Defining the Prohibition of a Shevu’a Le-Haba (Part 2)

  • Rav Moshe Taragin

 

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In memory of Alice Stone, Ada Bat Avram, A"H, 
beloved mother, grandmother and great grandmother 
whose Yarzheit is 2 Tammuz.
Dedicated by, Ellen & Stanley Stone, 
Jake & Chaya, Micah, Adeline, Zack & Yael, Allie, 
Isaac, Ezra & Talia, Yoni & Cayley, Marc & Eliana, Adina, Gabi & Talia.
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In a previous shiur, we discussed the essence of a shevu’a le-haba, an oath about the future. Is this type of shevu’a structurally similar to a past shevu’a, a shevu’a le-she'avar, in which the issur consists of taking a false oath? Or does a future shevu’a remap certain neutral actions as being forbidden or obligatory, such that failure to fulfill the shevu’a is an active violation? Evidently, this question was debated among the Tanna’im and Amora’im, as outlined. The debate between R. Akiva and the Chakhamim about the shi’ur of food that must be consumed, the machloket about hatfasa suitability, and the dispute between R. Akiva and R. Yishma'el all may be traced to this fundamental question. In this shiur, we will explore additional issues which also stem from this question.

The beraita (Shavuot 22a) asserts that a half shi’ur from two distinct objects banned through separate nedarim can combine to form the requisite shi’ur of kezayit. If a person took two nedarim to forbid two different loaves of bread and subsequently consumer a half kezayit of each, he receives malkot for violating a neder (bal yachel). The beraita records a machloket between the Tanna Kama and R. Meir as to combining two different shavu’ot. If a person took an oath not to eat from two separate loaves of bread and subsequently consumed a half kezayit of each, has he violated the rules of shavu’ot

Perhaps this machloket is based on different understandings of the violation of shevu’at bitui le-haba. If the problem of a shevu’a le-haba is issuing a false statement, it is highly unlikely that two half-zayits from different loaves should combine to form the requisite shi’ur. The two different shavu’ot can only be considered false if each was independently violated by ingesting a minimum of kezayit. However, if a shavu’a creates new prohibited actions, these two shavu’ot have created parallel and identical forbidden acts. Just as two particles of neveila may be mitztaref to combine to form one minimum shi’ur of kezayit, perhaps half quantities of objects prohibited through shavu’a can combine to form one kezayit.

A second issue relates to the possibility that one formulated shavu’a may create multiple prohibitions. The mishna (22b) describes a shavu’a not to eat pat (bread) of wheat and pat of barley and pat of spelt. Assuming clear intentions this shavu’a creates independent prohibitions for each item. Even though a person articulated one oath, multiple items become forbidden. Perhaps the differentiation of items creates a multiplicity of shavu’ot; it is equivalent to his having articulated a separate shavu’a about each item.

However, the Ri Migash implies that only one shavu’a has been rendered, which prohibits different acts of eating. Consuming solely wheat bread would be considered only one act of eating; eating wheat bread and subsequently eating barley bread would be considered multiple acts of eating and would entail a double violation of the original singular shavu’a. This model clearly indicates that a shevu’a le-haba does not merely assert a declaration that must be upheld to avoid the incidence of falsehood. If this were true, one shavu’a could only yield one violation, as the status of the declaration would be one binary condition – either true of false. This model of one oath which can be repeatedly violated through different acts of consumption certainly supports the model that a shavu’a remaps certain activities as obligatory or prohibited. In theory, multiple (analogous) activities can entail repeated violations of the one original shavu’a. In fact the Ri Migash consistently views a shevu’a le-haba as creating new prohibited activities, consistent with his understanding of this model of multiple violations of one shavu’a.

A different issue stemming from this question surrounds the relationship between eating and drinking. The gemara (22b) describes that if someone takes an oath not to eat, and he then drinks, the oath has been violated. What is interesting is the rationale behind this halakha. One version of the gemara attributes the halakha to the commonplace association of drinking as part of eating; most people do not differentiate between the two. However, a second version of the gemara develops a halakhic principle that considers the act of drinking as similar to the act of eating, shetiya bichlal akhila.

