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Nedarim, 4

NEDARIM 2,3,4,5 - dedicated by Uri Wolfson and Naftali Wilk in honor of Rav Mordechai Rabin of Har Nof, a true beacon of Torah and Chesed.


QUESTION: The Gemara cites a Machlokes between Rebbi Yochanan and Reish Lakish regarding whether Nezirus takes effect when a person makes an oath of Nezirus while he is standing in a cemetery. The Gemara cites the conclusion of Mar bar Rav Ashi that both Rebbi Yochanan and Reish Lakish agree that the Nezirus takes effect, and the Machlokes is only concerning whether or not the person receives Malkus.

How can the person receive Malkus for becoming a Nazir while standing in a cemetery? Even though he transgressed the Isur Lav of a Nazir becoming Tamei, he did so passively, with no action, and therefore it is a "Lav she'Ein Bo Ma'aseh." The Halachah is that one who transgresses a "Lav she'Ein Bo Ma'aseh" does not receive Malkus!


(a) The RAN (DH Chaila) explains that Rebbi Yochanan and Reish Lakish are not arguing about whether the person receive Malkus for transgressing the Isur of becoming Tamei, but rather whether he receives Malkus for the other prohibitions of Nezirus, such as consuming products of the vine (or cutting his hair). Everyone agrees that he does not receive Malkus for becoming Tamei because, like we mentioned, there was no action involved.

The RASHASH asks a number of questions on this explanation. If the person does not get Malkus (according to Reish Lakish) for consuming grape products and for cutting his hair even though there is an action involved, then obviously Reish Lakish holds that the Nezirus has not yet taken effect at all. Consequently, there should still be an Isur of Bal Te'acher if he delays leaving the cemetery, because by staying in the cemetery he is not letting the Nezirus take effect. Moreover, the Gemara says that according to Mar bar Rav Ashi the Nezirus *does* take effect when he accepts it upon himself while standing in the cemetery, and it is clear from the Gemara in Nazir (17a) that he needs no further Kabalah when he leaves the cemetery!

The Ran apparently holds that according to Reish Lakish, the person cannot become obligated to observe the Nezirus of Taharah while he is in the cemetery (since he is Tamei in either case). Therefore, Reish Lakish holds that since one cannot effect a "partial Nezirus," the person is not obligated to observe Nezirus at all, even the laws of refraining from wine and cutting hair. However, that does not mean that the Nezirus has not taken effect. Rather, the Nezirus *does* take effect, but it is in a suspended mode, waiting for a moment at which the person can be obligated to refrain from Tum'ah. The moment that the Nezirus is able to take effect with regard to Tum'ah, the laws of Nezirus for refraining from wine and cutting hair will take effect as well. Hence, no new Kabalah is necessary when he leaves the cemetery. Since no new Kabalah is necessary, the Gemara assumes at this point that there is no Bal Te'acher (because as long as the Nezirus has taken effect, even in a suspended mode, that is enough to constitute a fulfillment of the oath of Nezirus). The Gemara concludes that even delaying that Nezirus is considered Bal Te'acher, because the person delays *practicing* the Nezirus of Taharah.

Prior to Mar bar Rav Ashi's teaching that the Nezirus remains in a suspended mode, the Gemara thought that Nezirus does not take effect at all according to Reish Lakish and that a new Kabalah is required, and that there would be Bal Te'acher if he delays that new Kabalah.

(b) The ROSH here and TOSFOS in Nazir (17a) explain that when the Gemara says that Rebbi Yochanan and Reish Lakish argue regarding Malkus, it is indeed discussing Malkus for becoming Tamei. Both Rebbi Yochanan and Reish Lakish agree that Malkus is given for consuming wine and cutting hair, because there is no reason for the Nezirus not to take effect with regard to those laws. The Machlokes is only with regard to Malkus for becoming Tamei.

