# dafyomi

lvr: 46
dfh: b
trd:
<p>
<br>               <b><font color='darkgreen'>ii. </font></b> Chachamim say, there is no Me'ilah for benefit
                    from Konamos, no matter who eats it.
<br>     <b><font color='darkgreen'>(j)  Answer:</font></b> The opinions must be switched;
<br>          <b><font color='darkgreen'>1.  </font></b> R. Meir says that there is no Me'ilah for benefit
               from Konamos, no matter who eats it.
<br>          <b><font color='darkgreen'>2.  </font></b> Chachamim say that only he transgresses Me'ilah if
               he eats it.
<br>     <b><font color='darkgreen'>(k)  Question:</font></b> Why does R. Meir say that Konamos do not join?
          This implies that Me'ilah applies to them!
<br>     <b><font color='darkgreen'>(l)  Answer:</font></b> He speaks according to Chachamim.
<br>          <b><font color='darkgreen'>1.  </font></b> I hold that Me'ilah does not apply to Konamos;
<br>          <b><font color='darkgreen'>2.  </font></b> You hold that it applies, but you should admit that
               Konamos are like Shevu'os (they do not join).
<br>          <b><font color='darkgreen'>3.  </font></b> Chachamim argue. Shevu'os do not join, for Rav
               Pinchas' reason, but Konamos join.
<br>     <b><font color='darkgreen'>(m)  (Rava):</font></b> If one swore 'I will not eat' and he ate dirt, he
          is exempt.
<br>     <b><font color='darkgreen'>(n)  Question (Rava):</font></b> If one swore 'I will not eat dirt', how
          much is he liable for? (He asks about Chachamim, but
          surely R. Akiva obligates for Mashehu. The same applies
          to the following two questions.)
<br>          <b><font color='darkgreen'>1.  </font></b> Since he said 'eat', he refers to (the quantity of
               eating,) a k'Zayis;
<br>          <b><font color='darkgreen'>2.  </font></b> Or, since it is not normally eaten, he means
               Mashehu?
<br>          <b><font color='darkgreen'>3.  </font></b> This question is not resolved.
<br>     <b><font color='darkgreen'>(o)  Question (Rava):</font></b> If one swore 'I will not eat Chartzan
          (grape skins or pits), how much is he liable for?
<br>          <b><font color='darkgreen'>1.  </font></b> Since they are eaten along with the grape, he refers
               to the quantity of eating, a k'Zayis;
<br>          <b><font color='darkgreen'>2.  </font></b> Or, since they are not normally eaten by themselves,
               he means Mashehu!
<br>          <b><font color='darkgreen'>3.  </font></b> This question is not resolved.
<br>     <b><font color='darkgreen'>(p)  Question (Rav Ashi):</font></b> If a Nazir swore 'I will not eat
          Chartzan', how much is he liable for?
<br>          <b><font color='darkgreen'>1.  </font></b> Since a Nazir if forbidden (and liable) for a
               k'Zayis, he refers to something he was permitted,
               i.e. less than a k'Zayis;
<br>          <b><font color='darkgreen'>2.  </font></b> Or, since he said 'eat', he refers to a k'Zayis!
<br>     <b><font color='darkgreen'>(q)  Answer (Mishnah):</font></b> If one swore 'I will not eat', and he
          ate Neveilos, Treifos, rodents or insects, he is liable;
<br>          <b><font color='darkgreen'>1.  </font></b> R. Shimon exempts him.
<br>          <b><font color='darkgreen'>2.   Question:</font></b> Why do Chachamim obligate him? The oath
               (that Yisrael accepted on Sinai) already obligates
               him not to eat them (so his oath does not takes
               effect)!
<br>          <b><font color='darkgreen'>3.   Answer #1 (Rav, Shmuel and R. Yochanan):</font></b> Because his
               oath takes effect on permitted food, it also takes
               effect on forbidden food.
<br>          <b><font color='darkgreen'>4.   Answer #2 (Reish Lakish):</font></b> The Torah forbids only him
               from eating a k'Zayis of these things. His oath
               forbids him from eating Mashehu;
<br>               <b><font color='darkgreen'>i. </font></b>  We find this according to Chachamim if he
                    specified (Mashehu), or according to R. Akiva
                    even without specifying.
<br>          <b><font color='darkgreen'>5.   Culmination of answer:</font></b> A Nazir eating Chartzan is
               like a regular person eating Neveilos, and Chachamim
               say that it applies to Mashehu only if he specifies.
<br>     <b><font color='darkgreen'>(r)  Suggestion:</font></b> We can resolve Rava's question! (If one swore
          'I will not eat dirt', how much is he liable for?)
<br>          <b><font color='darkgreen'>1.  </font></b> Just like the quantity of Neveilos (without
               specifying) is a k'Zayis, also for dirt!
<br>     <b><font color='darkgreen'>(s)  Rejection:</font></b> No. Rava is unsure about dirt, because it is
          unfit to eat;
<br>          <b><font color='darkgreen'>1.  </font></b> Neveilos are proper to eat, just they are forbidden.
<br>
<b><font color='blue'>3) DOES 'EATING' INCLUDE DRINKING?</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If one swore 'I will not eat' and he ate and
          drank, he is liable only once (lashes if warned, a Korban
          if he forgot);
<br>          <b><font color='darkgreen'>1.  </font></b> If he swore 'I will not eat and I will not drink'
               and he ate and drank, he is liable twice.
<br>     <b><font color='darkgreen'>(b)</font></b>  If he swore 'I will not eat' and he ate wheat bread,
          barley bread and spelt bread, he is liable only once.
<br>          <b><font color='darkgreen'>1.  </font></b> If he swore 'I will not eat wheat bread, barley
               bread or spelt bread', and he ate all three, he is
               liable for each.
<br>     <b><font color='darkgreen'>(c)</font></b>  If he swore 'I will not drink' and he drank many
          beverages, he is liable only once;
<br>          <b><font color='darkgreen'>1.  </font></b> If he swore 'I will not drink wine, oil or honey'
               and he drank all three, he is liable for each.
<br>     <b><font color='darkgreen'>(d)</font></b>  If he swore 'I will not eat' and he ate things unfit to
          eat or drank liquids unfit to drink, he is exempt.
<br>     <b><font color='darkgreen'>(e)</font></b>  If he swore 'I will not eat', and he ate Neveilos,
          Treifos, rodents or insects, he is liable;
<br>     <b><font color='darkgreen'>(f)</font></b>  R. Shimon exempts him.
<br>     <b><font color='darkgreen'>(g)</font></b>  If one swore 'Konam, I may not benefit from my wife if I
          ate today' and he ate Neveilos, Treifos, rodents or
          insects, she is forbidden to him.
<br>     <b><font color='darkgreen'>(h)  (Gemara - R. Chiya bar Avin):</font></b> If one swore 'I will not
          eat' and he drank, he is liable.
<br>     <b><font color='darkgreen'>(i)</font></b>  We can learn this from a verse or from reasoning.
<br>          <b><font color='darkgreen'>1.  </font></b> We can learn from reasoning. One says 'let us taste
               something', and they eat <i>and drink</i>.
<br>

sjt:
</p><p>
<font><b>2) IS EATING EARTH CONSIDERED EATING?</b></font>
<br>QUESTION: Rava rules that one who swears that he will not eat, and then he eats soil, is exempt from a Korban for transgressing this oath. <b>RASHI</b> (DH v'Achal) explains that since soil is inedible, he is considered as though he did not eat anything.
</p><p>
The <b>ROSH</b> (#5) writes that a different text appears in earlier manuscripts of the Gemara. According to those manuscripts, Rava says that one who swears that he will eat, and then he eats soil, has fulfilled his oath.
</p><p>
The <b>RAMBAM</b> (Hilchos Shevu'os 5:5) rules in accordance with both of these texts. This is difficult to understand, because the two versions of Rava's statement are mutually exclusive. The first version maintains that eating earth is <i>not</i> considered eating, while the second version maintains that it <i>is</i> considered eating.
</p><p>
ANSWERS:
<br>(a) The <b>LECHEM MISHNEH</b> explains that the Rambam writes that eating soil is considered eating 'because for the person who eats it, it is considered a significant act of eating.' This is consistent with the words of the Rosh, who writes that the fact that the person eats soil in order to fulfill his oath to eat proves that he considers it a significant act of eating ('Achshevei' - 'he made it important').
</p><p>
In contrast, one who swears that he will not eat and then he eats soil clearly shows that the eating of soil is <i>not</i> considered an act of eating to him. The Lechem Mishnah adds that the Chazakah that a person is not an evildoer supports the assumption that the person in this case does not consider eating soil an act of eating, for it is assumed that he does not want to transgress his oath.
</p><p>
(b) The <b>RAN</b> (9a of the pages of the Rif) similarly differentiates between a person who swears that he will eat and a person who swears that he will not eat. A person who swears that he will not eat has in mind not to eat <i>edible</i> food, since it is unnecessary to swear that he will not eat inedible items, which he would not eat even without an oath.
</p><p>
In contrast, a person who swears that he will eat wants to be able to fulfill his oath in any way possible so that he will not suffer the punishment of making a false oath. Therefore, he has in mind that eating soil also should be considered eating so that he can fulfill his oath even by eating soil.
</p><p>
The <b>CHASAM SOFER</b> suggests that a practical Halachic difference between these two answers exists in a case in which a person swears, 'I will not eat tomorrow if I eat today.'
</p><p>
According to the Lechem Mishneh's explanation, if the person eats soil today, he shows that eating soil is a significant act of eating to him (since he eats it after making an oath that depends on eating today). Accordingly, he is considered as though he has eaten today, and his oath not to eat tomorrow takes effect.
</p><p>
In contrast, according to the Ran's explanation, a person's primary intention is to avoid punishment for a false oath. Therefore, when he made his oath dependent on 'if I eat today,' he meant only an ordinary act of eating. This is because he wants to minimize the chances that his oath will take effect tomorrow, lest he violate it and be punished. Consequently, even though he eats soil today, his act is not considered an act of eating. His oath does not take effect and he is permitted to eat tomorrow. (D. Bloom) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) DOES 'EATING' INCLUDE DRINKING? (cont.)</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)</font></b>  We can learn from a verse that 'eating' includes
          drinking:
<br>     <b><font color='darkgreen'>(b)  Opinion #1 (Reish Lakish):</font></b> 'V'Achalta (Ma'aser Sheni
          of)... Tiroshecha' - 'Tirosh' is wine, and it says 'you
          will eat'!
<br>     <b><font color='darkgreen'>(c)  Rejection:</font></b> Perhaps he eats Anigron (a food made with
          wine).
<br>          <b><font color='darkgreen'>1.   (Rabah bar Shmuel):</font></b> Anigron is a beet dish.
               Achsigron is made from other cooked vegetables.
<br>     <b><font color='darkgreen'>(d)  Opinion #2 (Rav Acha bar Yakov):</font></b> '(You will buy with
          Ma'aser money)... uva'Yayin uva'Shechar... v'Achalta'
          discusses eating wine!
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> Perhaps here also, he eats Anigron!
<br>     <b><font color='darkgreen'>(f)  Answer:</font></b> 'Shechar' connotes something that is Meshaker
          (intoxicates).
<br>     <b><font color='darkgreen'>(g)  Question:</font></b> Perhaps it refers to Ke'ilis figs (which
          intoxicate)!
<br>          <b><font color='darkgreen'>1.  </font></b> If one ate Ke'ilis figs, drank honey or milk and
               entered the Mikdash, he is liable.
<br>     <b><font color='darkgreen'>(h)  Answer:</font></b> We learn a Gezerah Shavah 'Shechar-Shechar' from
          a Nazir.
<br>          <b><font color='darkgreen'>1.  </font></b> Just like Shechar written about a Nazir refers to
               wine, also that written about Ma'aser.
<br>     <b><font color='darkgreen'>(i)  (Rava):</font></b> Our Mishnah also teaches that 'eating' includes
          drinking.
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> If one swore 'I will not eat' and he ate
               and drank, he is liable only once.
<br>          <b><font color='darkgreen'>2.  </font></b> If 'eating' includes drinking, we understand the
               need to teach this;
<br>          <b><font color='darkgreen'>3.  </font></b> However, if 'eating' does not includes drinking,
               this is (no Chidush at all,) like saying that he is
               liable only once for eating and doing Melachah!
<br>     <b><font color='darkgreen'>(j)  Question (Abaye):</font></b> if you will say 'eating' includes
          drinking, the Seifa is difficult!
<br>          <b><font color='darkgreen'>1.   (Seifa):</font></b> If he swore 'I will not eat and I will not
               drink' and he ate and drank, he is liable twice.
<br>          <b><font color='darkgreen'>2.  </font></b> Once he says 'I will not eat', he is already
               forbidden to drink;
<br>               <b><font color='darkgreen'>i. </font></b>  The oath not to drink should not take effect,
                    just like one who swears twice 'I will not
                    drink' (the second oath does not take effect)!
<br>     <b><font color='darkgreen'>(k)  Answer #1 (Rava):</font></b> The case is, first he swore 'I will not
          drink' and then he swore 'I will not eat';
<br>          <b><font color='darkgreen'>1.  </font></b> 'Eating' includes drinking, but 'drinking' does not
               include eating.
<br>     <b><font color='darkgreen'>(l)  Objection:</font></b> Rava admits that if he swore 'I will not eat'
          and then 'I will not drink', he is liable only once;
<br>          <b><font color='darkgreen'>1.  </font></b> If so, the Reisha should teach thos! It is a bigger
               Chidush than when he swore only 'I will not eat'!
<br>     <b><font color='darkgreen'>(m)  Answer #2:</font></b> Really, he swore first 'I will not eat';
<br>          <b><font color='darkgreen'>1.  </font></b> Since he then swore 'I will not drink', this shows
               that he did not include drinking in his first oath.
<br>     <b><font color='darkgreen'>(n)  (Rav Ashi):</font></b> The end of our Mishnah also teaches that
          'eating' includes drinking.
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> If he swore 'I will not eat' and he ate
               things unfit to eat or drank liquids unfit to drink,
               he is exempt.
<br>          <b><font color='darkgreen'>2.   Inference:</font></b> If he ate things proper to eat or drank
               liquids proper to drink he is liable, even though he
               swore only not to eat!
<br>     <b><font color='darkgreen'>(o)  Rejection:</font></b> Perhaps the case is that he also swore not to
          drink.

<b><font color='blue'>2) COMBINING MANY OATHS IN ONE</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If he swore... ('I will not eat wheat bread,
          barley bread and spelt bread', and he ate all three, he
          is liable for each).
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> Perhaps he did not intend to make three
          separate oaths. He only wanted to permit other kinds of
          bread!
<br>     <b><font color='darkgreen'>(c)  Answer #1:</font></b> If so, he should have said 'wheat, barley and
          spelt.'
<br>          <b><font color='darkgreen'>1.   Objection:</font></b> That would forbid (only) eating these
               grains raw!
<br>     <b><font color='darkgreen'>(d)  Answer #2:</font></b> Rather, (if he only wanted to permit other
          kinds of bread) he should have said 'bread of wheat,
          barley and spelt.
<br>          <b><font color='darkgreen'>1.   Objection:</font></b> That could mean, he will not eat wheat
               bread, or raw barley or spelt!
<br>     <b><font color='darkgreen'>(e)  Answer #3:</font></b> Rather, he should have said 'bread of wheat
          and of barley and of spelt.'
<br>
<br>

sjt:
<font><b>1) IS EATING INCLUDED IN 'DRINKING'?</b></font>
<br>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.)
</p><p>
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. (<b>TOSFOS</b> (DH Ta) explains that this proves that 'drinking is included in eating,' because if drinking is <i>not</i> included in eating, then the person would have mentioned to his friend explicitly that he wants to drink as well.)
</p><p>
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.'
</p><p>
The Gemara rejects this proof with the suggestion that perhaps the 'Shechar' mentioned in the verse refers to an intoxicating <i>food</i>, 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).
</p><p>
The Gemara concludes that 'Shechar' must refer to a <i>wine</i> 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.
</p><p>
In the Gemara later, Abaye attempts to prove that Shetiyah is <i>not</i> 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.
</p><p>
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.
</p><p>
Why does Rava say that Achilah is not included in Shetiyah? The Beraisa earlier states that one who <i>eats</i> 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 <i>drink</i> 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'!
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> (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.)
</p><p>
(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.
</p><p>
(c) The <b>RAMBAN</b> 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, <i>people</i> 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.'
</p><p>
The Ramban cites support for his answer from the words of the <b>BEHAG</b>. 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?
</p><p>
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.
</p><p>
Accordingly, although the Gemara has shown that Shetiyah is included in Achilah in popular speech, Rava maintains that with regard to oaths, Achilah is <i>not</i> included in Shetiyah, even though Achilah <i>is</i> included in Shetiyah in the language of the Torah. (D. Bloom)
</p><p>
<br>

loi:
<p class='newsubafbbb'><span class='numt'>1)</span> SHEVUOS AGAINST MITZVOS</p>
<p class='firstindent'><span class='numl1'>(a)</span> Gemara</p>
<p class='secondindent'><span class='numl2'>1.</span> If one swore not to eat Neveilos, Treifos...' and he ate them, he is liable.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'> Question:</span> Why is he liable? The oath of Sinai already forbids them!</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'> Answer #1 (Rav, Shmuel and R. Yochanan):</span> Because his oath is Chal (takes effect) on permitted food, it is Chal also on forbidden food.</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'> Answer #2 (Reish Lakish):</span> The Torah forbids only eating a k'Zayis of these things. His oath forbids eating any amount;</p>
<p class='thirdindent'><span class='numl3'>i.</span> According to Chachamim, this is when he specified (any amount). According to R. Akiva, it is even without specifying.</p>
<p class='secondindent'><span class='numl2'>5.</span> R. Yochanan did not answer like Reish Lakish because he prefers to establish the Mishnah like Chachamim *and* R. Akiva.</p>
<p class='secondindent'><span class='numl2'>6.</span><span class='desl2'> 27a (Beraisa) Suggestion:</span> Perhaps if one swore to transgress a Mitzvah and did not do so, he is liable.</p>
<p class='secondindent'><span class='numl2'>7.</span><span class='desl2'> Rejection:</span> 'Lehara Oh Leheitiv' - just like doing good refers to something optional, also doing evil. This excludes one who swore to transgress a Mitzvah and did not do so, for this is not left to his whim.</p>
<p class='secondindent'><span class='numl2'>8.</span><span class='desl2'> Suggestion:</span> If one swore to fulfill a Mitzvah and did not fulfill it, he should be liable!</p>
<p class='secondindent'><span class='numl2'>9.</span><span class='desl2'> Rejection:</span> 'Lehara O Leheitiv' - just like 'to do evil' does not refer to a Mitzvah, also 'to do good'. One is not liable for an oath to fulfill a Mitzvah.</p>
<p class='secondindent'><span class='numl2'>10.</span> Also, just like 'to do good' is optional, also 'to do evil'. This includes one who swore to harm himself.</p>
<p class='secondindent'><span class='numl2'>11.</span><span class='desl2'> Nedarim 16a (Mishnah):</span> A stringency of Nedarim over Shevuos is that if one said 'Konam Sukah, I will not make one' or similarly for Lulav or Tefilin, he is forbidden. Such a Shevuah is void. One cannot swear to override Mitzvos.</p>
<p class='secondindent'><span class='numl2'>12.</span><span class='desl2'> (Rav Gidal):</span> 'Lo Yachel *Devaro*' - one may not profane *his own* word, but he may for the sake of Hashem's word (an oath to transgress a Mitzvah is void).</p>
<p class='secondindent'><span class='numl2'>13.</span><span class='desl2'> Question:</span> Presumably, 'Neder la'Shem Lo Yachel' obligates observing a Neder against a Mitzvah. We should similarly expound 'Shevuah la'Shem Lo Yachel'!</p>
<p class='secondindent'><span class='numl2'>14.</span><span class='desl2'> Answer #1 (Abaye):</span> One can (vow to) forbid Hana'ah (pleasure) from a Sukah to himself. One cannot (swear to) forbid himself to benefit from a Sukah.</p>
<p class='secondindent'><span class='numl2'>15.</span><span class='desl2'> Objection (Rava):</span> Mitzvos Lav Leihanos Nitnu (fulfilling Mitzvos is not called Hana'ah. Forbidding Hana'ah from a Sukah does not forbid the Mitzvah!)</p>
<p class='secondindent'><span class='numl2'>16.</span><span class='desl2'> Answer #2 (Rava):</span> A Neder forbidding *sitting* in a Sukah is Chal, but a Shevuah not to sit in a Sukah is not.</p>
<p class='secondindent'><span class='numl2'>17.</span><span class='desl2'> Question:</span> Rav Gidal learns from 'Lo Yachel Devaro' that oaths cannot override Mitzvos. The Beraisa (above) learns from 'Lehara Oh Leheitiv'!</p>
<p class='secondindent'><span class='numl2'>18.</span><span class='desl2'> Answer:</span> 'Lehara Oh Leheitiv' exempts from a Korban (for transgressing Shevuas Bituy). 'Lo Yachel Devaro' exempts from a Lav.</p>
<p class='secondindent'><span class='numl2'>19.</span><span class='desl2'> 8a (Rav Gidal):</span> If one said 'I will get up early to learn tractate Ploni', this is a great Neder (many explain that really, it is a Shevuah.)</p>
<p class='secondindent'><span class='numl2'>20.</span><span class='desl2'> Question:</span> The oath Yisrael accepted of Sinai already obligates him!</p>
<p class='secondindent'><span class='numl2'>21.</span><span class='desl2'> Answer:</span> Since the Torah does not (explicitly) obligate more than saying 'Shma Yisrael...' every morning and evening, the Shevuah is Chal.</p>
<p class='firstindent'><span class='numl1'>(b)</span> Rishonim</p>
<p class='secondindent'><span class='numl2'>1.</span> The Rif concludes like Rava.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'> Rambam (Hilchos Shevuos 5:7):</span> If one swore not to eat any amount of Neveilos and Treifos, and he ate less than a k'Zayis, he is liable for the Shevu'ah, for the Shevu'ah of Sinai does not apply to a half Shi'ur.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl3'> Radvaz:</span> Indeed, the Torah forbids this, but it is not explicit in the Torah, therefore, a Shevu'ah takes effect on it. A proof of this is that Shevuos take effect on Isurim mid'Rabanan, even though Lo Sasur obligates observing them, because the Isurim are not explicit in the Torah.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'> Rosh (Shevuos 3:10):</span> A Neder forbids an object to himself, therefore, it takes effect on a Mitzvah, for the object is not obligated that a person use it for a Mitzvah. A Shevuah forbids himself to the Sukah. It does not take effect, for he is obligated to do the Mitzvah. However, if so, what is the stringency of Nedarim over Shevuos? Also a Shevu'ah takes effect in such a case, i.e. 'sitting in a Sukah is forbidden to me through a Shevu'ah.' This is considered a Shevu'ah (29a). We can say that the stringency is that the same wording of a Neder that forbids Reshus, forbids Mitzvos. When one forbids himself on the object, e.g. my body is Konam on this object, this does not take effect even for Reshus. In Shevuos, there is a wording that forbids Reshus, but not Mitzvos. Alternatively, if he said 'sitting in a Sukah is forbidden to me through a Shevu'ah', the Shevu'ah is not Chal on the object, rather, on the person. The wording of a Shevu'ah must forbid the person to do an action. On 29a, he said 'all Peros are forbidden to me bi'Shvu'ah if I did not see...' Shevuos take effect of intangible matters because he forbids his body, which is tangible. A Neder forbids the object, so it cannot take effect on intangible matters.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Ran (8a DH Ha):</span> A Shevu'ah is Chal on something expounded by Chachamim that is not explicit in the Torah. The Torah does not explicitly require learning more than Kri'as Shema morning and evening, therefore a Shevu'ah is Chal on more than this, even to obligate a Korban for transgressing it.</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'> Ran (Teshuvah 32, cited in Beis Yosef YD 239 DH v'Zeh):</span> The Rambam supports me.</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'> Ran (on Rif Shevuos 10a DH Malkin):</span> A Shevu'ah not to eat for seven days is vain, because this would kill him, so it is against Torah.</p>
<p class='secondindent'><span class='numl2'>6.</span><span class='desl2'> Rashba (1:616):</span> R. Yochanan did not establish the Mishnah to discuss a Shevu'ah about Chetzi Shi'ur, for he forbids Chetzi Shi'ur mid'Oraisa (Shevuos 23b). This shows that if the Torah forbids Chetzi Shi'ur, a Shevu'ah is not Chal on it. Reish Lakish agrees that Chetzi Shi'ur is forbidden mid'Rabanan. We asked why the Shevu'ah is Chal, and answered that since mid'Oraisa it is permitted, the Shevu'ah is Chal. If there were no Heter mid'Oraisa, the Shevu'ah would not be Chal. We said that R. Yochanan did not answer like Reish Lakish, for he wanted to establish the Mishnah like everyone. Do not infer that he could explain it to discuss Chetzi Shi'ur according to one Tana; the Gemara merely gave one of two reasons why he did not say that it discusses Chetzi Shi'ur. Alternatively, we answered also on behalf of Rav and Shmuel. Perhaps they permit Chetzi Shi'ur mid'Oraisa.</p>
<p class='secondindent'><span class='numl2'>7.</span><span class='desl2'> Rosh (Nedarim 2:7):</span> Rava answers that a Neder forbids objects, e.g. a Sukah. It does not look like he uproots the Mitzvah from himself, for he did not accept anything on himself. A Shevuah forbids himself. One may not uproot his obligation to do a Mitzvah! Therefore, we expound 'la'Shem' to refer to Neder, which was written earlier, and not to Shevu'ah, which is written later.</p>
<p class='secondindent'><span class='numl2'>8.</span><span class='desl2'> Question:</span> Why does a Shevu'ah forbid sitting in a Sukah? Mitzvos Lav Leihanos Nitnu!</p>
<p class='secondindent'><span class='numl2'>9.</span><span class='desl2'> Answer (Ran 16b DH Omar Rava):</span> He forbade sitting, even if it is not Hana'ah. However, Stam Konam forbids only Hana'ah. Even though sitting in a Sukah is intangible (and Nedarim take effect only on tangible things), he said 'Konam a Sukah regarding sitting in it (it is forbidden) to me.' He did not give the precise text; he just teaches that the Neder was not about Hana'ah. Tosfos says that even 'sitting in a Sukah is forbidden to me' takes effect. Something intangible is only when he does not mention what he forbids, e.g. 'that I will sleep or speak.' When he mentions the object forbidden, this is considered tangible.</p>
<p class='firstindent'><span class='numl1'>(c)</span> Poskim</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'> Shulchan Aruch (YD 239:4):</span> A Shevu'ah is not Chal on a Mitzvah, whether it was said in the text of a Shevuah, e.g. 'I will not sit in a Sukah', or said in the text of a vow, e.g. 'sitting in a Sukah is forbidden to me through a Shevu'ah.'</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Beis Yosef (DH v'Chosav):</span> Even when he forbids sitting in a Sukah in a Neder, why does it take effect? This is not Hana'ah! Tosfos answered that even though it is not Hana'ah, since he forbade it, it takes effect. If so, one can explicitly forbid throwing a rock into the sea. If he Stam forbids a rock or Sukah, he forbids only Hana'ah.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'> Bach (DH v'Af):</span> Many explain that 'this is forbidden to me bi'Shvu'ah' does not forbid even a tangible matter of Reshus. However, the first Perush in the Rosh and the Semag forbid even 'sitting in a Sukah is forbidden to me bi'Shvu'ah.' One should be stringent.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'> Rema:</span> This is only when he swore only about the Mitzvah. If he swore through Kolel (he also forbade Reshus), it is Chal also on a Mitzvah.</p>
<p class='seealso'>See also:</p>
<p class='seealsotext'>SHEVUOS THAT INCLUDE MITZVOS THROUGH KOLEL (Shevuos 24)</p>
<p class='doublespace'></p>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>1.   Objection:</font></b> Perhaps (he thought that) that would
               forbid only bread made of all three grains!
<br>     <b><font color='darkgreen'>(f)  Answer #4:</font></b> Rather, he should have sworn 'I will not eat
          bread of wheat, and similarly of barley, and similarly of
          spelt.'
<br>          <b><font color='darkgreen'>1.  </font></b> There was no need to say 'bread' each time. Rather,
               he did so to make a separate oath for each.
<br>     <b><font color='darkgreen'>(g)  (Mishnah):</font></b> If he swore... 'I will not drink (wine, oil or
          honey' and he drank all three, he is liable for each).
<br>     <b><font color='darkgreen'>(h)  Question:</font></b> Granted, when he swore 'I will not eat wheat
          bread, barley bread... ', he is liable for each. Since he
          did not need to say 'bread' each time, it is extra to
          make each a separate oath;
<br>          <b><font color='darkgreen'>1.  </font></b> Regarding the drinks, why are they separate oaths?
               Perhaps he intended to permit other drinks!
<br>     <b><font color='darkgreen'>(i)  Answer #1 (Rav Papa):</font></b> The case is, the drinks are in
          front of him;
<br>          <b><font color='darkgreen'>1.  </font></b> He should have sworn 'I will not drink these.'
               (Rather, he detailed each to make separate oaths).
<br>          <b><font color='darkgreen'>2.   Objection:</font></b> Perhaps (he thought that) this does not
               forbid all wine, oil or honey.It forbids only what
               is in front of him!
<br>     <b><font color='darkgreen'>(j)  Answer #2:</font></b> Rather, he should have sworn 'I will not drink
          (drinks) like these.'
<br>          <b><font color='darkgreen'>1.   Objection:</font></b> (Perhaps he thought) this forbids only
               the quantity in front of him, but he may drink more
               or less!
<br>     <b><font color='darkgreen'>(k)  Answer #3:</font></b> He should have sworn 'I will not drink these
          types (of drinks).'
<br>          <b><font color='darkgreen'>1.   Objection:</font></b> (Perhaps he thought) this forbids <i>other</i>
               wine, oil and honey, but not what is in front of
               him!
<br>     <b><font color='darkgreen'>(l)  Answer #4:</font></b> He should have sworn 'I will not drink these
          or their types.'
<br>     <b><font color='darkgreen'>(m)  Answer #5 (Rav Acha brei d'Rav Ika):</font></b> The case is, Reuven
          was pressuring Shimon 'come drink wine, oil and honey
          with me.' It would have sufficed for Shimon to say 'I
          will not drink with you';
<br>          <b><font color='darkgreen'>1.  </font></b> 'Wine, oil or honey', is extra, to make each a
               separate oath.
<br>     <b><font color='darkgreen'>(n)  (Mishnah):</font></b> If Yehudah claimed that he deposited wheat,
          barley and spelt with Levi, and Levi swore (falsely) 'I
          don't have anything of yours', he is liable only once;
<br>          <b><font color='darkgreen'>1.  </font></b> If he swore 'I don't have wheat, barley or spelt of
               yours', he is liable for each one (that he has).
<br>          <b><font color='darkgreen'>2.   (R. Yochanan):</font></b> If he has a Perutah's worth of wheat,
               barley and spelt altogether, they join up, and he is
               liable.
<br>          <b><font color='darkgreen'>3.   (Rav Acha or Ravina):</font></b> (In the Seifa) he is liable
               only for the individual oaths (on each Min
               (species)). There is no collective (all-inclusive)
               oath (to be liable for a Perutah altogether. R.
               Yochanan, who says that they join up, refers to the
               Reisha, in which there is only a collective oath.)
<br>          <b><font color='darkgreen'>4.   (The other of Rav Acha and Ravina):</font></b> He is liable for
               the individual oaths and for a collective oath. (R.
               Yochanan refers to the Reisha and Seifa.)
<br>     <b><font color='darkgreen'>(o)  Question:</font></b> What is the law here (swearing not to eat or
          drink particular foods)?
<br>     <b><font color='darkgreen'>(p)  Answer (Rava):</font></b> A Shomer (watchman) is liable for each
          false oath (since he could have admitted), he is liable
          for a collective oath and individual oaths;
<br>          <b><font color='darkgreen'>1.  </font></b> Here, we cannot say that there is a collective oath.
               If there were, he is already bound to keep it, so
               the individual oaths would not take effect!
<br>
<b><font color='blue'>3) AN OATH NOT TO EAT FORBIDDEN FOOD</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If he swore 'I will not eat... '
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> In the Reisha, if he swore 'I will not eat' and
          he ate or drank things not proper to eat or drink, he is
          exempt;
<br>          <b><font color='darkgreen'>1.  </font></b> In the Seifa, if he ate Neveilos, Treifos, rodents
               or insects, he is liable. What is the difference?
<br>     <b><font color='darkgreen'>(c)  Answer #1:</font></b> In the Reisha he swore Stam 'I will not eat.'
          In the Seifa, he specified ('I will not eat Neveilos...
          ')
<br>     <b><font color='darkgreen'>(d)  Question:</font></b> Even if he specifies, why is he liable? He is
          already bound by the oath of Sinai not to eat them!
<br>     <b><font color='darkgreen'>(e)  Answer #1 (Rav, Shmuel and R. Yochanan):</font></b> Because his oath
          takes effect on permitted food, it also takes effect on
          forbidden food.
<br>     <b><font color='darkgreen'>(f)  Answer #2 (Reish Lakish):</font></b> The Torah forbids him only to
          eat a k'Zayis of these things. His oath forbids him from
          eating Mashehu;
<br>          <b><font color='darkgreen'>1.  </font></b> His Shevu'ah takes effect according to Chachamim if
               he specified (Mashehu), or according to R. Akiva
               even without specifying.
<br>     <b><font color='darkgreen'>(g)</font></b>  We understand why R. Yochanan did not answer like Reish
          Lakish. He prefers to establish the Mishnah like
          Chachamim <i>and</i> R. Akiva.
<br>     <b><font color='darkgreen'>(h)  Question:</font></b> Why didn't Reish Lakish answer like R.
          Yochanan?
<br>     <b><font color='darkgreen'>(i)  Answer:</font></b> The principle of Kolel (if an Isur forbids
          something that was permitted, it also takes effect on
          things already forbidden) applies only to prohibitions
          that the Torah imposed;
<br>          <b><font color='darkgreen'>1.  </font></b> It does not apply to Isurim that one imposes through
               oaths! 
<br>

sjt:
</p><p>
<font><b>2) THE 'ISUR' OF 'CHATZI SHI'UR'</b></font>
<br>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.
</p><p>
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.
</p><p>
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 <i>not</i> to do what one already committed himself to do cannot take effect.
</p><p>
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.
</p><p>
Reish Lakish answers that the Shevu'ah takes effect to prohibit eating <i>less</i> 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.
</p><p>
The Gemara goes on to discuss why Rebbi Yochanan and Reish Lakish do not accept the other's answer.
</p><p>
<b>TOSFOS</b> (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.
</p><p>
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?
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> 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.
</p><p>
Tosfos adds that although a Shevu'ah which prohibits a Chatzi Shi'ur is valid, it does <i>not</i> 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.
</p><p>
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.
</p><p>
The <b>PRI MEGADIM</b> (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 <b>KEHILOS YAKOV</b>, Shevuos 18:2.)
</p><p>
(b) Alternatively, Tosfos answers that the prohibition in this case is eating prohibited foods in an abnormal manner, an act prohibited only mid'Rabanan.
</p><p>
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?)
</p><p>
(c) The <b>RASHBA</b> 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) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) EATING THINGS THAT ARE NOT PROPER TO EAT</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)</font></b>  According to Reish Lakish, we understand why R. Shimon
          exempts (one who swore 'I will not eat Neveilos... ') R.
          Shimon obligates lashes for eating Mashehu of Isur,
          therefore the oath does not take effect;
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Shimon):</font></b> One is lashed for eating
               Mashehu of Isur. The Shi'ur of a k'Zayis pertains
               only to bringing a Korban.
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> According to R. Yochanan, why does R. Shimon
          exempt? (The oath should take effect, for it is Kolel
          permitted and forbidden food!)
<br>     <b><font color='darkgreen'>(c)  Answer:</font></b> R. Shimon disagrees with the principle of Kolel.
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Shimon):</font></b> One who eats a Neveilah on
               Yom Kipur is not liable for eating on Yom Kipur.
               (Ritzba - the animal died before Yom Kipur. The Isur
               to eat on Yom Kipur does not take effect on it, even
               though it forbids all Heter. If an animal dies on
               Yom Kipur, the Isur of Ever Min ha'Chai goes away,
               and the Isurim of Yom Kipur and Neveilah both take
               effect. Others say that even in this case, since it
               was forbidden to eat before Yom Kipur due to Ever
               Min ha'Chai (Rashi) or because it was not
               slaughtered (Tosfos), the Isur of Yom Kipur does not
               take effect.)
<br>     <b><font color='darkgreen'>(d)</font></b>  According to Reish Lakish, we understand why he brings a
          Korban for this oath. The oath could take effect in the
          positive ('I will eat less than a k'Zayis of Neveilos';
          Reish Lakish holds that the Torah permits this) and the
          negative.
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> According to R. Yochanan, the oath takes effect
          in the negative (I will not eat Neveilos or slaughtered
          animals), but not in the positive (the oath of Sinai
          already forbids him to eat Neveilos)!
<br>     <b><font color='darkgreen'>(f)  Version #1 - Answer:</font></b> The oath takes effect in the
          positive regarding a rotting Neveilah (it is unproper to
          eat, so the Torah permits it);
<br>          <b><font color='darkgreen'>1.  </font></b> We infer from Rava that when one specifies, eating
               unproper food is considered eating.
<br>          <b><font color='darkgreen'>2.   Question (Rava):</font></b> If one swore 'I will not eat dirt',
               how much dirt must he eat to be liable?
<br>     <b><font color='darkgreen'>(g)</font></b>  Version #2 - Rashi - Answer #2 (to Question 3:c, 23b):
          (In both clauses, he said 'I will not eat.') In the
          Reisha he is exempt, like Rava taught:
<br>          <b><font color='darkgreen'>1.   (Rava):</font></b> If one swore 'I will not eat' and he ate
               dirt, he is exempt.
<br>          <b><font color='darkgreen'>2.  </font></b> In the Seifa he is liable, because Neveilos,
               Treifos... are considered proper to eat (just they
               are forbidden). (end of Version #2)
<br>     <b><font color='darkgreen'>(h)  Support (Rav Mari - Mishnah):</font></b> If one swore 'Konam, I may
          not benefit from my wife if I ate today' and he ate
          Neveilos... she is forbidden.
<br>     <b><font color='darkgreen'>(i)  Rejection:</font></b> That is no proof. There is different. Since he
          ate before swearing, when he swore he considered his act
          to be 'eating';

