QUESTION: The Mishnah states that if a person accepts upon himself an oath of Nezirus and then says that he did not know that a Nazir is prohibited from wine, his oath of Nezirus is considered an oath to become a Nazir only with regard to Tum'ah and shaving and not with regard to the prohibition from wine. Accordingly, the Rabanan rule that he becomes a Nazir for all matters and may not drink wine, and Rebbi Shimon rules that he does not become a Nazir at all.

Why is the person believed when he says that he did not know that a Nazir is prohibited from wine? Since he pronounced an unconditional oath of Nezirus ("I am hereby a Nazir"), whatever he later claims to have thought in his heart at that moment should not be binding. The rule of "Devarim sheb'Lev Einam Devarim" teaches that thoughts in one's heart are not binding (until they are verbalized). Why, then, is he able to cancel his oath of Nezirus, according to Rebbi Shimon, by claiming afterward that he did not know what Nezirus entails?

(a) The MEFARESH implies that in the case of the Mishnah, the person says that he does not know that a Nazir is prohibited from wine before he makes his oath of acceptance of Nezirus. Therefore, his statement of Nezirus clearly did not include a prohibition of wine. (KEREN ORAH)

(b) The Gemara in Shevuos (26b) teaches that when a person swears that he will not eat wheat bread, and then he says that his tongue slipped and he actually intended to say that he will not eat barley bread, he is believed and is not prohibited from wheat bread. A statement which a person says by accident is not considered a valid, binding statement; unintentional speech is not considered "Dibur."

How is it possible to know that a person intended to say something other than what he actually said? The rule of "Devarim sheb'Lev Einam Devarim" should apply. The answer is that what slipped out of his mouth accidentally is not considered Dibur; according to his present statement, his initial statement was not considered Dibur. The person is trusted when he says what his intentions were, as long as they are not contradicted by a genuine Dibur (and here there was no Dibur). Perhaps the Mishnah refers to such a case as well. If he thought that a Nazir is permitted to drink wine, his usage of the word "Nazir" was a misnomer; what he intended was not expressed by the word he used. Perhaps such a word is not called a Dibur (like the case in Shevuos), and therefore he is believed to say what was in his mind since it does not contradict a Dibur.

The RASHBA (Teshuvos 4:108) suggests a similar explanation for the next case in the Mishnah. When a person accepts upon himself to become a Nazir and then claims that he thought that the Chachamim would permit him to become Tamei since he cannot support himself without becoming Tamei (for example, he buries corpses), he does not a Nazir according to the Chachamim. According to one explanation in the Gemara (11b), he is not a Nazir because his Neder is considered a Neder which he is forced to violate (Nidrei Onsin, according to some Rishonim). Why is he believed to say later that he did not intend to become prohibited from Tum'ah since he thought that the Chachamim would permit the Isur for him, if such a thought is "Devarim sheb'Lev"?

Some Acharonim (see MAHARIT 1:68, DH Ach Kasheh) explain that it is known to all that he makes a living as an undertaker, and hence it is no longer "Devarim sheb'Lev" when he says that he thought that the Chachamim would permit him to become Tamei since his employment requires it.

However, it is possible that even if it is not known to all that his employment involves becoming Tamei, he still is believed. The RASHBA explains that the reason he is believed is that a person is trusted to testify about an Isur which applies to himself. If a person would have no such trustworthiness, it would never be possible for a Chacham to annul a person's Neder; the Chacham could not trust the person's Pesach, since there is no way to know for certain that the person would not have made a Neder had he known that such a situation would arise.

Accordingly, if a person claims that his statement was made under duress (b'Ones), he is believed. The Rashba's intention may be similar to the explanation suggested above. The Rishonim in Nedarim (28a) explain that when a person makes a statement under duress, the rule of "Devarim sheb'Lev Einam Devarim" does not apply, because the Ones (the situation of duress) provides an "Umdena" (evidence based on circumstance which makes his intention understood to all) that he did not really mean to say the Neder the way he expressed it. The Ones annuls his Dibur. Thus, the Rashba asserts that the person is believed when he says what his thoughts were, and the Neder takes effect (or does not take effect) accordingly.