As far as our question that his becoming Tamei is a "Lav she'Ein Bo Ma'aseh," these Rishonim explain that Rebbi Yochanan and Reish Lakish are addressing the opinion of those who hold that one *does* receive Malkus for a Lav she'Ein Bo Ma'aseh. Alternatively, they do not mean literally that Malkus is administered, but rather that it is an *Isur* of Malkus (that is, becoming Tamei is Asur and it *would have been* punishable with Malkus had a Ma'aseh been involved).

Why, though, does Reish Lakish say that there is no Malkus for Tum'ah even according to the opinion that there is Malkus for a Lav she'Ein Bo Ma'aseh? It is because Reish Lakish holds that in order to take effect, the Isur of Tum'ah must take effect at a state where it prohibits the person from *becoming* Tamei, and not at a state where he is already Tamei. (That is, the Isur of Tum'ah for a Nazir is *becoming* Tamei, and not *being* Tamei.)

(c) The MEFARESH in Nazir (17a) explains that the argument between Rebbi Yochanan and Reish Lakish is with regard to Malkus for Tum'ah, like the Rosh and Tosfos explain. However, he explains that according to Reish Lakish, although the person is prohibited to consume wine and to cut his hair immediately, nevertheless he is not prohibited to become Tamei until he *re- accepts* upon himself the Isur Tum'ah of Nezirus after he becomes Tahor from his present state of Tum'ah. If so, when Rebbi Yochanan says that the Nazir is punishable with Malkus, it does not mean that he is given Malkus for *making* himself a Nazir while in the graveyard. Rather, he is given Malkus for making himself Tamei (in an *active* manner, Lav she'Yesh Bo Ma'aseh) after he leaves the graveyard and is Metaher himself. Reish Lakish exempts him from Malkus even in such a case, since the Nazir did not re-accept upon himself the Isur Tuam'ah of Nezirus after becoming Tahor.

According to the Mefaresh, why does the Gemara not say that according to Reish Lakish there should be an Isur of Bal Te'acher if he is not Mekabel the Nezirus of Taharah immediately after leaving the cemetery and becoming Tahor? Apparently, the Mefaresh holds that a declaration of Nezirus in a cemetery is only an acceptance of *two thirds* of Nezirus (consuming grape products and cutting hair); the person did *not* accept upon himself to become a Nazir with regard to the Isur of Tum'ah of Nezirus in the first place, so he will not transgress Bal Te'acher for delaying the acceptance of such a Nezirus.

How can we say that a person is able to accept Nezirus only for some parts of the Nezirus and not for others? We know that there is no such thing as a partial Nezirus, and if a person accepts Nezirus then all of the Isurim must apply (Nazir 11a)! The answer is that this axiom applies only if he is not in a cemetery, and the Isurei Tum'ah *can* apply. But if he is in a cemetery and the Isurei Tum'ah *cannot* apply to him, then indeed a person is able to accept upon himself a partial Nezirus.

(d) The SHA'AGAS ARYEH suggests that if the transgression of a prohibition must, by definition, be *preceded* by an action, even if the transgression itself involves an inaction, it is called a *Lav *she'Yesh* Bo Ma'aseh." He proves this from examples of Isurim that are transgressed without an action, and yet Malkus is administered. For instance, he cites the Gemara in Nazir (40a) that discusses a Nazir who was carried inside of a box into a cemetery (according to the view that a box separates between him and the Tum'ah), and then another person came and removed the cover of the box. If the Nazir does not leave the cemetery immediately but stays in his place, he will transgress the Isur of becoming Tamei in a cemetery *and receive Malkus*. We see from there that the action of going into the cemetery -- even though done in a permissible manner -- makes the Isur into a "Lav she'Yesh Bo Ma'aseh." The Sha'agas Aryeh cites support for this explanation from TOSFOS in Shevuos (17a, DH O).

The Sha'agas Aryeh reasons that the requirement that a Nazir not enter a cemetery is that a Nazir may not *be* in a cemetery (for that is how the Torah describes the Isur), and not that a Nazir *must be outside of* a cemetery. For this reason, the Isur of a Nazir entering a cemetery is considered a "Kum v'Aseh," since it must be preceded by an action (entering the cemetery), and therefore Malkus may be administered.

