QUESTION: Rav Chiya bar Avin says in the name of Shmuel (22b) that one who swears that he will not eat, and then he drinks, violates his Shevu'ah. The Gemara says that this law may be derived either from logic or from a verse. (See Insights to Yoma 76:2.)

The logical source for the law that Shetiyah (drinking) is included in Achilah (eating) is that it is common for a person to say to his friend, "Let us taste something," and they go and eat and drink. (TOSFOS (DH Ta) explains that this proves that "drinking is included in eating," because if drinking is not included in eating, then the person would have mentioned to his friend explicitly that he wants to drink as well.)

Rav Acha bar Yakov (23a) proves that Shetiyah is included in Achilah from a verse which lists the items that one may buy with the money of Ma'aser Sheni to eat in Yerushalayim. "You shall buy with the money whatever you desire of cattle, sheep, wine, and old wine (Shechar)... and you shall eat it there" (Devarim 14:26). Since the verse says that one shall "eat" the food of Ma'aser Sheni, and one of those foods mentioned is Shechar, clearly the act of drinking Shechar is considered "eating."

The Gemara rejects this proof with the suggestion that perhaps the "Shechar" mentioned in the verse refers to an intoxicating food, such as "Deveilah Ke'ilis," a type of fermented fig. Consequently, there is no proof that Shetiyah is called Achilah. The Gemara proves that figs can be intoxicating from the Beraisa that says that a person is Chayav Misah if he enters the Beis ha'Mikdash while under the influence of the Deveilah Ke'ilis or intoxicating beverages, as the verse says, "Yayin v'Shechar Al Tesht... v'Lo Samusu" -- "Do not drink wine or any other intoxicant... when you come to the Ohel Mo'ed, and you will not die" (Vayikra 10:9).

The Gemara concludes that "Shechar" must refer to a wine product, because the Torah prohibits a Nazir from drinking "Shechar," while it also states that he is prohibited only from "what comes from grapes." Accordingly, the word "Shechar" used in reference to Ma'aser Sheni must also refer to an intoxicating beverage and not to a food. Hence, Rav Acha bar Yakov's proof that Shetiyah is a form of Achilah remains.

In the Gemara later, Abaye attempts to prove that Shetiyah is not included in Achilah from the second statement of the Mishnah (22b). The Mishnah says that if a person swears, "I will not eat and not drink," and then he eats and drinks, he is obligated to bring two Korbanos. Abaye argues that if the word "eating" includes drinking, then the person's oath would be equivalent to saying, "I will not drink, I will not drink," in which case he would not be obligated to bring two Korbanos for transgressing the same oath twice.

Rava refutes Abaye's proof by saying that the Mishnah is discussing a case in which the person first said, "I will not drink," and then said, "I will not eat." Although "eating" includes drinking, "drinking" does not include eating.

Why does Rava say that Achilah is not included in Shetiyah? The Beraisa earlier states that one who eats a Deveilah Ke'ilis and then enters the Beis ha'Mikdash is liable. The Gemara in Kerisus (13b) says that the source for this prohibition is the verse, "Do not drink wine or any other intoxicant... when you come to the Ohel Mo'ed, and you will not die" (Vayikra 10:9). Since "Shechar" refers even to an intoxicating food item, and the verse refers to its consumption as "drinking," this proves that eating is considered "drinking"!

(a) TOSFOS (DH Achilah) answers that since the act of eating is more important than the act of drinking, it is logical that if the verse says, "Do not drink," it refers only to beverages, not to foods. (Although the word "Shechar" includes the Deveilah Ke'ilis, the verse does not mean to say that, "drinking" includes eating. Rather, the verse uses the word "drink" in order to emphasize that it is referring to beverages.)

(b) Alternatively, Tosfos answers that the word "Shechar" teaches the prohibition against entering the Beis ha'Mikdash after drinking intoxicating beverages such as milk and honey, and thus the verse uses the phrase, "Do not drink." The prohibition against entering the Beis ha'Mikdash after eating a Deveilah Ke'ilis is not derived from the verse, but from logic: if the Torah forbids one from entering the Beis ha'Mikdash after consuming intoxicating beverages, then it also must forbid one from entering the Beis ha'Mikdash after eating a Deveilah Ke'ilis, which is also intoxicating.

(c) The RAMBAN answers that there is a difference between the Torah's usage of the word "drinking" and the way people use the word "drinking." The Torah's prohibition, "Do not drink...," indeed includes the eating of the Deveilah Ke'ilis. However, people do not generally talk this way. Since the intent of a Shevu'ah is determined by the way people talk (and not by the way the Torah speaks), the Mishnah cannot mean that eating is included in "drinking."

The Ramban cites support for his answer from the words of the BEHAG. The Behag asks, why does the Gemara (22b) need to prove from logic and from a verse that Shetiyah is included in Achilah? If it is derived from a verse, why does the Gemara need to prove it from the way people talk?

The Behag answers that without the logical proof, one might have thought that although the Torah refers to drinking as eating, ordinary people do not speak that way, and the laws of Shevu'ah follow the way people talk. The Gemara therefore teaches that people indeed refer to drinking as "eating," and the Torah's usage of the word may be utilized in this case.

