The Base Neder

Nedarim (1:1) | Yisrael Bankier | 6 years ago

Masechet Nedarim opens by discussing nidrei issur - a type of neder (vow) through which an object become prohibited to oneself or another. The Mishnah explains that kinuyei nedarim and yadot nedarim are treated the same as nedarim. Broadly speaking kineui nedarim are when a different term is used when articulating the vow that the Chachamim understood as have the same meaning as a neder (see 1:2). Yadot Nedarim refer to cases where the vow was partially articulated, but enough was said such that the full neder was understood. One however should ask, what is the basic neder?

The Mishneh LeMelech explains that this question is the subject of debate. He cites the Ran who explains that the base neder can be made in one of two ways. Either by stating that an object is prohibited. Alternatively, when making a neder one can associate the item with an object when prohibiting it (hatpasa). He adds however, that when associating with another object, it is must be an item that is voluntarily offered (e.g. a korban) and not simply another prohibited object (e.g. non-kosher food).

The Mishneh LeMelech however cites the Tosfot who explains that the base neder is only through hatpasa. The Ritva similarly explains that the base neder is where one says, e.g. this object is prohibited to me like a korban or like hekdesh. In the absence of hatpasa the neder would only be binding if considered a yad neder. The Ran (Shevuot 8a) explains this position is based on the fact that one normally cannot make items prohibited. It is only in the wolrd of hekdesh where one can take a permissible item and exchange it for a sanctified one thereby making it prohibited. Consequently, only a neder through hatpasa that is connected to that world can be effective.1

Note that according to the second understanding, there is only one type of neder and that is through hatpasa. Anything that appears different would need to be defined as a yad or kinui. According to the first understanding, it is possible that there are two type of nedarim, with and without hatpasa. Is there a difference?

The Mishneh LeMelech cites the Rosh (Teshuva 12:4) who explains that if one made a neder to prohibit his wine to others, he does not make it assur to them. The difficulty is that when one makes a neder he can make it assur to others. The Mishneh LeMelech cites the Shach who explains that in the case of the Rosh he was making his wine assur like yayin nesech. As we explained previously, for a neder to be valid he must associate it with a korban or hekdesh. In this case it is being associated with a prohibited substance so the neder is not valid. The Mishneh LeMelech believes that this is the accurate understanding of the Rosh.

Nevertheless, before bringing the Shach's explanation, he cites the Taz who explains that in this case the neder was not done through hatpasa. The neder was only making the wine assur. In that case, the wine can only be made assur to the person making the neder. A neder made with hatpasa however, by making it like a korban, would make the wine assur to everyone (much like a korban). The Mishneh LeMelech however argues that according to halacha in both cases, the wine would be assur to everyone.

Despite the Mishneh LeMelech's conclusion, we find grounds for the distinction between these two different base types of Nedarim. The Grach (stencil 296) explains that the Sifri Zuta cites the verse, "everything that come from your mouth you shall do" as the basis of an object of a neder becoming forbidden to others. The Grach explains that a neder by way of hatpasa does not need a pasuk. The pasuk is only needed for a neder that is made without hatpasa.

The Grach continues that according to those opinions that the base neder is only through hatpasa, the derivation of the Sifri Zuta is not only unnecessary but not learnt. This is important because if the derivation of the Sifri Zuta is learnt, then it would equally apply to the world of Shevuot. For example, one can prohibit another of from entering his house by way of a shevua. The Grach uses this to explains why the Rambam rules such a shevua would work. Since he holds that the base shevua is even without hatpasa, the derivation of the Sifri Zuta applies to such nedarim and consequently to shevuot as well.

1 Note that the Ran in Shevuot appears to take this second position whereas in our Gemara he takes the first. The Chatam Sofer (Nedarim 12a) explains that the Ran in Shevuot is only explaining the position of the Rif.


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