<br>

sjt:
<font><b>1) DOES 'EVER MIN HA'CHAI' APPLY WHEN THE ANIMAL IS ALIVE?</b></font>
<br>QUESTION: The Gemara quotes a Beraisa in which Rebbi Shimon states that one who accidentally eats Neveilah on Yom Kippur is exempt. <b>RASHI</b> (DH Patur) explains that he is exempt from the obligation to bring a Korban Chatas for accidental desecration of Yom Kippur. If the animal was already a Neveilah before Yom Kippur, the prohibition of Kares for eating on Yom Kippur cannot apply to the pre-existing prohibition of Neveilah because of the principle of 'Ein Isur Chal Al Isur' -- one Isur cannot take effect when there is already an Isur in effect.
</p><p>
Rashi adds that even if the animal became a Neveilah only on Yom Kippur itself, the animal still was forbidden by a pre-existing prohibition of Ever Min ha'Chai before Yom Kippur started. The prohibition against eating on Yom Kippur cannot take effect on the pre-existing prohibition of Ever Min ha'Chai.
</p><p>
The Gemara quotes this Beraisa in order to prove that Rebbi Shimon does not agree that an 'Isur Kolel' overrides the rule of 'Ein Isur Chal Al Isur.' Rebbi Shimon maintains that an Isur cannot take effect on a pre-existing Isur even when the second Isur is an 'Isur Kolel,' which means that the second Isur includes more objects than the first. The prohibition against eating on Yom Kippur is an Isur Kolel, because the day before Yom Kippur only forbidden foods were prohibited, but upon the arrival of Yom Kippur a more inclusive prohibition takes effect which forbids all foods. From Rebbi Shimon's statement that one is not liable for transgressing the Isur against eating on Yom Kippur when he eats a Neveilah, it is evident that Rebbi Shimon disagrees with the concept of 'Isur Kolel.'
</p><p>
<b>TOSFOS</b> (DH ha'Ochel) questions Rashi's explanation of Rebbi Shimon. The Gemara in Chulin (103a) records an opinion that 'Behemah b'Chayeha Lav l'Evarim Omedes,' an animal during its lifetime is not designated to be cut up into limbs (and eaten), and thus the prohibition of Ever Min ha'Chai does not apply when the animal is still alive. Accordingly, prior to Yom Kippur, the limbs of the Neveilah (which the person ate on Yom Kippur) were not prohibited as Ever Min ha'Chai.
</p><p>
According to the opinion that 'Behemah b'Chayeha l'Evarim Omedes,' there is also a question. According to that opinion, an animal during its lifetime is designated to be cut up into limbs (and eaten), and thus each limb has the status of Ever Min ha'Chai even while the animal is alive. If the animal dies on Yom Kippur, the prohibition of Ever Min ha'Chai goes away and is replaced simultaneously with the prohibitions against eating Neveilah and eating on Yom Kippur. Rebbi Shimon agrees that when two prohibitions take effect simultaneously, they are valid.
</p><p>
According to either of these two opinions, one who eats Neveilah on Yom Kippur should be liable for transgressing the prohibition against eating on Yom Kippur. Why does Rebbi Shimon say that one is liable only for eating Neveilah, and not for eating on Yom Kippur?
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> answers that a different prohibition prevents the prohibition of eating on Yom Kippur from taking effect. A Mitzvas Aseh prohibits one from eating an animal that was not properly slaughtered. The verse states, 'You shall slaughter... and you shall eat...' (Devarim 12:21), which teaches that one may eat only what he slaughters, but he may not eat what he has not slaughtered. Tosfos maintains that this prohibition always applies, whether the animal is alive or dead. Since, before Yom Kippur, a Mitzvas Aseh prohibits eating any live animal because it is 'Einah Zevuchah' (not slaughtered), when Yom Kippur enters the prohibition against eating on Yom Kippur cannot take effect on such an animal.
</p><p>
(b) Tosfos cites the <b>RITZBA</b> who disagrees with his explanation. The Ritzba asks that according to the opinion that 'Behemah b'Chayeha Lav l'Evarim Omedes,' if the prohibition of 'Einah Zevuchah' applies when the animal is alive, then Ever Min ha'Chai would never apply! Since Ever Min ha'Chai does not apply when the animal is alive, and when it dies it does not apply because there is a pre-existing prohibition of 'Einah Zevuchah,' when would Ever Min ha'Chai ever apply?
</p><p>
The Ritzba therefore understands that no Mitzvah of slaughtering is derived from the verse, 'You shall slaughter.' This raises a new problem, however. How can one recite a blessing before he slaughters an animal? There is a rule that one does not recite a blessing for the fulfillment of a Lo Ta'aseh, a negative commandment. This is why one does not recite a blessing before the removal of the forbidden fats and Gid ha'Nasheh from the meat. If there is no Mitzvas Aseh of Shechitah, but Shechitah is necessary only to ensure that the animal is not forbidden, why is a blessing recited for the act of Shechitah? (See <b>PRI MEGADIM</b> in <b>MISHBETZOS ZAHAV</b> YD 19:1, DH v'Da.)
</p><p>
<b>CHIDUSHEI REBBI AKIVA EIGER</b> answers that a distinction may be made between the removal of the forbidden fats and the act of slaughtering. One does not recite a blessing when he merely removes forbidden fats from the meat. The meat itself became permitted once the animal was slaughtered properly. It could not be eaten only because forbidden things, such as the Gid ha'Nasheh, were mixed with it. One does not recite a blessing on the process of separating a forbidden item from the permitted item.
</p><p>
In contrast, the act of Shechitah transforms the meat itself from a prohibited item into a permitted item. Rebbi Akiva Eiger compares the blessing made for Shechitah to the blessing made for making an Eruv Techumin. Although there is no Mitzvah per se to make an Eruv Techumin, but only a Lo Ta'aseh against walking beyond one's Techum, if one seeks to walk beyond his Techum on Shabbos he must make an Eruv. The Eruv Techumin 'prepares' the area at the edge of his present Techum so that he will not transgress the Isur of Techum, and therefore he may recite a blessing for it, even though the Isur of Techum is a Lo Ta'aseh.
</p><p>
The explanation of Rebbi Akiva Eiger sheds light on the words of the <b>MAGEN AVRAHAM</b> (OC 415:4). The Magen Avraham writes that although an Eruv Techumin is a leniency, it is still appropriate to recite the blessing, '... Who has sanctified us with His Mitzvos....' The Eruv Techumin saves a person from sinning by walking beyond his Techum in the same way that slaughtering meat prevents a person from eating Neveilah. The Magen Avraham clearly is alluding to the explanation of Rebbi Akiva Eiger, that one recites a blessing when he makes something permitted when it was previously forbidden. (See also <b>RA'AVAD</b>, Hilchos Eruvin 6:24.) (D. Bloom)
</p><p>
<br>

loi:
<p class='newsubafdaf'><span class='numt'>1)</span> SHEVUOS THAT INCLUDE MITZVOS THROUGH KOLEL</p>
<p class='firstindent'><span class='numl1'>(a)</span> Gemara</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'> 22b: (Mishnah):</span> If one swore 'I will not eat', and he ate Neveilos, Treifos...', he is liable;</p>
<p class='secondindent'><span class='numl2'>2.</span> R. Shimon exempts.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'> 23b:</span> The case is, he swore 'I will not eat Neveilos....'</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'> Question:</span> Why is he liable? The oath of Sinai already forbids them!</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'> Answer #1 (Rav, Shmuel and R. Yochanan):</span> Because his oath is Chal (takes effect) on permitted food, it is Chal also on forbidden food.</p>
<p class='secondindent'><span class='numl2'>6.</span><span class='desl2'> Answer #2 (Reish Lakish):</span> The Torah forbids only eating a k'Zayis of these things. His oath forbids eating any amount;</p>
<p class='thirdindent'><span class='numl3'>i.</span> According to Chachamim, this is when he specified (any amount). According to R. Akiva, it is even without specifying.</p>
<p class='secondindent'><span class='numl2'>7.</span> R. Yochanan did not answer like Reish Lakish because he prefers to establish the Mishnah like Chachamim *and* R. Akiva.</p>
<p class='secondindent'><span class='numl2'>8.</span> Reish Lakish did not answer like R. Yochanan, for he holds that the principle of Kolel (if an Isur forbids something that was permitted, it also takes effect on things already forbidden) applies only to prohibitions that the Torah imposed, but not to Isurim that one imposes through oaths!</p>
<p class='secondindent'><span class='numl2'>9.</span><span class='desl2'> Question:</span> Granted, Reish Lakish can say that R. Shimon exempts, for he obligates lashes for eating any amount of Isur, therefore the oath does not take effect. According to R. Yochanan, why does R. Shimon exempt? (The oath should take effect, for it is Kolel permitted and forbidden food!)</p>
<p class='secondindent'><span class='numl2'>10.</span><span class='desl2'> Answer:</span> R. Shimon disagrees with the principle of Kolel.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> (Beraisa - R. Shimon):</span> One who eats a Neveilah on Yom Kipur is not liable for eating on Yom Kipur.</p>
<p class='secondindent'><span class='numl2'>11.</span><span class='desl2'> 24b (Rava):</span> According to the opinion that Isur Kolel Chal Al Isur, if one swore 'I will not eat figs', and later swore 'I will not eat figs or grapes', since the latter oath takes effect for grapes, it also takes effect for figs. Kolel applies even to an Isur (such as an oath) that one made by himself.</p>
<p class='secondindent'><span class='numl2'>12.</span><span class='desl2'> 29a (Mishnah):</span> The following are vain oaths... he swore not to fulfill a Mitzvah, e.g. not to dwell in a Sukah, take a Lulav or don Tefilin.</p>
<p class='firstindent'><span class='numl1'>(b)</span> Rishonim</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'> Rif and Rosh (12b and 3:26, citing the Yerushalmi):</span> If one swore 'I will not eat Matzah', he may not eat Matzah on Pesach night. If he swore 'I will not eat Matzah on Pesach night, he is lashed and eats Matzah on Pesach night. If one swore 'I will not sit in shade', he may not sit in shade of a Sukah. If he swore 'I will not sit in shade of a Sukah', he is lashed and he sits in shade of a Sukah.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Ran (DH Gemara):</span> A Shevu'ah takes effect to be Mevatel a Mitzvah through Kolel, if he will be passive. Since it takes effect on the other days, it takes effect also on Pesach night. A Shevu'ah not to eat Matzah Stam is called Kolel. An oath not to sit in shade of a Sukah is different, for Nedarim depend on how people speak. Stam unleavened bread is called Matzah, but a Stam shack is called a Sukah only if it is for the Mitzvah. The same applies to Lulav. This is why the Mishnah (29a) says that a Shevu'ah not to dwell in a Sukah, or take a Lulav is Shav, (for it is not Kolel).</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'> Rambam (Hilchos Shevuos 1:6):</span> If one swore to be Mevatel a Mitzvah, e.g. not to cover himself with Tzitzis, or wear Tefilin, or sit in a Sukah on Sukos or to eat Matzah on Pesach... it is a Shevu'as Shav (a vain oath).</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'> Rambam (5:5):</span> If one swore not to eat, and he ate Isurei Torah such as a k'Zayis of Neveilah or Sheratzim, he is exempt for Shevu'as Bituy (an oath to do or not do an action). If one swore to eat, and he ate Neveilah, he is exempt for Shevu'as Bituy. Since these are important to him, it is called eating.</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'> Rambam (15):</span> If one swore not to make a Sukah or wear Tefilin... he is lashed for Shevu'as Shav.</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'> Rambam (18):</span> If one swore not to eat Matzah for a year or two, he may not eat Matzah on Pesach night. If he ate, he is liable for Shevu'as Bituy. This is not Shevu'as Shav (a vain oath), for he did not swear not to eat Matzah (just) on Pesach night. Rather, he was Kolel times when eating Matzah is Reshus with when it is a Mitzvah. Since it takes effect on the other days, it takes effect also on Pesach night. The same applies to all similar cases, e.g. he swore never to sit in shade of a Sukah, or that he will not wear (any) garment for a year or two.</p>
<p class='secondindent'><span class='numl2'>6.</span><span class='desl2'> Rambam (Hilchos Nedarim 3:6):</span> A Neder is Chal on Mitzvos like on Reshus (optional matters). If one forbade to himself Matzah on Pesach night or sitting in a Sukah on Sukos, or taking Tefilin, these are forbidden. If he ate, sat or took, he is lashed. The same applies to all similar cases.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Question (Lechem Mishneh):</span> Even such a Shevu'ah is Chal, since it is Chal on Matzah, Sukah and Tefilin when there is no Mitzvah!</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'> Answer (Lechem Mishneh):</span> Nedarim depend on the way people speak. When people discuss eating Matzah, sitting in a Sukah, or taking Tefilin, they refer to the Mitzvah. The Rambam (Hilchos Shevuos 5:15) says that one who swears about one of these (Stam) is lashed for a vain oath. When the Rambam (5:18) discusses Kolel, he specifies '*never* to sit in a Sukah.' The Ran says that a Stam Shevu'ah not to eat Matzah is Kolel; the Rambam disagrees. This is unlike the Kesef Mishneh. Why did the Rambam (Shevuos 1:6) specify a Shevu'ah not to sit in a Sukah *on Sukos* or to eat Matzah *on Pesach*? Perhaps this is not the exact words of the Noder.</p>
<p class='firstindent'><span class='numl1'>(c)</span> Poskim</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'> Shulchan Aruch (YD 236:5):</span> If one swore 'I will not eat Matzah', he may not eat Matzah on Pesach night. If he swore 'I will not eat Matzah on Pesach night, he is lashed and he eats Matzah on Pesach night. If one swore 'I will not sit in shade', he may not sit in shade of a Sukah. If he swore 'I will not sit in shade of a Sukah', he is lashed and he sits in shade of a Sukah.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Beis Yosef (DH Kosav ha'Ran):</span> The Ran says that some say that the Halachah does not follow the Yerushalmi, for the Bavli argues. He rejected them; we rely on the Yerushalmi. The Rivash (Sof 395) says that the Sugya of an oath to eat Neveilah connotes that a Shevu'ah to be Mevatel a Mitzvah is not Chal even through Kolel. The Ramban answered that this is only for an oath to do an Isur, for we do not tell one to sin to fulfill his oath, but an oath to transgress passively takes effect.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'> Shach (14):</span> The Levush holds that an oath not to sit in a Sukah (without specifying) takes effect, unlike the Ran and Mechaber.</p>
<p class='thirdindent'><span class='numl3'>iii.</span><span class='desl2'> Gra (19):</span> The text of the Yerushalmi is like the Mechaber.</p>
<p class='thirdindent'><span class='numl3'>iv.</span><span class='desl2'> Beis Yosef (DH Kosav Rabbeinu):</span> The Rosh (Teshuvah 11:3) says that a Shevu'ah to fulfill or be Mevatel a Mitzvah mid'Rabanan takes effect.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'> Rema:</span> Shevuos take effect on Mitzvos through Kolel only regarding a Mitzvas Aseh, but not regarding a Lav.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Shach (15):</span> It does not depend on whether it is a Lav or Aseh, rather, whether one transgresses through action or inaction.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'> Shulchan Aruch (238:6):</span> If one swore 'I will not eat Neveilos or slaughtered meat', or even if he swore Stam 'I will not eat', the Shevu'ah takes effect also on Neveilah. Similarly, if he swore 'I will not eat figs', and later swore 'I will not eat figs or grapes', both Shevuos take effect on figs.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Beis Yosef (DH u'Mah she'Chosav Oh):</span> This is like Rashi, who explains according to Rava that a Stam Shevu'ah not to eat includes Neveilah, for it is edible, just forbidden. The Rambam exempts.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'> Gra (7):</span> The Ran explains that a Stam Shevu'ah not to eat is only for proper food, but a Stam Shevu'ah to eat includes all foods.</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'> Shulchan Aruch (239:4):</span> A Shevu'ah is not Chal on a Mitzvah, e.g. 'I will not sit in a Sukah.'</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'> Rema:</span> This is only when he swore only about the Mitzvah. If he swore through Kolel (he also forbade Reshus), it is Chal also on a Mitzvah.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Ran (Teshuvah 73, cited in Beis Yosef DH v'Zeh):</span> A Shevu'ah to pay the principal and the Ribis is Chal on the principal, so it is Chal even on the Ribis. However, one may not transgress Ribis in order to fulfill his Shevu'ah! If one swore to eat Neveilos (Chidushei Hagahos - and also Heter), surely we do not feed him Neveilos in order to fulfill his vow! Even if the Ribis is mid'Rabanan, Chachamim enforced their enactment like mid'Oraisa law, so one is passive (and does not pay, and transgresses).</p>
<p class='seealso'>See also:</p>
<p class='seealsotext'>SHEVUOS AGAINST MITZVOS (Shevuos 23)</p>
<p class='doublespace'></p>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>1.  </font></b> Here, when he swears before eating, we have no
               source that he considers this eating!
<br>
<b><font color='blue'>2) ISUR KOLEL</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Rava):</font></b> (Normally, Ein Isur Chal Al Isur (a second Isur
          does not take effect on something already forbidden.) The
          opinion that Isur Chal Al Isur when it is Kolel (it also
          forbids things that were previously permitted) learns
          from an Isur Mosif (it forbids the forbidden object to
          more people or in more ways), which is Chal Al Isur;
<br>          <b><font color='darkgreen'>1.  </font></b> The opinion that Ein Isur Kolel Chal Al Isur, even
               though Isur Mosif is Chal, distinguishes. Since
               Mosif puts new Isurim on the forbidden object, it
               takes effect also regarding the old Isur;
<br>               <b><font color='darkgreen'>i. </font></b>  Regarding Kolel, the fact that new things
                    become forbidden is no reason to put an
                    additional Isur on what is already forbidden.
<br>     <b><font color='darkgreen'>(b)  (Rava):</font></b> According to the opinion that Isur Kolel Chal Al
          Isur, if one swore 'I will not eat figs', and later swore
          'I will not eat figs or grapes', since the latter oath
          takes effect for grapes, it also takes effect for figs.
<br>     <b><font color='darkgreen'>(c)  Objection:</font></b> This is obvious!
<br>     <b><font color='darkgreen'>(d)  Answer:</font></b> One might have thought that Isur Kolel Chal Al
          Isur only for Torah Isurim, but not for an Isur (such as
          an oath) that one made by himself. Rava teaches that this
          is not so.
<br>
<b><font color='blue'>3) MULTIPLE TRANSGRESSIONS FOR ONE EATING</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Question (Rava brei d'Rabah - Mishnah):</font></b> One can be liable
          four Korbanos Chatas and an Asham for eating (slightly
          more than) a k'Zayis. The case is, a Tamei person ate
          Chelev that was Nosar from Kodshim, on Yom Kipur;
<br>          <b><font color='darkgreen'>1.  </font></b> R. Meir says, if it was also Shabbos and he took the
               food from a Reshus ha'Yachid and swallowed it in a
               Reshus ha'Rabim, he is also liable for transferring
               domains!
<br>          <b><font color='darkgreen'>2.   Chachamim:</font></b> That liability is not for eating.
<br>          <b><font color='darkgreen'>3.   Summation of question:</font></b> According to Rava, Chachamim
               can find a fifth Chatas. The case is, he had sworn
               'I will not eat figs or Chelev.' Since the oath
               applies to figs, it applies also to Chelev!
<br>     <b><font color='darkgreen'>(b)  Answer #1:</font></b> The Tana lists only Torah Isurim, but not what
          he forbade to himself.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> One Chatas is for eating Kodshim while
               Tamei. He made it Kodshim!
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> No, the case is, it was a Bechor (a male
               firstborn Tahor animal). The Torah made it Kodesh
               when it was born.
<br>     <b><font color='darkgreen'>(c)  Answer #2:</font></b> The Tana only lists Isurim that cannot be
          annulled (but one can annul an oath).
<br>          <b><font color='darkgreen'>1.   Question:</font></b> One can annul making an animal Kodesh!
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> We already established the case to be a
               Bechor.
<br>     <b><font color='darkgreen'>(d)  Answer #3:</font></b> The Tana lists only liability that is Kavu'a
          (the same for rich and poor people). The Korban for
          transgressing Shevu'as Bituy is Oleh v'Yored.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> The Chatas for a Tamei person who ate
               Kodshim is an Oleh v'Yored!
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> The Mishnah discusses a Nasi. It is like R.
               Eliezer, who says that a Nasi brings a goat for
               Tum'ah of the Mikdash or Kodshim
<br>     <b><font color='darkgreen'>(e)  Answer #4 (Rav Ashi):</font></b> The Tana lists only liability that
          depends on eating a certain quantity;
<br>          <b><font color='darkgreen'>1.  </font></b> One can be liable for an oath for eating Mashehu (if
               he specifies).
<br>          <b><font color='darkgreen'>2.   Question:</font></b> One can be liable for eating Hekdesh, even
               less than a k'Zayis!
<br>          <b><font color='darkgreen'>3.   Answer:</font></b> That also has a minimal quantity. It must be
               worth a Perutah.
<br>     <b><font color='darkgreen'>(f)  Answer #5 (Rav Ashi of Avirya):</font></b> The Tana lists only
          liability for transgressions of Kares (had he sinned
          b'Mezid). Transgressing an oath is only a Lav.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> The Asham is for benefit from Kodshim,
               which is only a Lav!
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> The Tana lists liability for Chata'os only
               for transgressions of Kares. 
<br>

sjt:
</p><p>
<font><b>2) THE FATS OF AN ANIMAL WHICH ARE PERMITTED</b></font>
<br>QUESTION: Rava says that according to the opinion that an Isur Kolel takes effect, when a person swears, 'I will not eat figs,' and afterwards says, 'I will not eat figs and grapes,' the second Shevu'ah takes effect. Since the second Shevu'ah adds grapes to the prohibition, the Shevu'ah also applies to the figs.
</p><p>
Rava brei d'Rabah challenges Rava's statement from a Beraisa. The Beraisa states that it is possible for one to eat a single k'Zayis of Chelev and be liable for four Korbenos Chatas and one Korban Asham (which the Beraisa enumerates). According to Rava, the Beraisa should have added a fifth Chatas -- for transgressing a Shevu'ah that 'I will not eat dates and Chelev.' Since the Shevu'ah applies to the dates, it also should apply to the Chelev!
</p><p>
The oaths mentioned in the Gemara here seem to lack a basic qualification to be valid oaths. The Shevu'ah that, 'I will not eat figs and grapes,' which one states after he swears, 'I will not eat figs,' and the Shevu'ah that, 'I will not eat dates and Chelev,' should not be valid Shevu'os because of the rule (25a) that an essential part of a Shevu'ah is that it must be able to be said both in the positive and negative form. In the case of the Gemara here, the person cannot say the positive form, 'I <i>will</i> eat figs and grapes,' because he has already sworn that he will <i>not</i> eat figs. Similarly, he cannot say, 'I <i>will</i> eat dates and Chelev,' because every Jew made a Shevu'ah at Har Sinai not to eat Chelev. How, then, can the Shevu'os mentioned here be valid?
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> (DH she'Lo) answers in the name of <b>RABEINU TAM</b> that the Shevu'ah, 'I will not eat dates and Chelev,' <i>is</i> possible in the positive form. One indeed can swear, 'I will eat Chelev,' because there are some fats which people call 'Chelev' even though they are permitted. The person who swears, 'I will eat Chelev,' might be referring to the Chelev on the Keivah (the abomasum, the last of a cow's four stomachs) which the Gemara in Chulin (49a) permits.
</p><p>
Alternatively, he might be referring to the Chelev of a Chayah (an undomesticated animal), which is permitted to eat. The verse (Vayikra 7:23) prohibits only the Chelev of a Behemah (a domesticated animal), such as a cow, sheep, and goat.
</p><p>
Tosfos adds that only because the person mentions other <i>permitted</i> food items together with the Chelev ('I will eat dates and Chelev') that it is assumed that he is referring to permitted Chelev. Otherwise, the word 'Chelev' would be assumed to mean specifically forbidden fat, which is the common meaning of the word.
</p><p>
(b) <b>TOSFOS</b> (24a, end of DH Ela) answers that the Shevu'ah, 'I will not eat figs and grapes,' which one states after he swears, 'I will not eat figs,' may also exist in the positive form. Although the person first said, 'I will not eat figs,' he still can swear afterwards, 'I will eat figs and grapes.' This is because when he mentions figs the second time, he may mean 'Te'enim ha'Sho'arim,' a type of fig that is harmful to consume (see Yirmeyahu 29:17).
</p><p>
Tosfos adds that only because the person mentions both figs and grapes in his second Shevu'ah that it is assumed that he is referring to bad figs. If he would have made a Shevu'ah on figs alone, his words would have been understood to mean good figs.
</p><p>
The <b>MAHARSHA</b> explains that Tosfos means that when the person first swears, 'I will not eat figs,' his words do not include Te'enim ha'Sho'arim, and therefore he is not forbidden from eating them. When he later swears, 'I will eat figs and grapes,' since he includes grapes together with figs, he implies that just as he is referring to grapes which are permitted to him, he is referring to figs that are permitted to him. He therefore must be referring to Te'enim ha'Sho'arim.
</p><p>
(c) The <b>RAMBAN</b> gives a different answer for why one's Shevu'ah not to eat figs and grapes takes effect, even though that Shevu'ah apparently cannot be made in the positive form. Since the figs were prohibited in the first place only by a Shevu'ah, they potentially may become permitted through the instrument of nullification of the Shevu'ah. Once they become permitted, the person can swear, 'I will eat figs.' Therefore, the second Shevu'ah takes effect because it <i>can</i> be made in the positive form ('I will eat figs and grapes') in the event that the person has his first Shevu'ah nullified. (D. Bloom) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) MULTIPLE TRANSGRESSIONS FOR ONE EATING (cont.)</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Answer #6 (Ravina):</font></b> The Tana lists only transgressions
          that apply to food, oaths apply to other things as well.
<br>     <b><font color='darkgreen'>(b)  Objection:</font></b> Hekdesh applies to sticks and stones!
<br>     <b><font color='darkgreen'>(c)  Correction:</font></b> Rather, the Tana only lists transgressions
          that only apply to tangible things;
<br>          <b><font color='darkgreen'>1.  </font></b> Oaths apply to intangible things, e.g. I will sleep
               (or not sleep).
<br>
<b><font color='blue'>2) THE TYPES OF SHEVU'AS BITUY</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> Oaths of Bituy apply to one's own things, and
          to other people's; they apply to tangible and intangible
          things. The following are oaths of Bituy;
<br>          <b><font color='darkgreen'>1.  </font></b> He swore 'I will give (or not give) to Ploni', 'I
               gave (or did not give) to Ploni', 'I will (or will
               not) sleep', 'I slept (or did not sleep)', 'I will
               (or will not) throw a rock into the sea', 'I threw
               (or did not throw) a rock into the sea.'
<br>     <b><font color='darkgreen'>(b)</font></b>  R. Yishmael says, one is liable (a Korban) only for oaths
          regarding the future - 'Lehara Oh Leheitiv.'
<br>     <b><font color='darkgreen'>(c)  R. Akiva:</font></b> If so, he should be liable only for doing good
          or evil. What is the source to include neutral things
          (e.g. throwing a rock into the sea)?
<br>     <b><font color='darkgreen'>(d)  R. Yishmael:</font></b> The Torah includes this ('l'Chol Asher
          Yivatei').
<br>     <b><font color='darkgreen'>(e)  R. Akiva:</font></b> This includes also oaths about the past!
<br>     <b><font color='darkgreen'>(f)  (Gemara - Beraisa):</font></b> In some ways, Nedarim are more
          stringent than Shevu'os. In some ways, Shevu'os are more
          stringent.
<br>          <b><font color='darkgreen'>1.  </font></b> A stringency of Nedarim over Shevu'os is that
               Nedarim take effect on Mitzvos, just like on
               optional matters, but Shevu'os do not;
<br>          <b><font color='darkgreen'>2.  </font></b> A stringency of Shevu'os over Nedarim is that
               Shevu'os take effect on intangible things just like
               on tangible things, but Nedarim do not.
<br>     <b><font color='darkgreen'>(g)  (Mishnah):</font></b> If Reuven swore 'I will give (or not give) to
          Ploni... '
<br>     <b><font color='darkgreen'>(h)  Question:</font></b> What does this mean?
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> It refers to giving Tzedakah to a poor
               person.
<br>          <b><font color='darkgreen'>2.   Rejection:</font></b> The oath (that Yisrael accepted on Sinai)
               already obligates him -  'Nason Titen Lo' (so his
               oath does not takes effect)!
<br>          <b><font color='darkgreen'>3.  </font></b> Rather, it refers to a gift to a rich person.
<br>     <b><font color='darkgreen'>(i)  (Mishnah):</font></b> 'I will (or will not) sleep.'
<br>     <b><font color='darkgreen'>(j)  Question:</font></b> R. Yochanan taught that if one swears 'I will
          not sleep for three days', we lash him (for a Shav oath)
          and he may sleep immediately!
<br>     <b><font color='darkgreen'>(k)  Answer:</font></b> That is when he specified three days. Here, he
          did not specify (Rashba - he intends, 'I will not sleep
          until I must') R. Chananel, Rosh - he specified one or
          two days).
<br>
<b><font color='blue'>3) MUST THE OATH APPLY TO THE FUTURE?</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> 'I will (or will not) throw a rock into the
          sea.'
<br>     <b><font color='darkgreen'>(b)  (Rav):</font></b> If one said 'I swear that Ploni threw (or did not
          throw) a rock into the sea', he is liable (for an oath of
          Bituy if this is false);
<br>     <b><font color='darkgreen'>(c)  (Shmuel):</font></b> He is exempt.
<br>          <b><font color='darkgreen'>1.  </font></b> Rav obligates. Since the oath applies in the
               positive and negative, it is Bituy;
<br>          <b><font color='darkgreen'>2.  </font></b> Shmuel exempts. Since it does not apply to the
               future, it is not Bituy.
<br>     <b><font color='darkgreen'>(d)  Suggestion:</font></b> They argue like the following Tana'im argue.
<br>          <b><font color='darkgreen'>1.   (Mishnah - R. Yishmael):</font></b> One is liable for oaths of
               Bituy only for the future;
<br>               <b><font color='darkgreen'>i.   R. Akiva:</font></b> If so, he should be liable only for
                    doing good or evil. What is the source to
                    include neutral things (e.g. throwing a rock
                    into the sea)?
<br>               <b><font color='darkgreen'>ii.  R. Yishmael:</font></b> The Torah includes this ('l'Chol
                    Asher Yivatei').
<br>               <b><font color='darkgreen'>iii. R. Akiva:</font></b> This includes also oaths about the
                    past!
<br>          <b><font color='darkgreen'>2.  </font></b> Rav holds like R. Akiva, and Shmuel holds like R.
               Yishmael.
<br>     <b><font color='darkgreen'>(e)  Rejection:</font></b> Indeed, we must say that Rav holds like R.
          Akiva;
<br>          <b><font color='darkgreen'>1.  </font></b> R. Yishmael cannot agree to Rav's law, for R.
               Yishmael exempts (all) oaths of the past, even those
               that could apply to the future, and all the more
               oaths that could not apply to the future!
<br>          <b><font color='darkgreen'>2.  </font></b> However, R. Akiva could agree to Shmuel's law;
<br>               <b><font color='darkgreen'>i. </font></b>  We know that R. Akiva obligates only for oaths
                    of the past that could apply to the future.
                    Perhaps he exempts for oaths that could not
                    apply to the future!
<br>     <b><font color='darkgreen'>(f)  Suggestion:</font></b> Rav and Shmuel argue like the following
          Tana'im do.
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN A SHEVU'AH AND A NEDER</b></font>
<br>QUESTION: The Gemara cites a Beraisa which says that in one respect, Nedarim (vows) are more severe than Shevu'os (oaths), and in another respect, Shevu'os are more severe than Nedarim.
</p><p>
Nedarim are more severe than Shevu'os because Nedarim take effect on an object of a Mitzvah in the same way they take effect on an ordinary object, while Shevu'os take effect only on acts that are not Mitzvos. <b>RASHI</b> (DH ha'Nedarim) explains that if a person says, 'The Sukah I will make is like Konam for me,' or 'The Lulav that I shake is like a Korban,' his Neder takes effect and he may not use the Sukah or the Lulav. In contrast, if he swears, 'I will not sit in a Sukah,' or 'I will not shake a Lulav,' the Shevu'ah does not take effect.
</p><p>
Shevu'os are more severe than Nedarim because they take effect even on intangible things, while Nedarim do not take effect on intangible things. For example, if a person swears that he will not sleep, his Shevu'ah takes effect, but if he makes a Neder and says that sleep is forbidden to him, the Neder does not take effect (since sleep is intangible; see Rashi DH Neder).
</p><p>
<b>TOSFOS</b> (DH Mah) cites the Gemara in Nedarim (16b) which asks why a Neder takes effect on a Mitzvah but a Shevu'ah does not. The Gemara answers that the difference between a Neder and a Shevu'ah is that a Neder is an 'Isur Cheftza' -- the prohibition takes effect on the <i>object</i> and not on the person. Since the Torah commands the person to sit in a Sukah (and it does not command the Sukah to have a person sit in it), a person's Neder to forbid the Sukah takes effect because it does not directly conflict with the Mitzvah. In contrast, a Shevu'ah is an 'Isur Gavra' -- the prohibition takes effect on the <i>person</i> and not on the object. Since the person is obligated to perform the Mitzvah, his Shevu'ah cannot uproot that obligation, and thus it does not take effect.
</p><p>
According to this explanation, however, the words of the Beraisa here are difficult to understand. Why does the Beraisa say that Nedarim are more severe because they take effect on a Mitzvah. A Shevu'ah can also take effect on a Mitzvah, in a case in which the person says, 'Sitting in the Sukah is forbidden to me by a Shevu'ah.' Such a declaration creates an 'Isur Gavra' because it forbids the person to derive benefit from the Sukah (in contrast to a Neder which makes the object of the Sukah forbidden to the person), and it takes effect because it does not directly conflict with the Mitzvah, which applies to the person and not to the object.
</p><p>
ANSWER: <b>TOSFOS</b> (DH Mah) explains that the difference between Nedarim and Shevu'os is that the format of a Neder which takes effect on a Mitzvah (one makes the Cheftza, object, forbidden to him) also takes effect on a non-Mitzvah object. Conversely, when one makes a Neder not in the typical way, but he makes himself forbidden on the Cheftza, the Neder does not takes effect at all, neither on a Mitzvah nor on something which is not a Mitzvah.
</p><p>
In contrast, a Shevu'ah made in the normal manner of a Shevu'ah (one makes himself, the Gavra, forbidden on the Cheftza) does not take effect on a Mitzvah but <i>does</i> take effect on something which is not a Mitzvah.
</p><p>
(See <b>ROSH</b> (#10) who expresses this distinction in a slightly different way. He writes that there is a way to make a Shevu'ah such that it will take effect on a non-Mitzvah matter, but not on a Mitzvah. Therefore, Nedarim are more severe than Shevu'os because an ordinary Neder takes effect on a Mitzvah, while an ordinary Shevu'ah does not necessarily take effect on a Mitzvah.) (D. Bloom)
</p><p>
<br>

loi:
<p class='newsubafdaf'><span class='numt'>1)</span> DO WE DESECRATE SHABBOS FOR ONE WHO TRANSGRESSED?</p>
<p class='firstindent'><span class='numl1'>(a)</span> Gemara</p>
<p class='secondindent'><span class='numl2'>1.</span> R. Yochanan taught that one who swears 'I will not sleep for three days', we lash him (for a vain oath) and he may sleep immediately!</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'> Sanhedrin 72b (Beraisa):</span> 'Damim Lo' (one may not kill a thief who surely would not kill the Ba'al ha'Bayis, e.g. one tunneling into his son's house), on a weekday or Shabbos.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'> Question:</span> If one may not kill on a weekday, all the more so on Shabbos!</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'> Answer (Rav Sheshes):</span> This teaches that if the ground caved in on him we unearth him to save him, even on Shabbos.</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'> Shabbos 19a (Beraisa):</span> One may not embark on a ship less than three days before Shabbos. If he goes for a Mitzvah, it is permitted.</p>
<p class='secondindent'><span class='numl2'>6.</span><span class='desl2'> (Beraisa):</span> We may not besiege a Nochri city less than three days before Shabbos. If we did, we may continue the siege on Shabbos.</p>
<p class='secondindent'><span class='numl2'>7.</span><span class='desl2'> 45a:</span> Rav was asked if one may remove a Ner Chanukah lest it be seen by Chaverim (a nation that decreed about Neros). He permitted it.</p>
<p class='secondindent'><span class='numl2'>8.</span><span class='desl2'> Question (Rav Kahana and Rav Asi):</span> Is this really the law?</p>
<p class='secondindent'><span class='numl2'>9.</span><span class='desl2'> Answer (Rav):</span> In Sha'as ha'Dechak (pressed circumstances), we may rely on R. Shimon's opinion (who permits Muktzah).</p>
<p class='secondindent'><span class='numl2'>10.</span><span class='desl2'> Eruvin 67b:</span> A case occurred in which a baby was due to be circumcised on Shabbos, and the hot water prepared to bathe him spilled. Rabah told people to tell a Nochri to bring the water from Rabah's house.</p>
<p class='secondindent'><span class='numl2'>11.</span><span class='desl2'> Question (Abaye):</span> Haza'ah (sprinkling Mei Chatas to Metaher) is Shevus (forbidden mid'Rabanan on Shabbos), just like commanding a Nochri (e.g. to carry without an Eruv). Just like we do not permit Haza'ah for the sake of Korban Pesach, one may not command a Nochri for the sake of Milah!</p>
<p class='secondindent'><span class='numl2'>12.</span><span class='desl2'> Answer (Rav Yosef):</span> We are more lenient about Shevus without an action (carrying without an Eruv) than Shevus with an action (Haza'ah).</p>
<p class='firstindent'><span class='numl1'>(b)</span> Rishonim</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'> Rif and Rosh (Shabbos 7a and 1:38):</span> One may not leaving on a ship in the three days before Shabbos due to Bitul Oneg Shabbos</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Ba'al ha'Ma'or (7a):</span> It is like the Isur to besiege a city in the three days before Shabbos (taught right afterwards). It is like stipulating to desecrate Shabbos. The same applies to any danger that will necessitate Chilul Shabbos.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'> Rif (Shabbos 53a):</span> We may bathe a baby before or after the Milah, whether the water was heated up on or before Shabbos.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Rebuttal (Ba'al ha'Ma'or):</span> We may not heat up water on Shabbos before the Milah! If the hot water spilled, we postpone the Milah, like it says in Eruvin! We may heat up water only if it spilled after the Milah.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'> Ran (DH v'Heicha):</span> The Ramban (134b DH Aval) permits Milah even if there is no hot water (to bathe the baby afterwards). After the Bris, we may heat water for Piku'ach Nefesh. He explains that in Eruvin, the water spilled before the Bris. After the Bris, even a Yisrael may heat it! The Ba'al ha'Ma'or says that the water spilled after the Bris. Had it spilled before, the Milah would be postponed. The Rashba proved so from Beitzah 2a: one may slaughter a bird on Yom Tov only if dirt was prepared to cover the blood. This is not a proof. Slaughter on Yom Tov is not a Mitzvah like Milah!</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'> Ran (Shevuos 10a DH Malkin):</span> If one swore not to eat for seven days, he (should) wait until he is close to mortal danger, and then eat enough to survive. The Rambam says that we lash him and he may eat immediately. I agree, for he swore to be Mevatel the Mitzvah to guard one's life</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'> Tosfos (Shabbos 45a DH mi'Kamei):</span> At a time of danger, one puts Ner Chanukah on his table (21b)! Rav discusses one who improperly put it outside.</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'> Tosfos (Eruvin 100a DH Matan):</span> If bloods of different Korbanos were mixed, the Aseh to throw the blood on the Mizbe'ach does not override the Lav of throwing more than required, for the need to do so came through negligence.</p>
<p class='firstindent'><span class='numl1'>(c)</span> Poskim</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'> Shulchan Aruch (OC 248:4):</span> One may not leave with a caravan to the Midbar within three days before Shabbos if they will need to desecrate Shabbos due to danger. They may leave on Sunday, Monday or Tuesday. If later they must desecrate Shabbos due to danger, it is permitted.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'> Beis Yosef (DH v'Chosav Od, citing Rivash 17):</span> Three days after Shabbos pertain to the previous Shabbos (Gitin 77a). Three days before Shabbos pertain to the coming Shabbos, therefore one may not put himself in danger that will necessitate Chilul Shabbos.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'> Ri ben Lev (2:53):</span> All forbid if he will surely need to desecrate Shabbos.</p>
<p class='thirdindent'><span class='numl3'>iii.</span><span class='desl2'> Magen Avraham (14):</span> People rely on this nowadays to put themselves in danger and not be Mechalel Shabbos.</p>
<p class='thirdindent'><span class='numl3'>iv.</span><span class='desl2'> Igros Moshe (OC 1:127):</span> This does not show that we may not be Mechalel Shabbos to save one who endangered himself. No one says so. The Ba'al ha'Ma'or forbids after Tuesday, for it is like stipulating to desecrate Shabbos. If there were no Heter for Piku'ach Nefesh in such a case, we would permit embarking, but without a Heter for Piku'ach Nefesh! All (except for perhaps the Rif) agree that the Torah permits in any case. If even one who left on Sunday had no Heter, how would the Ba'al ha'Ma'or explain why we permit until Tuesday?! No one argues with the Ba'al ha'Ma'or (all permit Piku'ach Nefesh for one who endangered himself). Chasidim Rishonim had Bi'ah only on Wednesday (or later in the week), to avoid Chilul Shabbos due to birth on Shabbos (like Shmuel, that birth is exactly 271, 272 or 273 days from Bi'ah.) If Piku'ach Nefesh were forbidden for one who endangered himself, we should forbid Bi'ah before Wednesday, the source of the danger! Also, we should say that Chasidim refrained due to danger, not due to Chilul Shabbos! Rather, all agree with the Stam Mishnah that allows Chilul Shabbos for birth, even though she endangered herself by having Bi'ah before Wednesday. Piku'ach Nefesh is permitted in any case. Chasidim Rishonim were stringent.</p>
<p class='thirdindent'><span class='numl3'>v.</span><span class='desl2'> Igros Moshe (DH u'Mah):</span> Surely, Chachamim would not forbid Piku'ach Nefesh when one endangered himself, since the Torah permits it. Perhaps they have no such power! Ri ben Lev forbids embarking if he will Vadai need to be Mechalel Shabbos. He forbids after Wednesday if there is a Safek. He agrees that b'Di'eved, Piku'ach Nefesh is permitted. The Magen Avraham does not mean that people endanger themselves when there is Safek danger. One who does so is liable for his own death! Rather, if only some people consider a matter to be something dangerous, e.g. to be alone, we may be Mechalel (only) for them, for we cannot guarantee that it is not. One who embarks shows that he does not consider it to be dangerous.</p>
<p class='thirdindent'><span class='numl3'>vi.</span><span class='desl2'> Mishnah Berurah (27):</span> One may not stipulate with the caravan that he will be Mechalel Shabbos if needed, for this is like stipulating to desecrate Shabbos.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'> Shulchan Aruch (OC 329:1):</span> All Piku'ach Nefesh overrides Shabbos.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl3'> Chachmas Shlomo:</span> An Aseh is not Docheh a Lav if it is due to his Peshi'ah (negligence). If one put himself into danger, Piku'ach Nefesh does not override Shabbos or Lavim. In Shabbos 45a, Rashi explains that the Sha'as ha'Dechak was danger. Why did Rav say that we rely on R. Shimon in Sha'as ha'Dechak? All permit Piku'ach Nefesh! Rather, the danger was due to his Peshi'ah (at a time of danger, one should place Ner Chanukah on his table, or not light at all), therefore it does not override Lavim.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'> Rebuttal (Tosefes Shabbos (280) and Machatzis ha'Shekel 279:1):</span> It was not a true (mortal) danger, just close to danger.</p>
<p class='thirdindent'><span class='numl3'>iii.</span><span class='desl2'> Defense (Chachmas Shlomo):</span> Tosfos' question shows that he disagrees.</p>
<p class='thirdindent'><span class='numl3'>iv.</span><span class='desl2'> Support (Be'er David 7 DH v'Heveisi):</span> The Ran says that if one swore not to eat for seven days, when he is close to mortal danger, he eats and we lash him. Why is he lashed? Since his Peshi'ah caused the danger, Piku'ach Nefesh does not (fully) permit his oath. Likewise, one who brought himself to danger and needed to be Mechalel Shabbos must do Teshuvah for this. Tosfos (Eruvin 100a) supports this.</p>
<p class='thirdindent'><span class='numl3'>v.</span><span class='desl2'> Bach (OC 671 DH uv'Sha'as):</span> The Ran and Shulchan Aruch hold that there was a decree of Shmad (not to observe Mitzvos). If not, Yisre'elim would not endanger themselves for Ner Chanukah.</p>
<p class='thirdindent'><span class='numl3'>vi.</span><span class='desl2'> Question (R. Akiva Eiger):</span> The Ran and Rema require Mesiras Nefesh only for Lavim, even at a time of Shmad!</p>
<p class='thirdindent'><span class='numl3'>vii.</span><span class='desl2'> Divrei Yatziv (OC 167:1):</span> One may not learn from Sanhedrin 72b a Heter for Piku'ach Nefesh for one who endangered himself. We unearth him when Yesh Lo Damim (e.g. a father), for he did not endanger himself. We mourn over one killed by the kingdom for theft. He is not like one who committed suicide, for he thought that he can escape (Shach YD 345:5).</p>
<p class='thirdindent'><span class='numl3'>viii.</span><span class='desl3'> Note:</span> Seemingly, even a father endangered himself. If one does not know that he is the father, he may assume that the thief plans to kill!</p>
<p class='seealso'>See also:</p>
<p class='seealsotext'>WHEN MAY ONE SIN TO SAVE ANOTHER FROM SIN? (Gitin 41)</p>
<p class='doublespace'></p>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> If one swore not to fulfill a Mitzvah and
               he fulfilled it, he is exempt;
<br>          <b><font color='darkgreen'>2.  </font></b> If he swore to fulfill a Mitzvah and did not fulfill
               it, he is exempt.
<br>          <b><font color='darkgreen'>3.  </font></b> One might have thought to obligate, like R. Yehudah
               ben Beseira.
<br>               <b><font color='darkgreen'>i. </font></b>  R. Yehudah ben Beseira says, if one is liable
                    for (transgressing) an oath about Reshus
                    (something optional), which he is not forced to
                    do due to the oath of Sinai, and all the more
                    so for an oath to fulfill a Mitzvah, which he
                    is must fulfill due to the oath of Sinai!
<br>               <b><font color='darkgreen'>ii.  Chachamim:</font></b> No. He is liable for an oath about
                    Reshus, because such an oath could be made in
                    the positive or negative;
<br>               <b><font color='darkgreen'>iii. </font></b>He is exempt for an oath to fulfill a Mitzvah,
                    because such an oath can be made only in the
                    positive, but not in the negative!
<br>          <b><font color='darkgreen'>4.  </font></b> Rav holds like R. Yehudah ben Beseira, and Shmuel
               holds like Chachamim.
<br>     <b><font color='darkgreen'>(g)  Rejection:</font></b> Indeed, we must say that Shmuel holds like
          Chachamim.
<br>          <b><font color='darkgreen'>1.  </font></b> R. Yehudah ben Beseira obligates an oath even if it
               does not apply to the negative, and all the more so
               if (it applies to the negative but) not to the
               future!
<br>          <b><font color='darkgreen'>2.  </font></b> However, Chachamim could agree to Rav's law.
<br>               <b><font color='darkgreen'>i. </font></b>  Chachamim say that one is liable only for an
                    oath that could be made in the positive or
                    negative, like we explicitly learn from 'Lehara
                    Oh Leheitiv';
<br>               <b><font color='darkgreen'>ii. </font></b> Perhaps they do not require that it can be in
                    the past or future, since this is not explicit
                    in the Torah. We learn Shevu'as Bituy in the
                    past only through expounding.
<br>     <b><font color='darkgreen'>(h)  Question (against Shmuel - Rav Hamnuna - Mishnah):</font></b> If
          Reuven said 'I did not eat today', or 'I did not don
          Tefilin today', and Shimon said 'I impose an oath on
          you', and Reuven answered 'Amen', he is liable (if he
          lied).
<br>          <b><font color='darkgreen'>1.  </font></b> Granted, he is liable for 'I did not eat', for he
               could swear for the future (I will eat);
<br>          <b><font color='darkgreen'>2.  </font></b> However, why is he liable for 'I did not don
               Tefilin'? He could not swear 'I will not don
               Tefilin', for the oath of Sinai obligates him to don
               Tefilin!
<br>     <b><font color='darkgreen'>(i)  Answer (Rav Hamnuna):</font></b> There are different liabilities for
          the two oaths;
<br>          <b><font color='darkgreen'>1.  </font></b> For 'I did not eat', he is (even) liable to bring a
               Korban (if he did not know the punishment for
               swearing falsely);
<br>          <b><font color='darkgreen'>2.  </font></b> For 'I did not don Tefilin', he is lashed (if he was
               warned not to swear falsely and did so b'Mezid).
<br>     <b><font color='darkgreen'>(j)  Question (against Shmuel - Rava - Mishnah):</font></b> Shevu'as Shav
          is swearing to negate what people know to be true, e.g.
          about a stone pillar that it is of gold.
<br>          <b><font color='darkgreen'>1.   (Ula):</font></b> He is liable only if three people know that
               this is false.
<br>          <b><font color='darkgreen'>2.   Inference:</font></b> If people do not know, this is Bituy,
               even though it does not apply to the future (to say
               'it will be of gold')!
<br>     <b><font color='darkgreen'>(k)  Answer (Rava):</font></b> (Ula means that) if people know, the oath
          is Shav;
<br>          <b><font color='darkgreen'>1.  </font></b> If people do not know, this is a false oath (but he
               is not liable for Bituy).
<br>
<b><font color='blue'>4) SWEARING ABOUT KNOWING TESTIMONY</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Abaye):</font></b> Rav admits that if one swore falsely 'I know
          testimony for you', he is exempt, because the negative
          version of this (I do not know testimony for you) is not
          Bituy, rather Shevu'as ha'Edus.
<br>          <b><font color='darkgreen'>1.  </font></b> Rav and Shmuel argue about 'I knew testimony for
               you' and 'I did not know testimony for you' (in
               situations where the testimony is no longer needed),
               and about 'I testified for you' and 'I did not
               testify for you.' (Rav obligates, and Shmuel
               exempts. These oaths apply to the positive and
               negative, but not to the future. It is not in his
               control to know testimony or not, and if he knows,
               he is commanded to testify.)
<br>     <b><font color='darkgreen'>(b)</font></b>  According to Shmuel, 'I do not know testimony for you' is
          not Bituy, since it does not apply to the future. This is
          why the Torah had to write the Parshah of Shevu'as
          ha'Edus, to obligate a Korban for this.
<br>     <b><font color='darkgreen'>(c)  Question:</font></b> According to Rav, it is Bituy even though it
          does not apply to the future. Why did the Torah need to
          write the Parshah of Shevu'as ha'Edus to obligate a
          Korban?
<br>     <b><font color='darkgreen'>(d)  Answer #1 (Rabanan):</font></b> This obligates him a second Korban.
<br>     <b><font color='darkgreen'>(e)  Rejection (Abaye - Beraisa):</font></b> 'L'Achas me'Eleh' - he
          brings only one Korban.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> How does Abaye answer?
<br>     <b><font color='darkgreen'>(f)  Answer #2 (Beraisa):</font></b> Regarding the other transgressions
          for which one brings an Oleh v'Yored, it says
          'v'Ne'elam', but not regarding Shevu'as ha'Edus. This
          teaches that one brings a Korban for Shevu'as ha'Edus
          even if he was Mezid.
<br>     <b><font color='darkgreen'>(g)  Suggestion (Rabanan):</font></b> Perhaps he brings one Korban if he
          sinned b'Mezid, and two if he sinned b'Shogeg!
<br>     <b><font color='darkgreen'>(h)  Rejection (Abaye):</font></b> I already taught 'l'Achas me'Eleh' -
          he brings only one Korban;
<br>          <b><font color='darkgreen'>1.  </font></b> This teaches when he sinned b'Shogeg. If he was
               Mezid, he cannot bring a Korban for Bituy, and no
               verse is needed to exclude bringing two Korbanos.
<br>     <b><font color='darkgreen'>(i)  (Rava):</font></b> 'L'Achas me'Eleh' is not needed for Shevu'as
          ha'Edus. (Rather, it teaches about one who swore not to
          eat and ate three types of food);
<br>          <b><font color='darkgreen'>1.  </font></b> Whenever the Torah gives new laws to a particular
               case that was part of a general rule (e.g. 'I do not
               know testimony for you', which was a Shevu'ah of
               Bituy, was given the name and special laws of
               Shevu'as ha'Edus), the laws of the general rule no
               longer apply.
<br>     <b><font color='darkgreen'>(j)  Inference:</font></b> Abaye holds that it is also considered Bituy.
<br>     <b><font color='darkgreen'>(k)  Question:</font></b> Abaye said that Rav admits that 'I know
          testimony for you' is exempt (from Bituy) because 'I do
          not know testimony for you' is not Bituy!
<br>     <b><font color='darkgreen'>(l)  Answer #1:</font></b> Abaye retracted from saying that Rav admits.
<br>     <b><font color='darkgreen'>(m)  Answer #2:</font></b> One of these two teachings was actually said
          by Rav Papa (and mistakenly attributed to Abaye). 
<br>

