1) THE "KINUYIM" OF NEDARIM AND CHARAMIM
QUESTION: The Mishnah states that "all Kinuyim of Nedarim are like Nedarim, [Kinuyim] of Charamim are like Charamim, and [Kinuyim] of Shevu'os are like Shevu'os." The definitions of a Neder and a Shevu'ah are well-known. A Neder is a vow a person makes in order to prohibit a certain object to himself or to someone else, while a Shevu'ah is an oath through which a person prohibits himself to an object. What, though, is a "Cherem"? A Cherem is a type of pledge of Kodshei Bedek ha'Bayis: a person who makes an object Cherem dedicates it to be given either to the Beis ha'Mikdash (Chermei Bedek ha'Bayis) or to the Kohanim (Chermei Kohanim).
Why, though, does the Mishnah mention Charamim? The Mishnah lists no other type of Hekdesh (for example, that "the Kinuyim of Korbanos are like Korbanos," even though Kinuyim certainly work for Korbanos, as the Gemara says later on 10a). If the Mishnah, when it mentions Charamim, refers to a Neder in which one prohibits an object by comparing it to an object of Cherem ("this object is prohibited to me like Cherem"), then why does the Mishnah mention it at all? The Mishnah already teaches that "all Kinuyim of Nedarim are like Nedarim," which includes all types of phrases used to make a Neder.
(a) The RAN explains that "Cherem" refers not only to Chermei Bedek ha'Bayis, but also to any Neder which prohibits an object (Nidrei Isur). The Ran cites the Mishnah later (47b) which says that one may use the phrase, "Hareini Alecha Cherem" -- "I am hereby Cherem to you," to prohibit another person from benefiting from him.
The Ran seems to say that there are three types of Charamim: the two ordinary types, Chermei Bedek ha'Bayis and Chermei Kohanim, and a third type whereby the word "Cherem" is used to create an Isur rather than to dedicate an object as Kodshei Bedek ha'Bayis.
However, the Ran himself (47b) explains that the expression, "Hareini Alecha Cherem," does not mean, "I hereby am Cherem to you," but it means, "I hereby am like Cherem to you" -- he makes himself to the other person like Cherem of Bedek ha'Bayis, which is prohibited. According to the Ran there, the word "Cherem" is used merely as a "Hatfasah" for a Neder; one compares the object of the Neder to Kodshim. The Ran states this explicitly with regard to the Kinuyim of Charamim of the Mishnah here. When the Mishnah later (10a) discusses the Kinuyim of Charamim, the Ran writes that the reason why the word "Cherem" creates an Isur is that "Cherem" implies Chermei Bedek ha'Bayis, and when one declares that an object is prohibit to him "like Cherem" he means that it should be prohibited like an object of Chermei Bedek ha'Bayis. Hence, when the Mishnah here says that the Kinuyim "of Charamim are like Charamim," it means that a Kinuy in which one compares the object of the Neder to an object of Cherem which is forbidden is effective.
Why, though, does the Mishnah need to teach that Kinuyim of Charamim work when it already teaches that Kinuyim of Nedarim work?
Apparently, the Ran understands that when the Mishnah states that Kinuyim of Nedarim are like Nedarim, it does not mean that Kinuyim work to create a Neder. Rather, it means that Kinuyim are valid substitutes for a particular word used in a Neder. The first word which may be replaced is the word "Korban," which may be substituted with the word "Konam." This is the intent of the Mishnah when it says, "Kol Kinuy Nedarim k'Nedarim." When the Mishnah states that the Kinuyim "of Charamim are like Charamim," it means that one may substitute the word "Cherek" for the word "Cherem" in a Neder in which he compares the object to a Cherem. The reason why the Mishnah mentions Kinuyim for only these two words (Korban and Cherem) even though one may make a Neder by comparing the item to a number of other types of objects of Hekdesh (see 10b) is that these are the most common forms of Hatfasah for a Neder. As the Ran quotes from the Mishnah later (47b), when a person makes prohibits himself from deriving benefit from his friend (or prohibits his friend from deriving benefit from himself), he usually uses the word "Cherem."
