NEDARIM 22 (28 Sivan) - dedicated to the memory of Hagaon Rav Yisroel Zev (ben Rav Avrohom Tzvi) Gustman, ZT'L, Rosh Yeshiva of Yeshivas Netzach Yisrael-Ramailes (in Vilna, Brooklyn, and then Yerushalayim), author of Kuntresei Shi'urim, and renowned Dayan in pre-war and post-war Vilna, in honor of his Yahrzeit (28 Sivan). Dedicated by Talmidim who merited to study under him in Yerushalayim: Harav Eliezer Stern and Harav Zalman Stern of Brooklyn NY, Rav Avraham Feldman, Yechiel Wachtel, Michoel Starr and Dr. Yehoshua Daniel of Yerushalayim.
12TH CYCLE DEDICATION
NEDARIM 22 - Dedicated by Yeshayahu Schmidt and family of Clifton, NJ. May the Zechus of teaching Torah to many thousands assure them good health and the fulfillment all of their material needs, allowing them to continue dedicating their energy to Torah and Mitzvos and to merit unlimited Berachah in this world and the next!

1) SUGGESTING TO A MURDERER THAT HE KILL

QUESTION: The Gemara relates that when Ula came to Eretz Yisrael, his two escorts had a brawl and one of them killed the other. The murderer turned to Ula and asked if he had acted properly. Ula, concerned for his own safety, responded affirmatively, "Yes [you acted properly, and moreover], you should cut open his neck even more." Later Rebbi Yochanan told Ula that he acted properly by encouraging the murderer, because his own life was in danger.

The Gemara in Sanhedrin (74a) rules that Piku'ach Nefesh, saving one's life, does not override the Torah's prohibition against killing. One may not kill another person in order to save his own life. Why, then, was Ula permitted to tell his escort to widen the cut and cause the victim to die more quickly? One is not allowed to kill someone else, or even take away a moment of life of a dying person (which is tantamount to killing), in order to save his own life.

ANSWERS:

(a) The ME'IRI writes that the victim was already dead. Ula was not suggesting that his escort kill him more quickly.

However, all of the other Rishonim explain that Ula indeed told the murderer to help the victim die more quickly.

(b) The TIFERES YISRAEL (BO'AZ, end of Yoma) suggests that the reason why the prohibition against murder overrides even the Mitzvah to save one's own life is because of the logic presented by the Gemara in Pesachim (25b): "Who says that your blood is redder (i.e. that your life is more valuable) than the other person's?" According to this logic, when one person is alive and healthy while the other is already dying ("Goses"), the logic of "who says that your blood is redder" does not apply, and indeed the healthy person is entitled to assume that his blood is "redder." In such a situation, a healthy person is permitted to kill a Goses for the sake of saving his own life.

However, this ruling is a novel one and is not accepted by many authorities.

(c) RAV ARYEH LEIB SHTEINMAN shlit'a (in AYELES HA'SHACHAR) writes that Ula's suggestion to the murderer to hasten the death of his victim did not constitute an act of killing. By suggesting to the murderer that he hasten the victim's death, he merely was "Machzik Yedei Ovrei Aveirah," he encouraged a transgressor. Although one is not permitted to kill in order to save his own life, one is permitted to encourage a transgressor in order to save his own life.

(The Tiferes Yisrael proves that one is not permitted to save his own life even by merely providing a murderer with information which he will use to kill someone else. However, in the incident recorded here, Ula did not tell the murderer anything that made it easier for him to kill the victim.)

According to this approach, it is possible that the dispute between the Me'iri and the other Rishonim about whether Ula was permitted to tell his escort to kill the victim depends on another dispute among the Rishonim in Sanhedrin (end of chapter 8). The RAMBAN (in Milchamos) writes that when the Gemara rules that a person must give up his life to avoid transgressing the three cardinal Aveiros, it refers not only to the actual sins themselves but also to any sins associated with those three Aveiros ("Abizraihu"). (This explains why the Gemara there rules in that a man must up his life rather than even speak to a woman for pleasure from behind a fence. Although speaking to a woman for pleasure is not an actual transgression of Arayos, it is a related Aveirah.) Perhaps the Ramban maintains that even to recommend to a person that he kill someone is not permitted for the sake of saving one's own life, since it is an "Abizraihu" of Shefichus Damim.

2) THE STATUS OF TRANSJORDAN

OPINIONS: The Gemara implies that Ever ha'Yarden (Transjordan) does not have the full Kedushah of Eretz Yisrael. In what way is the Kedushah of Ever ha'Yarden different from the Kedushah of Eretz Yisrael? The Mitzvos of Terumos and Ma'aseros apply in Ever ha'Yarden just as they apply in Eretz Yisrael (TOSFOS to Yevamos 16a, based on the Mishnah in Shevi'is 9:2, which states that Shemitah is observed in Ever ha'Yarden just as it is observed in Yehudah and Galil).