sjt:
</p><p>
<font><b>2) A SHEVU'AH TO ANNUL A MITZVAH TEMPORARILY</b></font>
<br>QUESTION: The Gemara (25a) cites a Beraisa which says that in one respect, Nedarim (vows) are more severe than Shevu'os (oaths), and in another respect, Shevu'os are more severe than Nedarim (see previous Insight). Nedarim are more severe than Shevu'os because Nedarim take effect on an object of a Mitzvah in the same way they take effect on an ordinary object, while Shevu'os take effect only on acts that are not Mitzvos. Similarly, the Mishnah later (27a) states that when one makes a Shevu'ah <i>not</i> to perform a Mitzvah, he is exempt from his Shevu'ah because the Shevu'ah cannot take effect on a Mitzvah.
</p><p>
When the Mishnah there says that a Shevu'ah to annul a Mitzvah does not take effect, does it refer to a Shevu'ah in which one swears <i>never</i> to perform the Mitzvah, or does it refer even to a Shevu'ah in which one swears only that he will not perform the Mitzvah <i>now</i>? For example, if a man (of an age at which he is obligated to marry and have children; see Kidushin 20b) swears that he will not get married for a certain number of years, does his Shevu'ah take effect? Perhaps his Shevu'ah takes effect because it does not entirely annul his Mitzvah to have children; he can marry and have children after the period of his Shevu'ah passes. On the other hand, perhaps a person may not make a Shevu'ah to annul a Mitzvah even temporarily, and thus his Shevu'ah does not take effect and he may marry immediately.
</p><p>
ANSWER: <b>RAV ELCHANAN WASSERMAN</b> Hy'd in <b>KOVETZ HE'OROS</b> (#470) cites the <b>TESHUVAS MAHARIT</b> (YD 47), who answers this question based on the words of the Gemara here (25b). The Gemara earlier (25a) records a dispute between Rav and Shmuel in the case of a person who swears falsely that a certain person 'threw a stone into the sea.' According to Rav he is liable for making a false Shevu'ah, while according to Shmuel he is exempt.
</p><p>
Rav maintains that he is liable because his Shevu'ah can be expressed in both a positive way ('so-and-so threw a stone into the sea') and in a negative way ('so-and-so did not throw a stone into the sea'). Shmuel maintains that he is not liable for such a Shevu'ah because it is not possible to make such a Shevu'ah in the future tense ('so-and-so will throw a stone into the sea'), as he has no control over whether the other person will do the action or not.
</p><p>
Rav argues that there is no requirement that a Shevu'ah be able to be expressed in both the future tense and in the past tense. The only requirement is that it be able to be expressed in either a positive or negative form.
</p><p>
Rav Hamnuna challenges Shmuel's position from a Beraisa. The Beraisa teaches that the oaths, 'I did not eat today' and 'I did not put on Tefilin today,' are valid Shevu'os. The Gemara explains that the oath, 'I did not eat today,' presents no problem to Shmuel because it is possible to make such a Shevu'ah in the future tense as well ('I will not eat today'). However, the second case of the Beraisa is problematic to Shmuel. How is it possible to swear, 'I will not put on Tefilin today'? <b>RASHI</b> (DH Mi Ika) explains that since such a Shevu'ah annuls a Mitzvah, it is invalid.
</p><p>
The Maharit suggests that from the Gemara's assertion that the oath, 'I will not put on Tefilin today,' is a Shevu'ah to annul a Mitzvah and therefore is invalid, one may infer that the Halachah is that a Shevu'ah to annul a Mitzvah even temporarily is not valid. Had such a Shevu'ah been valid, the Gemara would have said that the oath, 'I will not put on Tefilin today,' refers to a case in which he had already put on Tefilin, and he swears that he will not put them on again or he will not continue to wear them.
</p><p>
However, the Maharit rejects this argument, because one may argue that the Mitzvah of Tefilin according to the Torah is to wear Tefilin every moment of the day. Therefore, when one says, 'I will not put on Tefilin today,' his statement is equivalent to nullifying totally today's Mitzvah of Tefilin. Although he still could don Tefilin tomorrow, tomorrow's Mitzvah is a different Mitzvah from today's; a person cannot regain today's Mitzvah of Tefilin by wearing Tefilin tomorrow. Therefore, the oath, 'I will not put on Tefilin today,' is considered a Shevu'ah to annul a Mitzvah entirely.
</p><p>
(The <b>BI'UR HALACHAH</b> (OC 37:1, DH Mitzvosan) in the name of the <b>PRI MEGADIM</b> concludes that the most preferable way to perform the Mitzvah of Tefilin is by wearing them all day. Nevertheless, one who wears them for one moment during the day fulfills the Mitzvah. One who did not put on Tefilin at all on one day annulled a positive commandment. The <b>SHULCHAN ARUCH</b> (OC 37:1) writes that since a clean body is necessary in order to be able to put on Tefilin, and since one is not allowed to let his attention wander from the Tefilin, the custom today is not to wear Tefilin all day, but one should be careful to wear Tefilin when he says Keri'as Shema and Shemoneh Esreh. See also <b>YOSEF DA'AS</b>.)
</p><p>
In contrast, the Mitzvah to have children requires that during the course of one's lifetime, he must endeavor to give birth to a boy and a girl. Once he has fulfilled this requirement, he is exempt from the Mitzvah. A man who procrastinates performing the Mitzvah to have children does not transgress the Mitzvah; he merely delays it. When he has a boy and a girl later in life, he fulfills the Mitzvah. In contrast, a man must wear Tefilin every day, and if he fails to wear Tefilin one day, he transgresses the Mitzvah.
</p><p>
The Maharit concludes that, in principle, a Shevu'ah is invalid only when it attempts to annul a Mitzvah permanently, but not when it attempts to annul a Mitzvah only temporarily. However, a Shevu'ah not to get married for a certain number of years is considered a Shevu'ah to annul a Mitzvah for a different reason. The <b>RAMBAM</b> (Hilchos Ishus 15:2) writes that a man who passes the age of twenty and does not get married annuls a positive Mitzvah every moment that he does not get married. (D. Bloom) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) FOR WHICH OATHS IS ONE LIABLE?</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah - R. Yishmael):</font></b> One is liable (a Korban) only
          for oaths about the future - 'Lehara Oh Leheitiv.'
<br>     <b><font color='darkgreen'>(b)  (Beraisa - R. Akiva) Question:</font></b> 'Lehara Oh Leheitiv'
          connotes oaths of doing harm (to oneself) or benefiting.
          What is the source to include 'neutral' oaths?
<br>     <b><font color='darkgreen'>(c)  Answer:</font></b> We learn from 'Oh Nefesh.'
<br>          <b><font color='darkgreen'>1.   Question:</font></b> 'Lehara Oh Leheitiv' connotes oaths of the
               future. What is the source to include oaths of the
               past?
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> We learn from 'L'Chol Asher Yevatei.'
<br>     <b><font color='darkgreen'>(d)</font></b>  R. Yishmael says, 'Lehara Oh Leheitiv' teaches only oaths
          of the future.
<br>     <b><font color='darkgreen'>(e)  R. Akiva:</font></b> What is your source for neutral oaths?
<br>     <b><font color='darkgreen'>(f)  R. Yishmael:</font></b> Extra words in the verse ('l'Chol Asher
          Yevatei') include them.
<br>     <b><font color='darkgreen'>(g)  R. Akiva:</font></b> Just like they include neutral oaths, they
          include also oaths of the past. (End of Beraisa)
<br>     <b><font color='darkgreen'>(h)  Question:</font></b> How can R. Yishmael answer R. Akiva's
          challenge?
<br>     <b><font color='darkgreen'>(i)  Answer (R. Yochanan):</font></b> R. Yishmael learned from R.
          Nechunyah ben Hakaneh, who expounds according to Klal
          u'Frat (general terms and specific terms). R. Akiva
          learned from Nachum Ish Gam Zu, who expounds according to
          Ribuy and Mi'ut (inclusions and exclusions);
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Akiva):</font></b> 'Oh Nefesh Ki Sishava' is a
               Ribuy. 'Lehara Oh Leheitiv' is a Mi'ut. 'L'Chol
               Asher Yevatei' is another Ribuy;
<br>               <b><font color='darkgreen'>i. </font></b>  From a Ribuy, Mi'ut, Ribuy we (initially)
                    include everything, then we exclude one thing,
                    other cases oaths about Mitzvos (Tosfos - also,
                    oaths that do not apply in the positive and
                    negative, and (according to Shmuel) oaths that
                    do not apply to the future).
<br>          <b><font color='darkgreen'>2.  </font></b> R. Yishmael expounds according to Klal u'Frat. 'Oh
               Nefesh...' is a Klal. 'Lehara Oh Leheitiv' is a
               Prat. 'L'Chol Asher Yevatei' is another Klal;
<br>               <b><font color='darkgreen'>i. </font></b>  From a Klal u'Frat u'Chlal we include things
                    similar to the specific, i.e. in the future;
<br>               <b><font color='darkgreen'>ii. </font></b> The Klal includes 'neutral' oaths. The Prat
                    excludes oaths, even of benefit or harm, in the
                    past.
<br>     <b><font color='darkgreen'>(j)  Question:</font></b> Why not say the contrary (and include oaths of
          the past, but exclude 'neutral' oaths)?
<br>     <b><font color='darkgreen'>(k)  Answer #1 (R. Yitzchak):</font></b> They should resemble 'Lehara Oh
          Leheitiv', i.e. the Isur (of a false oath) is due to 'Lo
          Yachel Devaro';
<br>          <b><font color='darkgreen'>1.  </font></b> The Isur of false oaths of the past is due to 'Lo
               Seshakeru.'
<br>     <b><font color='darkgreen'>(l)  Answer #2 (R. Yitzchak bar Avin):</font></b> 'Ki <i>Sishava Levatei</i>'
          - the Shevu'ah must precede the Bituy (the action he
          swears about), and not vice-versa;
<br>          <b><font color='darkgreen'>1.  </font></b> This excludes 'I ate' or 'I did not eat', for the
               action preceded the oath.
<br>
<b><font color='blue'>2) MISTAKEN OATHS</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Beraisa):</font></b> 'Ha'Adam bi'Shvu'ah' excludes Ones. 'V'Nelam'
          excludes Mezid. 'Mi'Menu' - he forgot the oath.
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> Perhaps he is liable even if he forgot
               that this is the item he swore about!
<br>          <b><font color='darkgreen'>2.   Rejection:</font></b> 'Bi'Shvu'ah v'Nelam' - he is liable for
               forgetting the oath, but not for forgetting the
               item.
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> The Beraisa said that 'ha'Adam bi'Shvu'ah'
          excludes Ones. What is the case?
<br>     <b><font color='darkgreen'>(c)  Answer:</font></b> It is like the case of Rav Kahana and Rav Asi;
<br>          <b><font color='darkgreen'>1.  </font></b> After learning from Rav, they argued about what Rav
               said. Each swore 'this is what Rav said.' Later Rav
               said like one of them. The other was worried that he
               had sworn falsely.
<br>          <b><font color='darkgreen'>2.   Rav:</font></b> Don't worry. This was Ones. (You swore what you
               believed was the truth.)
<br>     <b><font color='darkgreen'>(d)  (Beraisa):</font></b> 'Bi'Shvu'ah v'Nelam' - he is liable for
          forgetting the oath, but not for forgetting the item.
<br>     <b><font color='darkgreen'>(e)</font></b>  Chachamim of Eretz Yisrael laughed at this;
<br>          <b><font color='darkgreen'>1.  </font></b> It is possible to forget the oath and remember the
               item, e.g. he swore not to eat wheat bread, and
               thought that he swore 'I will eat', and knowingly
               ate it;
<br>          <b><font color='darkgreen'>2.   Objection:</font></b> How can one remember the oath and forget
               the item?!
<br>          <b><font color='darkgreen'>3.   Suggestion:</font></b> He swore not to eat wheat bread, and
               thought that he swore not to eat barley bread;
<br>               <b><font color='darkgreen'>i. </font></b>  He remembered the oath (that he would not eat),
                    but he forget which item he swore about.
<br>          <b><font color='darkgreen'>4.   Rejection:</font></b> Since he forgot which item he swore
               about, he forgot the oath!
<br>     <b><font color='darkgreen'>(f)  (R. Elazar):</font></b> The text of the Beraisa is mistaken. Any
          case of forgetting the item must entail forgetting the
          oath.
<br>     <b><font color='darkgreen'>(g)  Rebuttal (Rav Yosef):</font></b> One can forget the item without
          forgetting the oath!
<br>          <b><font color='darkgreen'>1.  </font></b> He swore not to eat wheat bread, and took what he
               thought was barley bread, but really it was wheat
               bread!
<br>     <b><font color='darkgreen'>(h)  Question (Abaye):</font></b> He is liable for what he ate. He did
          not know that he was eating what he swore about! (A
          second version in the Gemara asks this same question in
          different words.)
<br>     <b><font color='darkgreen'>(i)  Answer (Rav Yosef):</font></b> Since he would not have eaten had he
          known that it was wheat, this is called forgetting the
          item.
<br>     <b><font color='darkgreen'>(j)  Question (Rava):</font></b> If he forget the item and the oath, what
          is the law?
<br>     <b><font color='darkgreen'>(k)  Answer #1 (Rav Nachman):</font></b> Since he forgot the oath, he is
          liable.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> Why not say the contrary, since he forgot
               the item, he is exempt!
<br>     <b><font color='darkgreen'>(l)  Answer #2 (Rav Ashi):</font></b> It depends. If he would have
          refrained had he remembered the oath, this is like
          forgetting the oath, and he is liable;
<br>          <b><font color='darkgreen'>1.  </font></b> If he would have refrained had he remembered the
               item, this is like forgetting the item, and he is
               exempt.
<br>     <b><font color='darkgreen'>(m)  Objection (Ravina):</font></b> If he only remembered one of them, he
          would not refrain!
<br>     <b><font color='darkgreen'>(n)  Answer #3 (Ravina):</font></b> Rather, the law is the same in both
          cases. (Rashi - he is exempt; Rashba - Ravina did not
          decide what the law is.)
<br>     <b><font color='darkgreen'>(o)  Question (Rava):</font></b> When does one bring a Korban for an oath
          of Bituy of the past?
<br>
<br>

sjt:
<font><b>1) ONE WHO FORGOT THE SHEVU'AH OR THE OBJECT</b></font>
<br>QUESTION: A Beraisa derives from the verse, 'b'Shevu'ah v'Ne'elam' -- [... whatever a man will utter] with an oath, and it is later concealed from him' (Vayikra 5:4), that one is obligated to bring a Korban for transgressing his Shevu'ah only when he forgot about his Shevu'ah. The words 'b'Shevu'ah v'Ne'elam' teach that he is obligated only when he forgot the Shevu'ah, but not when he remembered the Shevu'ah but forgot merely on which object he made the Shevu'ah.
</p><p>
The Gemara relates that they laughed about this law in Eretz Yisrael. They argued that it is possible to find a case in which a person forgot about the Shevu'ah but did not forget the object. For example, the person swore, 'I will not eat wheat bread,' and afterwards he mistakenly thought that he had taken a Shevu'ah that, 'I will eat wheat bread.' In such a case, he forgot his Shevu'ah but remembered the object on which it had been made. How, though, is it possible to find a case in which a person forgot the object but not the Shevu'ah? The Gemara suggests that such a case exists when a person swore, 'I will not eat wheat bread,' but thought he had said, 'barley bread'; he remembered the Shevu'ah but forgot the object.
</p><p>
The Gemara refutes this suggestion and says that if he forgot the object on which he had made the Shevu'ah, then he forgot the very Shevu'ah itself. Therefore, Rebbi Elazar says, 'Da v'Da Achas Hi' -- 'Both this and this are the same thing.'
</p><p>
<b>RASHI</b> (DH Achas) explains that indeed there is no case in which a person forgot the object without forgetting the Shevu'ah. Therefore, the Beraisa which states that one is exempt when he forgot only the object is 'Einah Mishnah' and is unreliable.
</p><p>
However, the <b>CHIDUSHEI HA'RAN</b> records an opinion that explains that it is possible that the Beraisa indeed is correct. 'Both this and this are the same thing' means that 'both this' -- if one forgot the Shevu'ah and not the object, 'and this' -- if one forgot the object alone, 'are the same thing' -- in both cases the person is considered as though he forgot the Shevu'ah. If, however, one forgot both the Shevu'ah and the object he is exempt. Accordingly, the Halachah <i>does</i> follow the Beraisa, which teaches that if one forgot only the Shevu'ah he is liable, while if one forgot both the Shevu'ah and the object, he is exempt.
</p><p>
However, the Chidushei ha'Ran's explanation seems problematic according to the continuation of the Gemara (end of 26a). The Gemara relates that Rava asked Rav Nachman what the Halachah is in a case in which he forgot both the Shevu'ah and the object. Why does Rava ask this question if this is the exact law taught by the Beraisa?
</p><p>
This question is not problematic according to Rashi, because he maintains that the Beraisa discusses forgetting the Shevu'ah alone or forgetting the object alone. However, according to the Chidushei ha'Ran who explains that the Beraisa discusses forgetting both the Shevu'ah and the object when it says that one is exempt, why does Rava not answer his own question from the Beraisa?
</p><p>
ANSWER: The <b>CHIDUSHEI HA'RAN</b> explains that Rava asked his question according to the opinion of Rav Yosef, whose opinion is expressed in the Gemara here immediately after Rebbi Elazar's statement that, 'Da v'Da Achas Hi.' Rav Yosef understood that according to Rebbi Elazar, there is no case in which one forgot the object but not the Shevu'ah. Rav Yosef challenged this by suggesting that such a case indeed exists, where a person swears, 'I will not eat wheat bread,' and then he stretches his hand into a basket to take out barley bread and inadvertently takes out wheat bread, which he thinks is barley bread, and eats it. In this case, he remembered the Shevu'ah but did not know about the object.
</p><p>
Rav Yosef therefore understood that the Beraisa discusses a person who either forgot the Shevu'ah and remembered the object, or forgot the object and remembered the Shevu'ah. The Beraisa does <i>not</i> discuss a person who forgot both the Shevu'ah and the object. The question that Rava asked Rav Nachman -- what is the law in the case of a person who forgot both the Shevu'ah and the object -- therefore is a valid question according to Rav Yosef's understanding. (See also <b>RAMBAN</b> and <b>RASHBA</b>.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) VOWS AND OATHS MUST BE SAID</font></b>
<b><font color='darkgreen'>    </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>         <b><font color='darkgreen'>1.   (Shmuel):</font></b> It does not suffice to think the oath. He
              must say it - 'Levatei bi'Sfasayim.'
<br>         <b><font color='darkgreen'>2.   Question (Beraisa):</font></b> 'Bi'Sfasayim' - not in the
              heart. 'L'Chol Asher Yevatei' teaches (that it is an
              oath) even if he resolved in his heart
<br>              <b><font color='darkgreen'>i.   Objection:</font></b> The Seifa contradicts the Reisha!
<br>              <b><font color='darkgreen'>ii.  Answer #1 (Rav Sheshes):</font></b> 'Bi'Sfasayim' excludes
                   one who resolved to say an oath, and never
                   uttered it. If he resolved to accept an oath in
                   his heart, this is binding.
<br>         <b><font color='darkgreen'>3.   Answer (and Answer #2 - Rav Sheshes):</font></b> 'Bi'Sfasayim'
              excludes one who wanted to forbid wheat bread, and
              mistakenly said 'barley bread';
<br>         <b><font color='darkgreen'>4.   Question:</font></b> If he wanted to swear 'I will not eat
              wheat bread', and he mistakenly swore 'I will not
              eat bread', what is the source that this is an oath?
<br>         <b><font color='darkgreen'>5.   Answer:</font></b> We learn from 'l'Chol Asher Yevatei.'
<br>         <b><font color='darkgreen'>6.   Question (Beraisa):</font></b> 'Motzei Sefasecha Tishmor'
              refers to what he uttered (vows to bring Korbanos).
              'Kol Nediv Lev' (donated towards the Mishkan)
              teaches (that it is a vow) even if he decided in his
              heart.
<br>         <b><font color='darkgreen'>7.   Answers:</font></b> We learn from 'Kol Nediv Lev' that intent
              suffices for Hekdesh. It is not enough for an oath.
              We do not oaths from Hekdesh, because Terumah and
              Kodshim are Shnei Kesuvim ha'Ba'in k'Echad (both of
              them teach that deciding in the heart is enough).
              They do not teach about other laws. Alternatively,
              we do not learn laws of Chulin (oaths) from Kodshim.
<br>         <b><font color='darkgreen'>8.   Nedarim 20a Mishnah - R. Meir):</font></b> If one said '(this
              is like) Cherem' and said later that he meant a
              fishing net (it is also called Cherem), he need not
              ask a Chacham to permit it. If he asks, we punish
              him and are stringent on him:
<br>         <b><font color='darkgreen'>9.   (Rav Yehudah):</font></b> A Chacham need not ask to permit his
              vow. If an Am ha'Aretz vowed and asks to permit it,
              we punish him and are stringent on him.
<br>         <b><font color='darkgreen'>10.  27b (Mishnah):</font></b> One may vow falsely to extortionists.
<br>         <b><font color='darkgreen'>11.  28a - Question:</font></b> If he says '(all) Peros are
              forbidden to me if this is not the king's', they
              indeed become forbidden to him!
<br>         <b><font color='darkgreen'>12.  Answer:</font></b> He says, '(all) Peros are forbidden to me
              <i>today</i> if this is not the king's'. He says 'today'
              only in his heart, but not with his lips. Even
              though unspoken conditions are ignored, in the case
              of Ones they are valid.
<br>         <b><font color='darkgreen'>13.  Pesachim 62b (Beraisa - Others):</font></b> (If one slaughtered
              Korban Pesach with intent that Mulim and Arelim
              (circumcized and uncircumcized men) eat from it,) if
              intent for Mulim was first, it is Kosher. If intent
              for Arelim was first, it is Pasul.
<br>         <b><font color='darkgreen'>14.  (Rabah):</font></b> He intended for both of them, but did not
              finish saying the second intent until after
              slaughter. R. Meir (Others) does not require
              equality of mouth and heart, so only the first
              intent takes effect, unlike his desire.
<br>         <b><font color='darkgreen'>15.  Objection (Mishnah):</font></b> If one intended (to vow or
              swear) 'I will not enter this house', and he
              mistakenly said another house, his words do not take
              effect, unless there is equality of mouth and heart.
              (A Stam Mishnah is R. Meir.)
<br><b><font color='darkgreen'>    (b)  Rishonim</font></b>
<br>         <b><font color='darkgreen'>1.   Rif and Rosh (3:14):</font></b> If one intended to vow from
              wheat bread, and he said 'barley bread', wheat bread
              is permitted, for he did not say it. Barley bread is
              permitted, for he did not intend to say it. His
              mouth and heart must be the same. However, if he
              intended to vow from wheat bread, and he said only
              'bread', he is forbidden wheat bread, for it is
              called bread, and his mouth and heart were the same.
              Also, a Mishnah teaches that if one intended to say
              'Olah' and said 'Shelamim', or vice-versa, or he
              intended to say 'I will not enter this house' or
              'benefit from Ploni', and he said 'I will not enter
              that house' or 'benefit from Almoni', his words have
              no effect, for his mouth and heart were not the
              same.
<br>         <b><font color='darkgreen'>2.   Rosh:</font></b> Shmuel taught about Shevuos, and the same
              applies to Nedarim. In Nedarim, we say that Devarim
              sheb'Lev are valid only in a case of Ones. If so,
              when he meant to say 'wheat bread', and he said only
              'bread', he should be forbidden all bread! The
              Ramban answered that there is different, for he did
              not err. He intends to say forever (Piplulei
              Charifta (1) - i.e. to say Stam, which forbids
              forever), but he intends in his heart 'today',
              therefore, his mouth overrides, for Devarim sheb'Lev
              Einam Devarim. Here, what he said was a mistake,
              therefore, we ignore what he said. Letter of the
              law, also his intent should be Batel, for his lips
              did not say his intent. A verse teaches that we
              follow his intent, for his mouth did not contradict
              it, for wheat bread is called bread.
<br>         <b><font color='darkgreen'>3.   Rambam (Hilchos Shevuos 2:10):</font></b> If one intended in
              his heart not to eat today, and it should be
              forbidden through a Shevu'ah, but he did not say it
              with his lips, he is permitted.
<br>         <b><font color='darkgreen'>4.   Rambam (12):</font></b> If one swore 'I will not eat today',
              and he ate, and they wanred him, and he said 'I
              meant to forbid leaving. My tongue slipped, and I
              said 'eat' by mistake, he is not lashed.
<br>              <b><font color='darkgreen'>i.   Kesef Mishneh:</font></b> This is like a Tosefta (Taharos
                   6:9) and Toras Kohanim. However, the Ra'avad in
                   Toras Kohanim explains that he is believed to
                   say 'I had a Tanai (condition) in my heart, and
                   based on it, a Chacham permitted my vow.' Had
                   he not asked a Chacham, Devarim sheb'Lev Einam
                   Devarim. We need not say so. We can say that he
                   said his Tanai quietly with his lips.
<br>         <b><font color='darkgreen'>5.   Rambam (14):</font></b> If he resolved in his heart not to eat
              wheat bread, and he swore about bread Stam, he is
              forbidden wheat bread, for it is called bread.
<br>         <b><font color='darkgreen'>6.   Rambam (Hilchos Nedarim 2:2):</font></b> One who vows is
              forbidden only if he said it with his lips and his
              mouth and heart were the same, like we explained in
              Shevuos.
<br>         <b><font color='darkgreen'>7.   Mordechai (Shevuos 755):</font></b> Avi ha'Ezri explains that
              the case when he resolved in his heart to say wheat
              bread, and he said bread Stam, is when he thinks
              that he said wheat bread. Do not say that he knows
              that he said bread Stam, and intended to merely
              think 'I intend only for wheat bread.' If so, he
              would be forbidden Stam bread, for Devarim sheb'Lev
              Einam Devarim.
<br>              <b><font color='darkgreen'>i.   Beis Yosef (YD 210 DH Kosav ha'Mordechai):</font></b> The
                   Sugya seems unlike this.
<br>         <b><font color='darkgreen'>8.   Mordechai (ibid.):</font></b> Some err and transgress Shevuos,
              for they rely on what it says in Nedarim (that one
              may limit an oath based on intent in his heart).
              There is different, for it is Ones. Maseches Kalah
              brings a case in which R. Akiva swore (to bring a
              woman to the world to come if she will reveal the
              lineage of her brazen son), and he annulled his oath
              (while saying it) in his heart. That was the
              ultimate Ones, for he needed to clarify a Halachah
              (if the impudence was due to being a Mamzer or a Ben
              Nidah or both). Some say that he quietly said words
              to invalidate his oath, and she did not hear him; he
              swore based on his own intent, and not on hers.
<br>         <b><font color='darkgreen'>9.   Tosfos (26b DH Gamar):</font></b> One may vow to extortionists
              Stam, and intend in his heart that it is only for
              one day, but only due to Ones. Here, without Ones
              his intent affects the vow! There we discuss an Am
              ha'Aretz (ignoramus). He is permitted only due to
              Ones, lest he take Nedarim lightly. Here we discuss
              a Chacham. In Nedarim (20a) we are more lenient
              about Chachamim. Alternatively, perhaps regarding
              Ones we allow even when vowing Al Da'as (based on
              the understanding of) the extortionist. This is
              permitted only regarding Ones. Alternatively, here
              we follow his heart because Stam bread is of wheat.
<br><b><font color='darkgreen'>    (c)  Poskim</font></b>
<br>         <b><font color='darkgreen'>1.   Shulchan Aruch (YD 210:1):</font></b> A Neder does not take
              effect until he says it with his lips, and his mouth
              and heart are the same. Therefore, if he intended to
              vow from wheat bread, and he said 'barley bread',
              both are permitted. However, if he intended to vow
              from wheat bread (Rema - or barley bread), and he
              said only 'bread', he is forbidden wheat (Rema -or
              barley) bread.
<br>              <b><font color='darkgreen'>i.   Shach (2):</font></b> Also barley bread is included in
                   Stam bread. The Bach says that if he
                   intentionally said bread Stam, with intent only
                   for wheat bread, all the Poskim forbid all
                   bread, for Devarim sheb'Lev Einam Devarim. This
                   is unlike the Beis Yosef.
<br>              <b><font color='darkgreen'>ii.  Gra (3):</font></b> If one vowed on his own Da'as, he is
                   believed to say that he had a Tanai in mind
                   (Tosefta Taharos 6:9).
<br>              <b><font color='darkgreen'>iii. Maharik (112, brought in Beis Yosef DH v'Chosav
                   Mahari):</font></b> If Reuven swore to pay Shimon on a
                   certain day in Ploni (Shimon's city), and due
                   to Ones Shimon needed to leave the city that
                   day, if Shimon is now further from Reuven than
                   Ploni is, surely Reuven need not take the money
                   to him. If it is the same distance, Reuven is
                   obligated, even though his oath mentioned only
                   Ploni. How can the oath take effect on what he
                   did not say? We require 'Levatei bi'Sfasayim'
                   (to say it)! This refers to oaths and vows of
                   Isur. When one swears to another to fulfill a
                   stipulation, it depends on the stipulation.
                   Whatever the stipulation takes effect on, the
                   oath takes effect on.
<br>         <b><font color='darkgreen'>2.   Shulchan Aruch (239:1):</font></b> Shevuos are like Nedarim in
              every way, i.e. one must say it with his lips.
<br>
<font color='blue'><i>See also:</i>
<br><b>SHEVUOS ARE BASED ON DA'AS BEIS DIN </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>1.  </font></b> If he intentionally swore falsely, he is Mezid!
<br>          <b><font color='darkgreen'>2.  </font></b> If he believed that he swore truthfully, he is Ones!
<br>     <b><font color='darkgreen'>(p)  Answer (Rabah):</font></b> He swore falsely, knowing that this is
          forbidden, but he did not know whether a Korban is
          brought for such oaths.
<br>     <b><font color='darkgreen'>(q)  Suggestion:</font></b> This is like Munvaz, who says that if one
          knowingly sinned, unaware that a Korban is brought for
          this transgression, he must bring a Korban.
<br>     <b><font color='darkgreen'>(r)  Rejection:</font></b> It is even like Chachamim.
<br>          <b><font color='darkgreen'>1.  </font></b> Chachamim argue only about Korbanos for other
               Mitzvos;
<br>               <b><font color='darkgreen'>i. </font></b>  We learn from idolatry that Korbanos are
                    brought only for transgressions punishable by
                    Kares (if done b'Mezid);
<br>          <b><font color='darkgreen'>2.  </font></b> The Korban for Shevu'as Bituy is a Chidush. Since
               this is only a Lav, Chachamim agree that forgetting
               the Korban suffices to obligate a Korban.
<br>
<b><font color='blue'>3) ONE WHO IS SUFFERING</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Question (Ravina):</font></b> If one swore not to eat a loaf, and
          later was in danger of starving and ate it (forgetting
          that he swore not to eat it), what is the law?
<br>          <b><font color='darkgreen'>1.   Objection:</font></b> If he is in danger, he was permitted to
               eat it. He did not transgress!
<br>     <b><font color='darkgreen'>(b)  Version #1 - Rashi - Correction:</font></b> Rather, if he swore not
          to eat a loaf, and was suffering great hunger and ate it,
          forgetting his oath), what is the law?
<br>     <b><font color='darkgreen'>(c)  Version #2 - Tosfos - Correction:</font></b> Rather, if he swore not
          to eat a loaf, and was pained that he remembered his oath
          (he wished he had forgotten it, for then he could eat
          it), and ate it, what is the law?
<br>     <b><font color='darkgreen'>(d)  Version #3 - Rambam - Correction:</font></b> Rather, if he swore not
          to eat a loaf, and was suffering great hunger and ate it,
          thinking that this is permitted (due to his pain), what
          is the law? (end of Version #2)
<br>     <b><font color='darkgreen'>(e)  Answer (Rava - Beraisa):</font></b> If one would have refrained had
          he known that he is transgressing, he brings a Korban.
          One who would have transgressed anyway does not. (Since
          he would have eaten it anyway (Tosfos - wanted to eat
          it), he is exempt.)
<br>
<b><font color='blue'>4) MUST THE OATH BE SPOKEN?</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Shmuel):</font></b> It does not suffice to think the oath. He must
          say it - 'Levatei bi'Sfasayim.'
<br>     <b><font color='darkgreen'>(b)  Question (Beraisa):</font></b> 'Bi'Sfasayim' - not in the heart;
<br>          <b><font color='darkgreen'>1.   Question:</font></b> What is the source (that it is an oath)
               even if he resolved in his heart?
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> We learn from 'l'Chol Asher Yevatei.'
<br>          <b><font color='darkgreen'>3.   Objection:</font></b> This contradicts the Reisha, which said
               that an oath in the heart is not an oath!
<br>          <b><font color='darkgreen'>4.   Answer #1 (Rav Sheshes):</font></b> 'Bi'Sfasayim' excludes one
               who resolved to say an oath, and never uttered it;
<br>               <b><font color='darkgreen'>i. </font></b>  If he resolved to accept an oath in his heart,
                    this is binding.
<br>          <b><font color='darkgreen'>5.  </font></b> This understanding of the Beraisa argues with
               Shmuel!
<br>     <b><font color='darkgreen'>(c)  Answer (for Shmuel, and Answer #2 to explain the Beraisa
          - Rav Sheshes):</font></b> 'Bi'Sfasayim' excludes one who wanted to
          swear 'I will not eat wheat bread', and he mistakenly
          said 'I will not eat barley bread';
<br>          <b><font color='darkgreen'>1.   Question:</font></b> If he wanted to swear 'I will not eat
               wheat bread', and he mistakenly swore 'I will not
               eat bread', what is the source that this is an oath?
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> We learn from 'l'Chol Asher Yevatei.'
<br>     <b><font color='darkgreen'>(d)  Question (Beraisa):</font></b> 'Motzei Sefasecha Tishmor' refers to
          what he uttered (vows to bring Korbanos);
<br>          <b><font color='darkgreen'>1.   Question:</font></b> What is the source (that it is a vow) even
               if he decided in his heart?
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> 'Kol Nediv Lev' (donated towards the
               Mishkan).
<br>     <b><font color='darkgreen'>(e)  Answer:</font></b> Speech is not needed to make Hekdesh, like we
          learn from 'Kol Nediv Lev', but it is needed for an oath.
<br>     <b><font color='darkgreen'>(f)  Question:</font></b> We should learn that the same applies to oaths!
<br>     <b><font color='darkgreen'>(g)  Answer #1:</font></b> We do not learn, because Terumah and Kodshim
          are Shnei Kesuvim ha'Ba'in k'Echad (two verses, one of
          which teaches something that could have been learned from
          the other, in this case that deciding in the heart is
          enough). They do not teach about other laws. (Rashi -
          this refers to Terumas (donations to) ha'Mishkan and
          Korbanos; Tosfos - it is Terumah (of grain) and Korbanos;
          R. Chananel, Tosfos ha'Rosh - it is Terumah (of grain)
          and donations to the Mishkan. For each of these, a
          <i>Torah</i> verse teaches that speech is not needed.)
<br>     <b><font color='darkgreen'>(h)  Question:</font></b> This is like the opinion that Shnei Kesuvim
          ha'Ba'in k'Echad do not teach about other laws;
<br>          <b><font color='darkgreen'>1.  </font></b> According to the opinion that Shnei Kesuvim
               <i>do</i>teach about other laws, how can we answer?
<br>     <b><font color='darkgreen'>(i)  Answer #2:</font></b> We do not learn laws of Chulin (oaths) from
          Kodshim. 
<br>

