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Tuesday, January 15, 2008
דין דעת בנדרים
R' Avi, I know this might belong as a comment... Because if its importance I am posting anew, but the editor has the last word... (update: now that i see how long it got, i will post as comment)
After some research into the subject of דעת in נדרים I would like to share with the Olam some points: 1- There is a beautiful (short) piece in the גרי"ז ריש הלכות נזירות that discusses condition in a Neder. The question is how can a condition work in a Neder, the reason it shouldn't work is because one may not make a neder thru a שליח and the Gemara says that anything that cannot be done thru a שליח one may not make a condition (we had this in the daf). The גר"ח answered that a condition in a neder is not the usual din of תנאי rather it is learned from האדם בשבועה that if a persons mind at the time of the Neder is that the neder should be conditional, his mind determines the effectiveness of the Neder. What you see from here is that even a weaker דעת that doesn't effect a regular transaction does effect a neder. Let me explain: the rishonim ask (we had a tosfos in Ksubos) that every time a person makes a תנאי that doesn't fulfil the הלכות תנאים how can the action take effect and ignore the condition if I am missing דעת after all? The answer is that you did have דעת, as i once saw the שו"ת הרא"ש explain that we don't believe you that you really would have refrained from doing the action if you would have know that the condition will not take effect. Either way, the bottom line that there is enough Daas for a regular transaction to take effect, so if so how can the תנאי by neder work if its missing the p[ower of הלכות תנאים since its א"א ע"י שליח? you must say that האדם בשבועה is מחדש that even a weaker consideration of the mind takes effect in a neder. The understanding is that in Nedarim the Daas actually powers up the words and gives them their potency (see bircas shmuel 14 for more detailed explenation) A related issue to this is that there seems to be a discussion if a condition in a Neder becomes part of the Neder and what נפקא מינא that possesses. 2- Taking a break for a second, let's talk Machshava in a way that will clarify the Laws. A neder has a big difference over all of Shas. The reason is that the image of a person (צורת אדם) is divided into 3 parts. Thought, Speech, and Action (מחשבה דיבור ומעשה). Where as most of Shas deals with actions as per קניינים, Neder is totally in speech. What is interesting, and here where it gets machshavadik, is that the level of Daas you seem to need works in a miror like image. We will prove this in the next point but think of it as an א"ת ב"ש system. the ת' is paired up with the א' and the ש' is paired up with the ב', similar here an action needs a deeper Daas to be ablt to work, where as a Neder needs less Daas. 3- Let us bring examples that will illustrate the above points. The ritv"a on נדרי אונסין holds that even אונס דלא שכיח will make the Neder invalid. the bircas shmuel explains that since neder needs האדם בשבועה this means that one needs to be aware of all the ramifications of the neder in that time and although in other קניינים we tell him that הוי ליה לאסוקי אדעתיה of any אונס דשכיח not so by nedarim. On the other hand, the bircas shmuel brings a tosfos in bava kama 110b on the gemara that says that if a יבמה falls to a מוכה שחין she can say that she never intended to be married to her 1st husband if she would have known that she will fall to a מוכה שחין. Meaning that if there is an Ones in Kidushin then the Kidushin will be nullified even if the Ones happened much after the Kidushin. This is why Tosfos over there asks that every time you buy an animal that LATER becomes a טריפה you should be able to claim מקח טעות! and tosfos answerers that although the buyer CAN claim that but the SELLER would not have agreed to this, but in a one sided transaction this WOULD WORK. Still by a Neder, this DOESN'T work, because in every פתח there is really this idea of an Ones that happened after the fact and we still need a Chacham to nullify the Neder. Because by a Neder only if AT THE TIME of the neder there was an Ones the neder is self nullified, but an Ones that happens later doesn't count unlike other transactions. So what comes out is that Neder on one hand needs MORE Daas, meaning that even a אנס דשכיח can make into נדרי אונסין and on the other hand Neder needs less Daas as in a case where a real Ones happens but AFTER the Neder, then the Neder isn't self nullified. Here is where you got to stick the Machshava piece. 4- there seem to be another issue here if you need a level of אומדנא in order to say in these Nedarim don't work had he know, or even with out אומדנא, or maybe the issue is if the Ones happened AFTER the fact but there is an אומדנא would it work to cancel the Neder. I have to research this more, not sure which is the issue. You can look into Bircas Shmuel 14-15-16 and see there. Whatever the issue is, there seem to be an argument of Rav Chaim (sayng pshat in a Ran) and other rishonim. 5- to end, i can't resist but add to the Machshava piece. The מהרש"א explains that the term ביטוי שפתיים is an expression to say that the outer form of speech is used, where as לשון חכמים is an expression to mean the inner more thought connected form of speech. This is why a Neder is referred to as ביטוי. You can't miss the fact that the Gemara likens making a Neder to ... שחוטי חוץ!!! Like we said, the Neder is associated with outer speach and connected to outer Daas, where an action is connected to Inner daas.
update - - - please excuse me, i was interrupted many times while writing this. i will try and rewrite this in Hebrew tomorrow iy"h and try and make more sense of this....
