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Nazir, 31

NAZIR 31 - Dedicated l'Iluy Nishmas Chaim Mordechai ben Harav Yisrael Azriel (Feldman) of Milwaukee (Yahrzeit: 19 Cheshvan) by the members of his family.


QUESTION: The Mishnah discusses the argument between Beis Shamai and Beis Hillel regarding whether an item that was sanctified, in error, to be Hekdesh ("Hekdesh Ta'us") becomes Hekdesh or not. The case about which they argue is where a person says that he is Makdish "a black ox, that will be the first to come out of my house." A white ox then exits the house first. Beis Shamai says that the Hekdesh takes effect. Beis Hillel says that it does not take effect.

The Gemara at first assumes that Beis Shamai holds that the Hekdesh takes effect on the *white* ox. The Gemara asks how can it take effect on the white ox if the person specifically said that he wants the black ox to be Hekdesh?

Rav Papa suggests that Beis Shamai means that the Hekdesh takes effect on the first black ox to leave the house (after the white ox). Beis Hillel says that it is not Hekdesh because the person's wording implied that the black ox should only be Hekdesh if it is the first ox to leave his house.

The Gemara concludes (according to Tosfos) that according to both Rav Papa and Abaye, Beis Shamai is ruling that the white ox is Hekdesh, because had the person known that the white ox would leave the house first, he would have made the white ox Hekdesh.

How do we know that the person would have made the white ox Hekdesh if he knew it would leave the house first? All he said was that "a black ox, that will be the first to come out of my house" should be Hekdesh! (ARZEI HA'LEVANON, fn. 1)


(a) The ARZEI HA'LEVANON answers that, obviously, according to Rav Papa the Mishnah is discussing a case where the person later said explicitly that he would have wanted the white ox to become Hekdesh had he known that it would exit first (like Abaye mentions on 31b). The Gemara's original question was that even if he explains that that is what he means, we should ignore what he says that he meant since it contradicts the words that he spoke earlier (since he said "black ox"). This seems to be the intention of TOSFOS (33a, end of DH Ta Shema).

(Even though, normally, Hekdesh can be made b'Machshavah, in one's thought, by simply deciding that something is Hekdesh (Shevuos 26b), nevertheless when he articulates the Hekdesh and says the wrong words, he prevents the Machshavah from effecting Hekdesh. See Insights to Pesachim 63:2.)

The Arzei ha'Levanon cites support for this from TOSFOS RABEINU PERETZ (32b) who explains that in the case of the six people walking on the road, in which Beis Shamai rules that each one is a Nazir because "Nazir Ta'us Havi Nazir," each person is only a Nazir when he explicitly said that "had I known that the person I saw from afar is not the one I thought he was, I still would have made myself into a Nazir."

(b) However, TOSFOS RABEINU PERETZ there cites the RI M'IVRA who explains that even if the Nazir did not state explicitly that he wants to be a Nazir in any case, he still becomes a Nazir. Presumably, in our Mishnah as well, the person does not have to explain afterwards that had he known that the white ox would exit first he would have made it Hekdesh. (When Abaye says that the man said "had I known that a white ox would exit first..." it is Lav Davka -- if he does not say that statement, we still assume that this was his intention.)

Why then, do we assume that he wants the white ox to be Hekdesh if he said specifically that he wants the black ox to be Hekdesh? The answer is that, apparently, we may assume (based on an "Umdena") that the person's main intention was that the first ox to leave the house should become Hekdesh, because he could not have known that a black ox would leave the house first. (Even according to Abaye who says that the case is where an ox already left the house and the owner identifies it as his black ox based on the sound of its hoof steps, the owner knew that there was a significant margin of error in his ability to identify the ox. The same applies to the case of the six people on the road -- the people who accepted to become Nezirim were aware of the margin of error in their guesses.)

Why do we not interpret his words as saying that the first black ox of all the black oxen to leave the house will be Hekdesh (like Rav Papa originally suggested)? The answer is that Rav Papa himself already said that this explanation is not viable because the person should have said "b'Rishon" and not "Rishon."