sjt:
</p><p>
<font><b>2) ONE WHO VIOLATES HIS SHEVU'AH UNKNOWINGLY</b></font>
<br>OPINIONS: Ravina asked Rava what the law is in the case of a person who made a Shevu'ah not to eat a loaf of bread and then became dangerously ill. Rava replied that in a case of mortal danger, Ravina certainly would agree that one is permitted to eat the bread. Ravina explained that his question involved a person who was not in danger but was 'Mitzta'er' -- he was suffering from not being able to eat the bread, who ate the bread when he forgot his Shevu'ah.
</p><p>
(a) <b>RASHI</b> (DH Mitzta'er) writes that the person was hungry, and even if he would have remembered his Shevu'ah he still would have eaten the bread. (The <b>CHOCHMAS SHLOMO</b> emends the text of Rashi so that it does not mention hunger, but rather that the person was 'Mitzta'er' on the matter.) However, since he indeed forgot his Shevu'ah and ate the bread inadvertently, he is exempt. (The reason why the Gemara says that he forgot his Shevu'ah is that Gemara earlier (26a) states that one is obligated to bring a Korban only when he forgot about his Shevu'ah and then transgressed it.)
</p><p>
Rava answered Ravina's question on the basis of the Beraisa that says that only when a person is 'Shav mi'Yedi'aso' must he bring a Korban for an inadvertent violation of a Shevu'ah. This means that a person must bring a Korban only when he originally knew about the prohibition and then became unaware of it.
</p><p>
In contrast, in the case of the Gemara here, even if the person would have known about his Shevu'ah that prohibited the bread, he still would have eaten it.
</p><p>
(b) <b>TOSFOS</b> (DH Mitzta'er) disagrees with Rashi's explanation. If the Gemara refers to a person who would have eaten the bread even if he had remembered his Shevu'ah, there is no need for Ravina to mention in his question that the person was suffering as a result of the prohibition against eating the bread. (See <b>TOSFOS HA'ROSH</b> who asks a different question on Rashi: since the person would have eaten the bread even if he had remembered the Shevu'ah, it is obvious that his act is not considered 'Shav mi'Yedi'aso,' and therefore Ravina would not have asked such a question.)
</p><p>
Tosfos explains instead that when the Gemara mentions 'Mitzta'er,' it means that the person who made the Shevu'ah was <i>upset</i> at the fact that he could not forget his Shevu'ah. He wished that he could forget it so that he could eat the bread. However, as long as he remembered the Shevu'ah, he would not deliberately eat it.
</p><p>
Tosfos writes that Rava answered this question that this is not considered 'Shav mi'Yedi'aso' because he deliberately wanted to forget in order to eat the bread. (According to our text of Tosfos, Rava said, 'u'Peshita' -- 'and it is obvious.' However, the text of the Tosfos ha'Rosh reads 'u'Pashit' -- 'and he answered.')
</p><p>
The Tosfos ha'Rosh adds that the person's desire was eventually fulfilled; he eventually forgot his Shevu'ah and ate the bread. However, Rava ruled that he is exempt from a Korban, because although he forgot his Shevu'ah, he <i>wanted</i> to forget it and thus he is not considered 'Shav mi'Yedi'aso,' unaware of the Shevu'ah at the time he violated it.
</p><p>
(c) The <b>RAMBAM</b> (Hilchos Shevu'os 3:11) explains that the person who ate the bread did so because he was in pain as a result of not being able to eat it, and therefore he wrongly assumed that because of his discomfort he in fact was permitted to eat the bread. Rava ruled that he is exempt from a Korban because he is not 'Shav mi'Yedi'aso.' The Rambam explains that this is because he knew that the bread was forbidden but he mistakenly assumed that he was permitted to eat it.
</p><p>
The <b>LECHEM MISHNEH</b> writes that this is not considered 'Shav mi'Yedi'aso' because nothing changed in the person's awareness about the forbidden loaf. Rather, the only thing that changed was the person's knowledge of the law; initially he knew that the bread was forbidden, and later -- when he was suffering from not being able to eat it -- he mistakenly thought that the law permits him to eat it. This is not considered 'Shav mi'Yedi'aso,' a status which applies only when the person originally knew that the object was forbidden and then forgot that the object was forbidden. (D. Bloom) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) OATHS ABOUT MITZVOS</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Version #1 - Rashi - (Mishnah):</font></b> If one swore not to
          fulfill a Mitzvah and fulfilled it, he is exempt;
<br>     <b><font color='darkgreen'>(b)</font></b>  If he swore to fulfill a Mitzvah and did not fulfill it,
          he is exempt.
<br>          <b><font color='darkgreen'>1.  </font></b> One might have thought to obligate him from a Kal
               va'Chomer, like R. Yehudah ben Beseira does;
<br>     <b><font color='darkgreen'>(c)</font></b>  Version #2 - Tosfos - (Mishnah - R. Yehudah ben Beseira):
          If one swore not to fulfill a Mitzvah and fulfilled it,
          he is exempt;
<br>     <b><font color='darkgreen'>(d)</font></b>  If he swore to fulfill a negative Mitzvah and did not
          fulfill it, he is exempt.
<br>          <b><font color='darkgreen'>1.  </font></b> One might have thought to obligate him from a Kal
               va'Chomer; (end of Version #2)
<br>          <b><font color='darkgreen'>2.  </font></b> One is liable (to bring the Korban for transgressing
               an oath of Bituy) for Reshus, and all the more so
               for an oath about a Mitzvah, for which he is already
               bound by the oath of Sinai!
<br>          <b><font color='darkgreen'>3.   Chachamim:</font></b> This is not so (even for positive
               Mitzvos). One is liable for Reshus, for they apply
               in the negative just like in the positive;
<br>               <b><font color='darkgreen'>i. </font></b>  He is exempt for an oath about a Mitzvah, since
                    there is no liability for breaking an oath not
                    to fulfill the Mitzvah.
<br>     <b><font color='darkgreen'>(e)  (Gemara - Beraisa):</font></b> Suggestion: If one swore not to
          fulfill a Mitzvah and fulfilled it, he should be liable!
<br>     <b><font color='darkgreen'>(f)  Rejection:</font></b> 'Lehara Oh Leheitiv' - just like Leheitiv (to
          do good) does not refer to a Mitzvah (later, we shall
          explain how we know this), also Lehara (to do evil) does
          not refer to a Mitzvah;
<br>          <b><font color='darkgreen'>1.  </font></b> This excludes one who swore not to fulfill a Mitzvah
               and fulfilled it. He is exempt.
<br>          <b><font color='darkgreen'>2.   Suggestion:</font></b> If one swore to fulfill a Mitzvah and
               did not fulfill it, he should be liable.
<br>          <b><font color='darkgreen'>3.   Rejection:</font></b> 'Lehara Oh Leheitiv' - just like Lehara
               does not refer to a Mitzvah, also Leheitiv;
<br>               <b><font color='darkgreen'>i. </font></b>  This excludes one who swore to fulfill a
                    Mitzvah and did not fulfill it. He is exempt.
<br>          <b><font color='darkgreen'>4.   Suggestion:</font></b> If one swore to harm himself and did not
               fulfill it, he should be exempt.
<br>          <b><font color='darkgreen'>5.   Rejection:</font></b> 'Lehara Oh Leheitiv' - just like Leheitiv
               is Reshus, also Lehara;
<br>               <b><font color='darkgreen'>i. </font></b>  This includes one who swore to harm himself
                    (Tosfos - our Tana allows harming oneself; Ran
                    - since the Torah does not explicitly forbid
                    this, an oath to do so takes effect) and did
                    not fulfill it, he is liable.
<br>          <b><font color='darkgreen'>6.   Suggestion:</font></b> If one swore to harm others and did not
               fulfill it, he should be liable.
<br>          <b><font color='darkgreen'>7.   Rejection:</font></b> 'Lehara Oh Leheitiv' - just like Leheitiv
               is Reshus, also Lehara;
<br>               <b><font color='darkgreen'>i. </font></b>  This excludes one who swore to harm others (the
                    oath did not take effect, since the Torah
                    explicitly forbids this) and did not fulfill
                    it. He is exempt.
<br>          <b><font color='darkgreen'>8.   Question:</font></b> What is the source to include one who
               swears to benefit others?
<br>          <b><font color='darkgreen'>9.   Answer:</font></b> We learn from 'Oh Leheitiv.'
<br>               <b><font color='darkgreen'>i. </font></b>  An example of harming others is striking them.
<br>     <b><font color='darkgreen'>(g)  Question:</font></b> The Tana assumed that the verse discusses good
          and evil of Reshus. What is his source? Perhaps it
          discusses (even) Mitzvos! (Tosfos - evil could be an oath
          not to eat Matzah.)
<br>     <b><font color='darkgreen'>(h)  Answer #1:</font></b> It cannot be Mitzvos, for we equate Leheitiv
          and Lehara in both directions;
<br>          <b><font color='darkgreen'>1.  </font></b> Just like Leheitiv (e.g. eating) cannot entail not
               fulfilling a Mitzvah (for that is detrimental to a
               person), also Lehara (e.g. not eating) cannot entail
               not fulfilling a Mitzvah;
<br>               <b><font color='darkgreen'>i. </font></b>  Rather, Lehara must be fulfillment of a
                    Mitzvah, (e.g. not eating Neveilos). However,
                    this is included in Leheitiv!
<br>          <b><font color='darkgreen'>2.  </font></b> Likewise, just like the case of Lehara (e.g. not
               eating) cannot entail fulfilling a Mitzvah (for that
               benefits a person), also Leheitiv cannot entail
               fulfilling a Mitzvah;
<br>               <b><font color='darkgreen'>i. </font></b>  Rather, Leheitiv must be transgression of a
                    Mitzvah (e.g. to eat Neveilos). However, this
                    is included in Lehara!
<br>          <b><font color='darkgreen'>3.   Conclusion:</font></b> The verse must discuss good and evil of
               Reshus.
<br>     <b><font color='darkgreen'>(i)  Rejection:</font></b> The same reasoning shows that it does not
          discuss good and evil of Reshus!
<br>          <b><font color='darkgreen'>1.  </font></b> (Just like Leheitiv (e.g. eating) cannot entail
               eating harmful food (for that is detrimental), also
               Lehara cannot harm the body;
<br>               <b><font color='darkgreen'>i. </font></b>  Rather, Lehara must be refraining from harmful
                    food. This is included in Leheitiv!
<br>               <b><font color='darkgreen'>ii. </font></b> Similarly, we may show that Leheitiv must be
                    eating harmful food, but this is included in
                    Lehara!
<br>     <b><font color='darkgreen'>(j)  Answer #2:</font></b> Rather, since the Torah had to write '<i>Oh</i>
          Leheitiv' to include benefiting others, we conclude that
          the verse discusses good and evil of Reshus;
<br>          <b><font color='darkgreen'>1.  </font></b> If it referred to Mitzvos, having taught that oaths
               apply to harming others, there would be no need to
               teach that they apply to helping others!
<br>     <b><font color='darkgreen'>(k)  Question:</font></b> This answer is like R. Yonason. (We expound
          'Oh', for the Torah could have written a 'Vov'
          (u'Leheitiv), and we would not have erred to think that
          the oath must discuss harm <i>and</i> benefit.) How can R.
          Yoshiyah answer?
<br>          <b><font color='darkgreen'>1.   (Beraisa - R. Yoshiyah):</font></b> 'A man who will curse Es
               Aviv v'Es Imo' teaches only if he curses both;
<br>               <b><font color='darkgreen'>i. </font></b>  'Aviv v'Imo Kilel' includes even if he curses
                    only one of them ('curse' is put adjacent to
                    each parent).
<br>          <b><font color='darkgreen'>2.  </font></b> R. Yonason says, a 'Vov' (and) connotes even one of
               them, unless the Torah explicitly says 'together'
               (like it does regarding Kilayim).
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN A SHEVU'AH TO DO A MITZVAH AND A SHEVU'AH TO DO AN AVEIRAH</b></font>
<br>QUESTION: The Mishnah states that one who makes a Shevu'ah that he will annul a Mitzvah is exempt from a Korban if he does not fulfill his Shevu'ah. Similarly, one who makes a Shevu'ah that he will perform a Mitzvah is exempt from a Korban if he does not perform the Mitzvah. The Mishnah says that logically he should be liable for such a Shevu'ah (in the case of a Shevu'ah to perform a Mitzvah; <b>RASHI</b> DH she'Hayah), based on Rebbi Yehudah ben Beseira's Kal va'Chomer that one is liable for violating such a Shevu'ah. His Kal va'Chomer states that if one is obligated to bring a Korban for not fulfilling a Shevu'ah to perform an optional action, which one did not obligated himself with a Shevu'ah at Har Sinai to perform, then one certainly is obligated to bring a Korban for not fulfilling a Shevu'ah to do a Mitzvah, which one obligated himself with a Shevu'ah at Har Sinai to perform.
</p><p>
Rebbi Yehudah ben Beseira's logic seems to contradict the principle of 'Ein Isur Chal Al Isur' -- once an object is prohibited with an Isur Torah, it cannot become prohibited again with another Isur Torah. Why does Rebbi Yehudah ben Beseira say that a Shevu'ah to perform a Mitzvah takes effect, if this contradicts the principle of 'Ein Isur Chal Al Isur'? (See <b>TOSFOS</b> DH Mitzvah.)
</p><p>
(One might attempt to answer that the principle of 'Ein Isur Chal Al Isur' does not contradict Rebbi Yehudah ben Beseira's statement, because the Gemara in Chulin (113b) derives this principle from the verse that teaches the prohibition for a Kohen to eat Terumah when he is Tamei: 'And they shall die for it, because the desecrated it' (Vayikra 22:9). The Gemara derives from this verse that if the Terumah has already become forbidden for a different reason (for example, it is Tamei), the Kohen who is Tamei is not obligated to bring a Korban for eating it. Therefore, perhaps 'Ein Isur Chal Al Isur' applies only where it is taught by a specific verse. Since no verse teaches that a Shevu'ah does not apply to a Mitzvah, 'Ein Isur Chal Al Isur' does not apply.
</p><p>
However, this does not resolve the contradiction, because even if a specific verse is needed to teach that 'Ein Isur Chal Al Isur' applies, this principle still presents a Pircha (contradiction) to the Kal va'Chomer: how can Rebbi Yehudah ben Beseira derive a Kal va'Chomer from a Shevu'ah to perform a voluntary act to a Shevu'ah to perform a Mitzvah? Perhaps a Mitzvah is different because a Shevu'ah cannot apply to it because of 'Ein Isur Chal Al Isur.')
</p><p>
ANSWER: The <b>TOSFOS HA'ROSH</b> answers that even Rebbi Yehudah ben Beseira agrees that a Shevu'ah not to transgress a prohibition (for example, 'I will not eat Neveilah') does not take effect. He maintains only that a Shevu'ah to perform a positive Mitzvah (for example, 'I will eat Matzah') takes effect.
</p><p>
The Tosfos ha'Rosh writes that the correct text in the Mishnah is the text which Rashi (DH she'Hayah) rejects. According to Rashi, the correct text in the second part of the Mishnah reads:
</p><p>
'If a person made a Shevu'ah to perform a Mitzvah and he did not perform it, he is exempt, even though logically he should be liable as Rebbi Yehudah ben Beseira says.'
</p><p>
The text which Rashi rejects, but which the Rosh accepts, reads:
</p><p>
'If a person made a Shevu'ah to perform a Mitzvah and he did not perform it, he is exempt. These are the words of Rebbi Yehudah ben Beseira.'
</p><p>
The Rosh explains this text as follows: 'If one made a Shevu'ah to perform a Mitzvah (such as, 'I will not eat Neveilah') he is exempt. Rebbi Yehudah ben Beseira explains, 'Logically, he should have been liable for this on the basis of the same Kal va'Chomer which, I maintain, obligates one to bring a Korban when he transgresses his Shevu'ah to fulfill a positive Mitzvah. Nevertheless, I agree that for this Shevu'ah he is exempt.' These are the words of Rebbi Yehudah ben Beseira.'
</p><p>
The Rosh writes that according to this understanding of the Mishnah, the Gemara earlier (25a) must be interpreted slightly differently. The Gemara there says that when the Mishnah mentions a person who swears, 'I will give to such and such,' it cannot mean, 'I will give charity to a poor person,' because the person is sworn from Har Sinai to give charity. However, according to the Rosh's understanding of the Mishnah here, such a Shevu'ah <i>would</i> take effect according to Rebbi Yehudah ben Beseira. Rather, the Gemara there actually refers to the next part of the Mishnah which states, 'I will not give,' which even Rebbi Yehudah ben Beseira agrees is not a valid Shevu'ah. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) A SHEVU'AH TO HARM ONESELF</font></b>
<b><font color='darkgreen'>    </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>         <b><font color='darkgreen'>1.   (Beraisa #1) Suggestion:</font></b> If one swore to harm
              himself and did not fulfill it, he should be exempt!
<br>         <b><font color='darkgreen'>2.   Rejection:</font></b> 'Lehara Oh Leheitiv' - just like Leheitiv
              is Reshus (optional), also Lehara. This includes one
              who swore to harm himself.
<br>         <b><font color='darkgreen'>3.   Bava Kama 91a (Mishnah - R. Akiva):</font></b> One may not
              injure himself.
<br>         <b><font color='darkgreen'>4.   Contradiction (Beraisa #2 - R. Akiva):</font></b> One may
              injure himself.
<br>         <b><font color='darkgreen'>5.   Answer #1 (Rava):</font></b> One may not bodily injure himself,
              but he may embarrass himself.
<br>         <b><font color='darkgreen'>6.   Question:</font></b> Beraisa #1 permits harming oneself!
<br>         <b><font color='darkgreen'>7.   Answer #1 (Shmuel):</font></b> The Beraisa discusses an oath to
              fast.
<br>         <b><font color='darkgreen'>8.   Objection (Beraisa #1):</font></b> What is the case of
              (swearing to) harm others? 'I will hit Ploni, I will
              bruise his brain'.
<br>         <b><font color='darkgreen'>9.   Answer #2 (to both questions):</font></b> Tana'im argue about
              this. (Each Tana says that R. Akiva agrees with
              him.) R. Elazar Hakapar forbids damaging oneself
<br>              <b><font color='darkgreen'>i.   (Beraisa - R. Elazar Hakapar):</font></b> 'Me'Asher Chota
                   Al ha'Nefesh' - he sinned against his own soul,
                   by denying himself wine. If one is called a
                   sinner for denying himself wine, all the more
                   so one who (fasts and) denies himself all food
                   is called a sinner!
<br>         <b><font color='darkgreen'>10.  Ta'anis 11a (Shmuel):</font></b> One who fasts is called a
              sinner.
<br>         <b><font color='darkgreen'>11. </font></b> He holds like R. Elazar Hakapar.
<br>         <b><font color='darkgreen'>12.  (R. Elazar):</font></b> A Nazir pained himself only from one
              thing, and he is called Kadosh - 'Kadosh Yihyeh
              Gadel Pera Se'ar Rosho'. All the more so, one who
              fasts and pains himself from everything is called
              Kadosh!
<br>         <b><font color='darkgreen'>13.  (Reish Lakish):</font></b> He is called Kadosh - 'Gomel Nafsho
              Ish Chased v'Ocher She'ero Achzari'.
<br><b><font color='darkgreen'>    (b)  Rishonim</font></b>
<br>         <b><font color='darkgreen'>1.   Rif and Rosh (3:15):</font></b> If one swore to harm himself
              and did not fulfill it, he is liable. Just like
              Leheitiv is Reshus, also Lehara. This includes one
              who swore to harm himself.
<br>         <b><font color='darkgreen'>2.   Rambam (Hilchos De'os 3:1):</font></b> A Nazir who denies
              himself wine needs atonement, and all the more so,
              one who denies himself everything!
<br>         <b><font color='darkgreen'>3.   Rambam (Hilchos Shevuos 5:17):</font></b> If one swore to harm
              himself, e.g. to wound himself, even though he may
              not, the Shevu'ah takes effect and if he did not
              harm himself he is liable for Shevu'as Bituy.
<br>              <b><font color='darkgreen'>i.   Radvaz (Hilchos Shevuos 5:7):</font></b> The Rambam says
                   that a Shevu'ah not to eat any amount of
                   Neveilah takes effect, because the oath of
                   Sinai does not forbid this. Indeed, the Torah
                   forbids this, but it is not explicit in the
                   Torah, therefore, a Shevu'ah takes effect on
                   it. A proof of this is that Shevuos take effect
                   on Isurim mid'Rabanan, even though Lo Sasur
                   obligates observing them, because the Isurim
                   are not explicit in the Torah.
<br>              <b><font color='darkgreen'>ii.  Pri Chodosh (in Likutim in Frankel Rambam, DH
                   Od (2)):</font></b> The Rambam rules that a Shavu'ah takes
                   effect on Chetzi Shi'ur, even though we forbid
                   it mid'Oraisa, for it is not explicit in the
                   Torah. However, the Rambam calls a oath to fast
                   on Shabbos or Yom Tov 'Shav', even though the
                   Isur is not explicit in the Torah! It seems
                   that he does not really mean that it is Shav.
<br>         <b><font color='darkgreen'>4.   Rambam (Hilchos Chovel u'Mazik 5:1):</font></b> One may not
              wound himself or another. Even without wounding, a
              Lav forbids hitting a Kosher Yisrael in the way of
              fighting.
<br>         <b><font color='darkgreen'>5.   Question (Lechem Mishneh Hilchos De'os 3:1):</font></b> Reish
              Lakish said 'he is called Kadosh.' Rashi explains
              that he discusses one who fasts. The Rambam and
              Tosfos explain that he discusses one who does not
              fast. The Rambam rules like Shmuel and Reish Lakish.
              Even though in Nedarim (10a), Abaye says that R.
              Elazar Hakapar is part of a Shitah (Tana'im who hold
              similarly), and the Halachah does not follow a
              Shitah, Halichos Olam says that when there is a
              proof from the Gemara, this overrides the general
              rule. Tosfos asked a contradiction in Shmuel, and
              also in Sugyos. Two Sugyos say that R. Elazar
              Hakapar holds that even a Tahor Nazir is called a
              sinner, but in Nazir (3a) we say that he said so
              only about a Nazir Tamei! If so, what forced the
              Gemara there to say that R. Elazar Hakapar disagrees
              with the Beraisa? It is difficult to say that this
              was the Hava Amina, but in the conclusion he need
              not disagree.
<br>         <b><font color='darkgreen'>6.   Answer (Lechem Mishneh):</font></b> The Rambam explains that
              mid'Oraisa the verse applies only to a Tamei Nazir.
              Even though the Gemara says that the verse applies
              even to a Tahor Nazir and it was written regarding a
              Tamei Nazir since he sins twice, this is an
              Asmachta. Really, it applies to a Tahor Nazir only
              mid'Rabanan. Similarly, the Isurim to fast or harm
              oneself, which are learned from a Nazir Tahor, are
              mid'Rabanan. Even though an oath takes effect on an
              Isur mid'Rabanan, the Beraisa connotes that the Tana
              permits harming oneself even mid'Rabanan. Shmuel
              established the Beraisa to discuss fasting. This is
              not like R. Elazar Hakapar, rather, like R. Elazar
              who argues with him. However, all agree to the law
              of the Beraisa, that the oath takes effect.
<br>              <b><font color='darkgreen'>i.   Avi Ezri (De'os 3:1):</font></b> Why did the Lechem
                   Mishneh need to say that the Shevu'ah takes
                   effect because the Isur is not explicit in the
                   Torah? The source to forbid harming oneself is
                   from Nezirus, which takes effect! Why did the
                   Rambam include the Isur to harm oneself with
                   the Isur to hit another? An explicit Lav 'Lo
                   Yosif' forbids hitting others, and the Isur to
                   harm oneself is only due to the Isur to pain
                   oneself, like fasting! Rather, if it were
                   permitted to pain oneself, there would be no
                   Isur to harm oneself. Since one may not pain
                   himself, one may not harm oneself. I.e. since
                   one does not own himself for this, , Lo Yosif
                   applies. The simple meaning of the verse refers
                   to hitting others, therefore, one is not lashed
                   for hitting himself, but the Isur applies. The
                   Ran explains that a oath takes effect on this
                   because the simple meaning of Lo Yosif refers
                   to hitting others.
<br>         <b><font color='darkgreen'>7.   Ran (Chidushim '23b DH d'Mukim, and on the Rif 11a
              DH Gemara):</font></b> A Shevu'ah is not Chal on an Isur Torah
              even if there are no lashes or Korban for the Isur.
              In Yuma, we say that it is Chal on Chetzi Shi'ur
              according to Reish Lakish, who forbids Chetzi Shi'ur
              mid'Rabanan, since the Torah permits it. R. Yochanan
              could not say so. Alternatively, R. Yochanan could
              agree. The Tana holds that a Shevu'ah, which is
              severe, is Chal on a light Isur (Chetzi Shi'ur) that
              has no lashes or a Korban. A better answer is that
              since the Lav is not explicit in the Torah, a
              Shevu'ah takes effect on it. A proof is from an oath
              to harm oneself (27a). It takes effect, in a case
              similar to harming others, i.e. bruising the brain,
              even though one may not hit himself, for this is not
              explicit. It is learned from a Drashah. Surely one
              may not transgress due to his oath. We transgress
              even Torah law passively due to an Isur mid'Rabanan,
              and all the more so (we passively transgress an
              oath) due to an Isur Torah. However, he brings a
              Korban for transgressing his oath. The same applies
              to an oath to eat Chetzi Shi'urh of Isur. Perhaps my
              proof is not solid. Perhaps the Shevu'ah is Chal
              according to the opinion that permits harming
              oneself, but the Halachah follows the one who
              forbids, and one is exempt for Shevu'as Bituy to do
              so. However, the Rif and Rambam rule that one may
              not harm himself, but one is liable for
              transgressing a Shevu'ah to do so, for we do not
              find a Tana or Amora who exempts.
<br><b><font color='darkgreen'>    (c)  Poskim</font></b>
<br>         <b><font color='darkgreen'>1.   Rema (YD 236:2):</font></b> If one swore to hit himself, even
              though he may not do so, the oath takes effect.
<br>              <b><font color='darkgreen'>i.   Gra (3):</font></b> We hold like the Rambam says, that one
                   may not harm himself, like the Stam Mishnah
                   (Bava Kama 90b). Even though Ta'anis 11a holds
                   like R. Eliezer, fasting is different. The Ran
                   holds that Tana'im argue about whether or not
                   one may harm himself, but all agree that a
                   Shevu'ah to do so takes effect.
<br>              <b><font color='darkgreen'>ii.  Bach (DH v'Yesh Ledakdek):</font></b> Why did the Tur
                   specify that a Shevu'ah to harm Ploni is Shav?
                   The Chidush is that if Ploni will permit this,
                   there is no Isur to do so (Bava Kama 93a, and
                   then it is not Shav).
<br>              <b><font color='darkgreen'>iii. Note:</font></b> I did not see a proof that then there is
                   no Isur. Surely, if one may not harm himself,
                   he cannot authorize others to harm himself!
<br>         <b><font color='darkgreen'>2.   Shulchan Aruch (239:6):</font></b> A Shevu'ah takes effect on
              something expounded by Chachamim that is not
              explicit in the Torah, i.e. do or not do a Mitzvah.
              An oath to transgress a Lav, even mid'Rabanan, does
              not take effect.
<br>              <b><font color='darkgreen'>i.   Gra (17):</font></b> The Rif and Rambam rule that the
                   Shevu'ah takes effect, even though they rule
                   that one may not harm himself.
<br>              <b><font color='darkgreen'>ii.  Shach (20 and Gra 18):</font></b> The Shulchan Aruch
                   (238:4) rules like the Rambam, that a Shavu'ah
                   takes effect on Chetzi Shi'ur, even though it
                   is an Isur Torah, for it is not explicit in the
                   Torah! Rather, the Shevu'ah takes effect, but
                   one must ask a Chacham to permit it. One may
                   not fulfill it!
<br>         <b><font color='darkgreen'>3.   Shulchan Aruch (CM 97:15):</font></b> Even if a borrower
              stipulated and wrote in the document that the lender
              may seize him (if he does not pay), it does not
              help. The lender may not confine him or force him to
              work for him.
<br>         <b><font color='darkgreen'>4.   Rema:</font></b> Some say that even if he cannot pay, if he
              stipulated to be confined until he pays, he must
              fulfill his oath.
<br>              <b><font color='darkgreen'>i.   Gra (48):</font></b> R. Elazar Hakapar says that even
                   though Nezirus harms a person, he is obligated
                   to fulfill his vow. Likewise, one who swore to
                   harm himself must fulfill it.
<br>              <b><font color='darkgreen'>ii.  Kaf ha'Chayim (OC 571:12):</font></b> If a worker vowed to
                   fast, it takes effect, because he can quit his
                   job in the middle.
<br>
<font color='blue'><i>See also:</i>
<b><b><b>IS</b></b> <b><b>IT</b></b> PRAISEWORTHY <b><b>TO</b></b> FAST</b>? (Taanis 11</font><font color='blue'>)
<b><b><b>IS</b></b></b> A <b>NAZIR</b> A <b>SINNER</b>? (Nedarim 4)
<b>MAY ONE HARM HIMSELF</b> (Shevuos 36) 
<p>


lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(l)  Answer:</font></b> The Mishnah can even be R. Yoshiyah. He holds
          like R. Akiva (26a), who expounded the Ribuy, Mi'ut,
          Ribuy to include everything except for oaths about
          Mitzvos.
<br>          <b><font color='darkgreen'>1.  </font></b> This can be only if the Torah discusses oaths of
               Reshus. If it discusses oaths about Mitzvos, there
               is nothing to exclude!
<br>     <b><font color='darkgreen'>(m)  (Mishnah - R. Yehudah ben Beseira):</font></b> If one is liable for
          an oath of Reshus...
<br>     <b><font color='darkgreen'>(n)  Question:</font></b> How does R. Yehudah answer Chachamim's
          rebuttal?
<br>     <b><font color='darkgreen'>(o)  Answer:</font></b> Even though an oath to harm others does not take
          effect, one is liable for an oath to benefit others,
          because the verse included it;
<br>          <b><font color='darkgreen'>1.  </font></b> Similarly, even though an oath not to fulfill a
               Mitzvah does not take effect, one is liable for an
               oath to fulfill a Mitzvah, because the verse
               included it!
<br>          <b><font color='darkgreen'>2.  </font></b> Chachamim disagree. An oath to benefit others
               applies also to the negative (not to benefit
               others), but an oath to fulfill a Mitzvah does not
               apply to the negative (not to fulfill the Mitzvah)
               at all!
<br>
<b><font color='blue'>2) TWO OATHS ABOUT THE SAME LOAF</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If one said 'I swear that I will not eat this
          loaf, I swear that I will not eat it, (I swear that I
          will not eat it - Tosfos deletes this)', if he eats it,
          he is liable only once;
<br>          <b><font color='darkgreen'>1.  </font></b> This is the oath of Bituy for which one is lashed if
               he transgressed b'Mezid, and brings an Oleh v'Yored
               if he was Shogeg.
<br>          <b><font color='darkgreen'>2.  </font></b> For Shevu'as Shav one is lashed if he transgressed
               b'Mezid, if he was Shogeg he is exempt.
<br>     <b><font color='darkgreen'>(b)  (Gemara) Question:</font></b> Why does the Tana change the
          expression from the first oath ('I will not eat this
          loaf') to the second ('I will not eat it')?
<br>     <b><font color='darkgreen'>(c)  Answer:</font></b> This teaches that only in this order, he is
          liable only once, but had he reversed the order, he is
          liable twice.
<br>          <b><font color='darkgreen'>1.   (Rava):</font></b> If one said 'I swear that I will not eat
               this loaf', he is liable for eating a k'Zayis of it.
               If he said 'I swear that I will not eat it', he is
               not liable until he eats all of it.
<br>     <b><font color='darkgreen'>(d)  (Mishnah):</font></b> '... I swear that I will not eat it', if he
          eats it, he is liable only once.
<br>     <b><font color='darkgreen'>(e)  Version #1 (Rashi) Question:</font></b> Why does the Tana mention a
          third oath (obviously, if the second oath does not take
          effect, neither does the third!)?
<br>     <b><font color='darkgreen'>(f)  Version #2 (Tosfos) Question:</font></b> Why does the Tana say 'he
          is <i>liable</i> only once'? (end of Version #2)
<br>     <b><font color='darkgreen'>(g)  Answer:</font></b> He teaches that he is not liable, but the extra
          oath (or two) is there, if an opportunity comes, it
          (they) will take effect.
<br>     <b><font color='darkgreen'>(h)  Question:</font></b> When does it make a difference?
<br>     <b><font color='darkgreen'>(i)  Answer:</font></b> Rava taught that if he asks to annul the first
          oath (and a Chacham permits it), the second takes effect.
<br>     <b><font color='darkgreen'>(j)  Suggestion:</font></b> A Beraisa supports this.
<br>          <b><font color='darkgreen'>1.   (Beraisa):</font></b> If a man accepted Nezirus two times, and
               conducted 30 days of (the first) Nezirus, separated
               Korbanos, and asked to annul the first Nezirus, he
               fulfills the second Nezirus through the days he
               conducted (and can use the Korbanos for it. This
               shows, if the second Nezirus has an opportunity to
               take effect, it does!)
<br>     <b><font color='darkgreen'>(k)  Rejection:</font></b> There is different, for the second Nezirus
          will surely take effect (if he does not annul the first
          Nezirus, it takes effect after the first Nezirus);
<br>          <b><font color='darkgreen'>1.  </font></b> Here, the second oath was void when he uttered it! 
<br>

sjt:
</p><p>
<font><b>2) WHEN ONE SWEARS 'I WILL EAT THIS LOAF,' HOW MUCH MUST HE EAT?</b></font>
<br>QUESTION: Rava rules that when one swears, 'I will not eat this loaf,' he transgresses his Shevu'ah as soon as he eats a k'Zayis of the bread. However, if he swears, 'I will not eat it' (and he does not mention 'this loaf'), he is not liable until he eats the entire loaf.
</p><p>
<b>RASHI</b> (DH ked'Rava) writes that the Shevu'ah, 'I will eat,' implies the entire loaf, while the Shevu'ah, 'I will not eat,' implies intention to prohibit to himself 'Kedei Achilah,' the amount of 'eating,' which is a k'Zayis. The <b>RITVA</b> adds that the only reason why the person mentioned 'this loaf' is to permit himself to eat other loaves, but not to require him to eat the entire loaf.
</p><p>
What is the Halachah in the opposite case, in which the person swears, 'I will eat this loaf'? How much of the loaf must he eat in order to fulfill his Shevu'ah?
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> (29b, DH Shevu'ah) writes that when one says, 'I will eat this loaf,' his intention is to eat a k'Zayis just as he intends <i>not</i> to eat a k'Zayis when he says, 'I will not eat this loaf.' The <b>RITVA</b> adds that when he says, 'I will eat,' his intention is to obligate himself to eat a Shi'ur of Achilah, or a k'Zayis.
</p><p>
(b) The <b>RITVA</b> cites the <b>RE'AH</b> in the name of his teachers who maintain that one who says, 'I will eat this loaf,' must eat the entire loaf. The Re'ah explains that the reason for the difference between, 'I will not eat,' and 'I will eat,' is that when he says, 'I will not eat,' his intention is to prohibit himself from eating the bread, and since his intention is create a prohibition on himself, he presumably intends to prohibit even a small amount (a k'Zayis). In contrast, when he says, 'I will eat,' his intention is to obligate himself to do something that he was not previously obligated to do. Therefore, since he has taken a new obligation on himself, he presumably wants to take on the larger obligation (to eat the entire loaf).
</p><p>
The Re'ah adds that even when one swears, 'I will not eat this loaf,' the prohibition applies to every part of the loaf, because he will be liable for eating any k'Zayis of the loaf. (Therefore, just as 'I will not eat' prohibits him from eating any part of the loaf, 'I will eat,' obligates him to eat the entire loaf.)
</p><p>
The Gemara later (28a) provides proof for this explanation. The Gemara there teaches that one who swears that he will not eat a loaf and then eats almost all of it, but leaves over a k'Zayis, may still rescind his Shevu'ah through She'eilah. The Gemara says that since She'eilah is effective for the last k'Zayis, it also is effective for the parts of the loaf that he already ate. The fact that one can do She'eilah on the last k'Zayis of the loaf proves that one who made a Shevu'ah to eat the loaf is prohibited from eating every k'Zayis of it.
</p><p>
The Re'ah asserts that according to this explanation, whether a person swears, 'I will eat this loaf,' or, 'I will eat it,' he is obligated to eat the entire loaf. (This contrasts with Rava's ruling that there is a difference between saying, 'I will not eat this loaf,' and 'I will not eat it.')
</p><p>
However, the Re'ah adds that there may be a difference between 'I will eat this loaf' and 'I will eat it.' When one says, 'I will eat it,' he obligates himself to eat it only if all of 'it' is here, but if some of it becomes lost such that he cannot eat all of it, he automatically becomes exempt from eating any of it. In contrast, when he says, 'I will eat this loaf,' he must eat all of it if it is present, and if not all of it is present he must eat all of whatever is left of it. This is similar to the Shevu'ah, 'I will not eat this loaf,' where he becomes prohibited from eating every k'Zayis of it. If he says, 'I will eat this loaf,' he becomes obligated to eat every k'Zayis that he can.
</p><p>
The Re'ah rules similarly in another case. One swears that he will return to his friend a certain sum of money that he had borrowed from him. He finds that he is unable to return the full sum, but is able to return part of it. The Re'ah rules that his Shevu'ah obligates him to repay whatever he can. When he swore that he would return the money to his friend, he obligated himself either to repay the full amount or to repay part of it if he is unable to return it all. This is similar to the person who swore, 'I will eat this loaf,' who thereby obligated himself to eat every k'Zayis that he can.
</p><p>
This ruling is in contrast to the law in the case of a person who swears that he will go to a certain place. If he becomes unable to go to that place, he is not obligated to go part of the way, because no one derives any benefit if he goes part of the way. In contrast, a lender derives some benefit from receiving any part of the loan in return, and therefore the borrower is obligated by his Shevu'ah to return even a partial amount of the loan. (See also <b>TAZ</b> YD 238:11, and <b>CHIDUSHEI GERSHONI</b> and <b>REBBI AKIVA EIGER</b> there. See also footnote 490 to the Ritva.)
</p><p>
Tosfos (in (a) above) apparently concludes like the Ritva. Tosfos writes, 'It is possible that there is a difference between 'I will eat' and 'I will not eat.'' That is, one who says, 'I will not eat,' is forbidden to eat even a k'Zayis, whereas one who says, 'I will eat,' may be obligated to eat the entire loaf. (See <b>CHIDUSHEI REBBI AKIVA</b> to Tosfos, who writes that all of the Rishonim agree with the explanation of the Ritva.) (D. Bloom) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) REPEALING AN OATH AFTER TRANSGRESSING IT</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Rava):</font></b> If one swore not to eat a loaf, and ate from it;
          he can ask to permit it (and he will not have
          transgressed) only if he left over a k'Zayis.
<br>     <b><font color='darkgreen'>(b)  Question (Rav Acha brei d'Rava):</font></b> What is the case?
<br>          <b><font color='darkgreen'>1.  </font></b> If he swore 'I will not eat', once he ate a k'Zayis,
               he already transgressed!
<br>          <b><font color='darkgreen'>2.  </font></b> If he swore 'I will not eat <i>it</i>, even if less than
               a k'Zayis remains, he should be able to permit it!
<br>     <b><font color='darkgreen'>(c)  Answer #1:</font></b> He swore 'I will not eat.' Permitting the oath
          on the rest also retroactively uproots the entire oath,
          so he never transgressed.
<br>     <b><font color='darkgreen'>(d)  Answer #2:</font></b> He swore 'I will not eat <i>it</i>.' If less than a
          k'Zayis remains, this is not important enough to permit
          the oath. (Tosfos - because he already transgressed,
          leaving less than a k'Zayis is like eating it all.)
<br>     <b><font color='darkgreen'>(e)  Question (Beraisa):</font></b> If one accepted Nezirus two times,
          conducted 30 days of Nezirus, separated Korbanos, and
          asked to annul the first Nezirus, he fulfills the second
          Nezirus through the days he conducted (and can use the
          Korbanos for it). (This shows that one can permit a vow
          even after it no longer applies!)
<br>     <b><font color='darkgreen'>(f)  Answer #1:</font></b> The case is, he did not yet bring the Korban
          (so the first Nezirus was never finished).
<br>     <b><font color='darkgreen'>(g)  Rejection (Beraisa):</font></b> (He permits it even if) he already
          offered the Korbanos.
<br>     <b><font color='darkgreen'>(h)  Answer #2:</font></b> The case is, he did not yet shave;
<br>          <b><font color='darkgreen'>1.  </font></b> The Beraisa is R. Eliezer, who says that Nezirus is
               not finished until he shaves.
<br>     <b><font color='darkgreen'>(i)  Rejection (Beraisa):</font></b> (He permits it even if) he already
          shaved.
<br>     <b><font color='darkgreen'>(j)  Answer #3 (Rav Ashi):</font></b> There, the first Nezirus prevents
          the second Nezirus from taking effect, so it is as if he
          never finished the first Nezirus, so he can permit it.
<br>     <b><font color='darkgreen'>(k)  (Ameimar):</font></b> Even if he ate the entire loaf, he can annul
          the oath (because the effects of the oath still apply):
<br>          <b><font color='darkgreen'>1.  </font></b> If he ate b'Shogeg, he must bring a Korban;
<br>          <b><font color='darkgreen'>2.  </font></b> If he ate b'Mezid, he must be lashed;
<br>          <b><font color='darkgreen'>3.  </font></b> However, once he was tied down to be lashed (it is
               as if he already was lashed), he cannot annul it.
<br>               <b><font color='darkgreen'>i.   (Shmuel):</font></b> If one was tied down to be lashed and
                    fled from Beis Din, he is exempt (since he was
                    already disgraced).
<br>          <b><font color='darkgreen'>4.   Rejection:</font></b> No, there he is exempt because he
               suffered the disgrace of running from Beis Din.
               Ameimar discusses one who did not run (he was not
               disgraced, so he can still annul it).
<br>
<b><font color='blue'>2) OATHS THAT ARE CONTINGENT ON ACTIONS</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Rava):</font></b> If one swore 'I will not eat this loaf (we shall
          call this the Isur loaf) if I eat this other loaf (the
          Tanai loaf)', and he ate both:
<br>          <b><font color='darkgreen'>1.  </font></b> (Rashi, R. Tam - the oath should take effect when he
               eats the first loaf. If he did not remember that he
               swore about the loaf when he ate it, this is not
               'ha'Adam bi'Shvua'h', so the oath does not take
               effect. Tosfos - the oath should take effect when he
               eats the Tanai. If he did not remember the oath
               then, it does not take effect. Rashi, Tosfos - in
               the following, 'first' refers to the Tanai, and
               'second' is the Isur; R. Tam - first and second
               refer to the order in which he ate them.)
<br>          <b><font color='darkgreen'>2.  </font></b> If he ate the first b'Shogeg and (Rashi - then) the
               second b'Mezid, he is exempt (since he was unaware
               when the oath should take effect, it does not take
               effect).
<br>          <b><font color='darkgreen'>3.  </font></b> If he ate the first b'Mezid and (Rashi - then) the
               second b'Shogeg, he must bring a Korban (the oath
               took effect, and he did not intend to transgress);
<br>          <b><font color='darkgreen'>4.  </font></b> If he ate both b'Shogeg, he is exempt;
<br>
<br>