This might be the reasoning of the RAMBAM (Hilchos Nezirus 5:21, see LECHEM MISHNAH), who rules l'Halachah that Malkus is given to a person who accepts Nezirus while standing in a cemetery.

QUESTION: The Gemara says that if a Nazir purposefully makes himself Tamei, he transgressed the Isur of Bal Te'acher (for delaying his fulfillment of Nezirus b'Taharah). This implies that he receives Malkus immediately for the Isur of Bal Te'acher.

However, the Gemara in Rosh Hashanah (6b) teaches that one transgresses Bal Te'acher for delaying the bringing of a Korban only if he delays it for three Regalim. Why, then, should the Bal Te'acher of Nezirus apply immediately, especially if the Isur of Bal Te'acher of Nezirus is derived from Bal Te'acher of Nedarim?


(a) The RITVA in Rosh Hashanah explains that with regard to delaying Tzedakah and other Mitzvos, there is no leeway of three Regalim. Rather, one transgresses Bal Te'acher right away. The only reason one does not transgress Bal Te'acher for Korbanos until after three Regalim have passed is because the Torah does not require a person to go out of his way and make a trip to the Beis ha'Mikdash as soon as he sanctifies an animal as a Korban, but rather the Torah lets him wait until the time that he normally goes to the Beis ha'Mikdash -- at the time of the Regel. If he delays bringing the Korban three times (after three Regalim), then he transgresses the Isur of Bal Te'acher. In the case of Tzedakah or other Mitzvos, there is no need to go to the Beis ha'Mikdash, and therefore if one delays the Mitzvah one transgresses Bal Te'acher right away.

Still, though, we should at least learn from Bal Te'acher of Korbanos that one has a leeway period of three time units before he transgresses Bal Te'acher. Why should the Isur apply *immediately*?

It could be that the Torah gives three Regalim for Bal Te'acher of Korbanos *because* the Torah does not require him to bring it immediately. Since he need not bring it immediately it is more likely that he might forget to bring it at the first Regel, and therefore the Torah gives him three Regalim to remember to bring it. In contrast, something for which one transgresses Bal Te'acher immediately does not have three time periods, because there is no excuse for forgetting to do it right away.

This seems to be the opinion of TOSFOS here (3b) as well.

(b) The RAN says that the reason the Torah gives three Regalim is because when a person makes a Neder to bring a Korban, he has in mind not to bring it right away but to give himself up to three Regalim to bring it. If, however, a person explicitly obligates himself to bring the Korban immediately, then indeed he would transgress Bal Te'acher immediately if he delays. Similarly, when a Nazir makes himself Tamei he transgresses Bal Te'acher right away, because he has shown, by declaring that he is a Nazir earlier, that he wants the Nezirus to take effect immediately. Hence, if he is Metamei himself, he transgresses Bal Te'acher immediately.

However, if it is true that we assume that the person intended to give himself time (up to three Regalim) to bring the Korban, then why is it that he transgresses a Mitzvas Aseh if he does not bring the Korban during the very first Regel that arrives (Rosh Hashanah 6b)? He never intended or promised to bring it by that time!

The answer must be that when a person commits himself to bring a Korban, regardless of how much time he gives himself the Torah obligates him with a Mitzvas Aseh to rush and bring it as soon as possible. (This Mitzvas Aseh might also apply to a person who accepts upon himself Nezirus by saying, "I will be a Nazir before two years pass;" see Ran at the beginning of the Daf.)

(c) The ROSH writes that the Isur of Bal Te'acher is *always* transgressed *only* after three Regalim. That is, the Isur of Bal Te'acher is not simply delaying the Korban or the Neder, but rather delaying it for three Regalim from the point when he had to bring it. A person must bring the Korban at the first Regel because of the Mitzvas Aseh. If he delays his obligation until three Regalim have passed, he then transgresses Bal Te'acher.

