QUESTION: The Gemara discusses whether the laws of Yados apply to Kidushin, Pe'ah, Tzedakah, Hefker, and Beis ha'Kisei, just as they apply to Nedarim. The RAN earlier (beginning of 6b) writes that it would have been possible to derive through a Binyan Av "Meh Matzinu" that the laws of Yados apply to all other categories of Halachah as well, if not for the fact that Nedarim are more stringent (and thus take effect more easily) since they take effect through speech alone, with no action necessary.

(a) REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that the Ran's reason explains why Yados of Kidushin (which requires an action) cannot be derived from Yados of Nedarim. Tzedakah, however, takes effect with speech alone, with no action necessary, just like Nedarim. Why, then, is Yados of Tzedakah not derived from Nedarim through a Binyan Av?

(The Acharonim point out that Rebbi Akiva Eiger should have asked this question on the Gemara earlier, when Rav Papa asks if Yados works for Pe'ah. Pe'ah, like Nedarim and Tzedakah, also takes effect through speech alone, and thus Yados of Pe'ah could have been derived from Nedarim through a Binyan Av.

Perhaps Rebbi Akiva Eiger does not this question in the case of Pe'ah because the laws of Pe'ah are not as stringent as the laws of Nedarim, and thus a Binyan Av cannot be derived. Even though Pe'ah takes effect with speech alone, it takes effect only in a field which fits specific criteria. In contrast, Nedarim can take effect on all items with no limiting criteria. (See AYELES HA'SHACHAR.)

Also, why does Rebbi Akiva Eiger not ask his question on the following Gemara, which asks whether Yados works for Hefker? Hefker also takes effect with speech alone, like Nedarim (and Tzedakah and Pe'ah). Perhaps Rebbi Akiva Eiger does not ask this question there because Hefker does not create an Isur as a Neder does, and therefore Hefker is more lenient than Nedarim. Similarly, the Gemara asks whether Yados works for Beis ha'Kisei since Beis ha'Kisei does not create an Isur d'Oraisa, and therefore it is more lenient than Nedarim (and thus perhaps Yados does not work).)

(b) The Ran's explanation is problematic for another reason. The Ran (beginning of 4b) writes that Yados of Nezirus cannot be derived from Yados of Nedarim through a Binyan Av because "Ein Onshin Min ha'Din" -- a punishment cannot be administered on the basis of an exegetical derivation (of a "Kal v'Chomer" or "Binyan Av"), but must be written in the Torah explicitly or derived through a Hekesh). If Yados of Nezirus would be derived from Yados of Nedarim through a Binyan Av, there would be no way to punish one who violates his Nezirus made with a Yad. Why, then, does the Ran himself (6b) suggest that Yados of Kidushin could be learned from Nedarim through a Binyan Av? The Binyan Av cannot teach that Yad works for Kidushin, because "Ein Onshin Min ha'Din" (if a man marries a woman through Yad l'Kidushin and the woman commits adultery, Beis Din will not be able to punish her)! (One might suggest that the Ran understands that the Gemara maintains that Yados create only the prohibitions of Kidushin but does not enable Beis Din to administer punishments for adultery from the Kidushin created with a Yad. However, Shmuel -- who says that Yad works for Kidushin -- implies that Kidushin created through a Yad is a full-fledged Kidushin.) (See SHALMEI NEDARIM.)

Moreover, the ROSH and TOSFOS point out that Yados for no category of Halachah can be learned through a Binyan from Nedarim. The Torah teaches that Yados works for two things -- Nedarim and Nezirus. If Yados could be learned from Nedarim through a Binyan Av, the Torah would not need to teach that Yados works for Nezirus! The fact that the Torah teaches that Yados works for Nezirus shows that Yados cannot be derived through a Binyan Av. (It is "Shnei Kesuvim ha'Ba'im k'Echad, v'Ein Melamdim.") Why, then, does the Ran suggest that Yados of Kidushin could be derived from Nedarim through a Binyan Av?

(a) With regard to Rebbi Akiva Eiger's question from Tzedakah, the laws of which are as stringent as the laws of Nedarim, perhaps the Ran follows his own view that Tzedakah is considered a monetary matter and not a matter of Isur. Hence, the rule that "a Halachah of a monetary matter cannot be derived from a Halachah of Isur" (Kesuvos 46b) applies here, unless the verse specifically compares the two with a Hekesh. This approach also answers the question from Pe'ah and Hefker, which are also considered monetary matters and not matters of Isur.

However, according to this approach it should be obvious that Yados for Shevu'ah can be derived from Neder through a Binyan Av. Why, then, does the Ran (beginning of 7a) write that the Gemara also should have questioned whether Yad works for Shevu'ah, and that the reason why it does not ask is that there is a Hekesh between Nedarim and Shevu'os? Even without a Hekesh there would be no basis to ask whether Yad works for Shevu'os, because it is derived from Nedarim through a Binyan Av!

(b) The ROSH and TOSFOS explain that the reason why Yados might work for Kidushin is not because of a Binyan Av from Nedarim, but because Kidushin might be considered a form of Hekdesh. If the Torah teaches that Yados works for Hekdesh, then Yados also should work for Kidushin.

The Ran apparently does not accept this explanation because he considers it unreasonable to suggest that Kidushin is considered a form of Hekdesh. Therefore, he explains that Yados of Kidushin should be learned from a Binyan Av.

