The fifth perek raises a number of interesting debates. The fifth Mishnah discusses a number of people that make nederim hinging on the identity of the approaching person and various other related permutations of those nedarim. Beit Shammai holds that all of them are nazirs even if the condition is not fulfilled. The reason is that Beit Shammai maintains that hekdesh sanctified in error is nonetheless hekdesh and the same applies to nezirut. Consequently, even though each of them my have been mistaken in their assumption about the identity of the approaching person, they are nonetheless nezirim. Beit Hillel disagrees maintaining that only those whose conditions of their neder were met become nezirim. R’ Tarfon in contrast maintains that no one becomes a nazir since the neder nazir has to be made with clarity and no one at the time knew for certain whether they were nazir.
A further debate is revealed as a result of a complication in the above case - if the subject of stipulation disappears. This is relevant for Beit Hillel’s position as there is now a doubt regarding each of our potential nezirim. R’ Yehuda maintains that we rule leniently in a case of doubt and none of them are nazirs. R’ Shimon however rules stringently, and each one of them would need to stipulate that if they are obligated to be a nazir that they are fulfilling that obligation, otherwise they are becoming a nazir voluntarily.
Matters become complicated in the next Mishnah (5:7):
If they saw a koi and one said *“I am a nazir if that is a chaya”; one said “I am a nazir if that is not a chaya”; one said, “I am a nazir if that is a beheima”; one said “I am a nazir if that is not a beheima”; one said “I am a nazir if that is beheima and a chaya”; one said “I am a nazir if that is neither a beheimanor a chaya”; one said “I am a nazir if one of you are a nazir”; one said “I am a nazir if none of you are nazir” and one said “I am a nazir if all of you are nezirim” – then they all are nezirim*.
Despite the above-recorded debates, only one opinion is brought here – whose opinion is it?
The Tosfot Yom Tov collates the various opinions. The Bartenura explains that according to the opinion of Beit Shammai as this qualify as nezirut be’ta’ut, and the opinion of Beit Hillel. Since there is a doubt regarding whether a koi is a chaya, beheima or something unique this is a case of safek nezirut. The Tosfotexplain further that since according to R’ Shimon we rule stringently in cases of doubt we rule stringently here. The Tosfot Yom Tov however finds this solution difficult as it means that his Mishnah is the position of R’ Shimon whereas the halacha is like R’ Yehuda.
The Mefaresh answers that in this case Beit Hillel would agree with Beit Shammai. Earlier the debate was regarding ta’ut hekdesh – where the person making the vow was in error. This case however involves safek hekdesh, as the classification of koi remains in doubt. Consequently Beit Hillel would agree that they are all certainnezirim. The Tosfot Yom Tov also has difficulty with this understanding as we ruled like R’ Yehuda in the second perek and there is a stam Mishnah in Taharot that teaches we are lenient in safek nezirut. The Rashash however answer that R’ Yehuda would agree in this case. Normally R’ Yehuda maintains that one does not put themselves in to a situation of doubt regarding nedarim. This is only when at the time of the neder he thought the situation could be clarified. In this case however, the status of a koi could never be clarified so even R’ Yehuda would agree.
The Tosot Yom Tov prefers the explanation of the Rambam who explains that since we have learnt that koi has qualities similar both, either or neither a beheima or chaya, then each of the nedarim that were made in our Mishnah is partially true and everyone is therefore nezirim. R’ Akiva Eiger however raises an issue with this position: why then does the person who said “I am a nazir, if none of you are a nazir” become a nazir? The R’ Akiva Eiger notes that the Lechem Mishneh addresses this question explaining that the last three nedarim listed in our Mishnah refer to a different case. The Rambam writes that it is where two people are approaching, one of which is a nazir. Since there is partial truth in each of the three’s stipulation, they are all nezirim (much like the case involving the koi). The difficulty with this however is that Gemara rules that if one make a neder on the condition that the pile has a particular volume, and it was cleared away prior to be measure, we rule leniently (even though it may have been partially true). The Lechem Mishneh explains that there the neder was stipulated with the term “if”, where as here it is termed “that” and partial truth would therefore satisfy.
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