QUESTION: Ravina discusses a case in which a person accepts upon himself Nezirus on condition that he may drink wine. Ravina rules that the condition is ignored and he becomes a full-fledged. His condition is disregarded because it contradicts what is written in the Torah ("Masneh Al Mah she'Kasuv ba'Torah"), in which case the condition is invalid and the change in status takes effect.

TOSFOS (DH d'Havi) asks, how is it possible to accept Nezirus with any type of condition, even with one which does not contradict the Torah? The Gemara in Kesuvos (74a) teaches that a condition may be made only for the type of action which may be performed through a Shali'ach. Nezirus cannot be accepted or observed through a Shali'ach. How, then, can one make a condition for Nezirus?

(a) TOSFOS explains that Nezirus may be carried out through a Shali'ach. A Shali'ach may bring the Korbanos of a Nazir at the end of the Nezirus instead of the Nazir himself.

The Acharonim raise a number of questions on this answer.

1. What difference does it make if the Korbanos of a Nazir may be brought by a Shali'ach? The actual Nezirus (the prohibitions of Tum'ah, cutting hair, and grape products) cannot be observed by a Shali'ach!

2. One who becomes a Nazir Shimshon never brings Korbanos, and yet the Gemara (Nedarim 19b) states that one may make a condition for a Nezirus of Nazir Shimshon. (KASA D'HARSENA #204)

3. REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that a Neder may be made with a condition (Nedarim 79a) even though no Korbanos are brought for an ordinary Neder of Isur. How can a Neder be made with a condition if a Neder cannot be carried out by a Shali'ach?

Perhaps the answer to these question is as follows. There is a logical reason for why a condition may be made only for an action which can be carried out by a Shali'ach. The ability for a person to appoint a Shali'ach to carry out a certain action demonstrates that the person has control over that action, since he can delegate it to someone else. In order to make a condition in the action, one must have the same degree of control over the action as is necessary to appoint a Shali'ach to do the action. Accordingly, perhaps it suffices for one to have control over part of the action, such as the bringing of the Korbanos, even though he does not have control over the rest of the action. This is because the fact that he has control over part of it shows that the action is under his control; the reason why he cannot make a Shali'ach for the rest of the action is not that he has insufficient control over the action, but is due to some other factor. Since he has control over part of the action (the party which he may appoint a Shali'ach to perform), he is considered to have control over the action and thus he may stipulate a condition in the fulfillment of the action.

This approach answers the question from the case of a Nazir Shimshon. Although a Nazir Shimshon does not bring Korbanos, the Nezirus takes effect upon him as it takes effect on any ordinary Nazir. There is no reason to assume that he has less control over his Nezirus of Nazir Shimshon than an ordinary Nazir has over his Nezirus, and therefore he may make a condition on it.

This approach answers the third question as well. Since Nezirus is a type of Neder, and the Nazir has control over part of the action (because he may appoint a Shali'ach to bring the Korbanos), one is considered to have control over every Neder he makes and therefore may make a condition on it. (The RASHASH adds that there is a Hekesh between Nedarim and Nezirus.)

However, Tosfos' answer remains unclear for another reason. When the Gemara says that a condition may be made for an action only when the action can be done by a Shali'ach, it means that the action which was contingent upon the fulfillment of the condition can be done through a Shali'ach. However, in the case of the Gemara, the person makes his acceptance of Nezirus contingent upon a condition. Tosfos does not show how a Shali'ach can accept an oath of Nezirus to take effect on someone else. He merely shows that once the Nezirus has taken effect, it can be practiced (in part) by someone else.

(b) The RAMBAN in Bava Basra (126b) cites others who answer the question of Tosfos in the following way. It is possible even to accept a Nezirus or a Neder through a Shali'ach by telling the Shali'ach, "Whenever you say that you want me to be a Nazir, I will become a Nazir." (This is not the usual form of Shelichus to perform an action, since the Nezirus is clearly being made by the person himself and the Shali'ach merely decides when the Nezirus will take effect. Nevertheless, this form of Shelichus shows that Nezirus can be made contingent on external factors, and therefore the Nezirus can also be made contingent upon a condition.)

