perush ha'Mishnayos and the BARTENURA explain that he cannot annul her Neder because -- by telling her that he wants her to be a Nazir -- he is making a Hakamah for her Nezirus and he cannot do Hafarah after doing Hakamah.

How, though, can he be Mekayem her Neder *before* she answer "Amen" and before her Neder is made? The Mishnah in Nedarim (75a) states that a person cannot be Mekayem his wife's Nedarim before she makes them! (TOSFOS REBBI AKIVA EIGER)

(a) TOSFOS (21b, DH Ela), cites the opinion of RABEINU ELIYAHU who says, like the Rambam, that a husband may annul his wife's Neder even if doing so uproots his own Neder. It is not a violation of "Lo Yachel Devaro," because, he explains, "Lo Yachel Devaro" applies only when a person uproots his own Neder directly. Here, though, the husband is uprooting his wife's Neder, and that indirectly causes his own Neder to be uprooted. When the Gemara (21b) says that if Hafarah is "Meikar Akar" then the husband cannot uproot his wife's Nezirus if he made his Nezirus dependent upon hers, the Gemara means that by making his Nezirus dependent upon hers, he is being Mekayem her Neder of Nezirus. (The same explanation may be applied to the Gemara on 22b which discusses the case of a person who says "Hareinu b'Ikvech." See MISHNAH L'MELECH, Hilchos Nedarim 13:14.)

(b) The LECHEM MISHNAH and MISHNAH L'MELECH (Hilchos Nedarim) explain that even though, normally, if a person makes himself a Nazir by being Matfis to a woman's Nezirus before her husband does Hafarah, he remains a Nazir after the Hafarah, in the case in the Mishnah, however, the husband means to do mo re than just be Matfis to his wife's Nezirus. He means to say, "Hareinu Kemosech" ("I am [exactly] like you"). In such a case, when another person says "Hareinu Kemosech" after hearing a woman accept Nezirus upon herself, the Gemara says that after the husband annuls the woman's Neder, the Neder of the person who said "Hareinu Kemosech" is also removed (because his Neder was like a conditional Neder; see Ran 22a, DH Ta Shema, and Insights to 25b). Accordingly, the Rambam learns that our Gemara is indeed following the Halachic view that the husband's Hafarah is "Meigiz Gayiz."

(c) As far as why the husband can do Hakamah on the wife's Nezirus before she has made her Neder of Nezirus, a number of answers have been suggested for this question.

1. REBBI AKIVA EIGER suggests that we may assume that the husband still wants to be Mekayem the Neder at the moment she says "Amen," and we know that an unspoken Hakamah (Hakamah b'Lev) is effective (Nedarim 79a).

2. The SEFAS EMES and RASHASH suggest that since the Hakamah was expressed "Toch Kedei Dibur" of the Nezirus, it can take effect even before she says accepts the Nezirus.

(Rebbi Akiva Eiger apparently learns that "Toch Kedei Dibur" cannot circumvent the problem that the Hakamah precedes the Neder. The RAN (87a, DH Hilchesa) and the Rishonim explain that the reason a person may change his mind "Toch Kedei Dibur" is because he has not yet fully processed the action or statement that took place until the time period of "Toch Kedei Dibur" passes. Thus, he has that amount of time to react to the action or statement. RABEINU TAM writes that the reason is because the Rabanan allowed a Talmid to interrupt his transaction in order to greet his Rebbi if he passes by, before reacting to a certain action or statement. This is how Rabeinu Tam understood the Gemara in Nazir 20b, as Tosfos in Bava Kama (73b, DH Ki) explains. The principle of "Toch Kedei Dibur k'Dibur Dami" does not make two actions occur at the same time; it just allows the statement following an action or statement to be considered as though it happened immediately following the first action or statement. Therefore, "Toch Kedei Dibur" cannot remove the problem of Hakamah preceding the Neder. The source for the Acharonim who do apply "Toch Kedei Dibur" here might be from the same Gemara in Nedarim that says that if a person tears Keri'ah for a relative whom he though had died but was actually still alive, and then "Toch Kedei Dibur" he finds out that his relative indeed died just then (after his Keri'ah), he does not have to perform another Keri'ah, since his relative died "Toch Kedei Dibur" of the Keri'ah. This seems to imply that the Keri'ah done before the death is as if it is done afterwards because of "Toch Kedei Dibur," and similarly the Hakamah done before the Neder should be considered as if it was done after the Neder. However, we see from the Ran and Rishonim that they explained "Toch Kedei Dibur" differently. How do they explain the Gemara regarding Keri'ah?

It is possible to suggest that "Toch Kedei Dibur" has two separate mechanisms (like the DIVREI YECHEZKEL, #27, proposes): if a person changes his mind from what he originally said, "Toch Kedei Dibur" works because he has not yet completely considered the ramifications of his statement until "Toch Kedei Dibur," and therefore he can take it back. "Toch Kedei Dibur," though, also can make two actions happen at the same time, if the second one is not a retraction of the first. If the second is a retraction of the first, then it does not help to make them happen at the same time, because there is no reason why one should have precedence over the first. This might be how the Rashash and Sefas Emes understood Toch k'Dei Dibur. However, as we pointed out in Insights to Nedarim 87a, Tosfos in Bava Kama 73b asks why (according to Rabeinu Tam) Toch k'Dei Dibur can apply to Keri'ah, and he answers that it really does not apply to Keri'ah in the classical sense, but the Rabanan were simply lenient with the Halachos of Keri'ah. Tosfos, then, supports the view of Rebbi Akiva Eiger.

We may add (at least according to the Ran, if not according to Rabeinu Tam), that the Halachah of Keri'ah does not contradict Rebbi Akiva Eiger's understanding of Toch k'Dei Dibur for another reason. The Halachah of Keri'ah is simply for a person to rip his clothes for the death of a relative; the Keri'ah needs to be "Lishmah" for that relative, like the Gemara in Nedarim (ibid.) says. He is given up to "Toch Kedei Dibur" after the Keri'ah to decide for whom the Keri'ah was done. However, there is no Halachah that Keri'ah must be done after the death; rather, it must be done for the relative who died, and if done while the relative is alive then it was not done Lishmah, for the death of that relative. When his relative is alive at the time of the Keri'ah but dies within "Toch Kedei Dibur" he can still decide that the Keri'ah was done for that relative, because it is still "Toch Kedei Dibur," and therefore he still fulfills the obligation of Keri'ah. Therefore, Keri'ah is not the same as Hakamah, since there is a verse that teaches that Hakamah is not valid if done before the Neder and must be done after the Neder.)

3. The RASHASH suggests another answer based on the ROSH in Nedarim (72b, DH Harei Hen, and 75a, DH Harei Hen), who says that the reason the husband cannot be Mekayem her Neder before the Neder is made is purely logical. A person cannot be Mekayem "all Nedarim" his wife will make before she makes them, because he does not know which Nedarim she will make. There certainly could be some Nedarim that would be so embarrassing and disgraceful to him that he would not want them to remain, and thus his Hakamah made before the Nedarim would be a Hakamah b'Ta'us (in error). Hence, in our case, where the Hakamah was made for a specific Neder that his wife would make, he indeed can be Mekayem it before she makes it! (See Insights to Nedarim 75a, where we point out that the Ran gives a different reason for why Hakamah cannot be done before the Neder is made.)

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