According to the Ran's explanation, why does the Mishnah state, "Kol Kinuyei Nedarim k'Nedarim" and not "Kol Kinuyei Korbanos k'Korbanos"? Perhaps the Mishnah wants to emphasize that it is not discussing one who consecrates a Korban itself, but that it is discussing one who makes a Neder by comparing an object to a Korban.
The Ran's explanation here is consistent with his opinion later that the basic phraseology of a Neder is, "This item is Asur," with no comparison to any other object. According to the Ran, the word "Korban" is not an integral part of the Neder itself. When the Mishnah states that one may use a Kinuy for the word "Korban," it is not teaching an actual Halachah about the Neder itself (that Kinuyim work to make a Neder), but it is teaching merely a Halachah in the wording which may be used in a Neder made with Hatfasah. For this reason, the Ran understands that when the Mishnah mentions "Charamim," it is discussing merely the wording used in a Neder.
In contrast, other Rishonim (the Ritva and others, see (b) below) maintain that the word "k'Korban" is an integral part of the Neder (see following Insight). They are consistent with their opinion that the words in the Mishnah, "Kinuyei Nedarim k'Nedarim," teach that a Kinuy may be used to formulate any type of Neder (and not just one in which one compares the object to a Korban). They therefore explain that the words, "[Kinuyei] Charamim k'Charamim," refer to Chermei Bedek ha'Bayis.
(b) The RITVA, ROSH, TOSFOS and other Rishonim write that the word "Charamim" refers to Chermei Bedek ha'Bayis and Chermei Kohanim. They explain that there is nothing inappropriate about mentioning Nidrei Hekdesh in this Mishnah even though the Mishnah does not address the laws of Kodshim. Since no other Mishnah mentions that Kinuyim work for Kodshim, the Tana justifiably mentions it here when he teaches that Kinuyim work for Nidrei Isur.
According to this view, why does the Mishnah not state simply that "Kinuyei Korbanos k'Korbanos"? Why does it choose the specific type of Hekdesh known as "Charamim" as the prime example of Kinuyim for Kodshim? The Ritva explains that the Mishnah mentions Charamim because the literal meaning of the word "Cherem" means "prohibition," or "Isur" (as in the verse, "Yacharam Kol Rechusho," Ezra 10:8). Since the wording of that type of Hekdesh is similar to the wording of Nidrei Isur, the Mishnah expresses the law that Kinuyim work for Hekdesh with regard to that specific form of Hekdesh.
Perhaps the Ran does not accept this line of reasoning because he learns like the RE'AH in SEFER HA'CHINUCH (Mitzvah 357) who explains that the word "Cherem" literally means "curse" and not "Isur." Therefore, it is not more similar to Nidrei Isur than any other type of Neder of Hekdesh.
There is no practical difference between these opinions, as everyone agrees that a Kinuy may be used to make an object Hekdesh.
2) THE TWO TYPES OF PRIMARY NEDER
OPINIONS: The Mishnah alludes to three different types of Nedarim -- the basic form of Neder, a Kinuy, and a Yad l'Neder. The RAN points out that there are two ways to make a basic form of Neder which do not involve Kinuyim or Yados. Those two ways to make a Neder are "Ikar Neder" (the "essence of Neder") and "Hatfasah."
These two basic forms of Neder differ inherently and not only in their wording, as the Gemara in Shevuos (20a) teaches. The Gemara there says that according to Rava (the Halachic opinion), Hatfasah does not work for a Shevu'ah. Similarly, the Rishonim cite the Mishnah in Nazir (20b) which states that when one person accepts upon himself to be a Nazir and another person says, "I am like him," if the first person formally revokes ("Sho'el") his Nezirus and has it uprooted retroactively, the second person loses his Nezirus as well because his Nezirus is a replica of the Nezirus present at the time he compared himself to his friend. It is evident from there that Hatfasah means not only that a person compares an object to another object which is forbidden, but he actually extends the status of the other object onto his own object.