sjt:
<font><b>1) WHEN IS 'CHATZI SHI'UR' NOT 'ASUR MIN HA'TORAH'</b></font>
<br>QUESTION: Rava (end of 27b) says that one who swears that he will not eat a loaf of bread and then he eats almost all of it, but leaves over a k'Zayis, may still rescind his Shevu'ah through She'eilah. <b>RASHI</b> (DH Nish'al) explains that the annulment of his Shevu'ah permits him to eat the remaining k'Zayis, and it exempts him retroactively for the part of the bread that he already ate. If, however, he ate all of the loaf of bread, he has transgressed the Shevu'ah and no longer may annul it.
</p><p>
Rav Acha brei d'Rava asked Rav Ashi exactly what words were used in the Shevu'ah in this case. If the person said, 'I will not eat,' then as soon as he ate the first k'Zayis he transgressed the prohibition (as stated by Rava himself on 27b). If he said, 'I will not eat it,' he transgresses his Shevu'ah only when he eats the entire loaf.
</p><p>
Rav Ashi answered that the person swore, 'I will not eat.' Since he is able to annul the Shevu'ah so that it does not prohibit the last k'Zayis that remains, his annulment also is effective to retroactively permit the parts of the loaf that he already ate. Rashi (DH Migu) explains that since, when a Chacham annuls an oath, he essentially annuls it from when it was first stated, retroactively there was no Shevu'ah when the person ate the first k'Zayis.
</p><p>
This Gemara seems to contradict the ruling of the <b>RAMBAM</b> (Hilchos Shevu'os 4:1) and <b>SHULCHAN ARUCH</b> (YD 238:1). The Rambam writes, 'One who swears that he will not eat anything today and then he eats less than a k'Zayis is exempt from a Korban, because eating less than a k'Zayis is not considered an act of eating. This is equivalent to eating half a Shi'ur of Neveilos or Tereifos, or similar prohibitions.'
</p><p>
The Rambam clearly compares the law of a Shevu'ah to the law of other prohibitions. If the law of Shevu'ah is the same as the law of other prohibitions, then why does the Gemara here say that since the Shevu'ah's annulment is effective for the remaining k'Zayis, it is effective for the rest of the loaf of bread that the person ate? The Halachah is that 'Chatzi Shi'ur Asur Min ha'Torah' -- the Torah forbids even a partial Shi'ur of a prohibited item (see Yoma 73b). The Gemara should say that since the annulment is effective to permit the last <i>half</i> (or even less) of a k'Zayis, it permits the entire loaf of bread, since, as the Rambam says, there is still a Torah prohibition against eating the last half-k'Zayis! If Chatzi Shi'ur is Asur Min ha'Torah, why does Rava say that one may annul the Shevu'ah retroactively only when a k'Zayis of the loaf (and not less) remains?
</p><p>
ANSWER: <b>REBBI AKIVA EIGER</b> (Teshuvos 1:154, and as cited in <b>CHIDUSHEI REBBI AKIVA EIGER</b>, end of 22b) answers that perhaps 'Chatzi Shi'ur Asur Min ha'Torah' applies only when a full k'Zayis remains from the prohibited object. The Gemara in Yoma (74a) explains the reason why Chatzi Shi'ur is Asur Min ha'Torah: it is 'Chazi l'Itzterufi' -- it is fit to join together with other small amounts and become a proper Shi'ur. In contrast, one who eats the entire loaf of bread except for half of a k'Zayis cannot become liable by eating the last half-k'Zayis, because there is no other half-k'Zayis of the loaf with which it can combine to make a full Shi'ur. (This is in contrast to an ordinary case of a Chatzi Shi'ur, where one who eats a half-k'Zayis of a forbidden food such as Neveilah or Tereifah can always eat more Neveilah or Tereifah that exists in the world, so that he eats a full k'Zayis.) Therefore, the Rambam will agree that mid'Oraisa one is permitted to eat the last half-k'Zayis of the loaf (without annulling the Shevu'ah). Accordingly, it is not possible to annul the oath when less than a k'Zayis remains, and thus the Gemara does not discuss annulling the oath when less than a k'Zayis remains.
</p><p>
Rebbi Akiva Eiger adds that according to this logic, if one eats half a k'Zayis of Chametz at the very end of Pesach when there is no time left to eat a second half-k'Zayis (or one eats half of a Koseves of food at the very end of Yom Kippur), he does not transgress the Torah prohibition of Chatzi Shi'ur. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) WHEN IS A PARTIALLY PERMITTED VOW TOTALLY PERMITTED?</font></b>
<b><font color='darkgreen'>    </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>         <b><font color='darkgreen'>1.   (Rava):</font></b> If one swore not to eat a loaf, and ate from
              it; he can ask to permit it (and it will be as if he
              did not transgress) only if he left over a k'Zayis.
<br>         <b><font color='darkgreen'>2.   Question (Rav Acha brei d'Rava):</font></b> If he swore 'I will
              not eat', once he ate a k'Zayis, he already
              transgressed. If he swore 'I will not eat <i>it</i>, even
              if less than a k'Zayis remains, he should be able to
              permit it!
<br>         <b><font color='darkgreen'>3.   Answer #1:</font></b> He swore 'I will not eat.' Permitting the
              oath on the rest also retroactively uproots the
              entire oath, so he never transgressed.
<br>         <b><font color='darkgreen'>4.   Answer #2:</font></b> He swore 'I will not eat <i>it</i>.' If less
              than a k'Zayis remains, this is not important enough
              to permit the oath.
<br>         <b><font color='darkgreen'>5.   38a (Beraisa - R. Meir):</font></b> One who takes a Klal (all-
              inclusive) oath is liable once. If he takes
              individual oaths, he is liable for each one.
<br>         <b><font color='darkgreen'>6.  </font></b> R. Yehudah says, if he said 'I swear that you do not
              have a deposit by me, and not you, and not you... ',
              he is liable for each one.
<br>         <b><font color='darkgreen'>7.   (R. Yochanan):</font></b> All agree that when he says '<i>and</i>
              not you', these are individual oaths. They argue in
              a case that he says 'not you' to each. R. Meir calls
              this individual oaths, and R. Yehudah calls it a
              Klal.
<br>         <b><font color='darkgreen'>8.   Nedarim 66a (Mishnah - R. Akiva):</font></b> If one said 'may
              not benefit from me - not this one, nor this...',
              and the first one was permitted, all are permitted.
              If the last one was permitted, the others are
              forbidden.
<br>         <b><font color='darkgreen'>9.  </font></b> If one said 'benefit that I give to this person
              should be like a Korban, (benefit) to this one, like
              a Korban...', to annul them, a separate Pesach
              (reason to consider the vow a mistake) is needed for
              each one.
<br>         <b><font color='darkgreen'>10.  (Rava):</font></b> The Reisha is like R. Shimon, who considers
              an oath forbidding several people to be a Klal,
              unless he says 'Shevu'ah' for each one.
<br>         <b><font color='darkgreen'>11.  26b:</font></b> The case is, he made each dependent on the
              previous - 'they are forbidden to Shimon. Levi is
              (forbidden) like Shimon; Yehudah is like Levi...'
<br>         <b><font color='darkgreen'>12.  Support (Beraisa):</font></b> If the middle one was permitted,
              the later ones are also permitted, but the earlier
              ones are forbidden.
<br>         <b><font color='darkgreen'>13.  Kidushin 46a (Mishnah):</font></b> If one told a woman 'be
              Mekudeshes to me with this date, be Mekudeshes to me
              with this (another) date...', she is Mekudeshes only
              if one of them is worth a Perutah.
<br>         <b><font color='darkgreen'>14.  (Rabah):</font></b> The Mishnah is like R. Shimon, who says
              that 'Shevu'ah, I do not owe to you, and not to you
              and not to you' is considered like one oath, unless
              he said 'Shevu'ah' to each person.
<br><b><font color='darkgreen'>    (b)  Rishonim</font></b>
<br>         <b><font color='darkgreen'>1.   Rambam (Hilchos Nedarim 4:11):</font></b> If one swore or vowed
              'I will not give benefit to all of you', and
              permitted his vow or oath regarding one of them, all
              are permitted, for a vow that was partially
              permitted is totally permitted. If one said 'I will
              not gave benefit to Reuven and to Shimon and to
              Levi', and permitted this regarding Reuven, all of
              them are permitted. If he permitted it regarding
              Levi, the others are forbidden. If he said 'I will
              not benefit Reuven, Shimon and Levi', a separate
              Pesach is needed for each.
<br>         <b><font color='darkgreen'>2.   Rambam (Hilchos Shevuos 7:10):</font></b> If five people were
              claiming a deposit from Ploni, and he said
              'Shevu'ah, I do not owe you and not you and not
              you...', (if he owed them) he is liable for each.
<br>         <b><font color='darkgreen'>3.   Rambam (Hilchos Ishus 5:26):</font></b> If one told a woman 'be
              Mekudeshes to me with this date, be Mekudeshes to me
              with this (another) date...', she is Mekudeshes only
              if one of them is worth a Perutah.
<br>         <b><font color='darkgreen'>4.   Rambam (27):</font></b> If one told a woman 'be Mekudeshes to
              me with this and this and this', she is Mekudeshes
              only if in all they are worth a Perutah.
<br>         <b><font color='darkgreen'>5.   Rosh (Nedarim 8:5):</font></b> The Ramban says that even though
              we normally rule like R. Yehudah against R. Shimon,
              here the Halachah follows R. Shimon, because our
              Stam Mishnah is like R. Shimon.
<br>         <b><font color='darkgreen'>6.   Question:</font></b> We do not know which Masechta was taught
              last. (Both opinions are brought in a Mishnah in
              Shevuos 38a. If Shevuos followed Nedarim, we do not
              rely on the Stam Mishnah!)
<br>         <b><font color='darkgreen'>7.   Answer (Rosh):</font></b> Another Stam Mishnah (Kidushin 46a)
              is like R. Shimon, and the Sugya there is like him
              and the Amora'im discuss his opinion.
<br>              <b><font color='darkgreen'>i.   Beis Yosef (YD 229 DH v'Chen):</font></b> The Ran (66a DH
                   ul'Inyan) also rules like R. Shimon, and says
                   that R. Chananel does, also. However, the
                   Rambam (Shevuos 7:10 and Nedarim 4:11) rules
                   unlike R. Shimon.
<br><b><font color='darkgreen'>    (c)  Poskim</font></b>
<br>         <b><font color='darkgreen'>1.   Shulchan Aruch (YD 229:1):</font></b> If one said to a group of
              people 'Konam is what I will benefit to any of you'
              or 'that I will benefit to you, you, you', this is a
              Kelal. If one of them is permitted, all of them are
              permitted. If he said 'Konam is what I will give
              benefit to you', 'Konam is what I will give benefit
              to you', each is a separate vow. If one was
              permitted, the others are not permitted. According
              to the Rambam, if he said 'I will not benefit to
              this one <i>and</i> this one <i>and</i> this one', if the
              first was permitted, all are permitted. If the last
              was permitted, the rest are forbidden. If he said 'I
              will not benefit to this one, this one, this one', a
              separate Pesach is needed for each.
<br>              <b><font color='darkgreen'>i.   Beis Yosef (DH v'Chen):</font></b> Our texts of the Tur
                   say '... and to you, and to you...' This is
                   wrong. Even without 'and', it is Klal. The
                   Rambam holds that when he said 'and', the
                   latter vows depend on the previous. When he did
                   not say 'and', each is a separate vow.
<br>              <b><font color='darkgreen'>ii.  Taz (3):</font></b> The Tur wrote '<i>and</i> to you...' The
                   Beis Yosef says that this is not necessary, for
                   the Halachah follows R. Shimon, who says that
                   they are individual oaths only if he says
                   'Neder' to each! However, the Rambam rules like
                   Chachamim, that it depends on whether he said
                   'and.' In Sa'if 4, it seems that we hold like
                   the Rambam.
<br>              <b><font color='darkgreen'>iii. Gra (3):</font></b> The Tur holds like Rashi, whose text
                   of R. Yochanan says that when he says with
                   'and', all agree. Perush ha'Rosh (Nedarim 66a
                   DH l'Zeh) says the same (according to Rabanan).
                   The Beis Yosef holds like he wrote in the Kesef
                   Mishneh, that the text says that even without
                   'and' it is a Klal. This is like Tosfos in
                   Shevuos and Zevachim.
<br>              <b><font color='darkgreen'>iv.  Note:</font></b> Rashi and the Rosh say that it is a Klal
                   only <i>without</i> 'and', unlike the Tur!
<br>              <b><font color='darkgreen'>v.   Gra (4):</font></b> In Nedarim, the Rambam rules like R.
                   Yehudah according to R. Yochanan, according to
                   Tosfos' text. However, in Hilchos Shevuos the
                   Rambam rules like R. Meir, that in either case
                   (even with 'and') they are individual oaths,
                   like Rebbi (Zevachim 30b). In Hilchos Ishus, he
                   rules like R. Shimon! This is because the Stam
                   Mishnah in Kidushin is like R. Shimon, and the
                   Amora'im discuss his opinion. Even though the
                   Reisha of the Mishnah in Nedarim is Stam like
                   R. Shimon, the Rambam rules like R. Yehudah,
                   based on his text (of R. Yochanan). This
                   requires investigation. In Shevuos, he rules
                   like R. Meir because the Stam Mishnah is like
                   him.
<br>              <b><font color='darkgreen'>vi.  Beis Lechem Yehudah (2):</font></b> Shirei Keneses
                   ha'Gedolah says that a partially permitted vow
                   becomes totally permitted only when the actions
                   are the same. I.e. both are positive (e.g. I
                   will eat) or both are negative (I will not
                   eat). They need not pertain to similar actions
                   (eating or drinking). If he explicitly says
                   that he wants to permit only part, the rest is
                   still forbidden. Partial permission of a Cherem
                   does not totally permit it. If a vow was
                   Nidcheh (overridden), it is not totally
                   permitted. E.g. if one vowed to fast until Rosh
                   Hashanah, and due to illness he needed to eat
                   some days, he must fast the rest of the days.
<br>              <b><font color='darkgreen'>vii. Pischei Teshuvah (4):</font></b> Chavos Ya'ir (15) says
                   that if one vowed to fast on Mondays and
                   Thursdays for a year, and due to Ones or a
                   Seudas Mitzvah or pain on one day he permitted
                   his vow, even though it is totally permitted,
                   he does not lose the reward retroactively.
                   Also, in the future he may continue based on
                   his initial acceptance. (Normally, one must
                   accept a fast the previous day.) He holds like
                   the opinion that a partially permitted vow
                   becomes totally permitted only when it is
                   permitted through a Pesach, but not if it is
                   permitted through regret. Here, had he known,
                   he still would have vowed, just he would have
                   stipulated 'except for Ones or a Mitzvah or
                   pain.' In practice, he should be stringent to
                   accept again for the future.
<br><br><font color='blue'><i>See also:</i>
<br><b>A PARTIALLY PERMITTED VOW </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>5.  </font></b> If he ate both b'Mezid, if he ate the Tanai first
               (and was warned just before eating the Isur), he is
               lashed;
<br>               <b><font color='darkgreen'>i. </font></b>  R. Yochanan and Reish Lakish argue about when
                    he ate the Isur first. (The warning he received
                    was Safek, for if he would not eat the other
                    loaf, he would not have transgressed);
<br>               <b><font color='darkgreen'>ii. </font></b> Reish Lakish holds that Safek warning is
                    considered warning, so he is lashed;
<br>               <b><font color='darkgreen'>iii. </font></b>R. Yochanan holds that Safek warning is not
                    considered warning, so he is exempt.
<br>     <b><font color='darkgreen'>(b)</font></b>  If he made each a Tanai for the other, i.e. 'I will not
          eat this loaf if I eat that one, and I will not eat that
          one if I eat this one', and he ate both;
<br>          <b><font color='darkgreen'>1.  </font></b> If when he ate each loaf he remembered that it was
               an Isur loaf but forgot that it was a Tanai, he is
               exempt; (Tosfos - neither oath takes effect; Rashi -
               the oath forbidding the loaf he ate first takes
               effect, but since he knowingly and permissibly ate
               it, he does not bring a Korban; R. Tam - the oath
               forbidding the first loaf takes effect; the case is,
               he intended to transgress, therefore he does not
               bring a Korban);
<br>          <b><font color='darkgreen'>2.  </font></b> If when he ate each he remembered that it was a
               Tanai but forgot that it was an Isur, he is liable
               (Tosfos - he brings a Korban for each oath; Rashi,
               R. Tam - he brings for the oath that forbade the
               loaf he ate last).
<br>          <b><font color='darkgreen'>3.  </font></b> If he forgot the oaths when he ate each (neither
               oath takes effect), he is exempt;
<br>          <b><font color='darkgreen'>4.  </font></b> If he remembered the oaths when he ate each (both
               oaths take effect), he is lashed for the second loaf
               he ate. R. Yochanan and Reish Lakish argue about
               whether he is lashed for the first loaf (like above,
               since the warning was Safek).
<br>     <b><font color='darkgreen'>(c)  Support ((that an oath takes effect only if he is aware
          at the time) - Rav Mari - Mishnah):</font></b> The following
          mistaken vows are permitted: (I forbid this to myself) if
          I ate or drank (today, and he forgot that he had done
          so);
<br>          <b><font color='darkgreen'>1.  </font></b> (I forbid this to myself) if I will eat or drink
               (today, and he forgot this vow and ate or drank);
<br>          <b><font color='darkgreen'>2.   (Beraisa):</font></b> Just like mistaken vows are permitted,
               also mistaken oaths.
<br>
<b><font color='blue'>3) EXAMPLES OF AN OATH TAKING EFFECT ON AN OATH</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Question (Avimi):</font></b> If one said 'I swear that I did not
          eat, I swear that I did not eat' (and he had eaten), what
          is the law?
<br>     <b><font color='darkgreen'>(b)  Answer #1 (Eifa):</font></b> He brings only one Korban (the second
          oath does not take effect).
<br>     <b><font color='darkgreen'>(c)  Rejection (and Answer #2 - Avimi):</font></b> No. We say that a
          second oath does not take effect only regarding oaths for
          the future. Here, each is a false oath the moment he says
          it (he is liable for each).
<br>     <b><font color='darkgreen'>(d)  Question (Avimi):</font></b> If one said 'I swear that I will not
          eat nine figs, I swear that I will not eat ten figs' (and
          he ate ten), what is the law?
<br>     <b><font color='darkgreen'>(e)  Answer #1 (Eifa):</font></b> He brings two Korbanos (the second oath
          forbids eating a tenth, so it takes effect).
<br>     <b><font color='darkgreen'>(f)  Rejection (and Answer #2 - Avimi):</font></b> No. The first oath
          (not to eat nine) already forbids him from eating ten, so
          the latter oath does not take effect. Rather, he brings
          only one Korban.
<br>     <b><font color='darkgreen'>(g)  Question (Avimi):</font></b> If one said 'I swear that I will not
          eat ten figs, I swear that I will not eat nine figs' (and
          he ate ten), what is the law?
<br>     <b><font color='darkgreen'>(h)  Answer #1 (Eifa):</font></b> He brings only one Korban (the second
          oath is included in the first. It does not take effect.)
<br>     <b><font color='darkgreen'>(i)  Rejection (and Answer #2 - Avimi):</font></b> No, the first oath
          (not to eat ten) does not forbid eating nine, so the
          latter oath takes effect. Rather, he brings two Korbanos. 
<br>

sjt:
</p><p>
<font><b>2) THE DIFFERENCE BETWEEN AN OATH OF 'NINE FIGS AND TEN FIGS' AND AN OATH OF 'FIGS AND GRAPES'</b></font>
<br>QUESTION: The Gemara relates that Eifa learned Maseches Shevuos in the Yeshiva of Rabah. His brother Avimi asked him a number of questions. His second question involved a person who swore, 'I will not eat nine figs,' and then swore again, 'I will not eat ten figs.' What is the law? Eifa answered that the person is liable for each Shevu'ah.
</p><p>
<b>RASHI</b> (DH she'Lo Ochal) explains that the person ate ten figs without remembering his Shevu'ah. Eifa mistakenly thought that the second Shevu'ah is not included in the first Shevu'ah (because ten is more than nine), and thus he did <i>not</i> say that the second Shevu'ah cannot take effect once the first Shevu'ah was made.
</p><p>
Avimi told his brother, 'You are wrong! If he cannot eat nine, then certainly he cannot eat ten.' Rashi (DH Ishtabesht) explains that when the person's Shevu'ah not to eat nine figs already forbids him from eating ten, because if he does not eat the first nine he cannot eat the tenth. Therefore, the second Shevu'ah does not take effect, because it prohibits something which a pre-existing Shevu'ah already prohibits, and the rule is that 'Ein Shevu'ah Chalah Al Shevu'ah' (see Nedarim 8a). Only the first Shevu'ah is valid, and the person is liable for only one Shevu'ah.
</p><p>
Avimi asked Eifa another question. If a person swore, 'I will not eat ten,' and then swore, 'I will not eat nine,' what is the law? Eifa replied that he is liable for only one Shevu'ah. Avimi again told his brother, 'You are wrong! When he made the first Shevu'ah, he prohibited himself only from eating ten, but he was still permitted to eat nine.'
</p><p>
Rashi (DH Eino) explains that Eifa's mistake was that he assumed that since nine is less than ten, the second Shevu'ah is automatically included in the first. However, in truth the first Shevu'ah prohibited him only from eating ten, but he was still permitted to eat nine. Therefore, the second Shevu'ah created a new prohibition against eating nine, and thus it was able to take effect. Accordingly, when he eats nine he transgresses the second Shevu'ah, and when he eats the tenth he transgresses the first Shevu'ah.
</p><p>
Abaye says that there is a case in which Eifa's ruling is correct. Rashi (DH Zimnin) explains that Abaye refers to where the person swore <i>not</i> to eat ten and then <i>not</i> to eat nine. In such a case, he is liable for only one Shevu'ah.
</p><p>
Abaye says that this is similar to Rabah's case. Rabah discusses the case of a person who swore not to eat figs and grapes, and then he swore again not to eat figs. He accidentally ate figs, and separated a Korban for his transgression of the second Shevu'ah. Afterwards he ate grapes. Rabah rules that he is exempt from a Korban for eating the grapes because it is only a Chatzi Shi'ur (grapes constitute only half of the prohibition of the first Shevu'ah). Rashi (DH v'Ochal) explains that since he separated a Korban for eating the figs, the grapes no longer combine with the figs to make him liable for transgressing the first Shevu'ah.
</p><p>
The Gemara says that this is similar to a case in which a person swore that he would not eat ten figs, and then he swore not to eat nine figs. If he accidentally eats nine figs and separates a Korban for his transgression of the second Shevu'ah, and afterwards he eats the tenth fig, he is exempt from further liability. The tenth fig is only a Chatzi Shi'ur, since the first nine figs cannot combine with it once he already separated a Korban for eating them. This is the case in which Eifa's ruling is correct.
</p><p>
<b>TOSFOS</b> (DH Shevu'ah) cites a variant text of Rabah's statement, according to which the person <i>first</i> swore that he would not eat <i>figs</i>, and <i>then</i> he swore that he would not eat <i>figs and grapes</i>.
</p><p>
However, this text is problematic. If, when he made the second Shevu'ah, his intention was not to eat either figs by themselves or grapes by themselves, then it is not appropriate for the Gemara later to refer to grapes as a Chatzi Shi'ur. If, on the other hand, his intention was to forbid himself from eating figs and grapes together, the second Shevu'ah should not take effect at all. In such a case, Avimi's objection would apply: 'If he cannot eat nine, then certainly he cannot eat ten.' Since his first Shevu'ah forbids him from eating figs, his second Shevu'ah not to eat figs and grapes does not take effect since figs are already forbidden to him.
</p><p>
What, then, is the intention of Tosfos' text, that the first Shevu'ah was on figs and the second Shevu'ah on figs and grapes? What is the difference between this case and the case in which one makes a Shevu'ah not to eat nine figs, followed by a Shevu'ah not to eat ten figs, in which case the second Shevu'ah does not take effect?
</p><p>
ANSWER: <b>TOSFOS</b> (beginning of 29a) answers that there is a distinction between 'nine and ten' and between 'figs and grapes.' In the case of 'nine and ten,' when the person made the first Shevu'ah not to eat nine figs, his Shevu'ah prohibited him from eating <i>any</i> nine figs. Therefore, he is already forbidden to any nine figs that he will eat out of ten (which he prohibited with the second Shevu'ah). When he made the second Shevu'ah not to eat any ten figs, he was already forbidden from eating all of the figs in the world that would add up to nine, and certainly to ten. The second Shevu'ah therefore cannot take effect, because 'Ein Shevu'ah Chalah Al Shevu'ah.'
</p><p>
In contrast, in the case of 'figs and grapes,' his first Shevu'ah not to eat figs did not refer to grapes at all. Therefore, the second Shevu'ah on figs and grapes can apply. Since the second Shevu'ah applies for grapes, it also applies for figs. This concept is taught in the Gemara in Nedarim (17b).
</p><p>
Tosfos adds that according to this logic, if a person makes a Shevu'ah not to eat 'these nine figs' (specifying which figs are forbidden), and then he makes a Shevu'ah not to eat ten figs, the second Shevu'ah takes effect, because it is valid for the tenth fig from which he was not previously forbidden. Consequently, the second Shevu'ah also takes effect for the first nine figs. (See also <b>KEHILOS YAKOV</b> #23.) (D. Bloom) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) THE EFFECTS OF SEPARATING A KORBAN</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Abaye):</font></b> Sometimes, Eifa's answer is correct, for example
          in Rabah's case.
<br>          <b><font color='darkgreen'>1.   Version #1 -Rashi - (Rabah):</font></b> If one said 'I swear
               that I will not eat figs and grapes (on the same
               day), I swear that I will not eat figs', and he
               (forgot the oaths and) ate figs, (realized his
               mistake,) separated a Korban (for the latter oath,
               forgot the first oath and) ate grapes, he is not
               liable for the first oath. Since separating the
               Korban disassociates eating the figs from eating the
               grapes, we consider that he violated only half of
               the first oath, so he does not bring a Korban for
               it.
<br>          <b><font color='darkgreen'>2.   Version #2 - Tosfos - (Rabah):</font></b> If one said 'I swear
               that I will not eat figs, I swear that I will not
               eat figs and grapes (together; even though he
               already swore not to eat figs, since he creates a
               new Isur on grapes, the oath takes effect)', and he
               (forgot the oaths and) ate figs, (realized his
               mistake,) separated a Korban and (forgot his oath
               and) ate grapes, he is not liable for the second
               oath. Since separating the Korban disassociates
               eating the figs from eating the grapes, we consider
               that he violated only half of the second oath, he
               does not bring a Korban for it. (end of Version #2)
<br>          <b><font color='darkgreen'>3.  </font></b> Here also, if he swore 'I will not eat ten figs, I
               will not eat nine figs', he ate nine, separated a
               Korban and ate a tenth, separating the Korban
               disassociates the nine figs from the tenth, so he is
               not liable for the first oath.
<br>
<b><font color='blue'>2) VAIN OATHS</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> The following are vain oaths:
<br>          <b><font color='darkgreen'>1.  </font></b> An oath that contradicts what people know to be
               true, e.g. 'this pillar (which all can see is stone)
               is gold', or 'this is a woman (all can see it is a
               man)', or vice-versa;
<br>          <b><font color='darkgreen'>2.  </font></b> He swore about something impossible, e.g. 'if I did
               not see a camel fly in the air, or a snake like the
               beam of an olivepress';
<br>          <b><font color='darkgreen'>3.  </font></b> Witnesses were asked to testify, and they swore that
               they will not;
<br>          <b><font color='darkgreen'>4.  </font></b> One swore not to fulfill a Mitzvah, e.g. not to
               dwell in a Sukah, take a Lulav or don Tefilin;
<br>          <b><font color='darkgreen'>5.  </font></b> These are vain oaths. One who b'Mezid swears in vain
               is lashed. If he did so b'Shogeg, he is exempt.
<br>     <b><font color='darkgreen'>(b)</font></b>  If one said 'I swear that I will eat this loaf, I swear
          that I will <i>not</i> eat it', the first is Shevu'as Bituy,
          and the latter is a vain oath;
<br>          <b><font color='darkgreen'>1.  </font></b> If he eats the loaf, he transgressed swearing in
               vain. If he does not eat it, he transgressed (even)
               Bituy.
<br>     <b><font color='darkgreen'>(c)  (Gemara - Ula):</font></b> Something is considered known to people
          if three people know it.
<br>     <b><font color='darkgreen'>(d)  (Mishnah):</font></b> He swore about something impossible, e.g.'if I
          did not see a camel fly.'
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> 'I saw a camel fly' is a vain oath.  However,
          he did not say that, rather, '<i>if</i> I did <i>not</i> see a
          camel fly.' This is not an oath!
<br>     <b><font color='darkgreen'>(f)  Answer #1 (Abaye):</font></b> Indeed, the Mishnah should say 'I saw
          a camel fly.'
<br>     <b><font color='darkgreen'>(g)  Answer #2 (Rava):</font></b> This is part of the previous case, he
          swore (to do something impossible, e.g.) 'all food is
          forbidden to me (through a Shevu'ah) if I did not see a
          camel fly.'
<br>
<b><font color='blue'>3) SWEARING BASED ON ONE'S OWN INTENTION</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Question (Ravina):</font></b> Perhaps the man saw a huge bird,
          nicknamed it 'camel' and swore truthfully based on his
          Da'as (intent of his words)!
<br>     <b><font color='darkgreen'>(b)  Answer:</font></b> We judge oaths (objectively) based on the words
          he said, and not based on his personal intent.
<br>     <b><font color='darkgreen'>(c)  Question #1 (Beraisa):</font></b> When Beis Din administers an oath,
          we tell the one who must swear 'you do not swear based on
          your own Da'as, rather based on the Da'as (understanding)
          of Hash-m and Beis Din.'
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> If Beis Din did not say this, he could
               swear based on his Da'as, e.g. he could nickname
               some wood chips 'money', and swear 'I gave the money
               to Ploni'!
<br>     <b><font color='darkgreen'>(d)  Answer:</font></b> No. (Really, we judge oaths objectively based on
          his words, and not based on his Da'as);
<br>          <b><font color='darkgreen'>1.  </font></b> We are concerned for cases like what occurred in
               front of Rava. (A man hid money in a stick, asked
               his creditor to hold the stick, and swore 'I gave
               you your money'! This was literally true, but it was
               unlike Beis Din's understanding.)
<br>     <b><font color='darkgreen'>(e)  Question #2 (Beraisa):</font></b> When Moshe forced Bnei Yisrael to
          swear, he said 'I do not make you swear based on your
          Da'as, rather based on Hashem's Da'as and mine.'
<br>          <b><font color='darkgreen'>1.   Suggestion:</font></b> He could not simply ask them to swear to
               fulfill what Eloka (G-d) said, lest they swear based
               on their own intention, e.g. they would call an idol
               'Elo'ah' and swear by it.
<br>     <b><font color='darkgreen'>(f)  Answer:</font></b> No, that would be based on the objective meaning
          of the words. Idols are called Elo'ah - 'Elohei Kesef.'
<br>          <b><font color='darkgreen'>1.   Question:</font></b> Why didn't he make them swear to observe
               the Torah?
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> They could say 'we swore to observe only one
               Torah (written or oral).
<br>          <b><font color='darkgreen'>3.  </font></b> Likewise, had he made them swear to observe two
               Toros, they could say 'we swore only to observe the
               Toros (laws of) Chatas and Olah;
<br>          <b><font color='darkgreen'>4.  </font></b> Had he made them swear to observe the entire Torah,
               this could be construed to mean idolatry, which is
               equivalent to the entire Torah;
<br>          <b><font color='darkgreen'>5.  </font></b> Had he made them swear to observe Mitzvah, this
               would only mean one Mitzvah. 'Mitzvos' would mean
               only two Mitzvos;
<br>          <b><font color='darkgreen'>6.  </font></b> Had he made them swear to observe all the Mitzvos,
               this could be construed to mean Tzitzis, which is
               equivalent to the entire Torah;
<br>          <b><font color='darkgreen'>7.   Question:</font></b> Why didn't he make them swear to observe
               613 Mitzvos?
<br>               <b><font color='darkgreen'>i.   Counter-question:</font></b> Why did he have to make them
                    swear based on Hashem's <i>and</i> Moshe's Da'as? It
                    would have sufficed to swear based on Moshe's
                    Da'as'!
<br>
<br>

sjt:
<font><b>1) AN OATH NOT TO EAT FOR SEVEN DAYS</b></font>
<br>QUESTION: The Mishnah teaches that an oath to annul a Mitzvah is a Shevu'as Shav. For example, one who deliberately swears not to make a Sukah or to hold a Lulav is punished with Malkus for making a Shevu'as Shav.
</p><p>
The Gemara earlier (25a) gives another example of a Shevu'as Shav. Rebbi Yochanan says that one who swears, 'I will not sleep for three days,' is punished with Malkus and may sleep immediately. <b>RASHI</b> (25a, DH Malkin) explains that he receives Malkus for making a Shevu'as Shav because it is physically impossible to go three days without sleep.
</p><p>
Does the same law apply to a person who swears that he will not eat for a period of time for which it is not possible to fast without starving? Is such a Shevu'ah similar to a Shevu'ah not sleep for three days, or is it different, because it is physically possible to abstain from food indefinitely (even though doing so will lead to death by starvation), and thus the Shevu'ah takes effect (and when he reaches the point at which his life is in danger, he will be permitted to eat in order to save his life)?
</p><p>
ANSWERS:
<br>(a) The <b>RAMBAM</b> (Hilchos Shevu'os 1:7) compares a Shevu'ah not to eat for seven consecutive days to a Shevu'ah not sleep for three days. Neither Shevu'ah is valid because of the practical impossibility to fulfill it. Both Shevu'os have the status of a Shevu'as Shav, and if one deliberately makes such a Shevu'ah he is liable for Malkus. The Rambam also writes (5:20) that one who swears not to eat for seven days may eat right away, because the Shevu'ah does not take effect.
</p><p>
(b) The <b>RAN</b> (10a of the pages of the Rif) discusses a Shevu'ah not to eat for one month. He asserts that such a Shevu'ah is <i>not</i> similar to a Shevu'ah not to sleep for three days. The latter Shevu'ah does not apply at all, because during the course of three days he inevitably will fall asleep at some point, even against his will. In contrast, a Shevu'ah not to eat for a month is physically possible to fulfill. The Halachah states that when his situation becomes life-threatening, the concern for Piku'ach Nefesh overrides the prohibition against violating one's Shevu'ah. Since the Shevu'ah takes effect, however, he may not eat more than what is necessary for survival.
</p><p>
The Ran writes that when one makes a Shevu'ah to injure himself, the Shevu'ah takes effect. Although the Torah forbids a person from injuring himself, the prohibition is not stated explicitly but is derived from a verse. (See Bava Kama 91b, where the Gemara derives the prohibition from Bamidbar 6:11, which discusses a Nazir who afflicts himself.) The Ran understands that a Shevu'ah takes effect on a prohibition which is not stated explicitly in the Torah. Therefore, the person who makes such a Shevu'ah is not be allowed to injure himself, and would have to bring a Korban for transgressing the Shevu'ah.
</p><p>
In contrast, a Shevu'ah to kill himself does not take effect, because suicide is explicitly forbidden by the Torah: 'However, your blood of your souls I will demand (if you take your own blood)' (Bereishis 9:5). The Ran cites an additional source in the Torah which forbids suicide: 'Be careful and guard your soul very carefully' (Devarim 4:9).
</p><p>
The <b>RAN</b> cites the words of the Rambam, and -- although he disagrees with the Rambam's comparison of the two Shevu'os -- he concludes that the Rambam's ruling is correct, for a different reason. The Ran explains that a Shevu'ah not to eat is invalid because it constitutes a Shevu'ah to transgress a Torah law; it effectively is a Shevu'ah to kill himself. For this reason it is a Shevu'as Shav.
</p><p>
The Ran concludes, like the Rambam, that if one swears not to eat for seven days, the Shevu'ah does not take effect because it is a Shevu'ah to transgress a Torah law. He receives Malkus for making a Shevu'as Shav, and he may eat immediately.
</p><p>
(See also <b>MINCHAS CHINUCH</b> (30:3) who writes that he is not aware of the source for the Rambam's statement that one cannot survive seven days without eating or drinking at all. He concludes that the Rambam must have known this from his knowledge of medical science. See a possible source in Sanhedrin 108b, and <b>RASHI</b> there, DH Lo Batzir.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) SHEVUOS ARE BASED ON DA'AS BEIS DIN</font></b>
<b><font color='darkgreen'>    </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>         <b><font color='darkgreen'>1.   (Mishnah):</font></b> An oath about something impossible, e.g.
              'if I did not see a camel fly, is a Shevu'as Shav
              (vain oath).
<br>         <b><font color='darkgreen'>2.   Question (Ravina):</font></b> Perhaps he saw a huge bird,
              nicknamed it 'camel' and swore truthfully based on
              his Da'as (intent of his words)!
<br>         <b><font color='darkgreen'>3.   Answer:</font></b> We judge oaths (objectively) based on the
              words he said, and not based on his personal intent.
<br>         <b><font color='darkgreen'>4.   Question #1 (Beraisa):</font></b> When Beis Din administers an
              oath, we tell the one who must swear 'you do not
              swear based on your own Da'as, rather based on the
              Da'as (understanding) of Hash-m and Beis Din.'
<br>              <b><font color='darkgreen'>i.   Suggestion:</font></b> If Beis Din did not say this, he
                   could swear based on his Da'as, e.g. he could
                   nickname some wood chips 'money', and swear 'I
                   gave the money to Ploni'!
<br>         <b><font color='darkgreen'>5.   Answer:</font></b> No. (Really, we judge oaths objectively
              based on his words, and not based on his Da'as. We
              are concerned for cases like the following._
<br>              <b><font color='darkgreen'>i.   Nedarim 25a:</font></b> Reuven claimed that he paid his
                   debt to Shimon. Rava told him to swear. Reuven
                   was using a hollow cane with coins idden
                   inside. Reuven asked Shimon to take the reed,
                   held a Sefer Torah and swore that he paid
                   Shimon. Upon hearing the oath, Shimon broke the
                   reed in anger. The coins fell out, and it was
                   seen that the oath was true.
<br>         <b><font color='darkgreen'>6.   Question #2 (Beraisa):</font></b> Moshe forced Bnei Yisrael to
              swear. He said 'you do not swear based on your
              Da'as, rather, on Hashem's Da'as and mine.'
<br>              <b><font color='darkgreen'>i. </font></b>  Had he made them swear to observe all the
                   Mitzvos, this could be construed to mean
                   Tzitzis, which is equivalent to the entire
                   Torah.
<br>              <b><font color='darkgreen'>ii.  Counter-question:</font></b> Why wasn't it enough to make
                   them swear on Moshe's Da'as? Why did he require
                   also on Hashem's Da'as'?
<br>         <b><font color='darkgreen'>7.   Answer to both questions:</font></b> This is in order that the
              oath (will be based on the Da'as of many (others),
              so it) cannot be annulled.
<br>         <b><font color='darkgreen'>8.   Gitin 35a:</font></b> A widow came in front of Rav Huna to
              collect her Kesuvah. Rav Huna said 'I hold like Rav,
              who does not collect a Kesuvah for a widow.'
<br>              <b><font color='darkgreen'>i.   The woman:</font></b> You suspect lest I already received
                   part of my Kesuvah. I swear by Hashem's name
                   that I did not benefit from my Kesuvah!
<br>              <b><font color='darkgreen'>ii.  (Rav Huna):</font></b> Rav admits that if she swears on
                   her own, she receives her Kesuvah.
<br>         <b><font color='darkgreen'>9.   Nedarim 28a (Mishnah):</font></b> One may falsely vow to
              extortionists that the property belongs to the king.
<br>         <b><font color='darkgreen'>10.  (Rav Amram):</font></b> He says '(all) Peros are forbidden to
              me <i>today</i> if this is not the king's'. He says
              'today' only in his heart, not with his lips.
<br>         <b><font color='darkgreen'>11. </font></b> Even though Devarim sheb'Lev (unspoken conditions)
              are ignored, in the case of Ones they are valid.
<br>         <b><font color='darkgreen'>12.  Bava Metzia 2a (Mishnah):</font></b> If two are holding a
              Talis, and both say 'it is mine', each swears that
              he does not own less than half, and they divide it.
<br>         <b><font color='darkgreen'>13. </font></b> If Reuven says 'it is all mine' and Shimon says 'it
              is half mine', Reuven swears that he does not own
              less than three quarters, and Shimon swears that he
              does not own less than one quarter. Each gets like
              he swore.
<br><b><font color='darkgreen'>    (b)  Rishonim</font></b>
<br>         <b><font color='darkgreen'>1.   Rif and Rosh (3:21):</font></b> Our Sugya shows that we do not
              follow his Da'as. Since no one else calls a bird
              'camel', his opinion is Batel to everyone else's,
              and his oath was vain.
<br>         <b><font color='darkgreen'>2.   Rambam (Hilchos Shevuos 2:15):</font></b> One who swears 'I
              will not eat today. I swear on your Da'as' cannot
              say 'this is what I meant', for he did not swear on
              his own Da'as, rather, on that of others. Since his
              mouth and the hearts of the others were the same,
              their hearts (intent) is in place of his heart. The
              same applies to other kinds of Shevuos.
<br>              <b><font color='darkgreen'>i.   Kesef Mishneh:</font></b> This is reasonable. He learns
                   from 29a, 'we do not make you swear based on
                   your own Da'as.'
<br>         <b><font color='darkgreen'>3.   Rambam (16):</font></b> When Beis Din administers an oath, we
              say 'we do not make you swear based on your own
              Da'as, rather, based on our Da'as.'
<br>         <b><font color='darkgreen'>4.   Rosh (Bava Metzia 1:1):</font></b> Letter of the law, Reuven
              should receive, without swearing, half the Talis
              that Shimon does not claim. We force him to swear
              that he owns no less than three quarters, lest he
              scheme. Even though he swears Al Da'as Beis Din, we
              enact what is possible to avoid scheming. This shows
              that if a defendant (Ploni) is scheming, the judge
              can be stringent and specify every possible intent
              that Ploni could have in the oath. Ploni cannot say
              'there is no need for this. I swear according to
              your Da'as, without scheming.' One fears more when
              they mention how he transgresses the oath, than when
              he swears Stam, even though according to the judge's
              Da'as he transgresses.
<br>              <b><font color='darkgreen'>i.   Maharit (Sof 70):</font></b> A case occurred in which the
                   parties contradicted each other, and Moshe (the
                   Muchzak) could not swear. He cannot demand 'let
                   Levi swear that I have no claim on any of it.'
                   Even if Moshe, based on his initial claim, is
                   sure that 'Levi swears falsely, and my claim is
                   correct', we do not force Levi to specify his
                   oath. If we would, we show that we believe
                   Moshe, for he is Muchzak! Rashi explains that
                   Abaye says that when both hold the Talis and
                   claim all of it, they swear lest one of them is
                   owed an old debt, and he knows that the other
                   forgot and will deny it, therefore, he grabbed
                   onto his Talis and is ready to swear that half
                   is his, for he has a lien on it. If so, all the
                   more so we should be concerned (lest Levi swear
                   that it is all his, when it was his and Moshe
                   seeks to take it for a debt). Even so, I say
                   that the judge should not specify, lest a
                   litigant learn from this how to claim falsely.
                   We let Levi swear Stam. Likewise, we do not
                   suggest Gilgul Shevu'ah. The Gemara said that
                   we make one swear 'I own in it, and I do not
                   own less than half', lest one intend 'I swear
                   Emes, that I do not own any of it.' Tosfos says
                   that even though one swears Al Da'as Beis Din,
                   it is good to specify.
<br><b><font color='darkgreen'>    (c)  Poskim</font></b>
<br>         <b><font color='darkgreen'>1.   Shulchan Aruch (CM 87:20):</font></b> We tell him 'we do not
              make you swear based on your own Da'as, rather,
              based on our Da'as and Da'as Beis Din.'
<br>              <b><font color='darkgreen'>i.   Beis Yosef (DH v'Im):</font></b> The Beraisa mentions 'Al
                   Da'as Hashem', but the Rambam and Tur mention
                   only 'our Da'as.'
<br>         <b><font color='darkgreen'>2.   Rema:</font></b> If there is an angle of trickery, the judge
              should specify every trickery that the person could
              be thinking.
<br>              <b><font color='darkgreen'>i.   SMA (62):</font></b> In this case, it is not enough that
                   one swears Al Da'as Beis Din.
<br>              <b><font color='darkgreen'>ii.  Beis Yosef (DH Motzasi, citing Teshuvas Maharam
                   337):</font></b> If Ploni swore on his own to Shimon
                   before he was obligated, if later, Beis Din
                   obligated him to swear, he was not Yotzei with
                   his first oath. One must swear after Beis Din
                   rules. Perhaps he stole after he swore, or he
                   called wood chips 'money', or it is a case like
                   the stick in Rava's Beis Din. Rav admits that
                   if a widow swore on her own, she collects her
                   Kesuvah (Gitin 35a). Really, she swore Al Da'as
                   Beis Din; the Gemara did not elaborate for
                   something that is not needed. R. Yerucham says
                   in the name of R. Tam that if one swore on his
                   own, he swears again Al Da'as Beis Din.
<br>         <b><font color='darkgreen'>3.   Shulchan Aruch (YD 210:1):</font></b> If one vowed Al Da'as of
              others, it does not depend on what he thought. The
              vow takes effect based on their Da'as.
<br>              <b><font color='darkgreen'>i.   Gra (3):</font></b> He comes to answer the Meforshim's
                   question from Nedarim 28a, that Devarim
                   sheb'Lev Einam Devarim. In Shevuos, we say that
                   one cannot give a Perush far from the simple
                   meaning, and if he explicitly said 'Al Da'atan
                   (of Beis Din)', he cannot give any Perush! The
                   Rambam discusses such a case. Normally, one can
                   say that there was a Tanai, like R. Akiva did.
                   (Maseches Kalah records that he swore to bring
                   a woman to the world to come, so she would help
                   him to clarify a Halachah, and he annulled his
                   oath while saying it, in his heart.) All the
                   more so one who vows on his own Da'as may say
                   that there was a Tanai. A Tosefta (Taharos 6:9)
                   explicitly says so.
<br>              <b><font color='darkgreen'>ii.  Beis Lechem Yehudah (3):</font></b> This is not only for
                   one who vows Al Da'as of others. Also if Ploni
                   swears at the request of David and for David's
                   benefit, even if he did not swear Al Da'as
                   David, it does not depend on Ploni's heart
                   (Maharashdam YD 112). If one said 'I swear Al
                   Da'as Rabim', and later said that he did not
                   mean this and merely said it due to habit, he
                   is not believed (Tumas Yesharim 141). If Ploni
                   swore to David 'whatever I collect from this
                   debt, I will give to you half or a third', and
                   he did not collect it, rather, he sold it for
                   less than its value, he must pay David
                   according to the value (Ra'anach).
<br>
<font color='blue'><i>See also:</i>
<br><b>VOWS AND OATHS MUST BE SAID </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>8.   Answer to both questions:</font></b> This is in order that the
               oath (will be based on the Da'as of many (others),
               so it) cannot be annulled.
<br>
<b><font color='blue'>4) OTHER VAIN OATHS</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> ...'If I did not see a snake like the beam of an
<br>          olivepress'
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> A bigger snake was seen in the days of Shevor
          Malka. It consumed 13 stables (or bundles) of hay.
<br>     <b><font color='darkgreen'>(c)  Answer (Shmuel):</font></b> He means, it was Taruf (Rashi - grooved)
          like the beam of an olivepress.
<br>     <b><font color='darkgreen'>(d)  Question:</font></b> All snakes are like that!
<br>     <b><font color='darkgreen'>(e)  Answer:</font></b> He means, its back was Taruf.
<br>     <b><font color='darkgreen'>(f)  (Mishnah):</font></b> If one said 'I swear that I will eat this
          loaf, I swear that I will <i>not</i> eat it... '(if he does
          not eat it, he transgressed Bituy).
<br>     <b><font color='darkgreen'>(g)  Question:</font></b> Why is he liable only for Bituy, and not for
          (the latter,) a vain oath?
<br>     <b><font color='darkgreen'>(h)  Answer (R. Yirmeyah):</font></b> Indeed, the Mishnah means, he
          transgressed <i>even</i> Bituy.
<br>
<b><font color='blue'>5) IMPOSING AN OATH ON ANOTHER PERSON</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> Oaths of Bituy apply to men and women,
          (whether he swore to help) relatives and strangers,
          people qualified and unqualified to testify, in and
          outside of Beis Din, when he swears himself;
<br>          <b><font color='darkgreen'>1.  </font></b> He is lashed if he transgressed b'Mezid, and brings
               an Oleh v'Yored if he was Shogeg.
<br>     <b><font color='darkgreen'>(b)</font></b>  Vain oaths apply to men and women, (whether he swore
          about) relatives and strangers, people qualified and
          unqualified to testify, in and outside of Beis Din, when
          he swears himself;
<br>          <b><font color='darkgreen'>1.  </font></b> He is lashed if he transgressed b'Mezid. If he was
               Shogeg, he is exempt.
<br>     <b><font color='darkgreen'>(c)</font></b>  Another person can put either oath on him. If Reuven said
          'I did not eat (or don Tefilin) today', and Shimon said
          'I impose this on you through a Shevu'ah', and Reuven
          answered 'Amen', he is liable.
<br>     <b><font color='darkgreen'>(d)  (Gemara - Shmuel):</font></b> One who answers 'Amen' to an oath is
          like one who said the oath himself - 'v'Amrah ha'Ishah
          Amen Amen' (if the Sotah is guilty, she will die for this
          oath).
<br>     <b><font color='darkgreen'>(e)  Support #1 (Rav Papa):</font></b> Shmuel must be correct. This is
          the only way to resolve a contradiction between a Mishnah
          and Beraisa;
<br>          <b><font color='darkgreen'>1.   (Mishnah - R. Meir):</font></b> Shevu'as ha'Edus (the oath of
               not knowing testimony) applies only to men, only to
               strangers, only to Kosher witnesses, only to people
               proper to testify (this excludes kings), in or
               outside of Beis Din;
<br>               <b><font color='darkgreen'>i. </font></b>  When he swears himself, he is liable anywhere.
                    If the oath is imposed on him, he is liable
                    only if he denies in Beis Din.
<br>          <b><font color='darkgreen'>2.   Contradiction (Beraisa - R. Meir):</font></b> Shevu'as ha'Edus
               is when Reuven asked witnesses to testify for him;
               and they said 'we swear that we do not know
               testimony for you';
<br>               <b><font color='darkgreen'>i. </font></b>  Or:, they said 'we do not know testimony for
                    you', and Reuven said 'I impose this on you
                    through an oath', and they answered 'Amen',
                    whether in or outside of Beis Din, whether they
                    swore themselves or the oath was imposed on
                    them, they are liable if they deny in Beis Din.
<br>          <b><font color='darkgreen'>3.   Resolution:</font></b> When they answer 'Amen', they are liable
               even outside of Beis Din. If they (accepted the oath
               but) did not say 'Amen', they are liable only in
               Beis Din.
<br>     <b><font color='darkgreen'>(f)  Support #2 (Ravina):</font></b> We can resolve a contradiction in
          our Mishnah only like Shmuel.
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> Oaths of Bituy apply... when he swears
               himself;
<br>               <b><font color='darkgreen'>i.   Inference:</font></b> It does not apply when the oath was
                    imposed on him.
<br>          <b><font color='darkgreen'>2.   Contradiction (Seifa):</font></b> Another person can put either
               oath on him.
<br>          <b><font color='darkgreen'>3.   Resolution:</font></b> When they answer 'Amen', they are liable
               even outside of Beis Din. If they (accepted the oath
               but) did not say 'Amen', they are liable only in
               Beis Din.
<br>     <b><font color='darkgreen'>(g)  Question:</font></b> What is Shmuel's Chidush? The Mishnah teaches
          this?
<br>     <b><font color='darkgreen'>(h)  Answer:</font></b> Shmuel teaches that the Mishnah teaches this law. 
<br>

