1) A NOCHRI'S ABILITY TO BE "MA'ARICH" AND TO MAKE A NEDER
QUESTION: The Gemara discusses which Halachah is derived from the word "Ish" in the Parshah of Erchin (Vayikra 27:2). According to one opinion, the words "Bnei Yisrael" in that verse teach that a Nochri cannot be Ma'arich. According to another opinion, those words teach that a Nochri cannot be Ne'erach. According to the opinion that a Nochri may be Ma'arich but not Ne'erach, the word "Ish" teaches that a Nochri may be Ma'arich even when he is a Katan on the verge of adulthood ("Mufla Samuch l'Ish"). (According to this opinion, a Nochri Katan of this age can be Ma'arich even though a Yisrael Katan of this age cannot be Ma'arich mid'Oraisa but only mid'Rabanan.) According to the opinion that a Nochri cannot be Ma'arich but can only be Ne'erach, what does "Ish" teach? The Gemara answers that it teaches that a Nochri who is an adult but who does not understand the significance of a Neder ("Eino Yode'a l'Haflos") cannot make a valid Neder.
TOSFOS explains that since this opinion maintains that even an adult Nochri who does understand the significance of oaths is unable to be Ma'arich, the verse which excludes an adult Nochri who is "Eino Yode'a l'Haflos" must refer not to Erchin but to Nedarim ("Im Eino Inyan..."), because it is obvious that such a Nochri cannot be Ma'arich (since no Nochri can be Ma'arich). The verse teaches that the Neder of an adult Nochri who is "Yode'a l'Haflos" is valid, but the Neder of an adult Nochri who is "Eino Yode'a l'Haflos" is not valid.
If, as Tosfos explains, the verse relies on the mechanism of "Im Eino Inyan" to teach a Halachah about Nedarim and not about Erchin, why does the Gemara -- when it asks what the word "Ish" teaches -- not explain that "Ish" teaches (through the mechanism of "Im Eino Inyan") that a Nochri who is near adulthood may make a valid Neder, even according to the opinion that a Nochri cannot be Ma'arich? Since the verse teaches a Halachah in the laws of Nedarim, perhaps it teaches that a Nochri "Mufla Samuch l'Ish" can make a Neder, just as the other opinion maintains that a Nochri "Mufla Samuch l'Ish" can be Ma'arich! (MISHNEH L'MELECH, Hilchos Erchin 1:11)
(a) The MISHNEH L'MELECH answers that since the verse is not teaching a Halachah in the laws of Erchin but rather a Halachah in the laws of Nedarim (through "Im Eino Inyan"), it is more logical to derive a Mi'ut from the verse (that an adult Nochri who is "Eino Yode'a l'Haflos" cannot make a Neder) instead of a Ribuy (that a Nochri who is a Katan "Mufla Samuch l'Ish" can make a Neder), since the Ribuy would be a far greater Chidush.
The Mishneh l'Melech apparently understands (as TOSFOS to 61b, DH Hanicha, does) that it is not logical to suggest that a Nochri is able to be Ma'arich or to make a Neder at a younger age than a Jew. Therefore, even though Tosfos suggests a logical way to justify such a phenomenon, such a Derashah is made only if the verse clearly implies it. If the Derashah can be made only by applying the mechanism of "Im Eino Inyan," the verse is not used for that purpose; instead, the Derashah teaches that just as the verse does not discuss only Erchin, it also does not intend to include (but rather to exclude) a certain person in the laws of Nedarim.
(b) The KEREN ORAH suggests that even when the Derashah utilizes the mechanism of "Im Eino Inyan," the verse may not be explained in a way that would not be true if that law would be applied to the Parshah in which it is written. Rather, the verse must be explained in a way that the law would be true even if it would be applied to the Parshah in which it is written (but it is merely unnecessary to apply it to its own Parshah). Therefore, if a Nochri cannot be Ma'arich, it is preferable not to explain that the verse teaches an additional way for a Nochri to be able to make a Neder, because that law is not applicable to the laws of Erchin since a Nochri cannot be Ma'arich at all, at any age. Rather, the verse must be teaching that there is a time when a Nochri cannot make a Neder (when he is "Eino Yode'a l'Haflos"), and now the verse is true with regard to Erchin as well (it is true that an adult Nochri who is "Eino Yode'a l'Haflos" cannot be Ma'arich) but it is merely unnecessary to apply the verse to Erchin since no Nochri can be Ma'arich. Since the verse is not necessary for the laws of Erchin, the verse is used to teach a law with regard to making a Neder. Thus, the verse teaches that a Nochri who is "Eino Yode'a l'Haflos" cannot make a Neder.