For this reason, the Rosh explains that in all of the cases of Bal Te'acher mentioned in our Gemara, the Isur takes effect only after three Regalim. Hence, the Rosh explains that if a Nazir becomes Tamei, he only transgresses Bal Te'acher if he does not become Tahor for three Regalim.

Why, then, does the Gemara say that that a Nazir transgresses Bal Te'acher only if he was Metamei himself purposefully, b'Mezid? The main point is that he purposely was not *Metaher* himself b'Mezid; it does not matter how he became Tamei!

The Rosh answers that that is indeed how we must understand the phrase, "she'Timei Atzmo b'Mezid" -- it means that he purposely *remained* in his state of Tum'ah.


OPINIONS: The Beraisa earlier (3a) cites the verse, "Ish... Ki Yafli li'N'dor Neder, Nazir l'Hazir la'Shem..." (Bamidbar 6:2). This verse serves as a Hekesh between Nedarim and Nezirus and teaches that certain laws of Nedarim are learned from Nezirus, and certain laws of Nezirus are learned from Nedarim. One of the laws of Nezirus that is learned from Nedarim is the Halachah that a father may annul the oath of Nezirus of his daughter, and a husband may annul the oath of Nezirus of his wife, just like the husband or father may annul the woman's Nedarim.

The Gemara here asks why a Hekesh is needed to teach this Halachah of Nezirus when it could be learned through a "Meh Matzinu." The Gemara answers that a "Meh Matzinu" would not suffice, because there is a difference between a normal Neder and an oath of Nezirus. A normal Neder has no "Kitzusa," and therefore -- we might have thought -- that is why a father or husband may annul the Neder of his daughter or wife. But an oath of Nezirus *does* have "Kitzusa," and thus we might have thought that a father or husband may *not* annul the oath of Nezirus of his daughter or wife.

What is the meaning of this difference, "Kitzusa," between Nedarim and Nezirus?

(a) The RAN and other Rishonim explain that this means that since a Neder has no limit in time (the Isur that one makes can apply indefinitely), therefore the Torah gives the woman's husband, or the girl's father, the right to annul her Neder so that she should not suffer forever from it. An oath of Nezirus, on the other hand, creates a temporary Isur (for 30 days), and since this is not a long period of time for her to have to suffer from the Isurim of Nezirus, we might have thought that the Torah did not give the father or husband the right to annul her Nezirus.

This explanation, though, is somewhat problematic. A Neder can also be made for a short period of time (for example, "Bread is Asur to me for thirty days"), and thus we should be able to learn that a husband can annul his wife's Nezirus from that type of Neder. If so, the Gemara's question remains -- why do we need a Hekesh when we can learn this Halachah from a "Meh Matzinu" from the type of Neder which is temporary?

It seems that according to the Ran, before learning the Hekesh we thought that indeed, a husband cannot annul his wife's Neder if she only prohibited herself from a food for thirty days. It is only after the Hekesh is applied to Nazir that we know a husband can annul a short-term Neder.

(b) The OR SAME'ACH (Hilchos Nedarim 12:19) suggests a novel explanation for the meaning of "Kitzusa," according to which the Gemara must be learned exactly the opposite from the way the Ran explains it.

"A Neder has no "Kitzusa" means that it has no *minimum* time that it has to be in effect. A Neder for one day is also a valid Neder. Hence, if a girl makes a Neder, her father can annul it so that it will no longer be in effect from now on, and the Neder that she had made was a valid Neder while it lasted. In contrast, Nezirus *does* have "Kitzusa," a minimum time that it has to be in effect, for a Nezirus less than thirty days is not a Nezirus. Hence, we might have thought that a father cannot annul the Nezirus of his daughter from now on, since a Nezirus cannot be sliced into a time period of less than thirty days.

(According to this approach, if a girl took an oath of Nezirus to become a Nazir for 50 days, even before the Hekesh is applied we would know that her father can annul it after 30 days have passed, since she has observed the minimum number of days of Nezirus -- see AYELES HA'SHACHAR.)

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