sjt:
</p><p>
<font><b>2) REVOKING 'CHARAMOS' MADE BY THE COMMUNITY</b></font>
<br>QUESTIONS: The Gemara (29a) cites a Beraisa that discusses the oath to observe the laws of the Torah, which Moshe Rabeinu made the Jewish people make. He said to them, 'Know that I am making you swear not according to your own Da'as (understanding of the Torah), but rather according to the Da'as of Hash-m and according to my Da'as.'
</p><p>
The Gemara explains that the reason why Moshe Rabeinu said both 'Hashem's Da'as' and 'my Da'as' was in order to prevent the possibility of annulling this Shevu'ah. <b>RASHI</b> (29b DH Ela) explains that since the oath was based on the Da'as of Hash-m and Moshe, it was considered an oath made according to the Da'as of the Rabim (public) which cannot be annulled (see Gitin 36a).
</p><p>
The Gemara implies that when a community decrees a Cherem (a public proclamation which all members of the community are obligated to follow) 'according to the Da'as of Hash-m and the Da'as of the community,' it is binding and cannot be annulled. (An example of such a proclamation is found in the <b>SHULCHAN ARUCH</b> YD 1:11, who mentions a community that decreed a Cherem that only a certain Shochet may slaughter meat. Another Shochet transgressed the Cherem, and some authorities ruled that the meat of the second Shochet is forbidden.) <b>TOSFOS</b> (DH Ki) asks that it is common practice to retract such public Charamos, but according to the Gemara here it should be impossible to retract such Charamos. Even if the Cherem is made only 'according to the Da'as of the community,' it is an oath made according to the Da'as of the Rabim which cannot annulled. Tosfos asks further that the annulment of an oath may be done only with Charatah, an expression of regret for having made the oath. What Charatah is the basis for the annulment of public Charamos?
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> answers that a public Cherem is different in that the original Da'as of the community was that the Cherem will be annulled whenever the community desires to annul it, and that such annulment may be done without Charatah.
</p><p>
Tosfos adds that although the Cherem was made 'according to the Da'as of Hash-m,' this does not mean that it is an oath made according the Da'as of the Rabim. Rather, this is merely a term that the Ge'onim instituted in order for people to take the Cherem seriously.
</p><p>
Tosfos writes that this is not similar to the oath that Moshe Rabeinu made the Jewish people take. Hash-m told Moshe to make them take that oath. In contrast, the Charamos made by the community depend solely on the public's decision to institute such policies.
</p><p>
(b) The <b>ROSH</b> explains that the reason why the conditions necessary to annul an oath (such as Charatah, and an expert Chacham, or three ordinary people) are not required for the annulment of a public Cherem is that such a Cherem does not possess the status of a Neder. Rather, it is a type of decree or excommunication that anyone who transgresses the Cherem will be separated from the community. (For example, no one may speak or do business with the person who transgresses the Cherem.) It is a process of Niduy which the community may apply, and annul, at will.
</p><p>
The <b>KEHILOS YAKOV</b> in Moed Katan (#4) points out that, apparently, Tosfos maintains that a public Cherem <i>does</i> have the status of a Neder; the Neder, however, is made dependent on public opinion. In contrast, according to the Rosh, a Cherem does <i>not</i> have the status of a Neder at all. Even if is made with the 'Da'as Rabim,' it still may be annulled without Charatah.
</p><p>
An example of a Cherem which forbids an act which otherwise would be permitted is the Cherem of Rabeinu Gershom against marrying more than one wife.
</p><p>
The Kehilos Yakov writes that many Rishonim imply that when a person performs the act which is prohibited by the Cherem, he not only is punished and cursed, but his very act constitutes a transgression. This is the view of Tosfos here, who considers the Cherem to have the status of a Neder or Shevu'ah. One who transgresses the Cherem is considered as though he transgresses a Neder or Shevu'ah.
</p><p>
In contrast, the Rosh maintains that one who performs the act prohibited by the Cherem has transgressed no prohibition per se, because the Cherem does not have the status of a Neder but is merely a decree on the community. There is no actual prohibition on the act that the Cherem proscribes. Rather, the Cherem imposes a penalty on a person who disregards the Cherem.
</p><p>
The Kehilos Yakov adds that the Rosh apparently maintains that that it is not possible to place a prohibition of a Neder on someone else. Accordingly, the Cherem of the community is merely a decree of punishment upon anyone who does not conform with the ban. (D. Bloom) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) WOMEN CANNOT TESTIFY</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah - R. Meir):</font></b> Shevu'as ha'Edus applies to men, but
          not to women; to strangers, but not to relatives; to
          Kosher witnesses, but not to invalid witnesses, and only
          to people proper to testify;
<br>     <b><font color='darkgreen'>(b)</font></b>  When he swears himself, he is liable in or outside of
          Beis Din; if the oath is imposed on him, he is liable
          only if he denies in Beis Din.
<br>     <b><font color='darkgreen'>(c)</font></b>  Chachamim say, whether he swears himself or the oath is
          imposed on him, he is liable only if he denies in Beis
          Din.
<br>     <b><font color='darkgreen'>(d)</font></b>  One is liable for swearing falsely b'Mezid (he really
          remembers the testimony), whether or not he knows the
          punishment for it;
<br>          <b><font color='darkgreen'>1.  </font></b> He is exempt if he did not remember the testimony.
<br>     <b><font color='darkgreen'>(e)</font></b>  When he is liable, he brings a Korban Oleh v'Yored.
<br>     <b><font color='darkgreen'>(f)  (Gemara) Question:</font></b> What is the source (that the oath does
          not apply to women, because they are invalid witnesses)?
<br>     <b><font color='darkgreen'>(g)  Answer #1 (Beraisa #1):</font></b> 'V'Omdu Shnei ha'Anashim' refers
          to the witnesses.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> Perhaps it refers to the parties in the
               case (the claimant and defendant)!
<br>          <b><font color='darkgreen'>2.   Answer #1:</font></b> 'Asher Lahem ha'Riv' refers to them, so
               'v'Omdu Shnei ha'Anashim' must refer to witnesses.
<br>          <b><font color='darkgreen'>3.   Answer #2:</font></b> If you prefer, you can learn from '(Al
               Pi) <i>Shnei</i> (Edim)', which refers to witnesses.
<br>               <b><font color='darkgreen'>i.   Question:</font></b> What objection might one have to the
                    first answer (to prefer a different source)?
<br>               <b><font color='darkgreen'>ii.  Answer:</font></b> If 'Shnei ha'Anashim' refers to
                    witnesses, it should have said '<i>va</i>'Asher
                    Lahem ha'Riv.' ('<i>Asher</i> Lahem ha'Riv' connotes
                    the ones just mentioned, i.e. the whole verse
                    refers to the parties.)
<br>     <b><font color='darkgreen'>(h)  Answer #2 (Beraisa #2):</font></b> 'V'Omdu Shnei ha'Anashim' refers
          to the witnesses.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> Perhaps it refers to the parties!
<br>          <b><font color='darkgreen'>2.   Answer #1:</font></b> If so, the Torah would not say 'two', for
               the parties could be comprised of many people (but
               normally, only two witnesses testify).
<br>          <b><font color='darkgreen'>3.   Answer #2:</font></b> If you prefer, you can learn from
               'Shnei', which refers to witnesses.
<br>               <b><font color='darkgreen'>i.   Question:</font></b> What objection might one have to the
                    first answer?
<br>               <b><font color='darkgreen'>ii.  Answer:</font></b> 'Shnei ha'Anashim' could mean the two
                    parties, even if each party is composed of
                    several people.
<br>     <b><font color='darkgreen'>(i)  Answer #3 (Beraisa #3):</font></b> 'V'Omdu Shnei ha'Anashim' refers
          to the witnesses.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> Perhaps it rather refers to the parties in
               the case!
<br>          <b><font color='darkgreen'>2.   Answer #1:</font></b> The Torah would not say 'men', for also
               women need to come for judgment!
<br>          <b><font color='darkgreen'>3.   Answer #2:</font></b> If you prefer, you can learn from
               'Shnei.'
<br>               <b><font color='darkgreen'>i.   Question:</font></b> What objection might one have to the
                    first answer?
<br>               <b><font color='darkgreen'>ii.  Answer:</font></b> Women do not normally come to Beis Din
                    for judgment (rather, they send a man to plead
                    their case) - 'Kol Kevudah Vas Melech Penimah.'
<br>
<b><font color='blue'>2) NOT FAVORING ONE PARTY IN COURT</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Beraisa):</font></b> 'V'Omdu Shnei ha'Anashim' - the parties must
          stand;
<br>     <b><font color='darkgreen'>(b)</font></b>  R. Yehudah says, the judges may choose to have them sit;
<br>          <b><font color='darkgreen'>1.  </font></b> One may not make one party stand while the other
               party sits.
<br>     <b><font color='darkgreen'>(c)  (Beraisa):</font></b> 'B'Tzedek Tishpot Amisecha' - the judge cannot
          make one party stand while the other party sits, or allow
          only one party to speak as long as it wants;
<br>     <b><font color='darkgreen'>(d)  Alternatively:</font></b> the verse commands everyone to judge his
          fellowman favorably (when he sees him do something that
          might be wrong).
<br>          <b><font color='darkgreen'>1.   (Rav Yosef):</font></b> 'B'Tzedek Tishpot <i>Amisecha</i>' - one who
               acts like one of your nation, i.e. he observes Torah
               and Mitzvos, you must judge very well.
<br>     <b><font color='darkgreen'>(e)</font></b>  Ula brei r'Rav Ila'i had to go for judgment in front of
          Rav Nachman. Rav Yosef sent to Rav Nachman 'Ula is our
          colleague in Torah and Mitzvos.'
<br>          <b><font color='darkgreen'>1.   Rav Nachman:</font></b> Surely, Rav Yosef did not intend for
               flattery (to tilt the verdict)!
<br>               <b><font color='darkgreen'>i. </font></b>  Rather, he informed me, so I will know to judge
                    his case before that of an ignoramus.
<br>
<br>

sjt:
<font><b>1) MAY A WOMAN APPEAR IN COURT?</b></font>
<br>OPINIONS: The Gemara records three Beraisos which prove from verses in the Torah that a woman generally may not serve as a witness. The third Beraisa quotes the verse, 'The two men shall stand' (Devarim 19:17), which presumably refers to two witnesses, because if it refers to the plaintiff and defendant, then it would not use the term 'men,' since women also may come to court as a plaintiff or defendant. The Gemara rejoins that perhaps women may not come to court as a plaintiff or defendant because the verse says, 'Kol Kevudah Vas Melech Penimah' -- 'All of the glory of the princess is within' (Tehilim 45:14), implying that the princess, the Jewish woman, is honored by staying within her home. The Gemara concludes that the verse refers to witnesses from the usage of the word 'two'; just as the word 'two' is used elsewhere to refer to witnesses, the word 'two' in this verse refers to witnesses.
</p><p>
(a) According to the Gemara's explanation, the Beraisa maintains that a woman should <i>not</i> come to court, even as a plaintiff or defendant. Are women indeed exempt from being present at a Din Torah?
</p><p>
1. The <b><b><b>RI</b></b> MI'GASH</b> writes that based on this Gemara, it is fitting for a woman not to appear before Beis Din as a litigant. Rather, a woman who is summoned to court may have the court appoint an agent on her behalf. This agent then relays the court's proceedings to the woman and returns to the court with her response. The Ri mi'Gash writes that this was the practice followed by his teacher, the <b>RIF</b>. Although the Gemara later (30b) mentions that Rav Huna's wife came to Beis Din, she did so only because she wanted to represent herself.
</p><p>
2. The <b>RITVA</b> argues that there is no proof from the Gemara that a woman should not appear in court. He agrees that when the woman is the defendant, she does not have to come to court if the plaintiff agrees to litigate with her representative. However, if the plaintiff insists that she come (perhaps because he assumes that she will be less inclined to lie in his presence), then she must come to court. The Gemara is not teaching the rule, but rather it is stating the common practice; people usually do not make women come to Beis Din.
</p><p>
The <b>ARUCH HA'SHULCHAN</b> (CM 124) writes that, in practice, we follow a compromise between these two opinions. The woman may have an agent come to her home so that she does not have to go to Beis Din. At the same time, the plaintiff is allowed to be present when she states her claims.
</p><p>
(b) The argument between the Ri mi'Gash and the Ritva involves only having an agent relay the woman's responses to Beis Din. Does the Halachah allow for the woman to have an agent represent her in Beis Din and make claims on her behalf, without traveling back to the woman to get her responses?
</p><p>
1. The <b><b><b>RI</b></b> MI'GASH</b> and the <b>RIF</b> agree that the appointment of a full representative is not allowed. The Gemara in Bava Kama (70a) states that a plaintiff may turn over a case to another person by transferring to him the rights to the money if he wins the case. This procedure essentially makes the plaintiff's representative equal to the plaintiff, since he is now a partner in the plaintiff's interest. However, in the case of a <i>defendant</i>, who stands only to lose money, the defendant may not give anyone a share in the money in order for that person to represent him. Since a representative cannot be considered like the defendant himself, his presence does not fulfill the requirement of the verse, 'The two men... shall stand before Hash-m' (referring to standing before Beis Din, the representative of Hash-m). In contrast, in the case of a simple messenger who conveys messages between the Beis Din and the woman, the messenger is considered like the woman herself, based on the principle of 'Shelucho Shel Adam Kemoso.'
</p><p>
The <b>RAMBAN</b> and other Rishonim give another reason for why a representative cannot be appointed to represent the defendant. There is a concern that the representative will lie and add his own claims in order to win the case. The <b>RITVA</b> adds that the defendant will be more inclined to send lies through the representative, since the defendant does not stand face-to-face with his or her opponent. (This problem applies equally in the case of a messenger, as mentioned above.)
</p><p>
2. The <b>ARUCH</b> and <b>RABEINU CHANANEL</b> maintain that a defendant may appoint an agent to represent him in court. The representative is considered a Shali'ach of the defendant, and thus it is considered as though the defendant himself is standing in court.
</p><p>
They argue that there is no concern that the representative will lie and add his own claims, because of the principle that a person is not suspected of lying when he will not benefit ('Ein Adam Chotei v'Lo Lo'). However, they write that one may appoint a representative only for the normal proceedings in the court case; one may <i>not</i> appoint a representative to take an oath on his behalf.
</p><p>
They prove that the defendant may appoint an agent to represent him in court from the Yerushalmi in Sanhedrin (2:1). The Mishnah there states that a Kohen Gadol may be judged in Beis Din. The Gemara asks that he should be able to appoint an agent to represent him in Beis Din. The Gemara answers that the Kohen Gadol might have to take an oath, and his agent would not be able to take an oath for him. This implies that an agent <i>is</i> acceptable for the rest of the proceedings.
</p><p>
The <b>RAMBAN</b> refutes this proof. He explains that the Yerushalmi's statement applies only to a Kohen Gadol, whose honor must be guarded carefully. In the case of a Kohen Gadol, even sending a messenger to his home would be disgraceful. Therefore, he is permitted to appoint an agent to represent him in court. This allowance applies only to a Kohen Gadol and not to any other defendant.
</p><p>
Although the <b>RITVA</b> rejects the proof from the Gemara here, he accepts the proof from the Yerushalmi. He points out that the wording of the Yerushalmi implies that anyone may appoint an agent to represent him in court. He also writes that sending a messenger from Beis Din to the home of the Kohen Gadol is <i>not</i> disrespectful to the Kohen Gadol. Accordingly, the Ritva concludes that any person may appoint an agent to take his place in court. He writes that this was the common practice of his teacher, the <b>RE'AH</b>, and that he also heard this from the <b>RASHBA</b> (see footnotes of <b>MOSAD HA'RAV KOOK</b> edition). (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) WHO MAY SEND A SHALI'ACH TO CLAIM IN BEIS DIN?</font></b>
<b><font color='darkgreen'>    </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>         <b><font color='darkgreen'>1.   (Beraisa):</font></b> 'V'Omdu Shnei <i>ha'Anashim</i>' cannot refer
              to the parties, for also women must come for
              judgment! If you prefer, you can learn from 'Shnei.'
<br>         <b><font color='darkgreen'>2.  </font></b> One could have challenged the first answer, for
              women do not normally come to Beis Din for judgment
              - 'Kol Kevudah Vas Melech Penimah.'
<br>         <b><font color='darkgreen'>3.   31a (Rav):</font></b> 'Lo Tov Asah b'Soch Amav' is one who
              pleads on behalf of another through Harsha'ah (power
              of attorney).
<br>         <b><font color='darkgreen'>4.   33b (Shmuel):</font></b> Witnesses are liable (for a false oath
              that they do not know that testimony) if someone
              with a Harsha'ah asked them to testify.
<br>         <b><font color='darkgreen'>5.  </font></b> Chachamim of Neharde'a taught that we do not write a
              Harsha'ah on Metaltelim, i.e. if the defendant
              denied owing. If not, we may write it.
<br>         <b><font color='darkgreen'>6.   Makos 6b (Mishnah):</font></b> 'Al Pi Shnayim Edim' teaches
              that the Sanhedrin may not hear through a
              translator.
<br>         <b><font color='darkgreen'>7.  </font></b> Two came in front of Rava who spoke (only) a foreign
              language. Rava put a translator between them.
<br>         <b><font color='darkgreen'>8.   Question:</font></b> The Mishnah forbids this!
<br>         <b><font color='darkgreen'>9.   Answer:</font></b> Rava could understand what they said. He
              needed the translator only to speak to them.
<br>         <b><font color='darkgreen'>10.  Bava Kama 8b (Abaye):</font></b> If Reuven sold land to Shimon,
              even without liability if will be taken, and
              Reuven's creditor Levi collected it, Reuven can take
              Levi to Din. Levi cannot say 'you have no claim
              against me.' Reuven can say 'I don't want Shimon to
              have complaints against me (that I caused him a
              loss).'
<br><b><font color='darkgreen'>    (b)  Rishonim</font></b>
<br>         <b><font color='darkgreen'>1.   Rif and Rosh (14b and 4:2):</font></b> 'Lo Tov Asah b'Soch
              Amav' is one who pleads on behalf of another through
              Harsha'ah.
<br>              <b><font color='darkgreen'>i.   Ran (DH Zeh):</font></b> One who does so gets involved in
                   others' quarrels. Perhaps his opponent would
                   prefer to deal with the actual party, who can
                   compromise. A Shali'ach cannot compromise money
                   that is not his.
<br>              <b><font color='darkgreen'>ii.  Ran (13b DH v'Ifligu):</font></b> Early Chachamim argued
                   about whether a defendant may appoint a
                   Shali'ach to claim for him in Beis Din. The
                   Aruch and R. Chananel prove that he can from
                   the Yerushalmi. A Mishnah says that a Kohen
                   Gadol can be judged, and he can appoint a
                   Shali'ach. It asks, if he must swear, can a
                   Shali'ach swear for him?! This shows that if
                   not for the oath, the Shlichus works. They must
                   explain that in Makos, we require the Sanhedrin
                   to hear witnesses directly, but they may hear
                   litigants' claims through a Shali'ach. In a
                   Teshuvah, the Rif says that a defendant cannot
                   make a Shali'ach. He might make false claims in
                   Beis Din that the defendant would not have the
                   audacity to say in front of his opponent, who
                   knows the truth. The Yerushalmi suggested that
                   a Kohen Gadol can make a Shali'ach, due to his
                   honor. A regular person may not, even a
                   distinguished woman. The Rif permitted only for
                   Beis Din to send scribes to record her claims,
                   but she may not claim through a Shali'ach. For
                   a Kohen Gadol, even claiming in front of
                   scribes is disgraceful. Also the Rambam does
                   not allow claiming through a Shali'ach. He
                   infers that in Makos, a translator was used for
                   litigants (and we said that Beis Din must hear
                   directly), for it says 'they came in front of
                   Rava', and 'he put a translater <i>between</i> them.
<br>         <b><font color='darkgreen'>2.   Rambam (Hilchos Sanhedrin 21:8):</font></b> A judge may use a
              translator only if he understands the litigants'
              language, but he is not fluent to answer them. He
              may set up a translator to inform them of the
              verdict and the reasons for it.
<br>         <b><font color='darkgreen'>3.   Rosh (Shevuos 4:2):</font></b> The Ri ha'Levi learns from our
              Gemara that we do not disgrace an honorable woman to
              go to Beis Din, due to 'Kol Kevudah.' Rather, we
              send a Shali'ach of Beis Din to hear her claims. The
              Aruch and R. Chananel agree. The Ramban and Teshuvos
              of the Rif and Rav Sadya Gaon do not allow this. The
              Rif allows only that Beis Din send scribes to record
              her claim. The same applies to a Chacham for whom it
              is degrading to argue with Amei ha'Aretz in Beis
              Din; his honor is greater than a woman's.
<br>         <b><font color='darkgreen'>4.   Tosfos (31a DH Zeh):</font></b> It is bad to accept Harsha'ah
              when he ia appointed because he is more likely to
              win in Beis Din, but it is a Mitzvah to accept
              Harsha'ah for a litigant who cannot come to Beis
              Din.
<br>         <b><font color='darkgreen'>5.   Mordechai (Bava Metzia 276):</font></b> The Yerushalmi connotes
              that as long as the litigant swears himself, he can
              make a Shali'ach. Reuven can take Levi to Din, lest
              Shimon will have complaints against him. If not, he
              could not claim against him! Perhaps this is when
              Shimon is not here to appoint Reuven to be a
              Shali'ach. Avi ha'Ezri says so. Surely a Yavam
              cannot make a Shali'ach. If he will not do Yibum or
              Chalitzah, we whip him until he dies!
<br><b><font color='darkgreen'>    (c)  Poskim</font></b>
<br>         <b><font color='darkgreen'>1.   Shulchan Aruch (CM 124:1):</font></b> The defendant cannot
              appoint a Shali'ach to go to Beis Din for him to
              answer the claimant's claims.
<br>              <b><font color='darkgreen'>i.   Darchei Moshe (2):</font></b> Neither litigant may claim
                   in Beis Din through a translator. Since he is
                   there, he himself must claim. If a claimant is
                   not in Beis Din, he may claim through a
                   Shali'ach, but a defendant may not.
<br>              <b><font color='darkgreen'>ii.  SMA (1):</font></b> A claimant may claim through a
                   Shali'ach. The Chazakah that one cannot be
                   brazen in front of his creditor does not
                   pertain to him. Also, the claimant is Makneh
                   (transfers ownership) to the Shali'ach, and it
                   is as if he claims for himself. Also, it was
                   necessary to enact that a claimant can make a
                   Shali'ach, lest one borrow money and go
                   overseas (and it is not worth it for the lender
                   to go overseas to take him to Beis Din).
<br>              <b><font color='darkgreen'>iii. Shach (1):</font></b> Nowadays, the custom is that the
                   claimant claims along with another. We can
                   explain like the <b>SMA</b> (17:14) said (about
                   hearing the litigants through a translator),
                   that whoever comes in front of fixed judges, it
                   is as if he accepted to be judged this way.
                   However, if so, a defendant could protest!
                   Also, if so also a defendant could claim with
                   another if the claimant consents! The custom is
                   that a claimant claims along with another even
                   if the defendant protests, but a defendant
                   never claims with another. Rather, we permit
                   only when he gives power and Reshus to the
                   translator, for then he is considered a
                   litigant. A defendant has no power to give. The
                   Darchei Moshe says that a claimant in Beis Din
                   cannot make a Shali'ach to claim for him, i.e.
                   unless he gives him power and Reshus.
<br>         <b><font color='darkgreen'>2.   Shulchan Aruch (ibid):</font></b> For an esteemed woman, for
              whom it is undignified to go to Beis Din, we send
              judges' scribes and she and her opponent claim in
              front of them. The same applies to a Chacham with no
              other occupation for whom it is disgraceful to go to
              Beis Din and argue with an ignoramus.
<br>              <b><font color='darkgreen'>i.   Beis Yosef (DH veha'Rashba):</font></b> The Rashba (2:393)
                   says that the defendant cannot make a Shali'ach
                   to claim for him. How can one who does not know
                   the truth say what happened?! In another
                   Teshuvah (6:210) he sided with those who
                   permit; if an oath is needed, the defendant
                   himself swears if he is there. If not, Beis Din
                   sends and they administer the oath. The
                   Yerushalmi said that a Kohen Gadol cannot make
                   a Shali'ach due to the oath. I.e. we cannot
                   totally uphold his honor, for sometimes he must
                   swear in front of Beis Din, therefore, he
                   cannot make a Shali'ach. However, this is
                   difficult. There are laws (e.g. one who totally
                   denies need not swear) that depend on one's
                   inability to be brazen (and lie) in front of
                   his creditor! The Rambam connotes that no
                   claimant or defendant can claim through a
                   Shali'ach.
<br>              <b><font color='darkgreen'>ii.  SMA (3):</font></b> When we send scribes to a woman, the
                   claimant may go with them, so she will be
                   ashamed to claim falsely in front of him.
<br>              <b><font color='darkgreen'>iii. SMA (4):</font></b> Here we discuss a Chacham who wants to
                   accept the judges' verdict, but it is
                   disgraceful for him to go and argue with an
                   ignoramus. It is only if he has no other
                   occupation. If not, he normally deals with
                   Nochrim and ignoramuses, so surely he must go
                   to Beis Din. I prefer to say that we are so
                   concerned for the Chacham's honor to enact this
                   for him only if he has no other occupation.
<br>              <b><font color='darkgreen'>iv.  Shach (4):</font></b> YD (243:2) says that a Chacham with
                   no other occupation is one who works only for
                   his needs, and whenever he is free he returns
                   to learn. If so, why do we force Chachamim to
                   come to Beis Din? We must say that this depends
                   on custom, just like exempting Chachamim from
                   taxes. Maharashdam says that a Kinyan from the
                   defendant does not help. If the claimant had a
                   Din with the defendant's Shali'ach, and the
                   Shali'ach admitted, the defendant can retract
                   the Shlichus and need not pay due to the
                   admission. This is wrong. The Rivash (392)
                   proves from the Yerushalmi that his admission
                   is binding. The Rosh and Tur say that a
                   claimant cannot say 'I was Mevatel my Shali'ach
                   before he claimed for me', for he wrote that
                   the Shali'ach can acquire for himself.
                   Maharashdam infers that a defendant can do so.
                   This is wrong. Even if it were right, we cannot
                   learn from retraction from Bitul! Also, the
                   Rosh and Tur needed to teach only about a
                   claimant who can prove that he was Mevatel. If
                   not, even if he did not write that the
                   Shali'ach can acquire for himself, he is not
                   believed to retract. All the more so, a
                   defendant cannot retract from his Shali'ach's
                   admission!
<br>              <b><font color='darkgreen'>v.   Note:</font></b> The Rivash said that admission is binding
                   if he appointed the Shali'ach in front of
                   witnesses, and told them 'I accept whatever the
                   Shali'ach will admit.' If not, the admission is
                   not in front of witnesses.
<br>
<font color='blue'><i>See also:</i>
<br><b>WOMEN SHOULD STAY INSIDE </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>               <b><font color='darkgreen'>ii. </font></b> Alternatively, it is so I will be inclined to
                    pick him if the verdict is Shuda (Rashi - if we
                    cannot prove to which of two people Ploni gave
                    something, the judge estimates whom Ploni
                    preferred; Tosfos - the judge gives the
                    disputed property to whomever he himself
                    prefers).
<br>     <b><font color='darkgreen'>(f)  (Ula):</font></b> R. Yehudah and Chachamim argue only about the
          parties, but all agree that the witnesses must stand -
          'v'Omdu Shnei ha'Anashim.'
<br>     <b><font color='darkgreen'>(g)  (Rav Huna):</font></b> They argue only about the time of
          deliberations. All agree that when the final verdict is
          given, the judges must sit and the parties stand;
<br>          <b><font color='darkgreen'>1.   Version #1:</font></b> We learn from 'va'Yeshev Moshe...
               va'Ya'amod ha'Am.'
<br>          <b><font color='darkgreen'>2.   Version #2:</font></b> We learn from witnesses. Their testimony
               is like the final verdict (they do not do anything
               after this) and they must stand - 'v'Omdu Shnei
               ha'Anashim.'
<br>     <b><font color='darkgreen'>(h)</font></b>  Rav Huna's widow came for judgment in front of Rav
          Nachman. He was thinking what he should do.
<br>          <b><font color='darkgreen'>1.  </font></b> If I stand to honor her, her opponent will be taken
               aback and unable to plead his case;
<br>          <b><font color='darkgreen'>2.  </font></b> I cannot sit (while she stands). A Chacham's wife is
               like a Chacham (and Rav Huna was greater than me)!
<br>          <b><font color='darkgreen'>3.  </font></b> He told his servant 'make a goose flutter upon me',
               so it would seem that Rav Nachman rises due to the
               goose.
<br>          <b><font color='darkgreen'>4.   Question:</font></b> The judge must sit and the parties must
               stand at the time of the final verdict!
<br>          <b><font color='darkgreen'>5.   Answer:</font></b> He sat half-way, like one untying his shoe,
               and said 'Ploni is liable, Almoni is exempt.'
<br>     <b><font color='darkgreen'>(i)  (Rabah bar Rav Huna):</font></b> If a Chacham and ignoramus have a
          case with each other, we tell the Chacham to sit, and
          also the ignoramus;
<br>          <b><font color='darkgreen'>1.  </font></b> If the ignoramus wants to stand, we do not insist
               that he sit.
<br>     <b><font color='darkgreen'>(j)</font></b>  Rav Papa was judging Rav bar Sharbiya. He seated him, and
          told his opponent (Reuven) to sit. A messenger of the
          Beis Din kicked Reuven so he would stand. Rav Papa kept
          quiet.
<br>     <b><font color='darkgreen'>(k)  Question:</font></b> Reuven will be confounded, and unable to claim!
<br>     <b><font color='darkgreen'>(l)  Answer (Rav Papa):</font></b> No. He saw that I seated him. He
          realizes that only the messenger is upset with him.
<br>     <b><font color='darkgreen'>(m)  (Rabah bar Rav Huna):</font></b> If a Chacham and ignoramus (Shimon)
          have a case with each other, the Chacham may not come in
          front of the judge before Shimon, lest Shimon suspect
          that the Chacham was pleading his case;
<br>          <b><font color='darkgreen'>1.  </font></b> If the Chacham normally learns with the judge at
               this time, it is permitted. Shimon will assume they
               were learning.
<br>     <b><font color='darkgreen'>(n)  (Rabah bar Rav Huna):</font></b> If a witness is a greater Chacham
          than the judges, and it is a disgrace for him to go to
          testify in front of them, he should not go.
<br>     <b><font color='darkgreen'>(o)  Support (Rav Shisha brei d'Rav Idi - Mishnah):</font></b> If one
          finds a bag or box (in a situation where the Mitzvah of
          returning a lost object applies), if it is below his
          dignity to carry it (he would not take it if it was his
          own), he is exempt.
<br>          <b><font color='darkgreen'>1.  </font></b> Rabah's law applies only to monetary cases, but if
               the testimony will prevent people from
               transgressing, 'Ein Chachmah v'Ein Tevunah v'Ein 
               Etzah l'Neged Hash-m' - we do not honor a Chacham if
               it will cause Chilul Hash-m (transgressions).
<br>     <b><font color='darkgreen'>(p)</font></b>  Rav Yeimar knew testimony for Mar Zutra. Ameimar told
          everyone to sit.
<br>     <b><font color='darkgreen'>(q)  Question (Rav Ashi):</font></b> Ula taught that R. Yehudah and
          Chachamim argue only regarding the parties, but all agree
          that the witnesses must stand!
<br>     <b><font color='darkgreen'>(r)  Answer (Ameimar):</font></b> It is a Mitzvas Aseh for the witnesses
          to stand, and an Aseh to honor Chachamim;
<br>          <b><font color='darkgreen'>1.  </font></b> The Aseh to honor Chachamim takes precedence.
<br>
<b><font color='blue'>3) DISTANCING ONE'S SELF FROM FALSEHOOD</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Beraisa):</font></b> We learn the following laws from 'mi'Devar
          Sheker Tirchak':
<br>          <b><font color='darkgreen'>1.  </font></b> A judge may not strive to defend his ruling if he
               believes that he erred;
<br>          <b><font color='darkgreen'>2.  </font></b> A judge may not deliberate the case with an
               unlearned Talmid (lest this lead the judge to err);
<br>          <b><font color='darkgreen'>3.  </font></b> A judge may not sit on a Beis Din with a judge whom
               he knows is a thief;
<br>          <b><font color='darkgreen'>4.  </font></b> A witness may not give testimony with a witness whom
               he knows is a thief (even if the testimony is true,
               testimony of a thief is invalid);
<br>          <b><font color='darkgreen'>5.  </font></b> If a judge knows that the testimony is false, he may
               not rule based on it (and let the witnesses bear the
               blame). 
<br>

sjt:
</p><p>
<font><b>2) MUST A TALMID CHACHAM TESTIFY IN FRONT OF A COURT OF JUDGES OF INFERIOR SCHOLARSHIP?</b></font>
<br>QUESTION: The Gemara records a dispute about whether a Talmid Chacham is required to testify in front of a Beis Din of judges whose scholarship is inferior to his own. Rabah bar Rav Huna states that a Talmid Chacham is not required to testify in front of such a Beis Din. Rav Shisha brei d'Rav Idi supports this view from the laws of returning a lost object: a Talmid Chacham is not obligated to return a lost object when carrying it would be disrespectful to him, as the Gemara in Bava Metzia (30b) derives from the verse, 'v'His'alamta' (Devarim 22:1). The Gemara rejects Rav Shisha's proof and says that this type of exemption from a Mitzvah applies only in monetary matters. In a matter that involves an Isur (such as testifying that a woman is an Eshes Ish), the Talmid Chacham's superior scholarship does not exempt him from testifying.
</p><p>
Why, though, must he testify when doing so is a disgrace to his honor? The Gemara in Berachos (19b) teaches that when Kavod ha'Beriyos, the honor of a person, is involved, one may refrain from performing a Mitzvah through 'Shev v'Al Ta'aseh,' passively refraining from the Mitzvah. For example, when a person is on his way to bring the Korban Pesach or to perform Bris Milah for his son, and he comes across a Mes Mitzvah (a corpse with no one to take care of the burial), he is obligated to bury the Mes Mitzvah even though doing so will make him Tamei and cause him to forfeit the Mitzvah of Korban Pesach, or of Bris Milah on the eighth day. Since his forfeiture of the Mitzvah is done passively through 'Shev v'Al Ta'aseh' and not as an active transgression, the honor of a person takes precedence over the Mitzvah. Why, then, must the Talmid Chacham testify when doing so will offend his honor? He should be permitted to refrain from testifying because his forfeiture of the Mitzvah is done only passively. (<b>TOSFOS</b> DH Aval Isura)
</p><p>
ANSWERS:
<br>(a) <b>TOSFOS</b> answers that the Gemara in Berachos refers to a case in which the dead person will experience a very significant form of disgrace -- remaining without burial. In such a case, a person is required to refrain, passively, from performing another Mitzvah in order to bury the Mes Mitzvah. A Talmid Chacham who testifies before an inferior Beis Din does not experience such a great disgrace, and therefore his honor does not override the obligation to testify.
</p><p>
(b) Alternatively, Tosfos answers that the ability to testify is not called refraining from performing a Mitzvah. Since his refusal to testify could cause severe prohibitions to be transgressed (such as in the case of an Eshes Ish who is trying to get permission to marry another man), he is not permitted to refrain from testifying, even by passively refraining through 'Shev v'Al Ta'aseh.'
</p><p>
What is the logic behind this answer of Tosfos? Apparently, Tosfos understands that offending human dignity has the same severity as other transgressions. When faced with a situation in which one must choose one transgression over the other, one should do nothing to actively transgress any prohibition.
</p><p>
<b>RAV ELCHANAN WASSERMAN</b> Hy'd (in <b>DIVREI SOFRIM</b> 3:28) elaborates on this explanation. He writes that the logic that Kavod ha'Beriyos overrides other Mitzvos through 'Shev v'Al Ta'aseh' is normally understood as follows. The sin of disgracing human dignity has the same severity as other transgressions. When a person is faced with two sins of equal severity -- disgracing human dignity or transgressing a different Mitzvah -- he should remain passive in order not to transgress any Mitzvah in an active manner. This logic, however, does not apply in the case of a Talmid Chacham who is asked to testify in court. Tosfos states that the Talmid Chacham is required to testify in order to prevent a severe transgression from being done by the person for whom the Talmid Chacham is called upon to testify. According to the above logic, however, his choice of conduct still should be <i>inaction</i>; instead of actively transgressing the sin of disgracing human dignity, he should remain passive (and passively cause the other transgression to occur). It must be that Tosfos maintains that a disgrace to human dignity is <i>more</i> severe than a sin transgressed passively, and is <i>less</i> severe than a sin transgressed actively. Accordingly, Tosfos says that even if that active sin is going to be done by someone else, since it will be an active transgression it overrides concern for Kavod ha'Beriyos. Rav Elchanan explains that this is logical; the Gemara states that one who is able to stop someone else from sinning and does not do so is considered guilty of transgressing that sin. If, by not testifying, the Talmid Chacham is allowing a sin to be transgressed actively by someone else, he is considered as though he also actively transgresses that sin. This is why Tosfos says that not testifying would be considered an active sin, which overrides concern for Kavod ha'Beriyos.
</p><p>
The <b>KEHILOS YAKOV</b> offers an alternative explanation for the words of Tosfos. He agrees that Tosfos maintains that insulting human honor is more severe than a sin transgressed passively but less severe than a sin transgressed actively. When a sin is going to be transgressed actively in order to uphold Kavod ha'Beriyos, then it does not matter <i>who</i> transgresses the sin. Even if somebody else will transgress a sin in an active manner, concern for Kavod ha'Beriyos does not override the transgression. The Torah requires that a person forgo his honor when not doing so will cause <i>anyone</i> to actively transgress a sin. Therefore, the Talmid Chacham must forgo his honor and testify in order to prevent someone else from actively transgressing a sin. (Y. Montrose) </p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) FALSE MATTERS (cont.)</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Continuation of Beraisa):</font></b> We learn the following laws
          from 'mi'Devar Sheker Tirchak';
<br>          <b><font color='darkgreen'>1.   If a Talmid in front of the judge sees why the poor
               person is innocent and the rich person is liable, he
               may not keep quiet;
<br>          <b><font color='darkgreen'>2.   If a Talmid sees that the judge is erring, he may
               not wait until a wrong verdict is given and then
               show what the verdict should be, in order that
               people will say the verdict in his name;
<br>          <b><font color='darkgreen'>3.   If a Rebbi told his Talmid 'you know that I would
               not lie for a fortune. Reuven owes me money, and I
               only have one witness against him', the Talmid may
               not join with the witness.
<br>          <b><font color='darkgreen'>4.   Objection:</font></b> 'Lo Sa'aneh b'Re'echa Ed Shaker' teaches
               this, and not 'mi'Devar Sheker Tirchak'!
<br>          <b><font color='darkgreen'>5.   Correction:</font></b> Rather, even if the Rebbi asks 'just
               stand with my witness, to make Reuven think that I
               have two witnesses (so he will admit)', it is
               forbidden.
<br>          <b><font color='darkgreen'>6.   If Shimon owes Levi 100, Levi may not claim 200 in
               order that Shimon will (deny half and) have to
               swear, enabling Levi to force Shimon to swear about
               another matter. (This is the law of Gilgul Shevu'ah.
               When Shimon must swear to Levi, Levi can demand that
               Shimon swear about other claims as well);
<br>          <b><font color='darkgreen'>7.   If Shimon owes Levi 100 and Levi claimed 200, Shimon
               may not deny the entire claim in Beis Din and admit
               to Levi outside of Beis Din, to exempt himself from
               the oath of partial admission (lest Levi force
               Shimon to swear through Gilgul about another
               matter);
<br>          <b><font color='darkgreen'>8.   If Reuven owes money to three partners and denies
               it, one may not claim the entire amount and bring
               the others for witnesses (in order to share the
               money with them).
<br>          <b><font color='darkgreen'>9.   If Shimon is dressed in rags, and Levi (his
               opponent) is wearing very expensive clothing, Levi
               must supply Shimon with clothing like he is wearing,
               or also he must dress in rags.
             </font></b></font></b></font></b></font></b></font></b></font></b></font></b>  i.   Rabah bar Rav Huna would tell a litigant to
                    remove his linen shoes before he would hear the
                    case.
<br>          <b><font color='darkgreen'>10.  A judge may not hear one party before the other
               party comes.
<br>          <b><font color='darkgreen'>11.  A party may not justify its claim to the judge
               before the other party comes.
             </font></b></font></b>  i.   Rav Kahana learns the last two Isurim from 'Lo
                    Sisa Shema Shav' (do not hear a vain report;
                    this may also be read 'Lo Sasi', do not give a
                    vain report).
<br>     <b><font color='darkgreen'>(b)  (Rav):</font></b> 'Lo Tov Asah b'Soch Amav' is one who pleads on
          behalf of another through Harsha'ah (authorization;
          Tosfos - i.e. when he accepts Harsha'ah because he is
          more likely to win in Beis Din, but it is a Mitzvah to
          accept Harsha'ah for a litigant who cannot come to Beis
          Din.)
<br>     <b><font color='darkgreen'>(c)  (Shmuel):</font></b> This is one who buys a contested field
          (confident that he will win in Beis Din, for he is
          powerful).