(c) According to the opinion that a Nochri can be Ma'arich but not Ne'erach, there is no reason why a Nochri should be unable to make a Neder. Therefore, the verse is teaching that he is even better than a Jew with regard to making a Neder when he is a Katan "Mufla Samuch l'Ish."
However, if the Nochri cannot be Ma'arich, his ability to make a Neder is indeed weaker than a Jew's ability. Accordingly, it certainly is not logical that the verse would teach that a Nochri may make a Neder in more ways than a Jew (such as even when he is a Katan "Mufla Samuch l'Ish"), since a Nochri has less ability to make a Neder than a Jew. (M. KORNFELD)
2) DO THE LAWS OD "SHI'URIM" APPLY TO NOCHRIM
QUESTION: The Gemara cites verses to prove whether the Neder of a Nochri Katan who is near adulthood ("Mufla Samuch l'Ish") or the Neder of a Nochri Gadol who does not understand the meaning of a Neder ("Eino Yode'a l'Haflos") is valid.
The RAMBAM (Hilchos Melachim 9:10) writes that a Nochri is Chayav Misah for eating even any amount of Ever Min ha'Chai. The Rambam explains that the Shi'urim for prohibitions were given only to the Jewish people and not to Nochrim.
However, the ROSH (Teshuvos, Klal 16) writes that the source for the Halachah that a person reaches adulthood at the age of thirteen (or twelve for a girl), or upon the appearance of signs of maturity (two hairs), is one of the Shi'urim the Torah teaches as a Halachah l'Moshe mi'Sinai like all of the other Shi'urim (such as k'Zayis and k'Beitzah). Accordingly, a Nochri should have the status of an adult even before he reaches the age of thirteen or develops signs of maturity! As soon as his mind is developed he should have the status of an adult, since the Shi'urim do not apply to Nochrim, as the Rambam writes.
Why, then, is a verse necessary to teach that the Neder of a Nochri who is "Mufla Samuch l'Ish" is valid? A Nochri does not need to be thirteen years old to have the status of an adult, and therefore there should be no such concept of "Mufla Samuch l'Ish" for a Nochri. If he is "Mufla," then he is intelligent enough to understand the meaning of a Neder and he should be obligated in the Mitzvos of Nochrim already. (CHASAM SOFER YD 317, citing TESHUVAH ME'AHAVAH, volume 3, Perek ha'Ta'aroves, Siman 432)
(a) The CHASAM SOFER and the NETZIV (in Meromei Sadeh here) explain that although there are no Shi'urim for the Mitzvos given to Bnei Noach, perhaps they should have Shi'urim for the laws of Nedarim. The reason is that Nedarim is a Mitzvah given to the Jewish people. Nochrim are included in the Mitzvah of Nedarim only because of the extra word "Ish" in the verse. That extra word gives to the Nochri the Jew's Mitzvah of Neder; it does not give to the Nochri his own independent Mitzvah of Neder. Hence, just as the Shi'ur of adulthood for a Jew is the age of thirteen, so, too, a Nochri should not be considered an adult with regard to Nedarim until he reaches the age of thirteen.
The Netziv points out that according to this approach, there is a much stronger line of reasoning to explain why the Gemara concludes that a Nochri is able to make a Neder when he is "Mufla Samuch l'Ish" even though a Jew is not able to make a Neder at that age. The verse teaches that the Nochri's Mitzvah of Nedarim is indeed the same as the Nochri's other Mitzvos, and if he is "Mufla" -- intelligent enough to understand the Mitzvos -- his Neder is valid. (According to the opinion that a Nochri is not Ma'arich, the verse teaches a Halachah which can be understood with similar logic: Even though the Halachah of thirteen years (and the Halachah of two hairs) applies to a Nochri with regard to the Mitzvah of Nedarim and thus he cannot make a valid Neder before the age of thirteen since this Mitzvah stems from the Jew's Mitzvah, nevertheless the verse teaches that the Shi'ur of thirteen years is given only as an additional condition for a Nochri's ability to make a Neder; the additional condition that the Nochri must be intelligent in order to be considered an adult still remains.)
