OPINIONS: The Mishnah states that if one makes a Neder (but not a pledge of Erchin) that he will donate his worth to Hekdesh, and he dies before his worth is evaluated, his heirs have no obligation to pay Hekdesh on his behalf. The Mishnah explains that this is because a dead person has no monetary value.

RASHI (DH she'Ein Damim l'Mesim) explains that when a person makes a pledge of "Damim," his intention is to give his worth after it has been assessed by Beis Din. His worth is assessed according to his value on the slave market. Since a dead slave is worth nothing, his heirs have no obligation to pay. Beis Din does not require them to pay the amount that their father was worth when he was alive, because he pledged only to pay the amount that Beis Din would assess him to be worth at the time that he pays, and his assessed value now is nothing.

Why, though, does Beis Din not assess his corpse for whatever it might be worth and require the heirs to pay that small amount?

(a) The TOSFOS YOM TOV answers that a dead person's body has no value, because his body is Asur b'Hana'ah. If a dead body was not Asur b'Hana'ah, then indeed Beis Din would evaluate its worth, just as the next Mishnah (20b) states that when a person pledges to give the value of a bull, he must give the value of the carcass if the bull dies before its assessment.

The TIFERES YISRAEL does not accept this answer of the Tosfos Yom Tov. Moreover, he does not even accept the legitimacy of the question. There is no reason to evaluate the value of the man's corpse. The entire basis of the law of pledges of Damim is that the person's value is assessed according to how much he is worth as a slave, and not how much his body is worth. It is obvious that the law of pledges of Damim is entirely inapplicable to a dead person.

The YAD BINYAMIN suggests that the Tosfos Yom Tov maintains that the evaluation of a person's worth as a slave is merely the preferred method of evaluation, but it is not the only method. If this method would be impossible, then a different method would be employed, such as evaluating the worth of the body. The only reason why this alternative method is not used is that a dead body is Asur b'Hana'ah.

(b) The Yad Binyamin himself suggests a different answer to the Tosfos Yom Tov's question (which perhaps is the logic of the Tiferes Yisrael in rejecting the question). He explains that the primary reason for why Beis Din does not evaluate the body is that the person made his pledge with intent to give the amount he was worth as a slave. Beis Din does not evaluate him in any other manner, because a pledge takes effect only according to the ordinary thoughts and intents of the person, and he did not have in mind to give his value as a corpse.

With this logic the Yad Binyamin refutes the question of the CHESHEK SHLOMO. The Cheshek Shlomo asks that even though the body of a dead person is Asur b'Hana'ah, his or her hair is not Asur b'Hana'ah (as the Gemara earlier (7a) implies; see TOSFOS to Bava Kama 10a, DH sheha'Shor). Why does Beis Din not require the heirs to give at least the value of their father's hair to Hekdesh? The Yad Binyamin explains that this is no question, because the father had no intent of being evaluated when he was dead.

The SHITAH MEKUBETZES (18a, #14) proposes, but then rejects, the reasoning that the Tosfos Yom Tov gives. The Shitah Mekubetzes gives instead an explanation similar to that of the Yad Binyamin. When a person pledges the value of an animal, he knows exactly how much he has pledged, and his pledge obligates him immediately. (It is clear that the Shitah Mekubetzes understands the case of the bull that died (in the next Mishnah) differently from the Tosfos Yom Tov. While the Tosfos Yom Tov understands that the person must give the value of the carcass, the Shitah Mekubetzes understands that he must give what the bull was worth when it was alive. However, the words of the RAMBAM in Perush ha'Mishnayos seem to support the understanding of the Tosfos Yom Tov that the amount paid to Hekdesh is the amount of the carcass.)

In contrast, the evaluation of a person as a slave is a more complicated process, and therefore the person's intent is to give the amount that Beis Din will evaluate when he stands before them. It seems that the Shitah Mekubetzes agrees that the person's intent is to give only his worth as a slave, and not his worth as a corpse. (Y. MONTROSE)

QUESTION: The Gemara cites a Beraisa that states, "When one says, 'The value of a bull will be offered as a Korban Olah,' the bull remains Chulin and the one who made the vow is not responsible to replace it (if the bull dies)." The Beraisa continues, "However, he is obligated to replace its value (if the bull dies)."

The Beraisa seems to contradict itself. The Beraisa first says that he is not obligated to replace the bull, but then the Beraisa says that he is obligated to replace its value. When the Beraisa says that he is not obligated to replace the bull, it obviously means that he does not have to pay for the loss; he has no obligation to replace its value! What, then, does the Beraisa mean when it says that he does have to replace its value? (ROSH cited by SHITAH MEKUBETZES)

(a) RASHI (DH Eino Chayav) explains that the person's intention when he made the pledge was to sanctify the monetary value of the bull only after it would be sold. The first part of the Beraisa teaches that if the bull died before it was sold, then the owner is not obligated to replace its value. The second part of the Beraisa teaches that if the bull died after it was sold and the money received for its value became sanctified, then the owner must replace the money if it was lost before he gave it to Hekdesh.

