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Nedarim, 7


QUESTION: The Gemara discusses whether the laws of Yados apply to Kidushin, Pe'ah, Tzedakah, Hefker, and Beis ha'Kisei, just as they apply to Nedarim. REBBI AKIVA EIGER (in GILYON HA'SHAS) asks a question according to the words of the RAN earlier (beginning of 6b). The Ran says that it would have been possible to learn the Halachah of Yados from Nedarim to all other areas through a Binyan Av ("Mah Matzinu") if not for the fact that Nedarim are more stringent (and thus take effect more easily), since they can be made with speech alone, without any action. Rebbi Akiva Eiger asks that this explains why Yados of Kidushin (which requires an action) cannot be learned from Yados of Nedarim. Tzedakah, though, takes effect with speech alone, without any action, just like Nedarim! Why, then, should we not be able to derive from Nedarim that Yados work for Tzedakah?

The Acharonim point out that Rebbi Akiva Eiger should have asked this question on the Gemara earlier, when Rav Papa asks if Yados work for Pe'ah. Pe'ah, like Nedarim and Tzedakah, also takes effect through speech alone, and thus we could have learned from Nedarim that Yados work for Pe'ah!

It could be that Rebbi Akiva Eiger does not ask from Pe'ah, because Pe'ah is not as severe as Nedarim, because -- even though it takes effect with speech alone -- it can only take effect in a field that fits certain criteria (such as a field that is obligated for Pe'ah from which Pe'ah has not yet been designated). In contrast, Nedarim can take effect on all items with no limiting criteria. (See AYELES HA'SHACHAR.)

Also, why does Rebbi Akiva Eiger not ask his question on the following Gemara, which asks whether Yados work for Hefker? Hefker also takes effect with speech alone, like Nedarim (and Tzedakah and Pe'ah)! Perhaps it is because Hefker does not create an Isur like a Neder does, and therefore Hefker is much more lenient than Nedarim. Similarly, the Gemara asks whether Yados work for Beis ha'Kisei, since Beis ha'Kisei does not create an Isur d'Oraisa, and therefore it is much more lenient (so that perhaps Yados will not work).


(a) Regarding Rebbi Akiva Eiger's question from Tzedakah, which seems to be just as severe as Nedarim, it could be that the Ran is following his own view that Tzedakah is considered a monetary matter, and not a matter of Isur. Hence, the rule that "we do not learn a Halachah of a monetary matter from a Halachah of Isur" (Kesuvos 46b) applies, unless the verse specifically compares the two with a Hekesh. This answers the question from Pe'ah and Hefker as well, which are also considered monetary matters and not matters of Isur.

However, according to this, it should be obvious that *Shevu'ah* can be learned from Neder with a Mah Matzinu. If so, why does the Ran (beginning of 7a) ask that the Gemara also should have questioned whether there is a Yad for Shevu'ah, and the only reason that it does not ask is because there is a Hekesh between Nedarim and Shevu'os? Even if there were no Hekesh, there would be no reason to ask whether Yados work for Shevu'os, because we would have been able to learn it from Nedarim through a Mah Matzinu!

(b) There is another question on the explanation of the Ran. The Ran (beginning of 4b) writes that we cannot learn Yados of Nezirus from Yados of Nedarim through a Mah Matzinu, because "Ein Onshin Min ha'Din" -- a punishment cannot be derived through an exegetical process (it must be written in the Torah explicitly, or learned from a Hekesh) -- and had we learned Yados of Nezirus from Nedarim through a Mah Matzinu, we would not have been abl eto administer Malkus for violating a Nezirus made with a Yad. Accordnig to this, how can the Ran himself suggest that Yados of Kidushin can be learned from Nedarim through a Mah Matzinu? The Mah Matzinu will not be able to teach that Yad works for Kidushin because "Ein Onshin Min ha'Din" (we will not be able to administer punishment if a woman commits adultery after being married through Yad l'Kidushin)! (It is possible that according to the Ran, the Gemara is learning that Yados will create only the Isur of Kidushin but will not enable us to administer a punishment for adultery from the Kidushin created with a Yad. However, Shmuel, who says that Yados work for Kidushin, implies that Kidushin formed through a Yad is a full-fledged Kidushin!) (See SHALMEI NEDARIM.)

In addition, the ROSH and TOSFOS point out that we should not be able to learn through a Binyan Av from Nedarim that Yados works for any other category of Halachah. This is because the Torah teaches that Yados works in two places -- for Nedarim and for Nezirus. If Yados could be learned from Nedarim through a Binyan Av, then the Torah would not have to teach that Yados work for Nezirus! The fact that the Torah teaches that Yados work for Nezirus shows that Yados cannot be derived through a Binyan Av; it is a situation of "Shnei Kesuvim ha'Ba'im k'Echad, v'Ein Melamdim!" How, then, can the Ran say that we could learn Yados of Kidushin from a Binyan Av?

The Rosh and Tosfos explain that the reason we could learn that Yados work for Kidushin is not because of a Binyan Av from Nedarim, but because Kidushin might be considered a form of Hekdesh. If the Torah teaches that Yados work for Hekdesh, then Yados should also work for Kidushin.