(c) The RAMBAN himself answers that all of the rules of Tenai are not necessary for an action which affects only oneself. The rules of Tenai which are derived from the Tenai of Bnei Gad and Bnei Reuven (Kidushin 61a) teach how a Tenai is to be made in an interaction between two people (such as a purchase, gift, marriage, and divorce). In contrast, Nezirus is a private matter which involves no one but the Nazir, and the requirements of a Tenai in such a matter are not derived from the Tenai of Bnei Gad and Bnei Reuven, but it is understood from logic: since the person made his oath contingent upon such a stipulation, it should take effect only when the stipulation is fulfilled. Therefore, a Tenai can take effect for Nezirus even though the action cannot be performed by a Shali'ach.

RABEINU AZRIEL in the SHITAH MEKUBETZES here similarly explains that all of the rules of Tenai apply only to an action but not to something which takes effect through speech alone. The PNEI YEHOSHUA (Kesuvos 57a) explains the logic for this: a Tenai which is a Dibur (speech) cannot annul an action, since an action is stronger than speech. However, a Dibur can annul something else that was made with Dibur (Kidushin 59a-b). (See also KEREN ORAH here.)

According to the Ramban and Rabeinu Azriel, why does the Gemara here state that when a person accepts Nezirus on condition that he not be prohibited from wine, the Tenai is not valid because it contradicts the Torah ("Masneh Al Mah she'Kasuv ba'Torah")? If the laws of Tenai do not apply to Nazir, even a Tenai that is "Masneh Al Mah she'Kasuv ba'Torah" should be valid!

The answer is that the Ramban follows the view of RABEINU TAM and many other Rishonim in Kesuvos (56a) who rule that the Halachah that a Tenai cannot contradict what is written in the Torah is not learned from the laws of the Tenai of Bnei Gad and Bnei Reuven. Rather, this Halachah is based on logic: a person is not serious about the condition if it contradicts the Torah. This reasoning might explain why Tosfos asks his question (how can a Tenai be made for Nezirus) only in this Sugya, even though there are many Mishnayos which mention Nezirus -- and even Nedarim (see Gilyon ha'Shas) -- being made with a Tenai and yet Tosfos asks his question only on the Mishnah here. The reason Tosfos does not ask his question elsewhere is that Tosfos knows that one might propose an answer similar to the Ramban's -- that the rules of Tenai do not apply to Nedarim and Nezirus. However, the Gemara here states that the rule that a Tenai cannot contradict what is written in the Torah does apply to Nezirus! Tosfos in Kesuvos (56a, DH Harei Zu) disagrees with Rabeinu Tam and explains that this rule is derived from the Tenai of Bnei Gad and Bnei Reuven (see Insights to Kesuvos 56:2). Accordingly, the Gemara here disproves the Ramban's approach, and therefore a reason must be given for why a Tenai may be made for Nezirus even though a Shali'ach cannot be appointed to fulfill the Nezirus for the Nazir.

This approach might also be the answer to the question of the Gilyon ha'Shas. Although Nedarim do not involved Korbanos, a person may make a condition in a Neder because of the reason the Ramban gives -- the rules of Tenai do not apply to Nedarim. A Neder requires that a person simply keep his word; if he made his word conditional, once he fulfills the condition he has kept his word and the Neder takes effect, in accordance with what he said. The Gemara here teaches that Nezirus is different, and the rules of Tenai do apply. This is because Nezirus is not merely a requirement to keep one's word (like a Neder), but rather it involves making a unique Kedushah take effect on the person so that he acquires the new status of "Nazir" (see Insights to 4:1). The acceptance of Nezirus is not merely a Dibur, but a "Dibur d'Asi l'Yedei Ma'aseh" (Kidushin 59a), a speech which has an element of action in it. Therefore, Nezirus is comparable to Kinyanim, which involve the change of status of an object and for which the rules of Tenai apply.