<b><font color='blue'>2) LIABILITY FOR SHEVU'AS HA'EDUS</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> Shevu'as ha'Edus applies only to people proper
          to testify.
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> What does this come to exclude?
<br>     <b><font color='darkgreen'>(c)  Answer #1 (Rav Papa):</font></b> It excludes a king. (He cannot
          testify, because it is below his honor to stand.)
<br>     <b><font color='darkgreen'>(d)  Answer #2 (Rav Acha bar Yakov):</font></b> It excludes a dice-
          player. (Mid'Rabanan, gambling winnings are considered
          theft, because the loser did not resolve to forfeit his
          money if he loses.)
<br>          <b><font color='darkgreen'>1.   Rav Acha excludes even someone disqualified
               mid'Rabanan, and all the more so a king who is
               disqualified mid'Oraisa;
<br>          <b><font color='darkgreen'>2.   Rav Papa excludes a king, who is disqualified
               mid'Oraisa. He would say that a dice-player, who is
               only disqualified mid'Rabanan, is liable for
               Shevu'as ha'Edus.
 </font></b></font></b>    (e)  (Mishnah - R. Meir): (When he swears himself) he is
          liable in or outside of Beis Din... (Chachamim say,
          whether he swears himself or the oath is imposed on him,
          he is liable only if he denies in Beis Din).
<br>     <b><font color='darkgreen'>(f)  Question:</font></b> What do they argue about?
<br>     <b><font color='darkgreen'>(g)  Answer #1 (Rabanan):</font></b> R. Meir holds 'Dun Minah u'Minah'
          (when a matter is learned from another matter, we copy
          (learn) the entire framework of the source). Chachamim
          hold 'Dun Minah v'Uki b'Asra' (when we learn a law, we
          apply it to the framework of the matter being learned).
<br>          <b><font color='darkgreen'>1.   R. Meir learns, just like Shevu'as ha'Pikadon
               applies when he swears himself, also Shevu'as
               ha'Edus;
             </font></b>  i.   Also, just like Shevu'as ha'Pikadon applies in
                    or outside of Beis Din, also Shevu'as ha'Edus.
<br>          <b><font color='darkgreen'>2.   Chachamim also learn, just like Shevu'as ha'Pikadon
               applies when he swears himself, also Shevu'as
               ha'Edus;
             </font></b>  i.   However, they apply this to the framework of
                    Shevu'as ha'Edus (the Torah discusses an oath
                    imposed on a witness, and this is only in Beis
                    Din).
<br>
<br>

sjt:
<font><b>1) HALACHAH: PROXY IN COURT</b></font>
<br>OPINIONS: The Gemara teaches that the verse, '... and he did that which is not good among his people' (Yechezkel 18:18),' refers to a person who comes to court with a 'Harsha'ah.' A Harsha'ah is a document which grants power of attorney to its bearer to act on behalf of the issuer. While such an instrument is legally permitted, it is considered 'not good' because, as <b>RASHI</b> explains, by giving the right of litigation and advocacy to a proxy, the plaintiff causes harm to the defendant; the defendant might have been able to appease the plaintiff himself or convince him to compromise, while the plaintiff's proxy is not prepared to compromise with someone else's money. Moreover, it is considered improper for a person who has no stake in the dispute to get involved in it.
</p><p>
What practical ramifications may be derived from the Gemara with regard to issuing a Harsha'ah in a court case? Is one ever permitted to represent someone else in court?
</p><p>
(a) The <b>RITVA</b> quotes the <b>RE'AH</b> who explains that there is one situation in which a proxy in court is recommended. In a situation in which a monetary dispute has blown up into an extremely malevolent feud between the two parties such that they are unable to discuss the issue calmly and rationally in each other's presence, it is a Mitzvah for a person to take the plaintiff's place and represent him. This will generate a more harmonious trial and increase the peace in general. The Ritva writes that for this reason it is also permitted to find a representative for the defendant. (Some, however, permit representation only for the plaintiff.)
</p><p>
(b) The <b>SHULCHAN ARUCH</b> (CM 123:15) quotes the opinion of the <b>RA'AVAD</b> (Hilchos Shutafin 3:5) that when the Gemara says that the use of a Harsha'ah is 'not good,' it refers to a situation in which both litigants live in the same city and easily can come to Beis Din themselves, and there is no need to send an agent. However, when they live in separate cities, it is a Mitzvah to represent the plaintiff in the city of the defendant.
</p><p>
(c) The <b>REMA</b> quotes the opinion of <b>TOSFOS</b>, who adds another exception to the rule. According to the way the Rema understands Tosfos, the Gemara refers to an agent whose personality is such that he derives pleasure out of going to court and asserting his uncompromising stance against the defendant. A person who is always eager to get involved in someone else's dispute and take sides in order to express his toughness is considered 'not good.' However, if a person sees that his friend is having difficulty retrieving his money from the defendant, and he genuinely seeks to help his friend recover that which is rightfully his, then it is a Mitzvah to serve as his proxy in court.
</p><p>
(d) The <b>SHACH</b> understands the words of Tosfos differently. According to the Shach, Tosfos does not refer to the agent who finds pleasure in being unyielding. After all, if the agent is honest and truthful in his representation of the plaintiff, why is it wrong to represent the plaintiff? If, on the other hand, he lies in court, then the wrongdoing clearly is his dishonesty and not the fact that he comes to court with a Harsha'ah. The Shach therefore understands that the unyielding person whom Tosfos mentions is the <i>borrower</i> (the defendant). Tosfos is saying that a person should not become an agent and get involved in a dispute with a defendant who is unyielding, because he will end up involved in a severe altercation. The agent should not pick sides in a dispute which is none of his business. However, if the reason the plaintiff is not going to court is that he does not have the time or resources to devote to pursuing the case, then it is a Mitzvah for another person to represent him.
</p><p>
The <b>ARUCH HA'SHULCHAN</b> writes that all of these opinions are true. He answers the Shach's question on the Rema's understanding of Tosfos by saying that there might be plaintiffs who become nervous when confronted by a large, powerful, and angry defendant. This intimidation might cause the plaintiff to surrender or compromise his claims. Appointing an agent may ensure that the defendant's intimidating stature has no impact on the clarity of the plaintiff's claims. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) DICEPLAYERS ARE PASUL FOR TESTIMONY</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> Shevu'as ha'Edus applies only to people
               proper to testify.
<br>          <b><font color='darkgreen'>2.   (Rav Papa):</font></b> This excludes a king. (It is below his
               honor to stand.)
<br>          <b><font color='darkgreen'>3.   (Rav Acha bar Yakov):</font></b> It excludes a diceplayer.
<br>          <b><font color='darkgreen'>4.  </font></b> Rav Acha excludes even someone disqualified
               mid'Rabanan. Rav Papa disagrees. He would obligate a
               diceplayer for Shevu'as ha'Edus.
<br>          <b><font color='darkgreen'>5.   Sanhedrin 24b (Mishnah):</font></b> Diceplayers may not judge
               or testify.
<br>          <b><font color='darkgreen'>6.   R. Yehudah:</font></b> This is if they have no other
               profession. If they have another profession, they
               are Kesherim.
<br>          <b><font color='darkgreen'>7.   (Rami bar Chama):</font></b> They are disqualified because it
               is Asmachta (the loser did not resolve to pay if he
               will lose). The winner did not acquire the money.
<br>          <b><font color='darkgreen'>8.   (Rav Sheshes):</font></b> This is not Asmachta. Rather, it is
               because they do not contribute to society.
<br>          <b><font color='darkgreen'>9.  </font></b> They argue about one who has a profession.
<br>          <b><font color='darkgreen'>10.  Question:</font></b> R. Yehudah is Machshir if they have
               another profession. This refutes Rami bar Chama!
<br>               <b><font color='darkgreen'>i.   Suggestion:</font></b> Chachamim argue with R. Yehudah,
                    and they disqualify because it is Asmachta.
<br>               <b><font color='darkgreen'>ii.  Rejection:</font></b> R. Yehoshua ben Levi taught that
                    whenever R. Yehudah says (in a Mishnah) 'when
                    is this?' or 'what is the case?', he does not
                    argue; he explains the first Tana. R. Yochanan
                    said that when he says 'when is this?', he
                    explains. When he says 'what is the case?', he
                    argues.
<br>          <b><font color='darkgreen'>11.  Answer:</font></b> Rami bar Chama argues with R. Yehoshua ben
               Levi and R. Yochanan, and says that 'when is this?'
               shows that R. Yehudah argues.
<br>          <b><font color='darkgreen'>12.  Question (Beraisa):</font></b> Whether or not he has a
               profession, he is disqualified. (All must agree that
               this is like Chachamim, and they argue!)
<br>          <b><font color='darkgreen'>13.  Answer:</font></b> The Beraisa is like R. Yehudah in the name 
               of R. Tarfon;
<br>               <b><font color='darkgreen'>i. </font></b>  (Beraisa - R. Yehudah citing R. Tarfon):
                    (Reuven said 'I accept Nezirus if Ploni is a
                    Nazir, and Shimon said 'I accept Nezirus if
                    Ploni is not a Nazir'. In any case, neither
                    Reuven nor Shimon is a Nazir, because
                    (acceptance of) Nezirus requires Hafla'ah
                    (certainty. Likewise, betting is Asmachta, so
                    it is not a Kinyan.)
<br>          <b><font color='darkgreen'>14.  26b (R. Avahu):</font></b> The Halachah follows R. Yehudah.
<br>          <b><font color='darkgreen'>15.  Rosh Hashanah 22a (Mishnah):</font></b> Anything that a woman
               cannot testify about, diceplayers cannot testify
               about it.
<br>          <b><font color='darkgreen'>16.  (Rav Menasiyah):</font></b> This teaches that a Gazlan
               mid'Rabanan may give Edus Ishah (testify that Ploni
               died to permit his widow to remarry).
<br>          <b><font color='darkgreen'>17.  Shabbos 149b:</font></b> One may make a lottery with his sons
               and household at the table, even if some portions
               are bigger than others. This is forbidden with
               others, even during the week, for it is like
               diceplaying.
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rif (Sanhedrin 4b):</font></b> Diceplayers are Pesulim because
               they do not contribute to society.
<br>          <b><font color='darkgreen'>2.   Rambam (Hilchos Gezeilah 6:10):</font></b> If one plays with
               dice and stipulates that the winner will receive
               such an amount, this is Gezel mid'Rabanan. Even
               though the owner lets him take, since he takes it
               for nothing through frivolity, this is Gezel. The
               same applies to people who play with animals or
               birds and stipulate that the owner of the animal
               that wins or runs further will receive such an
               amount. All this and similar things are Gezel
               mid'Rabanan.
<br>               <b><font color='darkgreen'>i.   Ra'avad (11):</font></b> If he has no other profession,
                    even if he plays with Nochrim all the more so
                    he is Pasul, for he learns from the Nochri's
                    deeds!
<br>          <b><font color='darkgreen'>3.   Rambam (Hilchos Edus 10:4):</font></b> A diceplayer cannot
               testify if he has no other profession, for he does
               not contribute to society. The Chazakah is that he
               consumes what he wins, which is Avak Gezel (a
               subsidiary of theft). Also one who incites animals
               or birds, and says 'the owner of the bird that goes
               first will get both' is Pasul if he has no other
               profession. All these Pesulim are mid'Rabanan.
<br>               <b><font color='darkgreen'>i.   Kesef Mishneh:</font></b> Since the Rambam calls this
                    Gezel, he should be disqualified even if he has
                    another profession! We must discuss one who
                    plays with Nochrim, so it is not a problem of
                    Gezel. The Rambam holds that if he has no other
                    profession, the Chazakah is that he plays with
                    Yisre'elim, even if we did not see him do so.
                    Alternatively, we discuss one who plays with
                    Yisrael without money. If he had another
                    profession, we would not suspect that he plays
                    also for money, for many rich people play just
                    to pass time. The Rambam rules like Rami bar
                    Chama due to the Stam Gemara in Shabbos 149b.
                    Rosh Hashanah 22a calls a diceplayer 'a Gazlan
                    mid'Rabanan.' Also, since R. Avahu needed to
                    rule like R. Yehudah, this shows that Chachamim
                    disagree, i.e. they hold like Rami bar Chama.
                    We need not say that he argues with R. Yochanan
                    and R. Yehoshua ben Levi; we did not find
                    anyone explicitly argue with them. The Mishnah
                    disqualifies one who plays with Yisre'elim for
                    money, or for free with Nochrim, if he has no
                    other profession. Perhaps Rami bar Chama meant
                    to say this, but Rav Sheshes interrupted. The
                    Gemara gave the Nafka Minah based on the Hava
                    Amina that Rami argues with R. Yochanan and R.
                    Yehoshua ben Levi. R. Avahu had to rule like R.
                    Yehudah, for it is not clear that Chachamim
                    agree.
<br>          <b><font color='darkgreen'>4.   Rosh (Sanhedrin 3:7):</font></b> The Halachah follows R.
               Yehudah. We disqualify Mafrichei Yonim because they
               do not contribute to society. It is not Asmachta,
               like I wrote in Bava Metzia.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 34:16):</font></b> A diceplayer cannot
               testify if he has no other profession, since he does
               not contribute to society. The Chazakah is that he
               consumes what he wins, which is Avak Gezel. Also
               those who incite animals or birds, and says 'the
               owner of the bird that goes first will get both' is
               Pasul if he has no other profession. All these
               Pesulim are mid'Rabanan.
<br>               <b><font color='darkgreen'>i.   Beis Yosef (DH Mesachakim):</font></b> The Rif rules like
                    Rav Sheshes. Perhaps this is because Rami bar
                    Chama is unlike R. Yochanan and R. Yehoshua ben
                    Levi. Even though R. Avahu ruled like R.
                    Yehudah, which implies that Chachamim disagree
                    (and disqualify even if he has another
                    profession), the Halachah follows R. Yehudah
                    and we disqualify only because he does not
                    contribute to society.
<br>               <b><font color='darkgreen'>ii.  Beis Yosef (DH u'Mah):</font></b> The Tur explains that if
                    we know that he has other money to support
                    himself, and what he wins he stores away or
                    uses to play more, he is Kosher.
<br>               <b><font color='darkgreen'>iii. SMA (40):</font></b> Rami bar Chama holds that it is total
                    Gezel mid'Rabanan. The Rambam rules like Rav
                    Sheshes, that it is not really Gezel, for the
                    loser gave willingly. It was not a proper
                    Kinyan, only through frivolity, therefore, it
                    is Avak Gezel. This disqualifies only if he
                    benefits from it, like the Rema (Sa'if 3) says
                    (about an Aveirah mid'Rabanan). If so, even if
                    he has another profession, but he needs to eat
                    also from his winnings, he is disqualified.
                    Rashi and the Tur say that one who does not
                    work does not appreciate the difficulty of
                    earning money and he is prone to testify
                    falsely. If so, if he has any job at all he is
                    not disqualified, but if he has no job he is
                    disqualified, even if he eats only from
                    savings. The Mechaber holds like the Rambam.
                    Why didn't the Rema comment?!
<br>               <b><font color='darkgreen'>iv.  Gra (203:44):</font></b> The Rambam holds that Asmachta
                    does not help, and diceplayers transgress
                    Gezel. Tosfos (Shabbos 149b DH Mai) holds that
                    it acquires, and our Gemara is like R. Yehudah
                    in the name of R. Tarfon, but the Halachah does
                    not follow him. This is a poor answer. Rather,
                    it is Avak Gezel, so it disqualifies only if he
                    supports himself from it.
<br>               <b><font color='darkgreen'>v.   Re'em (2:14, cited in R. Akiva Eiger):</font></b> The
                    Aruch says that diceplayers make stipulations
                    'if I will win, you will give to me this
                    amount.' He did not define what is 'winning'.
                    It seems that all games are included. In
                    Shabbos (149b), we forbid a lottery (with
                    strangers) if some portions are bigger than
                    others, for it is like diceplaying. Rashi
                    explains that it is Asmachta. This connotes
                    that 'dice` includes all games.
<br>
<font color='blue'><i>See also:</i>
<br><b>THINGS FORBIDDEN DUE TO GAMBLING </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>     <b><font color='darkgreen'>(h)  Rejection (Rav Papa):</font></b> Also Chachamim hold Dun Minah
          u'Minah. If they learned Shevu'as ha'Edus from Shevu'as
          ha'Pikadon, they would agree with R. Meir;
<br>     <b><font color='darkgreen'>(i)  Answer #2 (Rav Papa):</font></b> (R. Meir learns as above.)
          Chachamim learn from a Kal va'Chomer;
<br>          <b><font color='darkgreen'>1.   One is liable even when the oath is imposed on him,
               and all the more so if he swears himself!
<br>          <b><font color='darkgreen'>2.   The principle of 'Dayo' says that we cannot learn
               more than the source of the Kal va'Chomer. When the
               oath is imposed on him, he is liable only in Beis
               Din, also when he swears himself.
 </font></b></font></b>    (j)  Objection (Rabanan): Chachamim surely hold Dun Minah
          v'Uki b'Asra!
<br>          <b><font color='darkgreen'>1.   (Mishnah - R. Meir):</font></b> Shevu'as ha'Pikadon (the oath
               of watchmen) applies to men and women, to strangers
               and relatives, to Kosher and invalid witnesses;
<br>               <b><font color='darkgreen'>i. </font></b>  When he swears himself, it applies in or
                    outside of Beis Din. If the oath is imposed on
                    him, he is liable only if he denies in Beis
                    Din.
<br>          <b><font color='darkgreen'>2.   Chachamim say, whether he swears himself or the oath
               is imposed on him, he is liable (even outside of
               Beis Din).
<br>          <b><font color='darkgreen'>3.   Question:</font></b> What is Chachamim's source that one is
               liable if the oath is imposed on him?
<br>          <b><font color='darkgreen'>4.   Answer:</font></b> They learn from Shevu'as ha'Edus, but they
               apply to it the law of Shevu'as ha'Pikadon (to be
               liable everywhere)!
 </font></b>    (k)  Answer (Rav Papa): Indeed, from there you can prove that
          Chachamim hold Dun Minah v'Uki b'Asra, but not from our
          Mishnah. (Tosfos - and from our Mishnah you can prove
          that R. Meir holds Dun Minah u'Minah.)
<br>
<b><font color='blue'>3) LIABILITY OF SHOGEG AND MEZID</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> One is liable (for swearing falsely) b'Mezid
          (or b'Shogeg, when he knew the testimony).
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> What is the source of this?
<br>     <b><font color='darkgreen'>(c)  Answer (Beraisa):</font></b> It does not say 'v'Ne'elam' regarding
          Shevu'as ha'Edus, like it says in the other Parshiyos of
          Oleh v'Yored, to teach that one is liable for Mezid just
          like for Shogeg.
<br>     <b><font color='darkgreen'>(d)  (Mishnah):</font></b> He is liable also for Shogeg about the oath,
          if he remembers the testimony.
<br>     <b><font color='darkgreen'>(e)  Question:</font></b> What is this case?
<br>     <b><font color='darkgreen'>(f)  Answer (Rav Yehudah):</font></b> He knows that one may not swear
          falsely, but he does not remember if he is liable for
          this.
<br>     <b><font color='darkgreen'>(g)  (Mishnah):</font></b> He is exempt if he was totally Shogeg.
<br>     <b><font color='darkgreen'>(h)  Suggestion:</font></b> Our Mishnah proves that Rav Kahana or Rav Asi
          (who swore about what he thought Rav said, and was wrong
          (26a)) was guiltless! (If so, why was he worried?)
<br>     <b><font color='darkgreen'>(i)  Rejection:</font></b> No. Our Mishnah exempts regarding Shevu'as
          ha'Edus, about which it does not say 'v'Nelam', therefore
          he is exempt if he forgot;
<br>          <b><font color='darkgreen'>1.   Regarding oaths of Bituy, about which it says
               'v'Nelam', one might have thought that he is liable
               even when he mistakenly swore falsely. Rav had to
               tell him that this is not so.
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>4) THE OATH</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> Shevu'as ha'Edus is when Reuven told the
          witnesses 'come testify for me', and they <i>swore</i> 'we do
          not know testimony for you';
<br>          <b><font color='darkgreen'>1.   Alternatively, they <i>said</i> 'we do not know testimony
               for you', and Reuven said 'I impose this on you in
               an oath', and they answered 'Amen'';
<br>          <b><font color='darkgreen'>2.   (If they were lying) they are liable.
 </font></b></font></b>    (b)  If Reuven made them swear five times outside of Beis Din,
          and they came to Beis Din and admitted that they know,
          they are exempt;
<br>          <b><font color='darkgreen'>1.   If they denied knowing, they are liable for each
               oath.
 </font></b>    (c)  If Reuven made them swear five times in Beis Din, they
          are liable only once.
<br>     <b><font color='darkgreen'>(d)</font></b>  R. Shimon says, this is because once they swear that they
          do not know, they can no longer testify.
<br>     <b><font color='darkgreen'>(e)</font></b>  If both witnesses simultaneously denied knowing, they are
          liable. If one denied after the other, the first is
          liable, and the latter is exempt;
<br>     <b><font color='darkgreen'>(f)</font></b>  If one denied and the other admitted knowing, the denier
          is liable, the one who admitted is exempt.
<br>     <b><font color='darkgreen'>(g)</font></b>  If there were two pairs of witnesses, and one pair denied
          after the other, both pairs are liable, for either pair
          could have testified. 
<br>

sjt:
</p><p>
<font><b>2) MULTIPLE VIOLATIONS OF 'SHEVU'AS HA'EDUS'</b></font>
<br>QUESTION: The Mishnah (30a) teaches that when two potential witnesses are asked to come to court and testify, and they swear five times that they do not know testimony about a particular case, and when they come to Beis Din they admit that they know testimony, they are exempt from bringing a Korban. If they deny their knowledge in front of Beis Din, they are obligated to bring five Korbanos. If, however, they swear <i>in court</i> that they do not know testimony and then they deny their knowledge, they are obligated to bring only one Korban. Rebbi Shimon explains that the reason why they are obligated to bring only one Korban is that after they have sworn in front of Beis Din that they do not know testimony, they cannot retract their statement and admit that they do know testimony, because of the rule that 'Keivan she'Higid Shuv Eino Chozer u'Magid' -- 'once witnesses have given testimony, they no longer may retract and give different testimony' (Kesuvos 18b). Accordingly, their additional oaths that they do not know testimony are not valid Shevu'os ha'Edus. In contrast, when they swear <i>outside</i> of Beis Din, their statement is not considered testimony and thus the rule of 'Keivan she'Higid' does not apply; consequently, each time they swear, the Shevu'as ha'Edus is valid.
</p><p>
The Acharonim ask that even when the witnesses swear <i>outside</i> of Beis Din there is a simple reason why only the first Shevu'ah should be a valid Shevu'as ha'Edus, and the witnesses should be obligated to bring only one Korban. One who makes a false Shevu'ah -- a Shevu'as Sheker or Shevu'as Bituy -- becomes disqualified from serving as a witness. Accordingly, when it is discovered that the witnesses made a false Shevu'ah about their knowledge of testimony, they should become disqualified from serving as witnesses. The additional Shevu'os that they make should not be valid Shevu'os ha'Edus to obligate them to bring separate Korbanos, because only a valid witness can be guilty of falsely swearing that he does not know testimony. (Rather, they should be guilty for making Shevu'os Bituy, for which they should be punished with Malkus.) (See <b>AVODAS HA'GERSHONI</b>, Teshuvos #3.)
</p><p>
ANSWERS:
<br>(a) The <b>TUMIM</b> (28:19) explains that this question is not problematic if the Mishnah refers only to a case in which others administer the oath to the witnesses, and the witnesses remain quiet and do not even say 'Amen.' For example, the litigant says to the witnesses, 'I hereby adjure you with a Shevu'ah that you do not know any testimony,' and the witnesses do <i>not</i> say 'Amen,' but rather they state simply, 'We do not know testimony.' According to the laws of Shevu'as Sheker, this is not considered a Shevu'ah at all, and thus they do not become unfit for testifying. According to the laws of Shevu'as ha'Edus, on the other hand, when the witnesses later deny in Beis Din their knowledge of testimony, that denial is in response to the five Shevu'os with which the litigant adjured them, and thus they are obligated to bring multiple Korbanos.
</p><p>
Even if the Mishnah is discussing a case in which the witnesses make the Shevu'ah on their own accord, their false Shevu'ah does not disqualify them from testifying, because it is possible that their Shevu'ah is <i>not</i> a lie. For example, the litigant says to them, 'I hereby adjure you that you shall come to court if you know testimony.' The witnesses answer, 'Amen,' effectively attesting that if they know testimony, they will come and testify. The litigant makes this statement, and the witnesses respond to it, five times. If the witnesses later come to court and <i>deny</i> (falsely) that they know testimony, they effectively make all of the Shevu'os that they accepted upon themselves into Shevu'os ha'Edus for which they are obligated to bring multiple Korbanos. However, since at the time that they made each Shevu'ah they were not lying (because if they <i>do</i> know testimony, they might come to court to testify as they promised), they do not disqualify themselves from testifying.
</p><p>
(b) The <b>KETZOS HA'CHOSHEN</b> (28:8) rejects the Tumim's approach. He understands that the Mishnah must be dealing with all cases of Shevu'as ha'Edus, including a case in which the witnesses say the entire oath themselves, since this is the first case mentioned in the Mishnah earlier.
</p><p>
He quotes the <b>RAN</b> who says that a witness is believed to say that he forgot that he knew testimony when the event in question did not occur recently (and thus it is reasonable to assume that he indeed forgot). The Ketzos ha'Choshen understands that even according to the opinions (see <b>RASHBA</b> cited by <b>BEIS YOSEF</b> CM 34) that maintain that one is not believed to say that he forgot, he is not believed only when he says, 'I <i>never</i> saw anything that would be considered testimony for you.' Everyone agrees that if he merely says, 'I do not know any testimony,' he is believed to say that he forgot and is not considered to have sinned by making a false Shevu'ah. This is because when he said, 'I do not know...,' he was not lying; at that moment, he truly did not know any testimony (because he had forgotten it). Therefore, he is not held liable for making a false Shevu'ah. In contrast, when he said, 'I <i>never</i> saw anything...,' his statement is certainly a lie (because even if he did forget that he saw anything, his statement is still not true).
</p><p>
Hence, as long as it is not known for certain that the person maliciously lied, it may be assumed that he merely forget that he knew testimony when he was asked about it outside of Beis Din. Accordingly, his oaths do not render him unfit for testimony.
</p><p>
This is also the approach of the <b>RITVA</b>. The Ritva asks that the witnesses should not be able to give testimony after they swore falsely that they know no testimony, because Beis Din cannot believe them when they admit that they swore falsely. Beis Din cannot accept their admission because of the principle that a person is not believed to testify about himself that he sinned in such a way that he is called a Rasha -- 'Ein Adam Mesim Atzmo Rasha.' How, then, can Beis Din accept the testimony of the witnesses when they say that they were lying when they swore that they knew no testimony? (Since Beis Din cannot accept their testimony, the witnesses should not be obligated for all of the subsequent Shevu'os ha'Edus that they took, but only for the first one, because after the first Shevu'ah they cannot retract and give testimony because of 'Ein Adam Mesim Atzmo Rasha.')
</p><p>
The Ritva answers that it is possible to believe the witnesses when they say that they swore falsely, without the witnesses making themselves into Resha'im. The witnesses can claim that they swore falsely <i>by mistake</i>. They forgot that they knew testimony, swore that they did not know testimony, and then they remembered that they <i>did</i> know testimony. When they come to court and admit that they swore falsely, their word is accepted because they are not making themselves into Resha'im, since their false oath was taken by accident.
</p><p>
The Ritva adds that even if the witnesses do not claim that they were mistaken when they made their Shevu'ah, the principle of 'Palginan Dibura' may apply to their words. They are believed with regard to the testimony that they now give, but they are not believed when they say that they intentionally swore falsely. Rather, Beis Din assumes that they swore falsely by mistake. Even though, in such a case, they would not bring a Korban for Shevu'as ha'Edus, their retraction in court is accepted. In the case of the Mishnah, they did <i>not</i> come to Beis Din and admit that they knew testimony, but rather they maintained their denial, and therefore they are obligated to bring a Korban for each one of their Shevu'os.
</p><p>
Similarly, the witnesses do not disqualify themselves from testifying by taking a false oath accidentally. Only an intentional Shevu'as Sheker disqualifies a person from serving as a witness.
</p><p>
The explanation of the Ritva and Ketzos ha'Choshen, however, is problematic. They explain why a witness' initial false Shevu'ah that he knows no testimony does not disqualify him from further testifying, and why he remains a valid witness who may retract his earlier denial and testify in court (and thereby he can become obligated for multiple Shevu'os ha'Edus). They explain that since the witness can claim that he <i>forgot</i> that he knew testimony, his Shevu'ah does not invalidate him from testifying. However, if Beis Din accepts the witness' claim that he forgot, then even when he swears <i>in Beis Din</i> five times, he should be obligated to bring five Korbanos for Shevu'as ha'Edus! Why does Rebbi Shimon (in the Mishnah) say that he does not bring multiple Korbanos because once he swears the first time in Beis Din that he knows no testimony, he may no longer retract his statement? Let him claim that he <i>forgot</i> that he knew testimony, and now he remembers! His initial testimony that he knows no testimony should no longer be considered testimony (since he is believed to say that he forgot, at the time that he made his statement, that he knew testimony), and his new testimony should now be accepted (and, consequently, if he swears five times that he does not know testimony, since he could claim after each Shevu'ah that he forgot that he knew testimony, he should be obligated to bring multiple Korbanos)!
</p><p>
The Ketzos ha'Choshen answers that only in the case of a Shevu'ah does Beis Din accept a person's claim that he forgot at the time of his Shevu'ah. When he swore that he knew no testimony, and now he claims that when he made that Shevu'ah he forgot that he knew testimony, his Shevu'ah is not false; at that time, he indeed knew no testimony. In contrast, for any other Aveirah he is not believed to say that he acted accidentally, b'Shogeg or even b'Ones. When a person does an Aveirah (such as eating Chelev or stealing), the act itself is defined as a transgression; if he did it by accident, he is exempt from punishment, but the act itself is a clear transgression of the Torah.
</p><p>
When the witness swears in Beis Din that he does not know testimony and then retracts his statement and says that he forgot that he knew testimony, he is not merely explaining that his <i>Shevu'as ha'Edus</i> was not a sin. He is also trying to say that he did no Aveirah of <i>withholding testimony</i> -- that he did not transgress the Isur of 'Im Lo Yagid v'Nasa Avono' (Vayikra 5:1), because he forgot at that time that he knew testimony. This Aveirah is similar to other Aveiros (such as eating Chelev or stealing), for which a person is not believed to say that the act was done unintentionally. (See also what the Ketzos ha'Choshen writes in <b>MESHOVEV NESIVOS</b>.)
</p><p>
The <b>KEHILOS YAKOV</b> (#27) questions this logic. What is the basis to differentiate between the Isur of withholding testimony and the Isur of saying a false Shevu'ah?
</p><p>
The reason why Beis Din believes the witness when he says that he forgot at that time that he made the Shevu'ah is that if he <i>did</i> forget, the Shevu'ah itself was not an act of Aveirah; it was a true Shevu'ah. The same should apply with regard to the prohibition of withholding testimony. If he did not remember the testimony when he was asked to testify, then he did not transgress the Isur of not withholding testimony that he knew!
</p><p>
Apparently, the Ketzos ha'Choshen's logic is based on a different understanding of the prohibition against withholding testimony. The Ketzos ha'Choshen understands that the prohibition does <i>not</i> state that a witness shall not refuse to tell what he knows. Rather, it states that a person who saw an event and knows testimony is required to come forth and testify. If he saw testimony and fails to come forth to testify, he transgresses the prohibition <i>even if</i> he forgot the testimony. The fact that he did not come forth is considered an act of Aveirah. Forgetting the testimony is comparable to eating Chelev when one is unaware that the food he is eating is Chelev; the act is still an act of Aveirah.
</p><p>
The Kehilos Yakov himself explains the difference between a witness who swears <i>outside</i> of Beis Din that he does not know testimony and a witness who swears <i>inside</i> of Beis Din. When the witness claims that what he said outside of Beis Din was due to his forgetfulness, he is believed for the following reason. The doubt in that case is not whether the statement that he said outside of Beis Din is true. Rather, the doubt is whether the witness himself is a liar (now that he says that he <i>does</i> know testimony) and unfit to testify. Since the person himself has a 'Chezkas Kashrus' -- he is presumed to be a truthful person until proven otherwise -- it is assumed that he made his false statement not out of maliciousness, but out of forgetfulness. Now that he remembers he may testify, since he is not disqualified as a witness.
</p><p>
In contrast, when he swears in Beis Din that he does not know testimony (and then he retracts his statement, saying that he forgot that he knew testimony), the doubt is not whether the witness himself is a truthful person or a liar. Rather, the doubt is whether his earlier statement was valid and irrevocable testimony, such that when he now gives different testimony, is he revoking his earlier statement (which he is not allowed to do), or is he not revoking any earlier testimony (but rather both statements are true; when he said earlier that he did not know testimony, he was telling the truth because he indeed forgot at that time that he knew testimony)? There is no reason to believe his present statement (that he knows testimony) over his earlier statement (that he knows no testimony). His own 'Chezkas Kashrus' that he is a valid witness does not provide any information about the validity of his statements. Since he originally stated that he did not know testimony, and now he says that he does know testimony, Beis Din is left with a doubt, and, out of doubt, Beis Din assumes that he is now retracting his earlier statement, which he is not allowed to do. (Y. Montrose) 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) CONDITIONS OF LIABILITY</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Gemara - Shmuel):</font></b> If the claimant was running after
          witnesses, and they said 'why chase us? We swear that we
          do not know testimony for you!', they are exempt;
<br>          <b><font color='darkgreen'>1.   One is liable only if the claimant asked him to
               testify.
 </font></b>    (b)  Question: What is the Chidush? A Mishnah teaches this!
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> If the claimant sent his slave to ask the
               witnesses to testify, or the defendant made them
               swear, they are exempt;
<br>          <b><font color='darkgreen'>2.   One is liable only if the claimant asked him to
               testify.
 </font></b>    (c)  Answer: The case when he runs after them is a Chidush;
<br>          <b><font color='darkgreen'>1.   One might have thought that this is like asking them
               to testify. Shmuel teaches that it is not.
 </font></b>    (d)  Question: Also this is learned from our Mishnah!
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> Shevu'as ha'Edus is when Reuven told the
               witnesses 'come testify for me'...
<br>          <b><font color='darkgreen'>2.   Inference:</font></b> Had he not told them, they would be
               exempt!
<br>     <b><font color='darkgreen'>(e)  Answer:</font></b> No. (If not for Shmuel,) one could say that
          telling them is not essential, and they are liable even
          if he did not ask them to testify.
<br>     <b><font color='darkgreen'>(f)  Support:</font></b> We must say so about Shevu'as ha'Pikadon!
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> Shevu'as ha'Pikadon is when Shimon <i>told</i>
               Levi 'give to me the deposit you are holding for
               me... '
<br>               <b><font color='darkgreen'>i. </font></b>  We cannot say that this is only if he told him.
                    'V'Chichesh ba'Amiso' discusses any denial
                    (i.e. even if there was no claim).
<br>               <b><font color='darkgreen'>ii. </font></b> Rather, we must say that 'told' in that Mishnah
                    is not essential. The same applies to our
                    Mishnah!
<br>     <b><font color='darkgreen'>(g)  Objection:</font></b> If 'told' in our Mishnah is essential, we can
          say that the Tana taught it also in that Mishnah for
          parallel structure;
<br>          <b><font color='darkgreen'>1.   However, the Tana would not teach it in both
               Mishnayos if it is not essential in either!
 </font></b>    (h)  Answer: Perhaps the Tana teaches the normal case (he does
          not swear until he hears a claim).
<br>     <b><font color='darkgreen'>(i)  Support (for Shmuel -- Beraisa):</font></b> If the claimant was
          approaching witnesses, and they said 'why pursue us? We
          swear that we do not know testimony for you!', they are
          exempt;
<br>          <b><font color='darkgreen'>1.   In a similar case of swearing to deny a deposit,
               they would be liable.
 </font></b>    (j)  (Mishnah): If Reuven made them swear five times...
<br>     <b><font color='darkgreen'>(k)  Question:</font></b> What is the source that they are liable only
          for denial in Beis Din?
<br>     <b><font color='darkgreen'>(l)  Answer (Abaye):</font></b> 'Im Lo Yagid v'Nasa Avono' applies only
          where their testimony would have obligated the defendant
          to pay, i.e. in Beis Din.
<br>     <b><font color='darkgreen'>(m)  Question (Rav Papa):</font></b> If so, we should say that also the
          oath must be in Beis Din!
<br>     <b><font color='darkgreen'>(n)  Answer (Abaye - Beraisa):</font></b> 'L'Achas' teaches that they are
          liable for every oath;
<br>          <b><font color='darkgreen'>1.   This must be outside of Beis Din, for in Beis Din,
               they are liable only once!
             </font></b>  i.   (Mishnah): If Reuven made them swear five times
                    in Beis Din, they are liable only once.
<br>               <b><font color='darkgreen'>ii.  R. Shimon:</font></b> This is because once they swear that
                    they do not know, they can no longer testify.
<br>          <b><font color='darkgreen'>2.   We must say that only the denial is in Beis Din, but
               the oath can be outside of Beis Din.
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>2) WHICH WITNESSES ARE LIABLE FOR DENYING?</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If both witnesses simultaneously denied
          knowing, they are liable.
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> It is impossible for two events (their denials)
          to occur simultaneously!
<br>     <b><font color='darkgreen'>(c)  Answer #1 (Rav Chisda):</font></b> The Mishnah is R. Yosi ha'Galili,
          who says that two events can occur simultaneously.
<br>     <b><font color='darkgreen'>(d)  Answer #2 (R. Yochanan):</font></b> The Mishnah can even be
          Chachamim. The case is, they denied within Toch Kedei
          Dibur of each other;
<br>          <b><font color='darkgreen'>1.   Anything said Toch Kedei Dibur is a continuation of
               the previous statement.
 </font></b>    (e)  Question (Rav Acha mi'Difti): Toch Kedei Dibur is the
          time needed to greet one's Rebbi, i.e. to say three or
          four words;
<br>          <b><font color='darkgreen'>1.   One cannot say 'we swear that we do not know
               testimony for you' in this time! (In Hebrew, this is
               six words!)
 </font></b>    (f)  Answer (Ravina): It suffices that each witness <i>begin</i>
          swearing Toch Kedei Dibur of the previous witness.
<br>
<b><font color='blue'>3) LIABILITY OF A LONE WITNESS</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If one witness denied after the other, the
          first is liable, and the latter is exempt.
<br>     <b><font color='darkgreen'>(b)  Suggestion:</font></b> Our Mishnah is not like R. Elazar b'Rebbi
          Shimon.
<br>          <b><font color='darkgreen'>1.   (Beraisa):</font></b> If there is only one witness, he is
               exempt for Shevu'as ha'Edus;
<br>          <b><font color='darkgreen'>2.   R. Elazar b'Rebbi Shimon says, he is liable.
               (Therefore, in our Mishnah, even after the first
               witness denied, the second would be liable.)
<br>          <b><font color='darkgreen'>3.   Suggestion:</font></b> Chachamim hold that one witness
               obligates only the defendant to swear, and R. Elazar
               holds that he obligates paying money (Rashi; Rashba
               - since he could join with another witness to
               obligate money, we consider that he comes to
               obligate money).
 </font></b>    (c)  Rejection: Abaye holds that all agree that one witness
          does not obligate money! (The explanation of the
          following proves this.)
<br>          <b><font color='darkgreen'>1.   (Abaye):</font></b> Chachamim and R. Elazar b'Rebbi Shimon
               agree about one witness (who denied knowing
               testimony) about a Sotah (all these cases will be
               explained later), and about (two) witnesses about a
               Sotah. They argue about witnesses about a Sotah;
<br>          <b><font color='darkgreen'>2.   They agree about one witness, and when he (the
               defendant) is suspected to swear falsely (and is
               therefore disqualified from swearing).
 </font></b>    (d)  Answer: Rather, all agree that one witness merely
          obligates the defendant to swear;
<br>          <b><font color='darkgreen'>1.   R. Elazar holds that something that <i>enables</i> one to
               get money is considered like money (had the witness
               testified, presumably the defendant would have paid.
               He would not swear falsely);
<br>          <b><font color='darkgreen'>2.   Chachamim say, something that enables one to get
               money is not like money.
 </font></b></font></b>    (e)  (Abaye): Chachamim and R. Elazar b'Rebbi Shimon agree
          about one witness about a Sotah, and about witnesses
          about a Sotah. They argue about witnesses about a Sotah.
          They agree about one witness, and when he is disqualified
          from swearing.
<br>          <b><font color='darkgreen'>1.   They agree that one witness about a Sotah is liable,
               if he saw that she sinned in seclusion, for the
               Torah believes him like two witnesses. (His
               testimony would have exempted the husband from her
               Kesuvah);
             </font></b>  i.   'V'Ed Ein Bah', but if even one witness
                    testifies (that she sinned), he is believed.
<br>          <b><font color='darkgreen'>2.   They agree that (two) witnesses about a Sotah are
               exempt, i.e. witnesses who saw the husband warn her.
               Their testimony only <i>enables</i> that something else
               (seclusion) can <i>enable</i> him to profit (if she will
               refuse to drink, or drink and die).
<br><b><font color='darkgreen'>
&lt;</font></b>br&gt;

