Batsheva Appel's List: Nedarim

• In order for a neder (=vow) to take effect, the individual who is taking the vow must have true intent, and a vow that is uttered without meaning does not obligate the person who made it. Nevertheless, a person cannot simply claim that he did not mean what he said; we always work with the assumption that what a person said is what he meant.
• nidrei ziruzin
• nidrei havai
• nidrei shegagot
• nidrei onasin
• Some of the commentaries explain Rav Yehudah's position as requiring a pro forma visit to a rabbi to arrange for the vow to be annulled, but in this case the rabbi will not have to make inquiries in order to find a way to permit the neder, since the circumstances themselves indicate that the neder does not stand.
• Others explain that on a biblical level there is no need to end the neder, but Rav Yehudah believes that there is a rabbinic requirement to do so. The Ritva argues that even Rav Yehudah only required this of amei ha'aretz - unlearned people - who we want to discourage from taking vows lightly.

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• Still the Gemara points out another difficulty with a vow against sleeping. If the person did not state a specific amount of time that he will not sleep, we know that Rabbi Yohanan teaches with regard to shevu'ot that a person who takes an oath not to sleep for three days is understood to have taken a false shevu'ah ? since it is impossible to go without sleep for 72 hours. Therefore, rather than forcing him to attempt the impossible we punish him immediately (for having made a false shevu'ah) and allow him to sleep whenever he wants. Thus the Gemara is forced to offer an alternative case of neder, where the person in fact did limit the amount of time that he would keep his eyes from sleeping.

• In continuing our discussion of the differences between a neder (vow) and a shevu'ah (an oath), the Mishnah teaches that nedarim can take effect on mitzvot while shavu'ot cannot.
• Since the Torah commands every man to sit in a sukkah, the oath that a man takes to refrain from doing ? which aims to create a prohibition on the person ? contradicts the Torah's command. This stands in contrast with the person who creates a prohibition on the object ? the sukkah ? which is not an object of mitzvah in and of itself.
• As we have learned, nedarim are ordinarily expressed in language where the person compares the object of the vow to a holy object ? e.g. this meat should be to me like a sacrifice. Just as a sacrifice is forbidden, so this meat becomes forbidden by means of the neder. In our case, since kodashim can take effect on any object ? even on objects of a mitzvah ? similarly nedarim have the power to do so.

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• The similarity among these tractates is that all of them deal with obligations that stem not from a Torah obligation, but from a commitment that the person accepted upon himself.
• Although the most common use of the term neder in the bible is in the context of nidrei hekdesh (donations to the Temple such as sacrifices), in rabbinic literature it is used most often for nidrei issur ? when a person forbids himself (or others) from deriving benefit from something.
• When a person takes an ordinary object and sets it aside for the <!--?xml:namespace prefix = st1 ns = "urn:schemas-microsoft-com:office:smarttags" /-->Temple, by sanctifying it he essentially is removing it from everyday, mundane use. Similarly, when a person establishes that he will not derive benefit from a specific object he is removing it from his use; when he establishes that an object that he owns will be forbidden for another person, he is limiting the prohibition to a specific person (or group of people).
• Although there is no mitzvah that commands a person to take a neder, once a person takes a vow he is obligated by the Torah to fulfill it if it was a positive commitment and forbidden by the Torah to break it if it was a statement of prohibition
• Once a person has expressed his idea as a statement, it is no longer a private commitment, but a Torah obligation.
• A number of basic requirements for a neder to take effect include the need for a person to have clear intent, that he express it in a clear manner and that the neder refers to a specific object. Without these three elements, the neder will not take effect, (as least not on a biblical level)
• This is based on the passage in Kohelet (5:4) "Better not to vow than to vow and not to pay" as well as the fact that people often took vows because of anger or arguments.
• Furthermore, the Sages did not encourage people to accept upon themselves more prohibitions than the ones obligated by the Torah.
• Since a neder is predicated on the intent of a person, once a person has decided that he does not wish to be obligated by the neder, it should "expire" and lose all significance. Nevertheless, since a person cannot make such a decision on his own, he must turn to the court or to a Rabbinic sage who can arrange to be matir neder.
• 1. By use of a petah ? an opening ?
• 2. By use of haratah ? a statement of regret