Perhaps the Gemara here follows the view of Rebbi Yosi in Bikurim (1:10), who maintains that the Mitzvah of Bikurim does not apply in Ever ha'Yarden. He cites a verse (Devarim 26:9) which specifically excludes Ever ha'Yarden from the Mitzvah of Bikurim.

According to Rebbi Yosi, are there any other laws in which Ever ha'Yarden differs from Eretz Yisrael, or do the two areas differ only in their relative degree of Kedushah and they are the same with regard to all other Mitzvos (other than Bikurim)?

(a) The RAN (DH ha'Hu Sha'ata) writes that Ever ha'Yarden was not sanctified with regard to bringing the Korban ha'Omer from its produce, and it was not sanctified with regard "to a few other Kedushos." (The Ran's intention will be explained below.)

(b) RASHI in Sanhedrin (11b, cited by the GILYON HA'SHAS) writes that the Korban ha'Omer may be brought from produce of Ever ha'Yarden. Rashi apparently maintains that Ever ha'Yarden is equivalent to Eretz Yisrael with regard to all of the Mitzvos. (The CHAZON ISH points out that this also seems to be the view of the RAMBAM in Hilchos Kidush ha'Chodesh 4:3.)

The KEREN ORAH questions the Ran's assertion that Ever ha'Yarden is not sanctified with regard to bringing the Korban ha'Omer from its produce. What is the source for this assertion?

Perhaps the source for the Ran's words is the Mishnah in Kelim (1:6) which states that Eretz Yisrael has more Kedushah than all other lands. The Mishnah says, "In what way is it holier? [It is holier] because we bring from there the Korban ha'Omer, Bikurim, and Shtei ha'Lechem" which may not be brought from any other land.

Why does the Mishnah there not mention that Eretz Yisrael is also holier because of the obligation to separate Terumos and Ma'aseros from its produce? Perhaps the reason why the Mishnah omits mention of Terumos and Ma'aseros because the Mishnah lists only the specific signs of the Kedushah inherent in Eretz Yisrael proper, which is not present in Ever ha'Yarden. The Mitzvos of Terumos and Ma'aseros are present in Ever ha'Yarden, and thus the Mishnah does not mention them. This explains why, of all of the "Mitzvos ha'Teluyos ba'Aretz," the Mishnah lists only Bikurim. Bikurim is the only one of those Mitzvos which is practiced in Eretz Yisrael proper and not in Ever ha'Yarden (and the Tana of the Mishnah in Kelim is Rebbi Yosi, who maintains that Bikurim is not brought from Ever ha'Yarden).

Accordingly, the Mishnah in Kelim may be the Ran's source that the Korban ha'Omer and Shtei ha'Lechem are not brought from Ever ha'Yarden, as the Mishnah there -- which mentions the Korban ha'Omer and Shtei ha'Lechem -- refers only to Mitzvos which apply in Eretz Yisrael proper.

Rashi, however, understands the Mishnah in Kelim differently. The reason why the Mishnah does not mention the other "Mitzvos ha'Teluyos ba'Aretz" is that those Mitzvos are no indication of the Kedushah of the land. Rather, they are obligations that apply to the produce of Eretz Yisrael. That is, the Torah forbids the person from eating fruit grown in Eretz Yisrael before he separates Terumos and Ma'aseros; the fact that Terumos and Ma'aseros must be separated is not a manifestation of the Kedushah of the land. The Mishnah lists only the Korban ha'Omer and Shtei ha'Lechem (which may be brought to the Beis ha'Mikdash only if they grew in Eretz Yisrael) because they are an indication of the Kedushah of the land. With regard to Bikurim, Rashi maintains that the reason why the Mitzvah of Bikurim applies only in Eretz Yisrael is not that it is a "Mitzvah ha'Teluyah ba'Aretz," but for a different reason. TOSFOS in Bava Basra (81a, DH ha'Hu, in the name of Rashba) points out that the Gemara derives from a verse that the Mitzvah of Bikurim applies only in Eretz Yisrael and not in Chutz la'Aretz. The fact that it needs its own verse shows that it is not in the category of "Mitzvos ha'Teluyos ba'Aretz." Rather, the Mitzvah of Bikurim is an obligation on the person who owns the fruit to bring it to the Mizbe'ach; it is not a Mitzvah on the produce of Eretz Yisrael that requires a certain act to be done with the produce before it is permitted to be eaten.

Therefore, Rashi learns that the Mishnah in Kelim follows the opinion that the Mitzvah of Bikurim does apply in Ever ha'Yarden (not like Rebbi Yosi), and thus the Mishnah groups the Korban ha'Omer and Shtei ha'Lechem together with Bikurim. It omits the other Mitzvos of Eretz Yisrael because those Mitzvos are Isurim and not "Kedushos." (See VILNA GA'ON in ELIYAHU RABAH to Kelim there.)