However, the Gemara does not explain what the defining difference is between the wording of an Ikar Neder and the wording of Hatfasah. Moreover, a Beraisa (Shevuos 20a and Nedarim 12a) states that a Neder works only when it is made by comparing the object of the Neder to another object that has already been prohibited through a Neder (or through Hekdesh) -- a "Davar ha'Nadur." Another Beraisa (Shevuos ibid.) inquires about the form of an Isur of a Neder which the Torah prohibits, and it answers that the form of Neder which the Torah prohibits is a Neder made with the words, "I will not eat meat or drink wine like the day on which my father died," and, as Shmuel adds, on the day his father died he had prohibited himself with a Neder from eating meat. Both Beraisos imply that the Ikar Neder is achieved through Hatfasah, and that no Ikar Neder exists without Hatfasah. What is the difference, then, between an Ikar Neder and Hatfasah?
The Rishonim offer a number of explanations.
(a) The RAN here, the RAMBAN (14a) in his explanation of the Rif, and the ROSH in Shevuos (20b) in his explanation of the Rif explain that the Ikar Neder is when one says, "This item is Asur to me." Hatfasah is when one says, "This item is like a Korban," or, "This item is Asur like a Korban," and he compares it to something that is already Asur.
When the Beraisa (14a) states that a Neder must be made by comparing the item to a Davar ha'Nadur, the Beraisa does not mean that one must compare it to a Davar ha'Nadur and that without such a comparison the Neder is ineffective. Rather, the Beraisa means that when one chooses to make a Neder with Hatfasah, the Hatfasah must be with a Davar ha'Nadur and not with a Davar ha'Asur (something intrinsically Asur by the Torah and not made Asur through a Neder). The point of the Beraisa is to teach what type of Hatfasah does not work; the Beraisa does not teach that Hatfasah is required.
The other Beraisa (12a) which discusses the type of Neder which is binding mid'Oraisa does not refer to an Ikar Neder. Rather, the Beraisa asks what is a secondary Isur of Neder, besides the main type of Neder, which the Torah also prohibits. It answers that the secondary Isur of Neder is a Neder made with Hatfasah.
According to the Ran, when the Gemara discusses whether there is an Isur of Me'ilah for Konamos when a person violates a Neder by eating something which he prohibited upon himself with the word "Konam" (35a), the Gemara apparently refers only to a Neder made through Hatfasah to a Korban (which is why the Hatfasah transfers the potential for Me'ilah). However, if a Neder is made by simply saying, "This item is Asur," the type of Isur created should not be an Isur Hekdesh at all but one that is exclusively an Isur of Neder, and thus there should be no Chiyuv of Me'ilah.
(b) RASHI in Shevuos (20b), TOSFOS, and the RITVA here explain that the Beraisos are to be understood in their straightforward sense. They mean that an Ikar Neder is made only by comparing the object to Hekdesh; no Neder can be made without "extending" the Isur of Hekdesh onto the item. However, they explain that not every comparison of the object to Hekdesh is considered Hatfasah. The statement, "This object is Asur like a Korban," which is the wording the Beraisa uses, is not considered Hatfasah. The word "k'Korban" there merely describes the type of Isur that one makes, but the Neder does not draw the Isur from a Korban onto the object. Similarly, when one says, "This piece of meat is Asur like that piece of meat" while he points to a piece of meat of Kodshim, the second piece of meat he mentions merely provides a description of the Isur of the first piece; the first piece does not actually draw the Isur from the second piece. Hatfasah applies only when one says, "I want this piece of meat to be like that piece of meat" with no mention of the word "Asur."