(b) Another possibility is that a Nochri is an adult only when his mind is developed fully enough to understand the responsibility of all of his Mitzvos. "Yode'a l'Haflos," which means that he understands to Whom he makes the Neder, refers to a lesser degree of intelligence. Therefore, if the Nochri's mind is not yet fully developed but it is partially developed such that he understands to Whom he makes the Neder, he is considered "Mufla Samuch l'Ish" (that is, he understands the Mitzvah of Nedarim, but he is not yet an adult).
(c) Perhaps the Rambam does not mean that no Shi'urim apply to a Nochri (although the RADVAZ understands the Rambam that way). The Rambam might mean that Shi'urim which describe the amount required to transgress an Isur do not apply to a Nochri, because the Gemara teaches that "Azharasan Zo Hi Misasan" (Sanhedrin 57a) -- a Nochri is liable for punishment for a transgression of any amount, and the Halachah follows the view of Rebbi Yochanan (Yoma 73b) that "Chatzi Shi'ur" is Asur mid'Oraisa. Therefore, if a Nochri eats even a minute amount he has transgressed the Isur and the Shi'ur does not apply; any amount of Isur is enough to make him liable for punishment. However, Shi'urim which describe the age of the person at which he is liable, or at which he can make a valid Neder, are unrelated to the principle of "Chatzi Shi'ur Asur Min ha'Torah" and thus apply to a Nochri as well. If the Nochri is younger than the prescribed age, he will be exempt (or his Neder will not be valid). This also seems to be the implication of the RAMBAM in Isurei Mizbe'ach (4:3) and the MAHARSHA in Bava Basra (91a). (See Insights to Kesuvos 11:2.)
3) ANNULMENT OF A SLAVE'S OATH
QUESTION: The Mishnah states that the owner of an Eved may remove an oath his Eved made by forcing ("Kofeh") the Eved to act contrary to his oath, but the owner may not annul (with Hafarah) the oath of his Eved.
However, in the very next statement of the Mishnah, the Mishnah rules that when one "annuls" ("Hefer l'Avdo") the Nezirus of his Eved, the Eved must complete his Nezirus when he goes free (that is, the obligation to observe Nezirus returns).
Why does the Mishnah discuss a situation in which the owner is "Mefer" his Eved's oath? An owner cannot annul his Eved's oath as the Mishnah already taught. The Mishnah instead should discuss a situation in which the owner is Kofeh his Eved to transgress his oath of Nezirus.
(a) TOSFOS, the ROSH, and others explains that the word "Hefer" in the Mishnah is imprecise, and the Mishnah really means "Kofeh." This is also the third explanation of the RA'AVAD (Hilchos Nezirus 2:19).
(b) In the RA'AVAD's first and second explanations, he suggests that the Mishnah does not say "Kofeh" with regard to the Eved's Nezirus because if the owner actually forced the Eved to transgress his Nezirus, the Eved would not be obligated to complete it after he goes free. The Nezirus would not be binding since it did not take effect at the time the Eved accepted it. Rather, the Mishnah teaches that if the owner did not force ("Kofeh") the Eved to transgress his oath, or he attempted to be "Kofeh" the Eved but the Eved did not yet transgress the Nezirus, the Eved must complete the Nezirus when he goes free. (This is why the Mishnah writes that he must be "Mashlim" -- "he completes" -- the Nezirus, implying that the Nezirus has already started.)
(c) The Mishnah does not actually say that when the Eved goes free he must complete his Nezirus. Rather, the wording of the Mishnah is, "He goes free and completes his Nezirus." The RAMBAM (Hilchos Nezirus 2:19, and Perush ha'Mishnayos) understands the Mishnah in its most literal sense. He explains that if a master says to his Eved, "Your oath is hereby annulled," instead of just forcing him to transgress his Nezirus, the master has effectively freed his Eved. By using Hafarah, and not Kefiyah, to annul the Eved's oath, the master treats the Eved like a free person who has the choice of not complying. The Mishnah says that if a master is "Mefer" (and not "Kofeh") the oath of his Eved, the Eved goes free immediately, and since he is now free he must complete the observance of his Nezirus.