How, though, does the Ran address the problems of "Ein Onshin Min ha'Din" and "Shnei Kesuvim ha'Ba'im k'Echad"? The Ran apparently understands that the problem of "Ein Onshin Min ha'Din" would not apply to the Binyan Av because when the Torah teaches that Yados works for Nedarim, it is merely a "Giluy Milsa" -- it is just revealing -- that a Yad is considered an explicit expression. Once the Torah reveals that a Yad is considered an explicit expression, Beis Din may administer a punishment when one violates a prohibition created through a Yad.

The problem of "Shnei Kesuvim ha'Ba'im k'Echad" also does not apply to the Binyan Av. No Hekesh is necessary to teach that Yados works for Nezirus, as Yados of Nezirus may be derived through a "Meh Matzinu" from Nedarim. The Hekesh is needed to derive other Halachos of Nezirus from Nedarim (for example, that Bal Te'acher applies to Nezirus). However, now that there is a Hekesh, it also teaches Yados of Nezirus (even without the Binyan Av).

This answer explains why Yados of Kidushin may be derived from Nedarim. Rav Papa's doubt that Yados does not work for Kidushin is due to the possibility that Kidushin cannot be derived from Nedarim because of the severity of Nedarim. Why does the Ran not explain that Rav Papa's doubt about deriving Yados of Kidushin from Nedarim is that perhaps the Halachah of Yados for Nedarim was written not as a "Giluy Milsa," but as a law unique to Nedarim, and thus there is a problem of "Ein Onshin Min ha'Din"? The answer is that if this would have been Rav Papa's doubt, Rav Papa would have questioned whether Yados applies to all forms of Kinyanim and not specifically Kidushin.

When Rav Papa asks if there is Yad for Pe'ah (perhaps a Hekesh compares Pe'ah to Nedarim), he obviously rejects the suggestion that Yados of Kidushin should be derived from Yados of Nedarim since Yados of Nedarim is merely a "Giluy Milsa." Rather, he means that perhaps there is no Yad for Kidushin because it is not compared to Nedarim, and Yados works only when an explicit Hekesh in the Torah compares it to Nedarim, as in the case of Nezirus.

QUESTION: The RAN cites the RAMBAN and RASHBA who rule stringently with regard to whether Yad works for Tzedakah. They rule that Yad does work, and one is obligated to fulfill the pledge of Tzedakah he made with the use of a Yad, because "Safek Isur l'Chumra." The Ran disagrees and proves from many sources that a Safek of Matnas Aniyim (gifts to the poor) or Matnas Kehunah (gifts to the Kohanim) is considered a Safek Mamon, a Safek in a monetary matter, and thus the ruling in such a case should be lenient ("Safek Mamon l'Kula") and he should not be bound by his pledge.

What is the logic of the Ramban and Rashba who consider it a Safek Isur?

ANSWER: The SHALMEI NEDARIM cites the KUNTRUS HA'SEFEIKOS (1, in the name of the MAHARSHACH) who explains that when a person pledges to give something to Tzedakah, his pledge is a Neder Mitzvah and he is obligated to fulfill it because of the law of Neder, and not only because of the monetary obligation which he accepted upon himself. Therefore, it is not comparable to other forms of gifts to the poor, such as Leket and Pe'ah, which a person is obligated to give not because of a Neder but because of the Torah's command. Since it is the Torah's command, and not a Neder, which obligates him to give those gifts, those obligations are considered Safek Mamon, while Tzedakah is considered Safek Isur.

What is the logic of the Ran, who considers a Safek of Tzedakah to be a Safek Mamon and not a Safek Isur? The MAHARIT cited by the Shalmei Nedarim explains that the Ran and the Ramban disagree about what a person obligates himself to do when he says, "This coin is Tzedakah." According to the Ramban, he obligates himself to bring the money to the poor person and to give it to him. Until he actually gives the money, he has not fulfilled his obligation. According to the Ran, his statement that "this coin is Tzedakah" is similar to a statement that "this wheat is Pe'ah" -- the owner makes the money the collective property of the poor people. It immediately becomes the property of the poor, at which moment he has fulfilled his Neder to make it Tzedakah. What remains is merely an obligation to give it to the poor people in practice (because it belongs to them). Therefore, when there is a doubt whether or not it belongs to them, it is a Safek Mamon and not a Safek Isur. (See Insights to Bava Basra 148:3.)

The Ramban argues because there is no precedent that a person has the ability to transform an object into the collective property of poor people. A person can make something Hekdesh or Hefker, but he cannot make something the property of poor people.

(The Mishnah in Shekalim (5:6) states that when a person sets aside money for poor people and, after it is distributed, there is money left over, the leftover money must be given to other poor people. This law implies that as soon as one sets aside money for the poor, it becomes the property of the poor and must be given to them. The Rashba, however, explains according to his own reasoning (Teshuvos, cited by Shulchan Aruch YD 253:6) that the Mishnah there refers to money that was already handed over to the treasurer of Tzedakah, and thus he acquired the money on behalf of the poor people. If the money was not yet given to the treasurer, the benefactor cannot make it into the property of the poor people by merely declaring it as such.)

A practical difference between the opinions of the Ran and the Ramban may exist in a case in which a person says that "this coin should be Tzedakah" and then he dies before he gives it to poor people. According to the Ran, the money belongs to poor people already, and thus his heirs are obligated to give it to them. According to the Ramban, it was the father's obligation to give the money to the poor people, and since the money had not yet entered the possession of the poor people before his death, the heirs are not obligated to give it.