May a Shevu'ah be made with Hatfasah? Rava rules that if a person makes a Shevu'ah with Hatfasah by saying, "This piece of meat should be like that piece of meat as a Shevu'ah," the Shevu'ah does not take effect. The Rishonim disagree about whether Hatfasah may be used even for a Neder. RASHI (Shevuos 20b) and the RITVA (Nedarim 14a) write that Hatfasah may not be used for a Neder, and that the only way to make a Neder is to make an Ikar Neder; there is no such thing as Hatfasah. (One who says, "This piece of meat is like that Kodshim piece of meat" without saying "it is Asur," has not made a Neder.) The RIF and Tosfos in Shevuos, the RAMBAN (Nedarim 14a), and many other Rishonim write that Hatfasah does create an Isur of Neder even though it cannot create an Isur of Shevu'ah. (A Neder is an Isur Cheftza, and thus it is possible to make a Neder through Hatfasah.)
(c) The RAN, in his explanation of the Rif in Shevuos, gives a third explanation. He explains the Beraisos in their straightforward sense and says that the only way to make a Neder is through Hatfasah, either by saying, "This object is Asur to me like a Korban," or by saying merely, "This object is like a Korban." The Beraisa which says that the Isur of Neder of the Torah is when one prohibits meat "on this day like the day on which my father died" indeed describes a case of Hatfasah, and it means that there is no such thing as an Ikar Neder other than Hatfasah. If a persons says, "This object is Asur" without saying "like a Korban," the object becomes Asur only because of Yados of Nedarim.
This approach differs from the previous explanation (in (b) above) in that the Ran requires that every Neder be made through comparing the object to a Korban or other such item, and he considers every Neder made through a comparison to a Korban to be Hatfasah, even when the word "Asur" is used.
The MISHNEH L'MELECH and many other Acharonim (see SHALMEI NEDARIM) point out that the Ran in Shevuos seems to contradict his words in the beginning of Nedarim (cited in (a) above). However, close examination of the Ran in Shevuos shows that his explanation there is actually the second of two possible explanations which the Ran gives for the Rif there. The first explanation he gives there is identical to the explanation he writes here. Although the Ran in Shevuos initially refutes his first explanation (the one he writes here), the Ran later justifies that explanation and suggests a defense for it. Accordingly, the Ran here sides with the other explanation he gives for the Rif there, which is the more straightforward explanation and the one which all of the other Rishonim use to explain the Rif there.
3) A NEDER WITH THE WORDING OF A SHEVU'AH, AND A SHEVU'AH WITH THE WORDING OF A NEDER
OPINIONS: The Gemara teaches that the difference between a Neder and a Shevu'ah is that a Neder takes effect on the object (Cheftza) and a Shevu'ah takes effect on the person (Gavra). This means that when a person makes a Neder he creates a prohibition upon the object ("this bread is prohibited [to me]"). When a person makes a Shevu'ah he creates a prohibition upon himself ("I am prohibited to eat this bread"). What is the source for this difference?
The ROSH here and TOSFOS in Shevuos (25a) explain that the nature of a Neder as an Isur Cheftza is derived from the verse, "If a man makes a vow (Neder) to Hash-m..." (Bamidbar 30:3), which teaches that a Neder is made only through Hatfasah, by comparing it to a Davar ha'Nadur (see Beraisa on 14a, and see previous Insight). The Rosh adds that the rest of the verse, "... or he swears an oath (Shevu'ah) to create a prohibition upon himself," teaches that a Shevu'ah is an Isur Gavra. The verse uses the words "upon himself" ("Al Nafsho"), which mean that a Shevu'ah prohibits the person to the object.
However, the Rishonim point out that a number of sources in the Gemara seem to describe a Neder as an Isur Gavra with which one prohibits himself to the object, and a Shevu'ah as an Isur Cheftza with which one makes the object Asur upon himself. The Rishonim suggest different ways to reconcile these anomalies.