sjt:
<font><b>1) SILENCE AFTER A 'SHEVU'AS HA'EDUS'</b></font>
<br>OPINIONS: The Mishnah (31b) discusses cases of Shevu'as ha'Edus, when witnesses deny that they know testimony. A false denial, with an oath, obligates the witness to bring a Korban Oleh v'Yored. Is silence on the part of the witnesses, when asked to testify, considered denial of testimony?
</p><p>
(a) The <b>YAD RAMAH</b> proves from the Gemara here that silence is considered denial. The Gemara discusses the source for the law that a false denial of knowledge of testimony obligates the witness to bring a Korban only when that denial is done in Beis Din. Abaye infers from the verse, 'Im Lo Yagid v'Nasa Avono' -- 'If he does not say [the testimony], he shall bear his iniquity' (Vayikra 5:1), that the witness' denial of knowledge is relevant only when he denies it in a place where his testimony would be relevant.
</p><p>
Rav Papa questions Abaye's source. If this verse is the source, then the same law should apply not only to the witness' denial of testimony, but to the Shevu'ah itself: the witness should be obligated to bring a Korban only when he makes the <i>Shevu'ah</i> inside Beis Din. The Mishnah, however, states that a person is obligated to bring a Korban for a false Shevu'ah made <i>outside</i> of Beis Din.
</p><p>
Abaye answers that the verse, 'l'Achas' (Vayikra 5:4), teaches that it is possible for a person to be obligated to bring multiple Korbanos for making multiple false Shevu'os about the same case. This cannot refer to when he made multiple Shevu'os in Beis Din, because the Mishnah states that in such a case he is obligated to bring only one Korban. The verse, therefore, must be referring to a case of multiple Shevu'os made outside of Beis Din.
</p><p>
The Yad Ramah points out that if silence is not considered denial, then the Gemara has no proof that making a Shevu'ah outside of Beis Din can obligate a person to bring a Korban. Perhaps the case in which a person is obligated to bring multiple Korbanos for multiple Shevu'os is when the witness was silent after each Shevu'ah (that is, the litigant said to him, 'I hereby adjure you with a Shevu'ah that you do not know any testimony,' and the witness remained silent). In such a case, the witness would be obligated to bring multiple Korbanos even if the Shevu'os were made <i>in</i> Beis Din; since the witness did not deny knowing testimony each time, after each Shevu'ah he still may testify, and thus each subsequent Shevu'ah is valid (to obligate him to bring a separate Korban). The fact that the Gemara does not question Abaye from this case -- and say that <i>this</i> is the case in which one is obligated to bring multiple Korbanos -- shows that the Gemara understands that silence in response to a Shevu'as ha'Edus is tantamount to denial. This is also the opinion of the <b>RAMBAN</b>.
</p><p>
(b) The <b>RITVA</b> refutes the Yad Ramah's proof and argues that the status of silence remains in doubt. He explains that when a witness remains silent in response to the Shevu'ah in Beis Din, both possibilities must be taken into account. If his silence is a denial, then he may no longer testify even if he wants to, because of the rule that once a witness has given his testimony (or declared that he has none to give) in Beis Din, he cannot retract his words. Since he may no longer testify, he cannot become obligated to bring another Korban for an additional denial. If, on the other hand, his silence is an admission that he knows testimony, then the same rule dictates that he may no longer testify that he does <i>not</i> know testimony (since he already said (through being silent) that he <i>does</i> know testimony). Therefore, the Gemara proves only that silence is not considered <i>only</i> agreement, but rather that silence <i>might</i> be denial or agreement. The Gemara does not prove that silence is considered <i>only</i> denial.
</p><p>
The Ritva asks a question on his own explanation. The witness cannot be obligated to bring a Korban for the second Shevu'ah because of the rule that a witness cannot retract his testimony. This rule applies, however, only after the witness has been silent for a period of 'Toch Kedei Dibur.' Perhaps the verse, which teaches that a witness can become obligated to bring multiple Korbanos, refers to a case in which another Shevu'ah is administered immediately after the witness was silent in response to the first Shevu'ah, within a period of 'Toch Kedei Dibur.' During those few seconds the witness has the opportunity to retract his first response and give different testimony! Why does the Gemara not give this case as the case in which the witness is obligated to bring multiple Korbanos?
</p><p>
The Ritva answers that the amount of time that it takes to administer the second Shevu'ah is more than 'Toch Kedei Dibur.' Consequently, by the time the second Shevu'ah is administered, more than 'Toch Kedei Dibur' has elapsed, and the witness may no longer retract his original statement.
</p><p>
<b>RASHI</b> (31b) seems to agree with the Ritva that the status of silence is in doubt. However, according to Rashi, the doubt is not whether the witness' silence is understood as denial or as agreement, as the Ritva explains. Rather, according to Rashi, the doubt is whether the silence is denial or whether it counts as <i>nothing</i>. Rashi explains that if it is denial, the witness may no longer testify. If it is not denial, there is no reason to make another Shevu'ah in addition to the first one. The witness said nothing, and thus it is meaningless for Beis Din to administer another Shevu'ah to what is effectively a non-communicating entity. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) WHEN CAN WE PUNISH KA'ASHER ZOMAM?</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (Beraisa):</font></b> If there is only one witness, he is 
               exempt for Shevu'as ha'Edus;
<br>          <b><font color='darkgreen'>2.  </font></b> R. Elazar b'Rebbi Shimon says, he is liable.
<br>          <b><font color='darkgreen'>3.   (Abaye):</font></b> They agree that one witness about a Sotah
               is liable, if he saw that she sinned in seclusion,
               for the Torah believes him like two witnesses.
<br>          <b><font color='darkgreen'>4.   32b (Rav Papa):</font></b> They agree that one witness that a
               man died (he is believed to permit the widow to
               remarry, and to collect her Kesuvah) is liable.
<br>          <b><font color='darkgreen'>5.   Makos 2a (Mishnah):</font></b> If witnesses testify that a
               Kohen's mother was divorced or did Chalitzah (so he
               is a Chalal (Pasul Kohen)), we do not say that each
               witness becomes a Chalal. Rather, he is lashed.
<br>          <b><font color='darkgreen'>6.   (R. Yehoshua ben Levi):</font></b> 'Va'Asisem <i>Lo</i> Ka'asher
               Zamam' - to him, not to his descendants. (If the
               witness would become a Chalal, this would disqualify
               his descendants).
<br>          <b><font color='darkgreen'>7.   5a (Mishnah):</font></b> If two witnesses testified that Ploni
               killed Shimon, and David and Moshe say 'how can you
               testify about this? That day, you were with us in a
               different place', the first witnesses are Zomemim.
               They are killed based on the testimony of David and
               Moshe.
<br>          <b><font color='darkgreen'>8.  </font></b> If more witnesses testified, and they were Huzam,
               and more witnesses testified, and they were Huzam,
               all the Zomemim are killed.
<br>          <b><font color='darkgreen'>9.  </font></b> R. Yehudah says, this is a conspiracy! Only the
               first pair is killed.
<br>          <b><font color='darkgreen'>10.  Bava Basra 56b (Mishnah):</font></b> If David testified about
               three years of Chazakah, and three brothers
               testified, each about one of the three years, (this
               is testimony of Chazakah, for) testimony of each
               year is separate. It is like one testimony for
               Hazamah (they are exempt unless all of them are
               Huzmu).
<br>          <b><font color='darkgreen'>11.  Sanhedrin 78a (Rava):</font></b> If witnesses testified about a
               Treifah and they were Huzmu, they are exempt. If
               Treifah witnesses were Huzmu, they are killed.
<br>          <b><font color='darkgreen'>12.  Rebuttal (Rav Ashi):</font></b> Also Treifah witnesses who were
               Huzmu are not killed, for the testimony of the
               Mezimim (who said that the witnesses were elsewhere)
               cannot be Huzam (we could not kill them for trying
               to kill Treifos).
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rambam (Hilchos Edus 20:8):</font></b> If witnesses testified
               to convict a Rasha who is not lashed and does not
               pay money, and they were Huzam, they are lashed.
               E.g., they testified that a Kohen is a Ben Gerushah,
               or that Ploni killed b'Shogeg, or that his ox gored,
               or that he was sold to be an Eved Ivri. A tradition
               from Sinai teaches that they are lashed.
<br>          <b><font color='darkgreen'>2.   Rambam (21:4):</font></b> If witnesses testified that Ploni
               knocked out his slave's tooth and afterwards blinded
               his eye, and they were Huzam, they pay to Ploni the
               value of the slave and his eye.
<br>               <b><font color='darkgreen'>i.   Rebuttal (Ra'avad):</font></b> The Rambam (Hilchos Chovel
                    4:11) rules that the master need not pay for
                    the eye, just if the slave seized it, he need
                    not return it. If so, why do witnesses pay?!
<br>               <b><font color='darkgreen'>ii.  Kesef Mishneh:</font></b> They pay because it is likely
                    that the slave will seize (since he keeps it).
<br>          <b><font color='darkgreen'>3.   Rambam (Hilchos Nizkei Mamon 11:1):</font></b> If a slave must
               go free but needs a document of freedom, there is no
               fine (if an ox gored and killed him).
<br>               <b><font color='darkgreen'>i.   Question (Magid Mishneh):</font></b> Why didn't he Rambam
                    teach that if the master seized the fine, we do
                    not force him to return it? This is the law for
                    matters that the Gemara left unresolved, even
                    for fines!
<br>               <b><font color='darkgreen'>ii.  Answer (Ohr Some'ach):</font></b> Fines require testimony
                    she'Efshar Lehazimah. We cannot obligate
                    witnesses to pay, for they can say 'we did not
                    expect that the victim will seize the money.'
                    This is unlike a master who destroyed his
                    slave's tooth and eye. Surely the witnesses
                    intended that the slave be paid for his eye. If
                    they wanted only to free him, it would have
                    sufficed to testify about the tooth alone!
                    Here, they can say 'we wanted only to get the
                    ox stoned.'
<br>               <b><font color='darkgreen'>iii. Note:</font></b> To stone the ox without obligating money,
                    it would have sufficed to say that the ox gored
                    a convert without heirs, or they could not
                    identify the victim. Perhaps they said that it
                    gored the slave to make their testimony more
                    credible, e.g. it was known that the slave died
                    through an injury of unknown cause. However, we
                    cannot give this answer if the slave was
                    overseas, or it was assumed that he drowned, or
                    died on his bed.
<br>               <b><font color='darkgreen'>iv.  Ohr Some'ach (Hilchos Edus 11:6):</font></b> If we do not
                    punish Edim Zomemim for causing that if the
                    claimant seized the money, he keeps it,
                    according to those who require Efshar Lehazimah
                    for monetary cases, testimony of Pesulim
                    mid'Rabanan does not help mid'Oraisa! The
                    witnesses can say that they did not expect him
                    to seize; the Nitva should have ensured that he
                    not seize. The enactment for Ne'ilas Delet (not
                    to require Drishah v'Chakirah, lest potential
                    lenders be deterred) does not apply here. One
                    will not lend, hoping to seize the money back
                    (if his only witnesses are Pesulim
                    mid'Rabanan)! Therefore, even mid'Rabanan the
                    testimony is Batel. Even if he seized before
                    the witnesses came, and they say that he may
                    keep it, since Beis Din initially needed to
                    take the money from him, we do so even after
                    the Pesulim testify, for it is theft
                    mid'Rabanan.
<br>          <b><font color='darkgreen'>4.   Rambam (Hilchos Rotze'ach 2:9):</font></b> Any testimony she'Iy
               Efshar Lehazimah is invalid for capital cases.
<br>               <b><font color='darkgreen'>i.   Ohr Some'ach (Hilchos Edus 4:1):</font></b> I am unsure
                    about one who killed without witnesses, i.e.
                    without warning or the witnesses did not see
                    each other. (In such cases we put the murderer
                    in Kipah (a cell) and cause him to die). Does
                    Hazamah apply to put the witnesses in Kipah?
                    Presumably, we do not. Even though the
                    testimony is Iy Efshar Lehazimah, we can answer
                    like Tosfos (Makos 2a), that lashes fulfill
                    Ka'asher Zomam, or that testimony she'Iy Efshar
                    Lehazimah is Kosher for monetary (i.e. all non-
                    capital) cases, like the Rambam connotes in
                    Hilchos Rotze'ach (2:9).
<br>          <b><font color='darkgreen'>5.   Ramban (Bava Basra 56a DH u'Mah):</font></b> If three different
               pairs of witnesses testified about each of the three
               years of Chazakah, if only one or two of them were
               Huzam, we do not punish them. If all of them were
               Huzam, we punish them. If not, the testimony would
               be Iy Efshar Lehazimah!
<br>          <b><font color='darkgreen'>6.   Question (Ramban Makos 5a DH veha'Ge'onim):</font></b> Ge'onim
               (and our text of R. Chananel) explain that if a pair
               of witnesses (B) was Mezim pair A, and pair C was
               Mezim B, R. Yehudah does not accept Hazamah against
               C. If so, C's testimony is Batel, for it is Iy
               Efshar Lehazimah! Also B's testimony is Batel, for
               we cannot be Zomem the Zomemim, just like Treifah
               witnesses who were Huzmu are not killed!
<br>          <b><font color='darkgreen'>7.  Answer (Ramban):</font></b> There, we could not punish the
               witnesses (who were Mezim the Tereifos) even if we
               knew that they were Huzam. Here we Mevatel the
               testimony only because we suspect a conspiracy. If
               we knew that it is true, we would fulfill Ka'asher
               Zomam! Rather, since the testimony is so confused,
               we disqualify all of the witnesses retroactively.
<br>               <b><font color='darkgreen'>i.   R. Akiva Eiger (1:179):</font></b> All agree that women
                    and relatives are Kosher for testimony about a
                    Sotah or Edus Ishah (testimony that a man died,
                    to permit his widow). If so, why doesn't
                    Shevu'as ha'Edus apply to them? We must say
                    that 'v'Hu <i>Ed</i>' applies only to Kosher
                    witnesses who can testify about anything.
                    Likewise, Hazamah applies only to Kosher
                    witnesses, for it says 'v'Ed Sheker ha'Ed' and
                    'Lo Sa'aneh b'Re'echa Ed Shaker.' If a litigant
                    accepted one Kosher witness to be like two
                    (against him), Hazamah applies. However, the
                    Ran says that Shevu'as ha'Edus does not apply
                    in such a case. Presumably, also Hazamah does
                    not apply. The Rambam says that Hazamah applies
                    to one witness who testified about Zenus after
                    warning and seclusion. This is because letter
                    of the law, he is believed.
<br>               <b><font color='darkgreen'>ii.  Ritva (Makos 2a DH v'Ha):</font></b> Really, Hazamah
                    mid'Oraisa does not apply to a Ben Chalutzah,
                    for he is Kosher mid'Oraisa. The Tana merely
                    taught Chalutzah along with Gerushah.
<br>               <b><font color='darkgreen'>iii. Rebuttal (R. Akiva Eiger ibid.):</font></b> Even though
                    mid'Oraisa he is Kosher, the testimony worked
                    to disqualify him mid'Rabanan!
<br>
<font color='blue'><i>See also:</i>
<br><b>EXEMPTIONS FROM KA'ASHER ZOMAM </b>(</font><font color='blue'>


lvr: 46
dfh: b
trd:
<p>
<br>          <b><font color='darkgreen'>3.   They argue about witnesses about a Sotah, i.e.
               witnesses who saw seclusion (their testimony would
               <i>enable</i> him to profit if she would refuse to drink
               or die);
             </font></b>  i.   R. Elazar holds that this is like (testimony
                    about) money, so they are liable. Chachamim
                    hold that it is not like money, so they are
                    exempt.
<br>          <b><font color='darkgreen'>4.   They agree that one witness (is liable) when the
               other party is disqualified from swearing.
             </font></b>  i.   Question: Who is disqualified?
<br>               <b><font color='darkgreen'>ii.  Answer #1:</font></b> (Only) the borrower (the defendant)
                    is disqualified. Had the witnesses testified,
                    the lender would have sworn instead and
                    collected.
<br>               <b><font color='darkgreen'>iii. Rejection:</font></b> This only <i>enables</i> money. Perhaps
                    the lender would not want to swear (so
                    Chachamim would argue)!
<br>               <b><font color='darkgreen'>iv.  Answer #2:</font></b> Rather, both parties are
                    disqualified;
<br>               <b><font color='darkgreen'>v.  </font></b> When both are disqualified, the obligation to
                    swear reverts to the defendant. Since he cannot
                    swear, he must pay.
<br>          <b><font color='darkgreen'>5.   They agree about one witness (that he is liable) in
               a case like the following.
<br>          <b><font color='darkgreen'>6.   One witness testified in front of R. Ami that Reuven
               grabbed an ingot from Shimon. Reuven said 'yes, I
               grabbed it. It is mine!'
<br>          <b><font color='darkgreen'>7.   Question (R. Ami):</font></b> What is the law? We cannot
               obligate Reuven based on one witness, nor can we
               totally exempt him!
<br>          <b><font color='darkgreen'>8.   Suggestion:</font></b> He should swear to contradict the
               testimony.
<br>          <b><font color='darkgreen'>9.   Version #1 (Rashi) Rejection:</font></b> He cannot contradict
               it, for he admits that he took it. He is not
               believed to say 'Shimon was holding <i>my</i> ingot.'
             </font></b></font></b>  i.   He is unable to swear (in this case), just like
                    a thief (is never believed to swear).
<br>          <b><font color='darkgreen'>10.  Version #2 (Tosfos) Rejection:</font></b> Since he admits that
               he took it, and we assume that it was Shimon's (for
               Shimon was holding it), Reuven is like a thief (who
               is not believed to swear). (end of Version #2)
<br>          <b><font color='darkgreen'>11.  Answer (R. Aba):</font></b> He is obligated to swear, but he
               cannot, therefore he must pay.
<br>     <b><font color='darkgreen'>(f)  (Rav Papa):</font></b> Chachamim and R. Elazar agree that one
          witness that a man died (he is believed to permit the
          widow to remarry, and to collect her Kesuvah) is liable
          (we will explain the case), they agree that (in a
          different case) he is exempt.
<br>          <b><font color='darkgreen'>1.   He is exempt if he told her that her husband died,
               but when she brought him to Beis Din to testify, he
               swore that he does not know;
             </font></b>  i.   (Mishnah): A woman who says that her husband
                    died (even if she just heard from someone else)
                    is believed to remarry or (if it is a situation
                    of Yibum) to do Yibum. (Since she would have
                    been believed to say 'I heard that my husband
                    died', when she asked him to testify, his
                    testimony would not have helped her. Therefore
                    he is exempt, even though now that he denied,
                    she is not believed, and she cannot remarry or
                    collect her Kesuvah.)
<br>          <b><font color='darkgreen'>2.   He is liable if he did not tell her that her husband
               died, and swore in Beis Din that he does not know.
 </font></b>    (g)  Inference: Rav Papa holds that a witness who swears that
          he does not know testimony about land is liable! (Kesuvos
          are collected only from land.)
<br>     <b><font color='darkgreen'>(h)  Rejection:</font></b> Perhaps he teaches only about when she was
          holding Metaltelim from which to collect.
<br>     <b><font color='darkgreen'>(i)  (Mishnah):</font></b> If one denied and the other admitted (the
          former is liable, and the latter is exempt).
<br>     <b><font color='darkgreen'>(j)  Question:</font></b> We already learned that if the second witness
          denied longer than Toch Kedei Dibur after the first, he
          is exempt. We need not teach that he is exempt if he
          admits that he knows!
<br>     <b><font color='darkgreen'>(k)  Answer:</font></b> If both denied, and Toch Kedei Dibur one
          retracted and admitted that he knows, the Mishnah teaches
          that he is exempt.
<br>          <b><font color='darkgreen'>1.   This teaches that anything said Toch Kedei Dibur is
               considered connected to the previous statement (it
               is as if he admitted before he finished denying).
<br>          <b><font color='darkgreen'>2.   We understand according to Rav Chisda, who explained
               that the Mishnah is R. Yosi ha'Galili;
             </font></b></font></b>  i.   The Reisha teaches that it is possible for two
                    events to occur simultaneously. The Seifa
                    teaches that anything said Toch Kedei Dibur is
                    connected to the previous statement.
<br>          <b><font color='darkgreen'>3.   Question:</font></b> R. Yochanan said that the Mishnah can be
               like Chachamim. (In the Reisha) they denied within
               Toch Kedei Dibur of each other;
<br>               <b><font color='darkgreen'>i. </font></b>  The Reisha and Seifa both teach that anything
                    said Toch Kedei Dibur is connected to the
                    previous statement!
<br>          <b><font color='darkgreen'>4.   Answer:</font></b> One might have thought that two denials Toch
               Kedei Dibur of each other are like one, but an
               admission Toch Kedei Dibur of a denial is like a new
               matter. The Mishnah teaches that this is not so.
<br>
<b><font color='blue'>4) LIABILITY WHEN THERE ARE TWO PAIRS OF WITNESSES</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If there were two pairs of witnesses, and one
          pair denied after the other (both pairs are liable).
<br>     <b><font color='darkgreen'>(b)  Question:</font></b> We understand why the second pair is liable.
          The first pair already denied, so the denial of the
          second pair stops the claimant from collecting;
<br>          <b><font color='darkgreen'>1.   However, when the first pair denied, this did not
               stop the claimant from collecting. The second pair
               could have testified!
<br><b><font color='darkgreen'>

<br><p>

sjt:
</p><p>
<font><b>2) A 'SHEVU'AS HA'EDUS' FOR WHICH THE WITNESS IS NOT OBLIGATED</b></font>
<br>QUESTION: Rav Papa presents a case in which everyone agrees that even though the witness denies knowing testimony, he is not obligated to bring a Korban for his false Shevu'ah. The case is one in which a witness tells a woman, outside of Beis Din, that her husband has died. In Beis Din, however, he either does not testify or he denies knowing testimony. Since the woman herself is believed to say that her husband died (Eduyos 1:12), the witness is not obligated to bring a Korban for a Shevu'as ha'Edus.
</p><p>
What exactly is the case that Rav Papa is discussing? Why is the woman believed to say that her husband died when the person who gave her this information refuses to testify? Moreover, why, in this case of false denial of knowledge of testimony, is the witness not obligated to bring a Korban?
</p><p>
ANSWERS:
<br>(a) According to the Girsa of <b>RASHI</b> as recorded by the <b>RITVA</b>, the woman says that a person told her that her husband died, and then that person comes to Beis Din and denies knowing this information. The woman's testimony is not accepted, since the source of her information denied that information. The woman, however, is permitted to go to a different Beis Din and testify that her husband is dead. The witness is not obligated to bring a Korban, since his testimony no longer is relevant, because he has already told the woman information that she can use in a different Beis Din.
</p><p>
The Ritva questions this explanation. How can the second court accept the woman's testimony, when the first court rejected it? Since the woman's source of information (the witness who told her that her husband died) proved to be an invalid source (because he denied, in the first court, that he knew anything about her husband), her testimony should not be accepted in any court!
</p><p>
The Ritva explains that Rashi understands that the testimony of a woman about the death of her husband differs from other forms of testimony. In the case of testimony about the death of a woman's husband, the Chachamim permitted even a single witness to testify in order to enable women to remarry. They even permitted the woman herself to testify in court based on what a single witness told her; it is assumed that the woman researched the matter and is telling the truth, because no woman would lie about such a matter due to the severe penalties that the Chachamim instituted for a woman who remarries unlawfully (see Yevamos 87b). Rashi understands that the Chachamim consider the woman to have the status of a Beis Din when the witness tells her that her husband died, and thus his testimony is considered to have been given in the presence of a Beis Din. When she then comes to the real Beis Din and testifies (based on the witness' word) and then that witness comes and denies the testimony, his denial should not be accepted because it is a retraction of his earlier testimony. Since the woman had the status of a Beis Din when the witness originally told her that her husband had died, he may no longer change or retract his testimony due to the rule of 'Keivan she'Higid Shuv Eino Chozer u'Magid.' However, the Beis Din cannot accept <i>her</i> testimony either because, in practice, the witness is contradicting it in their presence. If, however, she is so certain that her husband indeed is dead, she may testify to that effect in a different Beis Din, and there her testimony is accepted. Since her testimony is accepted, the witness' testimony is not relevant, and thus he cannot become obligated for a Shevu'as ha'Edus.
</p><p>
The <b>AYELES HA'SHACHAR</b> questions the Ritva's explanation that the witness' retraction in court is not valid because of the rule that a witness cannot retract the testimony he gave earlier in front of Beis Din, and, in this case, the witness is considered to have given testimony in front of Beis Din when he told the woman that her husband had died. The Gemara earlier (see Insights to 31b) teaches that once a witness denies knowledge of testimony in Beis Din, he cannot become obligated to bring additional Korbanos for additional denials of testimony. This is because of the rule that once a witness testifies, he cannot retract his testimony. When a witness denies in Beis Din that he knows testimony, he may no longer give any further testimony, and thus he cannot become obligated for any additional Korbanos of Shevu'as ha'Edus. According to the Ritva's explanation that the woman is considered like a Beis Din when the witness tells her that her husband died, why does the witness need to deny testimony in Beis Din in order not to be obligated to bring a Korban for Shevu'as ha'Edus? Even when that witness tells her <i>outside</i> of Beis Din that he does not know testimony, he should no longer be able to testify in Beis Din and he should not be obligated for Shevu'as ha'Edus!
</p><p>
The Ayeles ha'Shachar explains that there is a difference between a witness who says that the woman's husband died, and a witness who says that he does not know anything about her husband. Whenever a witness makes a statement in front of Beis Din, it is categorized as 'testimony' (which he cannot retract). There is a special leniency with regard to testimony about the death of a woman's husband: a single witness is believed when he tells the woman (outside of Beis Din) that her husband died. His statement is categorized as 'testimony' because the woman herself is given the status of a 'Beis Din' because of this leniency. However, no other exceptions were made for this type of testimony; a witness who tells the woman outside of Beis Din) that he does <i>not</i> know testimony is <i>not</i> considered to have made a statement in front of Beis Din.
</p><p>
The Ritva, however, rejects the explanation of Rashi (according to his Girsa of Rashi) for a different reason. He asks that the witness should <i>not</i> be exempt from a Korban for Shevu'as ha'Edus. Although the woman may go to a different Beis Din and testify there that her husband died, this does not provide any assurance that the witness himself is no longer relevant. Perhaps the woman will not go to the second Beis Din to testify, fearing that the witness will go there, too, and contradict her testimony, or that the second Beis Din already knows about the witness' counter testimony. Alternatively, she does not know the Halachah that she would be believed in another Beis Din. Consequently, his denial of testimony <i>does</i> affect her, and thus he should be obligated to bring a Korban for Shevu'as ha'Edus!
</p><p>
The <b>RADVAZ</b> (Teshuvos #1313) answers the Ritva's question on Rashi. He explains that although the woman might choose not to go to another Beis Din for the reasons the Ritva mentions, the case has not been closed. No absolute verdict has been passed about the status of the woman's husband. Since the woman still is <i>able</i> to testify in another Beis Din that her husband is dead, the testimony of the opposing witness still makes no difference, and thus he is not obligated to bring a Korban.
</p><p>
(b) The <b>RITVA</b> prefers the explanation of the <b>RAMBAN</b> and <b>RASHBA</b>. Since Beis Din accepts the woman's own testimony about her husband's death, the testimony of the witness is not needed. Therefore, that witness is not liable for Shevu'as ha'Edus when he told the woman, outside of Beis Din, that he knows that her husband died, and then she adjured him to come to Beis Din but he refused to testify. He is exempt from liability for Shevu'as ha'Edus because the woman herself can go to Beis Din and testify that her husband died (and thereby collect her Kesuvah), and thus the witness causes her no loss by refusing to testify.
</p><p>
(The Ritva adds that according to the Ramban, a woman may go to Beis Din and say that her husband died without disclosing the source of her information. If, however, she says that she heard this information from a witness who is easily accessible, Beis Din must ascertain that the witness concurs with the information that she provided in his name.) (Y. Montrose)
</p><p>
Indeed, this is the explanation of <b>RASHI</b> according to the Girsa in our texts. 
</p><p>


lvr: 46
dfh: a
trd:
<b><font color='blue'>1) LIABILITY WHEN THERE ARE TWO PAIRS OF WITNESSES (cont.)</font></b>
     <b><font color='darkgreen'></font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Answer (Ravina):</font></b> The case is, when the first pair denied,
          the second pair were invalid witnesses, because they were
          related (Rashi - to each other; R. Chananel - to a party
          of the case) through their wives, who were Gosesos (close
          to death);
<br>          <b><font color='darkgreen'>1.   One might have thought that since most Gosesim die,
               the second pair is destined to become valid and the
               first pair is exempt. The Mishnah teaches that this
               is not so.
<br><b><font color='darkgreen'></font></b>
<br><b><font color='blue'>2) MULTIPLE LIABILITY</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Mishnah):</font></b> If Reuven said 'I impose an oath on you if you
          will not testify for me that Ploni owes me a deposit, a
          loan, stolen property and a lost object', and the
          witnesses said 'we swear that we do not know testimony
          for you', they bring only one Korban;
<br>          <b><font color='darkgreen'>1.   If they answered 'we swear that we do not know that
               Ploni owes you a deposit, loan, stolen property or
               lost object', they are liable for each of these.
 </font></b>    (b)  If he said 'I impose an oath on you if you will not
          testify for me that Ploni owes me a deposit of wheat,
          barley and spelt', and the witnesses said 'we swear that
          we do not know testimony for you', they bring only one
          Korban;
<br>          <b><font color='darkgreen'>1.   If they answered 'we swear that we do not know that
               Ploni owes you wheat, barley or spelt', they are
               liable for each one.
 </font></b>    (c)  Witnesses are liable for Shevu'as ha'Edus if asked to
          testify about any of the following. 'Ploni owes me for
          damage, half-damage, double payment (of a thief), payment
          of four or five (for selling or slaughtering a stolen
          animal), for raping or enticing my daughter, that my son
          owes me for hitting me, that Ploni wounded me or burned
          my stack on Yom Kipur.'
<br>
<b><font color='blue'>3) LIABILITY FOR FINES</font></b>
<br>     <b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  (Gemara) Question:</font></b> Are witnesses liable for Shevu'as
          ha'Edus that denied testimony about a fine?
<br>          <b><font color='darkgreen'>1.   We do not ask according to R. Elazar b'Rebbi Shimon,
               who holds that even after one admits to a fine, if
               witnesses testify against him he must pay it (their
               denial cost the claimant money. Surely they are
               liable);
<br>          <b><font color='darkgreen'>2.   We ask according to Chachamim, who hold that
               witnesses do not obligate a fine after an admission.
<br>          <b><font color='darkgreen'>3.   Question:</font></b> According to which opinion (about
               something that enables one to get money) do we ask?
             </font></b></font></b>  i.   Suggestion: We ask according to R. Elazar
                    b'Rebbi Shimon (who holds (32a) that something
                    that enables one to get money is like money).
<br>               <b><font color='darkgreen'>ii.  Rejection:</font></b> Surely they are liable. They could
                    have testified before the defendant (Shimon)
                    admitted!
<br>          <b><font color='darkgreen'>4.   Answer:</font></b> We ask according to Chachamim (who hold that
               something that enables one to get money is not like
               money).
<br>               <b><font color='darkgreen'>i. </font></b>  Since if Shimon would admit he is exempt,
                    perhaps this is not considered a claim of
                    money;
<br>               <b><font color='darkgreen'>ii. </font></b> Or, since he did not admit yet, perhaps it is
                    like a claim of money!
<br>     <b><font color='darkgreen'>(b)  Answer #1 (Mishnah):</font></b> That Ploni owes me for damage, half-
          damage...
<br>          <b><font color='darkgreen'>1.   Half-damage (for a Tam animal (not an established
               gorer) that gored) is a fine, and they are liable!
 </font></b>    (c)  Rejection: According to the opinion that half-damage is
          not a fine, this is no proof.
<br>     <b><font color='darkgreen'>(d)  Suggestion:</font></b> According to the opinion that it is a fine,
          this is a proof!
<br>     <b><font color='darkgreen'>(e)  Rejection:</font></b> No. Perhaps it refers to half-damage caused by
          (kicking) pebbles;
<br>          <b><font color='darkgreen'>1.   A tradition from Moshe from Sinai teaches that it
               pays half-damage. (It is not a fine.)
 </font></b>    (f)  Answer #2 (Mishnah): (Witnesses are liable for denying)
          double payment (the fine that a thief pays).
<br>     <b><font color='darkgreen'>(g)  Rejection:</font></b> Double payment includes principal (which is
          not a fine. They are liable for denying knowledge of the
          principal.)
<br>     <b><font color='darkgreen'>(h)  Answer #3 (Mishnah):</font></b> ... Payment of four or five.
<br>     <b><font color='darkgreen'>(i)  Rejection:</font></b> These payments include principal.
<br>     <b><font color='darkgreen'>(j)  Answer #4 (Mishnah):</font></b> ... For raping or enticing my
          daughter (for which there is a fine of 50 Shekalim).
<br>     <b><font color='darkgreen'>(k)  Rejection:</font></b> A rapist or enticer also pays for
          embarrassment and blemish (i.e. the decreased amount
          people will pay to be Mekadesh a non-virgin), which are
          not fines.
<br>          <b><font color='darkgreen'>1.   Question:</font></b> Why does the Mishnah teach all these cases
               that are not fines?
<br>          <b><font color='darkgreen'>2.   Answer:</font></b> There is a Chidush in one of the first
               clauses, and in the last clause. Half-damage teaches
               that pebbles is not a fine. Burning a stack on Yom
               Kipur teaches unlike R. Nechunyah ben Hakaneh;
<br>               <b><font color='darkgreen'>i.   (Beraisa - R. Nechunyah ben Hakaneh):</font></b> Just like
                    one who damages through Melachah on Shabbos is
                    exempt from payment (since this is punishable
                    by Misas Beis Din (execution). One does not
                    forfeit his life and money at the same time),
                    the same applies to Yom Kipur (Melachah on Yom
                    Kipur is punishable by Kares, which includes
                    Misah b'Yedei Shamayim (death at the hands of
                    Heaven).
<br>     <b><font color='darkgreen'>(l)  Answer #5 (Beraisa):</font></b> Witnesses are liable for Shevu'as
          ha'Edus about Motzi Shem Ra (Shimon married a Na'arah and
          falsely claimed that she was not a virgin. He pays her
          father a fine of 100 Shekalim. If Shimon confessed on his
          own, he is exempt.)
<br>
<br>

sjt:
<font><b>1) LIABILITY FOR 'SHEVU'AS HA'EDUS' IN A CASE OF 'KENAS'</b></font>
<br>QUESTION: The Gemara asks whether the obligation to bring a Korban Shevu'as ha'Edus applies to witnesses who swear falsely that they do not know testimony in a case of a 'Kenas' (monetary penalty). The Gemara says that this is no question according to the view of Rebbi Elazar b'Rebbi Shimon, who maintains (Bava Kama 75a) that a person's admission absolves him from the obligation to pay a Kenas ('Modeh b'Kenas Patur') only as long as witnesses do not come and testify that he is obligated. According to Rebbi Elazar b'Rebbi Shimon, the witnesses who falsely swear that they do not know that a person owes a Kenas certainly will be obligated to bring a Korban Shevu'as ha'Edus, because the person's obligation to pay depends upon their testimony.
</p><p>
The Rabanan, however, disagree with Rebbi Elazar b'Rebbi Shimon. They maintain that once a person admits that he owes a Kenas, he is exempt forever, even if witnesses later come and testify that he owes the Kenas. The Gemara is asking whether the obligation of a Korban Shevu'as ha'Edus applies -- according to the Rabanan -- to witnesses who falsely swear that they do not know that a person owes a Kenas (before that person admits that he owes it).
</p><p>
Perhaps the witnesses should not be liable, because their testimony might be worthless: if the defendant admits that he owes the Kenas before they testify, then their testimony cannot obligate him. On the other hand, perhaps they <i>should</i> be liable, because as long as the defendant does not admit to the Kenas, their testimony can obligate him to pay, and thus they should still be liable for withholding testimony.
</p><p>
The Gemara attempts to prove from the Mishnah that denial of testimony about a Kenas obligates the witnesses to bring a Korban. The Mishnah teaches that when witnesses swear falsely that they do not know testimony in a case of Chatzi Nezek (when one's Shor Tam gored the Shor of another person), they are obligated to bring a Korban. According to the opinion that Chatzi Nezek is a Kenas, the Mishnah is a proof that the witnesses are obligated even in a case of Kenas. The Gemara refutes this proof and says that the Mishnah's case of Chatzi Nezek does not refer to a Shor Tam that gored another Shor, but rather to a case of damage done through Tzeroros (damage caused by an animal's body indirectly, such as by kicking up pebbles), which everyone agrees is not a Kenas but an ordinary monetary payment of Chatzi Nezek.
</p><p>
The <b>MISHNEH L'MELECH</b> (Hilchos Geneivah 3:8-9) asks a strong question on the Gemara here from the Gemara in Bava Kama (75a). The Gemara there teaches that the Rabanan's ruling -- that a person's admission exempts him from paying a Kenas even when witnesses later testify that he owes the Kenas -- applies only when his admission also <i>obligates</i> him to pay something. For example, when a person admits that he stole an item, he exempts himself from the Kenas of Kefel (paying back double the value of what he stole), but he obligates himself to pay back the object that he stole. If his admission exempts him entirely, then even the Rabanan agree that his admission that he owes a Kenas exempts him only as long as no witnesses come to testify. If witnesses come to testify that he owes the Kenas, his exemption is no longer binding and he must pay.
</p><p>

According to the Gemara there, what is the proof of the Gemara here that the Rabanan maintain that witnesses must bring a Korban Shevu'as ha'Edus in a case of Kenas? If they deny testimony in a case in which their testimony would have obligated the defendant to pay both a Kenas and an ordinary monetary payment, then they should be obligated to bring a Korban Shevu'as ha'Edus for withholding testimony about the monetary payment. If, on the other hand, they deny testimony in a case in which their testimony would have obligated the defendant to pay <i>only</i> a Kenas, then they should be obligated to bring a Korban Shevu'as ha'Edus because their testimony would have obligated the defendant to pay the Kenas, since his admission would <i>not</i> have exempted him after they testify.
</p><p>
Moreover, why does the Gemara refute the proof by saying that the Mishnah refers to a case of Tzeroros? Even if it refers to a case of a Shor Tam that gored (in which case the obligation to pay Chatzi Nezek is a Kenas), the Rabanan still would rule that he is obligated to pay when witnesses come because his admission includes no obligation to pay any ordinary monetary compensation.
</p><p>
ANSWERS:
<br>(a) The <b>MISHNEH L'MELECH</b> points out that when the Gemara in Bava Kama states that the exemption from paying Kenas through admission applies only when one's admission also <i>obligates</i> him to pay something, it is addressing the view of Rav. (Rav disagrees with the Gemara here and maintains that Rebbi Elazar b'Rebbi Shimon agrees with the Rabanan that a person who admits to a Kenas remains exempt from paying; the argument involves a different point.) According to Shmuel, though, perhaps the Rabanan exempt a person who admits to a Kenas even after witnesses come, and even if the person does <i>not</i> obligate himself to pay something through his admission.
</p><p>
The Mishneh l'Melech himself points out, however, that this answer is not consistent with the view of the <b>RAMBAM</b>, who cites (in Hilchos Shevu'os 9:4) the conclusion of the Gemara here (that witnesses who deny knowing testimony do not bring a Korban in a case of Kenas, since the person could admit that he owes the Kenas and thereby render their testimony useless) even though he rules in accordance with Rav.
</p><p>
The <b>SHA'AR HA'MELECH</b> (Hilchos Avadim 5:17) adds that the Mishneh l'Melech has no basis whatsoever to presume an argument between Rav and Shmuel about whether the Rabanan exempt a person after witnesses come only if he obligated himself, or even if he did not obligate himself at all. Their argument pertains to an unrelated matter (that is, whether or not Rebbi Elazar b'Rebbi Shimon agrees that when a person admits to a Kenas he remains exempt after witnesses come). Why should one assume that they also argue about when the Rabanan exempt a person after witnesses come?
</p><p>
(b) The <b>MEROMEI SADEH</b> offers a different explanation for the Gemara in Bava Kama. When the Gemara there says that the Rabanan agree that one is <i>obligated</i> to pay the Kenas when witnesses testify after his admission in a case where his admission does not obligate him to pay anything, it refers to a case in which there <i>is</i> another monetary obligation. In a case where there is <i>only</i> a Kenas and <i>no</i> other obligation (such as Chatzi Nezek), the person's admission <i>does</i> exempt him even after witnesses come. This explains why witnesses who deny knowing testimony about a Kenas in a case in which their testimony would obligate the defendant to pay <i>only</i> a Kenas (and nothing else) do not have to bring a Korban. This also explains why the Gemara here says that the case of Chatzi Nezek in the Mishnah is a case of Tzeroros. (See the <b>YAM SHEL SHLOMO</b>, as cited in Insights to Makos 5:1, for a similar explanation of the words of Rashi there.)
</p><p>
<br>

loi:
<b><font color='blue'>1) ON WHAT MAY ONE WRITE A HARSHA'AH?</font></b>
<b><font color='darkgreen'>     </font></b></p><b><font color='darkgreen'></font></b><p><b><font color='darkgreen'>(a)  Gemara</font></b>
<br>          <b><font color='darkgreen'>1.   (Mishnah):</font></b> If David asked witnesses to testify that
               Ploni is a Kohen, and they swore falsely that they
               do not know testimony, they are exempt.
<br>          <b><font color='darkgreen'>2.   Question:</font></b> This implies that if David asked them to
               testify that Shimon owes Ploni money, they would be
               liable. The Seifa (35a) teaches that they are not
               liable unless the claimant asked them!
<br>          <b><font color='darkgreen'>3.   Answer (Shmuel):</font></b> They would be liable if someone 
               with a Harsha'ah (power of attorney) asked them to
               testify.
<br>          <b><font color='darkgreen'>4.   Question:</font></b> Neharda'ei taught that we do not write a
               Harsha'ah on Metaltelim!
<br>          <b><font color='darkgreen'>5.   Answer:</font></b> That is only if the defendant denied owing.
               If he did not, we may write it.
<br>          <b><font color='darkgreen'>6.   Bava Kama 70a - Version #1 (Neharda'ei i.e.
               Chachamim of Nehardai):</font></b> One cannot write a Harsha'ah
               for Metaltelim (movable objects).
<br>          <b><font color='darkgreen'>7.   (Ameimar):</font></b> This is due to R. Yochanan's law (since
               it is not in the owner's Reshus, he cannot authorize
               another about it).
<br>               <b><font color='darkgreen'>i.   (R. Yochanan):</font></b> If something was stolen, and the
                    owner did not despair, the thief cannot make it
                    Hekdesh, for it is not his. Also the owner
                    cannot be Makdish it, for it is not in his
                    Reshus (under his control)!
<br>          <b><font color='darkgreen'>8.   Version #2 (Neharda'ei):</font></b> One may not write a
               Harsha'ah for Metaltelim that were denied.
<br>          <b><font color='darkgreen'>9.   Inference:</font></b> This is only because it looks like
               Sheker. If they were not denied, one may write it!
<br><b><font color='darkgreen'>     (b)  Rishonim</font></b>
<br>          <b><font color='darkgreen'>1.   Rif (Bava Kama 27a):</font></b> The Halachah follows R.
               Yochanan and (Version #2) of Neharda'ei. If a
               Harsha'ah was written on denied Metaltelim, we do
               not force the Nitva to go to Din or swear based on
               it.
<br>               <b><font color='darkgreen'>i.   Nimukei Yosef (DH d'Michzi):</font></b> Harsha'ah is
                    partially a Kinyan, and partially Shelichus.
                    Therefore, it works even when one cannot be
                    Makneh due to R. Yochanan's law, and the
                    Shelichus cannot keep the money for himself.
<br>          <b><font color='darkgreen'>2.   Rosh (Bava Kama 7:4):</font></b> In one version, Neharda'ei say
               that one may not write a Harsha'ah for stolen
               Metaltelim due to R. Yochanan's law. Just like one
               cannot be Makdish something not in his Reshus, he
               cannot be Makneh it. Version #2 does not allow
               writing a Harsha'ah for denied Metaltelim, for it
               looks like Sheker. If they were not denied, one may
               write it on a deposit or something stolen, without
               concern for R. Yochanan's law. Why does the Rif
               bring only Version #2? The Halachah follows R.
               Yochanan! R. Chananel says that the custom is to
               write a Harsha'ah for denied Metaltelim; he did not
               know why. R. Tam says that the Halachah does not
               follow R. Yochanan, for the Halachah follows Version
               #2, for the Stam Gemara in Shevuos (33b) is like it.
               The Halachah is that we are not concerned for what
               seems to be false (Kesuvos 85a, Gitin 26b).
               Therefore, we write a Harsha'ah on stolen or denied
               Metaltelim. Even though some disagree about concern
               for Sheker, e.g. all agree that we are concerned
               that the date on a Get seem correct, here resembles
               the cases in Kesuvos and Gitin. Alternatively, even
               if they are similar, there we are concerned lest we
               disqualify the witnesses if we find that they were
               not there on the day the Get was written.
<br>          <b><font color='darkgreen'>3.   Question:</font></b> If we are not concerned for Sheker, when
               the Gemara asked from Neharda'ei, we should have
               answered that the Halachah does not follow them!
<br>          <b><font color='darkgreen'>4.   Answer (Rosh):</font></b> Amora'im argue about this (and we
               want to answer even for Rav Papi, who is concerned
               for Sheker). Even though we said that the Halachah
               does not follow Rav Papi, we challenge Rav from his
               opinion (Kesuvos 21), and do not answer that the
               Halachah does not follow Rav Papi. Harsha'ah does
               not depend on Kinyan. We hold like Version #2 of
               Neharda'ei, that we write a Harsha'ah on something
               stolen, even though one cannot be Makneh it, for we
               hold like R. Yochanan. We must say that it was
               enacted that Shelichus works <i>as if</i> the Shali'ach
               himself acquires.
<br>          <b><font color='darkgreen'>5.   Rambam (Hilchos Sheluchim 3:6):</font></b> If Reuven claims
               Metaltelim or coins from Ploni and Ploni denies
               them, Reuven may not write a Harsha'ah for them. It
               is like Sheker to say 'I authorize you to take what
               I have in Ploni's hand' if Ploni already said that
               he has nothing of Reuven.
<br>          <b><font color='darkgreen'>6.   Rambam (7):</font></b> If one had a deposit of coins and wanted
               to be Marsheh them to a Shali'ach to bring them,
               Kinyan Chalipin does not help, for coins cannot be
               acquired through Chalipin. Rather, he gives to him
               any amount of land, and is Makneh the coins Agav the
               land. Then, the Shali'ach can go to Din with the
               Shomer and bring them. This is the law according to
               the Gemara.
<br><b><font color='darkgreen'>     (c)  Poskim</font></b>
<br>          <b><font color='darkgreen'>1.   Shulchan Aruch (CM 123:1):</font></b> According to the Gemara,
               we write a Harsha'ah only for a deposit that the
               Shomer does not deny.
<br>               <b><font color='darkgreen'>i.   Beis Yosef (DH u'Mah she'Chosav Aval):</font></b> The Tur
                    rules like the Ra'avad, that a Harsha'ah is
                    Batel only if the Nitva (defendant) denied it
                    before it was written, for agrees with the
                    Ra'avad's reasoning. The Rashba brings only the
                    Rif's opinion, that even if the Nitva denies
                    after it was written, it is Batel. Even if he
                    admits to part of the claim, since he denies
                    part, the Harsha'ah is Batel.
<br>               <b><font color='darkgreen'>ii.  Ketzos ha'Choshen (1 DH mi'Dina):</font></b> One version
                    (70a) says that one cannot write a Harsha'ah
                    for Metaltelim, due to R. Yochanan's law. Rashi
                    says that we discuss a Shomer. I.e., the Shomer
                    has a claim against the owner and refuses to
                    return the deposit before Beis Din rules about
                    his claim. Therefore, the owner cannot be
                    Makneh it.
<br>          <b><font color='darkgreen'>2.   Shulchan Aruch (ibid.):</font></b> If the deposit was coins, he
               must be Makneh it to the Shali'ach Agav (along with)
               land. One may be Marsheh land even if the other
               party denies it.
<br>          <b><font color='darkgreen'>3.   Shulchan Aruch (ibid.):</font></b> We do not write a Harsha'ah
               for a deposit that the Shomer denies.
<br>               <b><font color='darkgreen'>i.   SMA (1):</font></b> Harsha'ah requires a Kinyan, so the
                    property must be intact, i.e. land, a document
                    with a lien on land, or a deposit, which is not
                    given to be spent and was not denied. We do not
                    write for a denied deposit, for it looks like
                    Sheker.
<br>               <b><font color='darkgreen'>ii.  Shach (1):</font></b> This is the Rambam's opinion, that
                    Harsha'ah needs a proper Kinyan. We hold like
                    the other opinion, that even if something
                    cannot be acquired, Chachamim made a Shali'ach
                    as if he acquired it.
<br>               <b><font color='darkgreen'>iii. Question (Tosfos 70a DH Lo):</font></b> Rashi says that
                    since one cannot be Makneh what is not in his
                    Reshus, if it was lost, the owner could claim
                    it again from the Shomer. This is difficult,
                    for he is no worse than a Shali'ach. If the
                    owner said to give it to a Shali'ach and the
                    Shomer did so, he is exempt.
<br>               <b><font color='darkgreen'>iv.  Answer (Bedek ha'Bayis):</font></b> It is a mere custom
                    that one who gives it to a Shali'ach is exempt.
                    One who gave it to one with a Harsha'ah is
                    exempt according to letter of the law.
<br>               <b><font color='darkgreen'>v.   Beis Yosef (DH ume'Atah):</font></b> The Rashba (1024)
                    says that we write a Harsha'ah even on stolen
                    Metaltelim. The Halachah does not follow him.
<br>
<font color='blue'><i>See also:</i>
<br><b>THE ENACTMENT TO ALLOW WRITING A HARSHA'AH </b>(</font><font color='blue'>