QUESTION: The Mishnah states that if a person made a Neder to become a Nazir and separated animals for his Korbanos of Nezirus, and then he went to a Chacham who was Matir his Nezirus, the animals are Chulin. TOSFOS explains that since he is not a Nazir, the animal he sanctified as a Chatas Nazir is not needed as a Chatas, and therefore the animal is not Kadosh.
(a) This explains why the animal that the person designated as a Chatas is not Kadosh. A Chatas can only be brought due to an obligation, and if a person says "this animal is a chatas" and he is not obligated to bring a Chatas, the animal cannot become Kadosh. Why, though, are the animals that he designated to be an Olah and Shelamim not Kadosh? We learned earlier (24a) that if a woman separated animals for the Korbanos of her Nezirus and then her husband annulled her Nezirus, the Olah and the Shelamim remain Kadosh (even according to the view that the husband's Hafarah is "Meikar Akar"). We explained (see Insights there) that the woman's act of accepting upon herself Nezirus shows that she wants to bring Korbanos (as a Nedavah) even if her Nezirus, for whatever reason, will be annulled and she will not be able to bring the animals as Korbanos of Nezirus. Why does the same logic not apply here, in the case where a Chacham is Matir the Neder of Nezirus? The Nazir, by accepting upon himself Nezirus, wanted to make the animals Kadosh, so they should be Kadosh for a Nedavah even if they cannot be brought as Korbanos of a Nazir!

Tosfos asks a similar question regarding the Chatas Nazir which, in the case of Hafarah is left to die, while in the case of She'eilah becomes Chulin. The answers that Tosfos gives, though, do not apply to the Olah and Shelamim. The first answer of Tosfos is that it is only Rebbi Elazar ha'Kafar who holds that the Chatas is still Kadosh after Hafarah. That only explains why the Chatas is Kadosh after Hafarah, but not why the Olah and Shelamim are Kadosh after Hafarah. The Gemara earlier (19a) does mention a logical reason why the Olah of a Nazir *Tamei* should depend on the statement of Rebbi Elazar ha'Kafar and says that the Olah of a Nazir is not brought as a "gift" ("Doron"), but rather it is a unique obligation of Nazir on which the Kaparah of a Nazir depends. Therefore, according to Rebbi Elazar ha'Kafar, the Olah of a Nazir Tamei also remains Kadosh. However, Tosfos (24a, DH v'ha'Olah) points out that this only applies to a Nazir Tamei. The Olah and Shelamim of a Nazir Tahor *are* brought as a "Doron!" Why, then, are they Kadosh after Hafarah? It must be that since they are brought as a "Doron," when the Nazir voluntarily accepts Nezirus upon himself it is as if he voluntarily commits himself to bring the Olah and Shelamim as well, and therefore even if it turns out later that he is not a Nazir, he still wants to bring the Olah and Shelamim voluntarily as a Nedavah. The same logic should apply in the case of She'eilah!

The second answer of Tosfos -- that in the case of Hafarah the Neder took effect for one moment (see Insights to 22a) -- also does not seem to apply to the Olah and Shelamim, since their Kedushah (after Hafarah) has nothing to do with the Nezirus that took effect for one moment. The Kedushah of the Shelamim is not that of a Shalmei Nazir but of a regular Shalmei Nedavah (even though it is eaten for only one day and not two days; see Insights to 24a). Why, then, in the case of She'eilah are the Olah and Shelamim not Kadosh?

(b) This question is even stronger according to Beis Shamai, who holds that Hekdesh Ta'us is Hekdesh. Even if he would not have sanctified the animals had he known that the Chacham would be Matir his Nezirus and he would not need the Korbanos, nevertheless the animals should be Kadosh because Hekdesh made in error is Hekdesh according to Beis Shamai! It seems from the Mishnah, though, that the Olah and Shelamim do not remain Kadosh once the person's Nezirus is repealed. (It seems that the RAMBAM, Hilchos Nezirus 9:8, understands that the Mishnah indeed is referring only to the Korban Chatas. See KEREN ORAH here. However, the other Rishonim do not differentiate between the different Korbanos, and they imply that all of the Nazir's Korbanos become Chulin according to Beis Shamai.)