Accordingly, although the Gemara has shown that Shetiyah is included in Achilah in popular speech, Rava maintains that with regard to oaths, Achilah is not included in Shetiyah, even though Achilah is included in Shetiyah in the language of the Torah. (D. BLOOM)

QUESTION: The Mishnah (22b) teaches that one who swears that he will not eat, and then he eats inedible objects or drinks liquids unfit for human consumption, does not violate his oath. However, if he swears that he will not eat, and then he eats forbidden foods (such as Tereifos or insects), he violates his oath.

The Gemara (23b) asks, what is the difference between these two cases? The Gemara answers that in the first case, the person swears merely that he will not eat. In the second case, he explicitly swears that he will not eat forbidden foods.

The Gemara asks that if, in the second case, he swears explicitly that he will not eat forbidden foods, why is his Shevu'ah valid? Since every Jew accepted the Shevu'ah at Har Sinai not to transgress the Mitzvos of the Torah, a new Shevu'ah not to do what one already committed himself to do cannot take effect.

Rav, Shmuel, and Rebbi Yochanan answer that the Shevu'ah is valid when it includes abstaining from both permitted and forbidden foods. Since the Shevu'ah takes effect for the permitted foods, it also takes effect for the forbidden foods.

Reish Lakish answers that the Shevu'ah takes effect to prohibit eating less than the minimum amount of a forbidden food. The Gemara explains that according to the Rabanan (19b) who maintain that eating less than a Shi'ur is not considered eating, Reish Lakish must be discussing a person who explicitly swears that he will not eat even less than a Shi'ur. According to Rebbi Akiva (19b), the Shevu'ah takes effect on less than a Shi'ur even when the person does not explicitly say so in his Shevu'ah.

The Gemara goes on to discuss why Rebbi Yochanan and Reish Lakish do not accept the other's answer.

TOSFOS (DH d'Muki) questions why the Gemara needs to look for reasons for why Rebbi Yochanan and Reish Lakish give different answers, when they are simply following their own positions in a different dispute. In Yoma (73b), Rebbi Yochanan and Reish Lakish argue about the prohibition of "Chatzi Shi'ur." Rebbi Yochanan maintains that the Torah forbids Chatzi Shi'ur (but merely exempts one from punishment until he eats an entire Shi'ur). Reish Lakish maintains that the Torah permits Chatzi Shi'ur, but the Rabanan prohibit it.

Why does the Gemara here not answer simply that Rebbi Yochanan does not answer that the Mishnah refers to one who eats less than a Shi'ur, because Rebbi Yochanan maintains that such an act was included in the Shevu'ah he took at Har Sinai?

(a) TOSFOS answers that even according to Rebbi Yochanan, who maintains that Chatzi Shi'ur is Asur mid'Oraisa, since there is no punishment for the act it is not considered as though he is already obligated by a Shevu'ah from Har Sinai to fulfill it.

Tosfos adds that although a Shevu'ah which prohibits a Chatzi Shi'ur is valid, it does not apply to obligate a person to perform a Mitzvas Aseh. Tosfos proves this from the Gemara later (25a) which says that when the Mishnah discusses the case of a person who swears, "I will give to such and such," it cannot mean that the person swears to give charity to a certain pauper, because he already swore at Har Sinai to perform such a Mitzvah. Since the Torah says, "You shall surely give to him" (Devarim 15:10), the second Shevu'ah does not take effect. Tosfos infers from there that a Shevu'ah does not apply to a Mitzvas Aseh. Giving charity to the poor is a Mitzvas Aseh, and yet it is evident from the Gemara's question there that a Shevu'ah to perform a Mitzvas Aseh is invalid.

What is Tosfos' proof from the Mitzvah of Tzedakah that a Shevu'ah does not apply to a Mitzvas Aseh? The Mitzvah of Tzedakah involves not only a Mitzvas Aseh, but a Mitzvas Lo Sa'aseh as well. The Torah warns with a Lo Sa'aseh not to refrain from giving Tzedakah: "You shall not harden your heart and not close your hand from your brother, the destitute one" (Devarim 15:7). Perhaps this is the reason why the Gemara says that a Shevu'ah to give Tzedakah is invalid.

The PRI MEGADIM (introduction to Hilchos Shechitah) answers that Tosfos' proof is from the fact that the Gemara cites the verse, "You shall surely give to him," which is the Mitzvas Aseh of Tzedakah. Since the Gemara does not cite the verse, "You shall not harden your heart and not close your hand," this proves that a Shevu'ah on a Mitzvas Aseh is invalid as well. (See also KEHILOS YAKOV, Shevuos 18:2.)

(b) Alternatively, Tosfos answers that the prohibition in this case is eating prohibited foods in an abnormal manner, an act prohibited only mid'Rabanan.

Tosfos concludes that this answer is better than the first answer, because according to the first answer it is not clear why the Shevu'ah should be valid if the Torah already prohibits the act from being done. (That is, why is the fact that the act is an "Isur b'Alma" a reason for not being sworn from Har Sinai not to do the act?)

(c) The RASHBA rejects the first answer of Tosfos. He answers that the Gemara indeed could have answered that Reish Lakish and Rebbi Yochanan argue based on their respective positions regarding Chatzi Shi'ur. However, the Gemara chose to give only one of two reasons. (D. BLOOM, Y. MONTROSE)