3 comments:
After some research into the subject of דעת in נדרים I would like to share with the Olam some points:
1- There is a beautiful (short) piece in the גרי"ז ריש הלכות נזירות that discusses condition in a Neder. The question is how can a condition work in a Neder, the reason it shouldn't work is because one may not make a neder thru a שליח and the Gemara says that anything that cannot be done thru a שליח one may not make a condition (we had this in the daf).
The גר"ח answered that a condition in a neder is not the usual din of תנאי rather it is learned from האדם בשבועה that if a persons mind at the time of the Neder is that the neder should be conditional, his mind determines the effectiveness of the Neder.
What you see from here is that even a weaker דעת that doesn't effect a regular transaction does effect a neder. Let me explain: the rishonim ask (we had a tosfos in Ksubos) that every time a person makes a תנאי that doesn't fulfil the הלכות תנאים how can the action take effect and ignore the condition if I am missing דעת after all? The answer is that you did have דעת, as i once saw the שו"ת הרא"ש explain that we don't believe you that you really would have refrained from doing the action if you would have know that the condition will not take effect. Either way, the bottom line that there is enough Daas for a regular transaction to take effect, so if so how can the תנאי by neder work if its missing the p[ower of הלכות תנאים since its א"א ע"י שליח? you must say that האדם בשבועה is מחדש that even a weaker consideration of the mind takes effect in a neder.
The understanding is that in Nedarim the Daas actually powers up the words and gives them their potency (see bircas shmuel 14 for more detailed explenation)
A related issue to this is that there seems to be a discussion if a condition in a Neder becomes part of the Neder and what נפקא מינא that possesses.
2- Taking a break for a second, let's talk Machshava in a way that will clarify the Laws. A neder has a big difference over all of Shas. The reason is that the image of a person (צורת אדם) is divided into 3 parts. Thought, Speech, and Action (מחשבה דיבור ומעשה). Where as most of Shas deals with actions as per קניינים, Neder is totally in speech. What is interesting, and here where it gets machshavadik, is that the level of Daas you seem to need works in a miror like image. We will prove this in the next point but think of it as an א"ת ב"ש system. the ת' is paired up with the א' and the ש' is paired up with the ב', similar here an action needs a deeper Daas to be ablt to work, where as a Neder needs less Daas.
3- Let us bring examples that will illustrate the above points. The ritv"a on נדרי אונסין holds that even אונס דלא שכיח will make the Neder invalid. the bircas shmuel explains that since neder needs האדם בשבועה this means that one needs to be aware of all the ramifications of the neder in that time and although in other קניינים we tell him that הוי ליה לאסוקי אדעתיה of any אונס דשכיח not so by nedarim.
On the other hand, the bircas shmuel brings a tosfos in bava kama 110b on the gemara that says that if a יבמה falls to a מוכה שחין she can say that she never intended to be married to her 1st husband if she would have known that she will fall to a מוכה שחין. Meaning that if there is an Ones in Kidushin then the Kidushin will be nullified even if the Ones happened much after the Kidushin. This is why Tosfos over there asks that every time you buy an animal that LATER becomes a טריפה you should be able to claim מקח טעות! and tosfos answerers that although the buyer CAN claim that but the SELLER would not have agreed to this, but in a one sided transaction this WOULD WORK. Still by a Neder, this DOESN'T work, because in every פתח there is really this idea of an Ones that happened after the fact and we still need a Chacham to nullify the Neder. Because by a Neder only if AT THE TIME of the neder there was an Ones the neder is self nullified, but an Ones that happens later doesn't count unlike other transactions.
So what comes out is that Neder on one hand needs MORE Daas, meaning that even a אנס דשכיח can make into נדרי אונסין and on the other hand Neder needs less Daas as in a case where a real Ones happens but AFTER the Neder, then the Neder isn't self nullified. Here is where you got to stick the Machshava piece.
4- there seem to be another issue here if you need a level of אומדנא in order to say in these Nedarim don't work had he know, or even with out אומדנא, or maybe the issue is if the Ones happened AFTER the fact but there is an אומדנא would it work to cancel the Neder. I have to research this more, not sure which is the issue. You can look into Bircas Shmuel 14-15-16 and see there. Whatever the issue is, there seem to be an argument of Rav Chaim (sayng pshat in a Ran) and other rishonim.
5- to end, i can't resist but add to the Machshava piece. The מהרש"א explains that the term ביטוי שפתיים is an expression to say that the outer form of speech is used, where as לשון חכמים is an expression to mean the inner more thought connected form of speech. This is why a Neder is referred to as ביטוי. You can't miss the fact that the Gemara likens making a Neder to ... שחוטי חוץ!!! Like we said, the Neder is associated with outer speach and connected to outer Daas, where an action is connected to Inner daas.
update - - -
please excuse me, i was interrupted many times while writing this. i will try and rewrite this in Hebrew tomorrow iy"h and try and make more sense of this....
R' yossi,
i hope that you are not letting work get in the way of your learning! :)
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