The Ran seems to rejects this explanation because he considers it forced to say that Kidushin should be considered a form of Hekdesh. Therefore, he has to explain that we learn Yados of Kidushin from a Mah Matzinu. What about the problems of "Ein Onshin Min ha'Din" and "Shnei Kesuvim ha'Ba'im k'Echad?" The Ran holds that this Limud would not have the problem of "Ein Onshim Min ha'Din," because when the Torah teaches that Yados work for Nedarim, it is just a "Giluy Milsa" -- it is just revealing -- that a Yad is considered to be an explicit expression. Once we know that it is the same as something spoken expressly, then we can even administer a punishment, just like when one said the statement clearly. There is also no problem of "Shnei Kesuvim ha'Ba'im k'Echad," because it was not necessary to have a Hekesh to teaches that Yados work for Nezirus; Yados of Nezirus could be learned from a Mah Matzinu from Nedarim. The Hekesh was necessary to teach other Halachos to Nezirus from Nedarim (for example, that Bal Te'acher applies to Nezirus). However, now that there is a Hekesh, we can also learn Yados through the Hekesh, even if there had been no Binyan Av from Nedarim.

This explains why we can learn from Nedarim that Yados work for Kidushin. The other side of Rav Papa's doubt, that perhaps Yados does not work for Kidushin, is that perhaps we cannot learn Kidushin from Nedarim because Nedarim is more severe. Why did the Ran not say that Rav Papa's doubt about learning Yados from Nedarim was because perhaps the Halachah of Yados for Nedarim was written not as a Giluy Milsa, and therefore there would be a problem of "Ein Onshin Min ha'Din?" The reason is because if that was Rav Papa's doubt, then Rav Papa would have questioned whether Yados applies to *all* forms of Kinyanim, and not specifically Kidushin.

When Rav Papa asks if there is Yad for Pe'ah (for perhaps it is compared to Nedarim with a Hekesh), obviously he is rejecting the approach that we should learn from Yados of Nedarim because Yados of Nedarim is just a Giluy Milsa. Rather, he is saying that perhaps there is no Yad for Kidushin because it is not compared to Nedarim, and the only time Yados works is when there is an explicit Hekesh in the Torah, like in the case of Nezirus.

QUESTION: The RAN cites the RAMBAN and RASHBA who rule stringently with regard to whether Yad works for Tzedakah. They rule that Yad does work, and one is obligated to give the Tzedakah that he pledged to give by using a Yad, because "Safek Isur l'Chumra." The Ran argues with them, proving from many sources that a Safek of Matnas Aniyim (gifts to the poor) or Matnas Kehunah (gifts to the Kohanim) is considered a Safek Mamon, a Safek in a monetary matter, and thus it should be decided leniently ("Safek Mamon l'Kula"). What is the logic of the Ramban and Rashba who consider it to be a Safek Isur?

ANSWER: The SHALMEI NEDARIM cites the KUNTRUS HA'SEFEIKOS (#1, in the name of MAHARSHACH) who explains that when a person makes something Tzedakah, it is a Neder Mitzvah, and he is obligated to give it to Tzedakah because of the *Neder*, aside from the monetary obligation. Therefore, it cannot be compared to other forms of gifts to poor people, such as Leket and Pe'ah, which a person is not obligated to give because of a Neder but because of the Torah's command, and therefore those obligations are considered Safek Mamon, while Tzedakah is considered Safek Isur.

What, then, is the logic of the Ran, who considers a Safek of Tzedakah to be a Safek Mamon and not a Safek Isur? The MAHARIT cited by the Shalmei Nedarim explains that the Ran and the Ramban are arguing over what a person obligates himself to do when he says "this coin is Tzedakah." According to the Ramban, he obligates himself to bring the money to the poor person and give it to him. Until he gives it, he has not fulfilled his obligation. According to the Ran, though, when one says "this coin is Tzedakah," it is similar to saying "this wheat is Pe'ah;" he is making the money into the collective property of the poor people, and immediately upon it becoming the property of the poor, he has fulfilled his Neder making it Tzedakah. What remains is only an obligation to give it to the poor people (because it belongs to them). Therefore, if there is a Safek whether or not it belongs to them, it is a Safek Mamon and not a Safek Isur.

The Ramban argues because we never find that a person has the ability to make something into the collective property of poor people. A person can make something Hekdesh or Hefker, but he cannot make something into the property of poor people.

(The Mishnah in Shekalim 5:6 says that if a person sets aside money for poor people, and there was money left over, whatever remains must be given to other poor people. From there it seems that as soon as one sets aside something for a poor person, it becomes the property of poor people and must be given to them. The Rashba, however, explains according to his own reasoning (Teshuvos, cited by Shulchan Aruch YD 253:6) that the Mishnah there is discussing money that was already handed over to the treasurer of Tzedakah, and thus he acquired the money on behalf of the poor people. But if the money was not yet given to the treasurer, the giver cannot make it into the property of the poor people by just declaring it to be so.)

A practical difference between the Ran and the Ramban might be where a person says that "this coin should be Tzedakah" and then he dies before giving it to poor people. According to the Ran, the money belongs to poor people already, and thus the heirs have to give it to them. According to the Ramban, it was the father's obligation to give it to the poor people, and since it had not yet entered the possession of the poor people, the heirs are not obligated to give it.


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