(a) There is an important difference between Hafarah and She'eilah (Hatarah). In a case of Hafarah, the woman who made herself a Nazir still wants to be a Nazir. The Nezirus was revoked by the husband against his wife's will. Since she intended to voluntarily accept Nezirus and the Korbanos of Nezirus, we assume that her intention is that if she cannot bring the animals as Korbanos Nezirus, then she wants to bring them as Korbanos Nedavah. In contrast, when a person is Matir his Neder through a Chacham, he shows that he never wanted to accept the Nezirus in the first place. In that case, we may assume that he did not want the Nezirus nor the Korbanos or responsibility for the Korbanos. Therefore, we cannot assume that he intended for the Korbanos to be brought as a Nedavah if they cannot be brought for the Nezirus, because he does not even want the Nezirus. This is the reason why the Olah and Shelamim are not Kadosh according to Beis Hillel in the case of She'eilah.

(b) According to Beis Shamai, why are the Olah and Shelamim not Kadosh, if Beis Shamai holds that Hekdesh Ta'us remains Hekdesh? Apparently, Tosfos is relying on what he says more clearly later (32b, DH v'Im Lav; see Insights there). Tosfos explains that there are different levels of Ta'us. There is a Ta'us, an error, which is a total error, and then there is a Ta'us which is a partial, or small, error. When a person is Sho'el on his Nezirus because later developments caused him to regret his acceptance of the Nezirus, Beis Shamai rules that She'eilah does not work, since She'eilah of Nezirus is like She'eilah of Hekdesh. She'eilah works through making a Neder into a Ta'us, and a Nazir Ta'us remains a Nazir according to Beis Shamai. There is another type of mistake, though, which is a greater degree of error: when a person makes himself into a Nazir based on the assumption of a certain fact which unexpectedly turned out to be in error (for example, a person makes himself into a Nazir thinking that he has animals to bring as his Korbanos Nezirus, and then he finds out that his animals were stolen). Tosfos writes that in such a case even Beis Shamai agrees that the person is not a Nazir. Such a total mistake is able to repeal the Nezirus, even according to Beis Shamai.

The same would apply in a case where a person designated animals as Korbanos thinking that he was a Nazir, and then he was Sho'el on the Nezirus. Since he designated the animals only because he thought that he was obligated to bring them, and now it turns out that he is not obligated to bring them, it is clear that even Beis Shamai will agree that he is not Nazir, according to what Tosfos writes.

When Tosfos mentions that after She'eilah, the person is like a person who thought he was obligated to bring a Chatas and then finds out that he was not obligated, Tosfos does not mean that the reason the Hekdesh does not take effect is because one cannot voluntarily bring a Chatas, but rather he means that the Hekdesh does not take effect because he made it Hekdesh under a mistaken assumption -- that he was obligated to bring the Korban when he really was not obligated. The same applies to Olah and Shelamim. (If it were not for the fact that this kind of Ta'us removes the Hekdesh, then even the Chatas would be Kadosh, according to Beis Shamai, with Kedushas Olah. Since he wanted to make the animal Hekdesh, some form of Hekdesh would have to take effect, and if the Kedushah of Chatas cannot take effect, then the Kedushah of Olah takes effect.)

This is also what the Gemara regarding Temurah (32a) means. Even Beis Hillel agrees that Temurah takes effect b'Ta'us, such as where a person said, "This animal shall be Temurah for the first animal" and then he was Sho'el on the Kedushah of the first animal -- the second animal (the Temurah) loses its Kedushah. The reason it loses its Kedushah according is not because it has nowhere from which to draw its Kedushah (because a person can make a Temuras Olah without having an Olah in front of him). Rather, the reason it loses its Kedushah is because this Ta'us is a much greater form of Ta'us. (According to this approach, we must say that when Tosfos (31a, DH Mi she'Nadar) writes that according to Beis Shamai, the Nazir of our Mishnah was not actually Sho'el on the Nezirus but rather he went to a Chacham to determine whether he used the correct wording, Tosfos could just as well have explained that the Nazir *was* Sho'el on his Nezirus, but his She'eilah was based on a mistaken assumption, a total Ta'us.)

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