(a) The RAN cites RABEINU CHANANEL and the RASHBA who rule that if the Neder or Shevu'ah is misworded it does not create an Isur at all. This is also the opinion of RABEINU TAM cited by Tosfos (Shevuos 25a). All of the sources in the Gemara which express a misworded Neder or Shevu'ah simply are not particular about how they describe the Neder or Shevu'ah; their main point is to teach different Halachos that are not related to the specific wording of the Neder or Shevu'ah.
(b) The RAMBAN (12a, and as cited by the Ran here; see also Milchamos, end of third Perek of Shevuos) and RITVA (12a) rule that although a Neder by definition is an Isur on the object and a Shevu'ah is an Isur on the person, if a person miswords his Neder and expresses it as an Isur on the person the Neder is considered to have been rephrased and it takes effect through the principle of Yados of Nedarim. Similarly, if a person makes a Shevu'ah and says that the object should be forbidden (with no mention of the person as the subject of the Isur), the Shevu'ah nevertheless creates an Isur on the person through the principle of Yados. The Ran himself (end of 4b) seems to accept this view.
This is also the opinion of RABEINU ELCHANAN cited by Tosfos in Shevuos (25a).
(c) The MEFARESH (16b, DH Amar Abaye) also learns like the Ramban who maintains that a misworded Neder or Shevu'ah takes effect through Yados. However, the Mefaresh writes that the Yad works in the exact opposite way from the way the Ramban explains: the person's mention of the word "Neder" or "Shevu'ah" is not as important as the manner in which he says that the Isur should take effect. Hence, if he expresses an Isur Cheftza, his statement creates a Neder even if he said the word "Shevu'ah." Likewise, if he expresses that the Isur should be an Isur Gavra, his statement creates a Shevu'ah (through the law of Yados) even if he said the word "Neder."
(d) TOSFOS in Shevuos (25a, DH Mah) explains in his first answer that a Shevu'ah does not have to be an Isur Gavra. It may be an Isur Cheftza as well, depending on how the person expresses it. When the Gemara here says that a Shevu'ah differs from a Neder in that a Neder is an Isur Cheftza, it means that a Neder can be only an Isur Cheftza, whereas a Shevu'ah can be either an Isur Cheftza or an Isur Gavra.
The SHITAH MEKUBETZES cites the RITZ who also explains that a Shevu'ah can be either an Isur Gavra or an Isur Cheftza, but he adds that a Neder also can be an Isur Gavra or an Isur Cheftza, depending on how it is worded. What, then, does the Gemara mean when it says that the difference between a Shevu'ah and a Neder is that a Neder is an Isur Cheftza? Both a Shevu'ah and a Neder can be either an Isur Gavra or an Isur Cheftza.
The answer is that the Gemara means that one cannot make an Isur Cheftza through a Shevu'ah with the same words that create an Isur Cheftza of a Neder. This is because a Neder can create only a prohibition, while a Shevu'ah can create either a prohibition or an obligation (see RAN 8a, DH veha'Lo). Therefore, a person who makes a Neder and says, "This loaf of bread is like a Korban," clearly intends to prohibit the loaf upon himself. In contrast, when a person says, "This loaf is a Shevu'ah," or, "Shevu'ah is this loaf," his intent may be either to prohibit the loaf to himself, or to obligate himself to eat it! Therefore, since his intention is unclear the Shevu'ah has not been properly verbalized, and it does not obligate him.
It seems that Tosfos and the Ritz agree in principle. Their dispute about whether a Neder can be an Isur Gavra might be related to the dispute mentioned earlier about whether a Neder can be made without comparing the object of the Neder to a Davar ha'Nadur. The Ritz clearly maintains that a Neder can be made without comparing the object to a Davar ha'Nadur, and thus one can make a Neder that creates an Isur Gavra. Tosfos, on the other hand, perhaps maintains that an Ikar Neder is made through Hatfasah, by comparing the object to a Korban, in which case a Neder can be made only as an Isur Cheftza.