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• Chazal (see beginning of Masekhet Nedarim) explain that a neder means forbidding an object with respect to oneself.  A person who takes a neder declares that as far as he is concerned, a given item (such as a food item, for example) is forbidden to him like hekdesh (Temple property).  A shevu'a, by contrast, means taking upon oneself an additional prohibition or obligation.  A person who takes shevu'a does not impose any status upon an object, but rather swears that he will or will not perform a certain action.
• For example, if a person makes an oath that he will eat on Yom Kippur or that he will not eat matza on Pesach, his oath is not binding (and he has in fact violated the prohibition against uttering meaningless shevu'ot). 
• Since a person is already bound by the Torah's law, he cannot take it upon himself to violate the Torah.  Nedarim, by contrast, can take effect against Torah law.  If a person takes a neder that all matza is forbidden for him, then all matza indeed transforms into forbidden food as far as he is concerned, and even on Pesach he may not partake of matza.  Since here the person seeks to change the status of an object, rather than introduce a new prohibition or obligation upon himself, the neder takes effect.
• "asei docheh lo ta'aseh" – a "positive" commandment overrides a conflicting "negative" commandment.  I
• The Rashba and Chinukh answer, quite simply, that nedarim involves not only a lo ta'aseh (negative prohibition), but a mitzvat asei (positive command), as well.  The Torah writes not only, "he shall not break his pledge," but also "he must carry out all that has come of his mouth."  And according to Halakha, although a mitzvat asei can override a lo ta'aseh, it cannot override a law which involves both an asei and a lo ta'aseh.  Therefore, the mitzva of matza, for example, cannot override the prohibition/obligation of nedarim.
• the halakha presented in Masekhet Nedarim (16a-b) that distinguishes between two different types of vows – neder and shevu'a – with respect to their ability to suspend a Torah law.
• Thus, a person who takes a neder rendering matza forbidden for him may not partake of any matza even on Pesach, when the Torah obligates us to eat matza.  We cited the comments of the Rashba and Chinukh, who attribute this halakha to the general principle that "ein asei docheh lo ta'aseh va-asei."  Although a mitzvat asei (Biblical imperative) generally overrides a conflicting mitzvat lo ta'aseh (Biblical prohibition), it does not override a conflicting lo ta'aseh if that lo ta'aseh also entails a mitzvat asei. 
• The Gemara in Yevamot discusses a case of a nazir who contracts tzara'at and undergoes the purification process while still in his term of nezirut.  Now a nazir is bound by both a mitzvat asei and mitzvat lo ta'aseh to refrain from cutting his hair (see Bamidbar 6:5).  We would expect, then, that a nazir stricken with tzara'at may not cut his hair as part of his purification process; the mitzva for a metzora to cut his hair should not override the asei and lo ta'aseh forbidding a nazir from cutting his hair.  However, the Gemara establishes that nezirut marks an exception.  A nazir can have his state of nezirut annulled through the process of "she'eila" (appearing before a scholar or group of scholars who establish that his acceptance of nezirut resulted from some degree of misjudgment).  This possibility of annulment renders the nezirut prohibitions less stringent than ordinary prohibitions, and thus not necessarily subject to the same rules.  The Gemara explains that due to the lenient nature of nezirut, its prohibitions – even haircutting, which involves both an asei and lo ta'aseh – are overridden by a mitzvat asei, and thus a nazir undergoing purification from tzara'at may, in fact, cut his hair as part of that ritual.
• the question has been raised as to why a neder can override a mitzva.
• Although generally a mitzvat asei overrides a conflicting mitzvat lo ta'aseh, this halakha does not apply when there exists the possibility of resolving the conflict and observing both the asei and the lo ta'aseh. 
• The Shalmei Nedarim, however, rejects the Simlat Binyamin's theory and even claims that it was never meant to be taken seriously.  By having a neder annulled so as to avoid a conflict between the neder and a mitzva, one does not accommodate both laws.  Once he has the neder annulled, the neder simply does not exist. 
• a neder will indeed be unable to override a mitzva, given its lenient nature. 
• The halakha that a neder can suspend a mitzva applies only to mitzvot which themselves feature a particularly lenient quality.
• we thus return to the basic halakha that an asei cannot outweigh a conflicting asei and lo ta'aseh.

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• Promises made under religious sanction.
• 1) A voluntary promise to bring a sacrifice which he who makes the vow is not otherwise in duty bound to bring; or a promise to give a certain sum to purposes of common charity or education.
• (2) The second chief kind of vows consists in promises made to abstain from the enjoyment of certain things, he who promises saying: "I deny myself the enjoyment of this thing, as of a thing sanctified."
• A vow is valid only if made voluntarily, without any compulsion from without; and the votary must also be conscious of the scope or character of his vow. A promise made by mistake, or one exacted by compulsory measures, is invalid. The age of discretion with reference to promises is for men the beginning of the thirteenth year, for women the beginning of the twelfth, at which ages the votaries are supposed to understand the importance of a vow
• Any vow, be it a dedication ("neder heḳdesh"), or a promise of prohibition or deprivation ("neder issar"), can, in case the promisor regrets it, be declared void by an ordained teacher, or by three unordained teachers
• Samuel said: "He who makes a vow, even though he fulfil it, commits a sin" (ib. 22a).
• "Do not form a habit of making vows," says an old baraita (Ned. 20a)

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• In the traditional understanding of this verse, the reference is to a vow or an oath to refrain from some enjoyment as a sacrifice to God. (The term “oath” is also used to refer to oaths taken in a court of law, but both vows and oaths in this text denote only personal declarations of a religious nature.)
• According to the Rabbis,
• the vow refers to the object, the oath to the person.
• In both instances for the man to break his word is a religious rather than an ethical offense. The idea behind it all is that the man has given to God his word, which he must not break. It is only a verbal declaration that constitutes a vow. A vow “taken in the heart,” as the Rabbis call it, a mental resolve, has no binding force.
• Some pious Jews, when making any promise, declare that they do it b’li neder, “without a vow,” that is, they are declaring that they do not wish the promise to have the status of a vow, to break which is a serious offense.

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