(b) RABEINU GERSHOM implies that if the bull died before they had a chance to estimate its value in order to give that value to Hekdesh, the one who made the vow is not obligated to give the value of a live bull to Hekdesh. (Rather, he must give the value of a dead animal to Hekdesh.) If, however, they estimated its value before it died, then he indeed is obligated to give its full value to Hekdesh.

(c) The SHITAH MEKUBETZES (#4) in the name of the ROSH answers that the person indeed is obligated to replace the bull's full value if it dies. When the first part of the Beraisa says that he is not obligated to replace its value, it means that he is not obligated to use its value towards buying specifically a bull for Hekdesh, but rather he may use its value to buy a lamb or a goat instead.

QUESTION: The Mishnah discusses a case in which a person pledges, "It is upon me to bring this bull as an Olah." The Mishnah teaches that he must pay the value of the bull even if it dies. In the Gemara, Rebbi Chiya bar Rav states that the person is obligated to give the dead bull's value only if he said in his pledge that he will give "the value" of the bull as an Olah. If he merely said the words that the Mishnah quotes, then he is not obligated to pay anything if the bull dies. Even though he said that it is "upon me" ("Alai"), which is the wording of a Neder (with which a person accepts responsibility to pay the value regardless of what happens to the bull), here he clearly intended to obligate himself to bring this specific bull, and not to obligate himself to give the value of the bull to Hekdesh. His pledge remains a Nedavah (and he is not responsible for it if it dies).

The Gemara in Rosh Hashanah (6a) does not seem to accept Rebbi Chiya bar Rav's statement. The Gemara there searches for a case in which one makes a pledge with the word "Alai" but the pledge is a Nedavah and not a Neder. The Gemara says that the case must be where one explicitly makes a condition to absolve himself from responsibility and says, "It is upon me (Alai) to bring a Korban, on condition that I am not responsible for the animal." If the Gemara there would agree with Rebbi Chiya bar Rav's statement here, then it should give the obvious case of a pledge with the word "Alai" that is nevertheless a Nedavah: the case of the Mishnah here, according to Rebbi Chiya bar Rav, in which the person says, "It is upon me to bring this bull as an Olah." It must be that the Gemara in Rosh Hashanah does not accept his ruling. However, no one seems to disagree with Rebbi Chiya bar Rav. Why, then, does the Gemara in Rosh Hashanah not accept his ruling?

(a) The BE'ER AVRAHAM (Rosh Hashanah 6a) answers this question based on the words of the Yerushalmi in Rosh Hashanah. The Yerushalmi states that if one makes a pledge and says, "Harei Zo..." -- "This animal is a Korban," which is the wording of a Nedavah, and then he later proclaims, "Harei Alai..." -- "It is upon me to bring this animal as a Korban," the second statement overrides the first and he is obligated to bring the animal as a Neder. The Yerushalmi explains that this is because the more severe Kedushah of Neder overrides the lighter Kedushah of Nedavah. It seems that this opinion in the Yerushalmi also does not accept Rebbi Chiya bar Rav's ruling, because according to Rebbi Chiya bar Rav the term "Harei Alai" does not necessarily preclude the statement from being a Nedavah. The person could mean that it is upon him to bring the Korban as a Nedavah!

The Be'er Avraham therefore suggests that the Gemara in Rosh Hashanah follows the view of the Yerushalmi that these terms are inherently contradictory, unlike the view of Rebbi Chiya bar Rav.

(b) The HAFLA'AH SHEB'ERCHIN gives a different answer based on the words of the LEV ARYEH in Chulin (139a). The Lev Aryeh explains that Rav Chiya bar Rav does not mean that this animal is considered a complete Nedavah. He merely means that if the animal dies, the person is not obligated to bring another one, since his pledge was that he would bring it while it is alive, if possible. If it dies, it no longer can be offered, and therefore the person is absolved from his pledge. In contrast, in a case in which the animal was stolen or lost but is assumed to be alive, the person is still obligated to bring it (or its value), since it is still alive and he is able to fulfill his pledge by bringing it. If he does not bring that specific bull, then he must bring another animal in its place.

The Hafla'ah sheb'Erchin explains that this is why the Gemara in Rosh Hashanah does not mention the case of the Mishnah here, even though it agrees with Rebbi Chiya bar Rav's explanation. The Gemara there is looking for a case in which the person said "Alai" but has no responsibility at all to bring another animal. This is not the Halachah in the case of Rebbi Chiya bar Rav, in which the person does have responsibility to bring another animal if the first one is still alive (but is lost). (Y. MONTROSE)