Although each logical basis yields the same halakha – that drinking violates a shavu’a not to eat – these differing ideas may influence the question of the shi’ur the requisite volume of liquid necessary to violate the oath not to eat.  Should violation of this shavu’a be measured after a shi’ur of revi'it has been drunk or only after a kezayit has been ingested? Is drinking per se forbidden, in which case a revi'it shi’ur seems to be the likely yardstick? If drinking is only considered a violation of the shavu’a because it is halakhically equivalent to eating, perhaps the shi’ur should be a kezayit. The Rambam (Shavuot 4:3-4) rules that the shi’ur is measured by revi'it, although the gemara in unclear.

If a shevu’a le-haba is merely a question of false and true declaration, drinking would violate a shavu’a, simply because most people equate the two. By adopting an oath not to eat and subsequently drinking, a person has rendered his declaration false by all standards of human communication. If, however, an oath not to eat creates new and personal prohibitions of eating, drinking would only entail a violation if it is halakhically analogous to eating. If it were halakhically different – even if commonly associated – the autonomous act of drinking would not be proscribed by an oath taken not to eat.

An interesting issue surrounding the definition of the issur is raised by Rabbenu Chanael (Pesachim 63) regarding the timing of hatra'a. If a person violates a shveu’a le-haba intentionally by disregarding the warning, he is liable to malkot. Should the warning be issued at the point of the oath or at the point of consuming food, when the person breaks the oath? Rabbenu Chanael tags the hatra'a to the time of the oath. Clearly, if the prohibition consists of a false declaration, this timing is appropriate. If, however, a shavu’a creates personally forbidden activities, perhaps the warning should be issued at the point of violation, when these personally forbidden activities are transgressed.

A final question surrounds a situation in which someone takes an oath to reinforce a prohibition, such as eating neveila. The gemara (23b) challenges that this oath should not apply, since Jews already swore at Har Sinai not to eat neveila (or any other prohibited foods), and a subsequent oath cannot be taken merely to restate a previous one. Most believe that in addition to this concern, the gemara implies a secondary concern of ein issur chal al issur. Independent of the concern of redundant shavu’ot, objects which are already forbidden cannot become prohibited a “second” time. For example, a divorced woman who subsequently loses a husband does not also become a widow; if a Kohen Gadol were to marry her, he would only be punished for marrying a divorcee, but not for marrying a widow (Kiddushin 77a).  Since neveila is already Biblically forbidden (even in the absence of a prior shavu’a), it cannot become prohibited through the device of shavu’a that seeks to impose an issur.

Not all agree that attempting to prohibit neveila through shavu’a violates the ein issur chal al issur redundancy clause. For example, the Noda BeYehuda (Orach Chayim, Kama 36, in footnote) suggests that a shavu’a for neveila is thwarted by the inapplicability of redundant shavu’ot, but not by the problem of dual issurim and ein issur chal al issur. He does not fully articulate the logic; Typically, an object or action that is already forbidden cannot be prohibited a second time. Indeed, if shavu’a le-haba redefines an action as prohibited, it could not add a prohibition to an already illegal activity. However, shavu’a le-haba may not redefine activities; it may merely be a declaration that must be implemented to avoid falsification. In theory, it could apply to already prohibited activities – were it not for the other rules disallowing the double imposition of a shavu’a, ein shavu’a chal al shavu’a.

It must be stated that the position of the Noda BeYehuda – as logically appealing as it seems – is challenged by the ensuing gemara. Having questioned a shavu’a forbidding neveila, the gemara nonetheless justifies this shavu’a based on the aspect of kollel – a secondary issur can apply to an already forbidden item if the newer one is more broad than the original prohibition. By asserting this exception, it appears that the original issue was not merely redundancy of shevu’a (ein shavu’a chal al shavu’a), but also redundancy of issurim, which is resolved through the phenomenon of kollel. The subsequent discussion about kollel as a solution does imply that the original conflict surrounded ein issur chal al issur. This seems to suggest that a shavu’a does redefine activities as forbidden, thereby causing a problem in trying to overlap two prohibitions about one action.