HA'GAON RAV YISRAEL ZEV GUSTMAN zt'l inferred from the words of Rashi in Kidushin (37a, DH Chovas Karka) that Rashi agrees with Tosfos in Bava Basra. Rashi in Kidushin lists examples of "Chovas Karka," Mitzvos dependent on the land which apply only in Eretz Yisrael. Rashi provides a comprehensive list of all the Mitzvos but with one prominent omission -- the Mitzvah of Bikurim. Why does Rashi omit the Mitzvah of Bikurim? It must be because he maintains that the Mitzvah of Bikurim is not a "Mitzvah ha'Teluyah ba'Aretz."

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3) HALACHAH: THE ANNULMENT OF NEDARIM AND SHEVU'OS

OPINIONS: The Gemara concludes in the name of Rav Nachman that the Halachah is "Poschin b'Charatah" -- a Beis Din or a Chacham may annul a person's Neder on the basis of the person's Charatah (regret) about having made the Neder.

In practice, may a Neder and a Shevu'ah be annulled based on Charatah?

(a) The RAN explains that according to the Gemara's conclusion, both a Neder and a Shevu'ah may be permitted based on Charatah.

However, the GE'ONIM ruled stringently with regard to the annulment of Nedarim and Shevu'os. RAV HAI GA'ON ruled that a Neder may be annulled only with a Pesach (the person who made the Neder claims that had he been aware of and taken into account a certain factor that was present at the time of the Neder, he would not have made the Neder) and not with Charatah. A Shevu'ah may not be annulled even with a Pesach unless the annulment is necessary for the sake of a Mitzvah, in which case it may be annulled only on the basis of a very clear Pesach.

RAV YEHUDA'I GA'ON ruled even more stringently: both a Neder and a Shevu'ah may be annulled only with a Pesach and not with Charatah, and only for the sake of a Mitzvah.

(b) The ROSH (3:2) writes that the rulings of Rav Hai Ga'on and Rav Yehuda'i Ga'on were stringencies they adopted in reaction to the environment in which they lived, in which people were careless about Nedarim. They instituted strict requirements in order to annul Nedarim so that people would be more cautious about making Nedarim.

(The RAMBAM in Perush ha'Mishnayos (end of chapter 10) writes that the practice not to annul Nedarim was instituted due to the pressure of the Minim, who did not accept the law of Hataras Nedarim, who lived in those areas.)

The Rosh continues and writes that in his time, not only were people careless about making Nedarim, they were careless about observing their Nedarim. Hence, if they would not be allowed to annul their Nedarim they would simply transgress them. Therefore, the Rosh writes that (in his time) it is better to allow the annulment of Nedarim in order to prevent serious transgressions.

This is also the ruling of the RITVA and NIMUKEI YOSEF, who write that the Rav of each city should decide the policy of annulment of Nedarim in accordance with the way the people in each city treat Nedarim.

The SHULCHAN ARUCH (YD 228:7, 230:1) rules leniently and writes that nowadays Nedarim may be annulled, and even Shevu'os made with the name of Hash-m. This ruling is based on the RASHBA (Teshuvos 4:108).

The REMA adds that Beis Din should not annul a Shevu'ah made with the name of Hash-m except under pressing circumstances.

(c) The MORDECHAI cites RABEINU YOSEF BECHOR SHOR who explains the Sugya here differently. "Poschin b'Charatah" does not mean that with Beis Din may annul a Neder based on Charatah alone. Rather, it refers to a form of a weak Pesach which the Gemara calls "Charatah" and not "Pesach." A strong Pesach is one which involves a factor which the person had no reason to expect when he made the Neder (even though it did exist at the time). A weak Pesach refers to a factor which came into existence only after he made the Neder, but it is the type of occurrence which he should have expected (and thus it is not considered "Nolad"). This type of Pesach is what the Gemara refers to as "Charatah." The Gemara here does not use the word "Charatah" to mean regret (that is, one feels differently than he felt at the time he made the Neder and now he wants to annul it).

This opinion is cited by the REMA (YD 228:7) in the name of "Yesh Mefarshim." The Rema concludes, because of this opinion, that when Beis Din or a Chacham annuls a Neder, it is preferable that the Neder not be annulled solely on the basis of Charatah. Rather, the Chacham should make the Charatah into a Pesach. For example, after the person tells the Chacham that he wishes that he had not made the Neder (Charatah) the Chacham asks him, "Had you known that you would regret your Neder (Pesach), would you have made the Neder?" and the person responds, "No, I would not have made the Neder." The Chacham then may annul the Neder based on that Pesach. (The text of the Gemara of the RAMBAM and other Rishonim is "Hilchesa Ein Poschin b'Charatah." Accordingly, they rule that Nedarim may not be annulled based on Charatah. However, they explain that this does not mean that Charatah may not be used at all for the annulment of Nedarim. Rather, it means that the Chacham cannot initiate the annulment by suggesting that the person who made the Neder feels Charatah. Annulment with Charatah must be initiated by the Noder. (See Insights to Nedarim 21:1.)

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