One who takes an oath not to eat, and ate less than an olive-bulk (Part II) - Rambam's ruling, and eating half a measure

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In the next shiur we will continue to examine the dispute between Rabbi Akiva and the Sages. We will begin by considering the Gemara's suggestion to connect Rabbi Akiva's position to the position of Rabbi Shimon who imposes liability for lashes even for eating a minute amount, i.e., less than a ke-zayit. See the Gemara 21b: "shevu'a shelo okhal… shema mina"; Rashi and Tosafot, s.v. ve-lo ameru.

 

We will then discuss the Rambam's ruling on this issue. See Hilkhot Shevuot 4:1-2, and try to understand his ruling in light of the position of the Ri Migash which we saw in a previous shiur. Remember also the Rambam's view regarding the basis for liability for shevuat bitui, as it was formulated in Hilkhot Shevuot 1:3, and consider whether there is any tension between his various rulings and how it might be resolved.

 

The Rambam implies that while there is no liability for eating less than a ke-zayit after having taken an oath not to eat, there is a prohibition similar to the prohibition of half a measure. In this context, see Ran (9a in Alfasi), "u-le-inyan pesak halakha… din shevu'ot ke-din she'ar isurin."

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            In the previous shiur we began to consider the Tannaitic dispute regarding one who swears not to eat and then goes and eats less than a ke-zayit, whether or not he is liable. In this shiur we will continue to examine the matter, beginning with the Gemara's suggestion to connect the view of Rabbi Akiva with that of Rabbi Shimon.

 

 

            The Gemara on p. 21b discusses the suggestion according to which the view of Rabbi Akiva in the Mishna is based on the view of Rabbi Shimon, who imposes lashes even if one ate only a minute amount of any prohibition. As we saw two shiurim ago, Rabbi Shimon is clearly of the opinion that even the consumption of less than a ke-zayit is considered an act of eating; and the Gemara proposes that Rabbi Akiva, who imposes liability upon one who takes an oath not to eat a certain commodity, even if he eats less than a ke-zayit, follows the general view of Rabbi Shimon. This proposal clearly aspires to understand Rabbi Akiva's view in light of the general principles of the laws governing prohibited foods (similar to the Ri Migash's argument concerning the view of the Sages). However, the Gemara's conclusion, which disassociates Rabbi Akiva's view from the general position of Rabbi Shimon, leaves us in an entirely different place.

 

            When the Gemara suggests that Rabbi Akiva's view is based on the general opinion of Rabbi Shimon, it cites the words of Rabbi Shimon: "For a minute quantity, lashes are incurred; and it requiring the size of an olive is necessary only for a sacrifice." The Rishonim found it necessary to explain how Rabbi Shimon's view can serve as the basis for the opinion of Rabbi Akiva, when the latter imposes liability for breaking an oath even for a sacrifice. Rashi writes:

 

It was not said that the size of an olive is necessary – as a halakha to Moshe from Sinai, except for a sacrifice that is brought for the inadvertent violation of a prohibition that is punishable by karet. Therefore, here [a minute quantity suffices] even for a sacrifice. For a sacrifice for an oath comes for doing the opposite of the oath, and since [an action is considered] eating even with a minute quantity, he forbade himself with his oath to eat even a minute quantity, and when he eats a minute quantity he does the opposite of his oath.

 

            Rashi explains that Rabbi Shimon requires a ke-zayit for a sacrifice because of a halakha that was given to Moshe at Sinai, which establishes a minimal quantity to attach significance to a prohibited action regarding liability for a sacrifice, but this has no connection to a sacrifice for a shevuat bitui. A sacrifice for a shevuat bitui comes for doing the opposite of the oath, and in the case of an oath prohibiting eating, a sacrifice must be brought for an action that is defined as eating, and according to Rabbi Shimon even eating a minute quantity is defined as eating.

 

            In contrast, the words of the Tosafot are somewhat surprising:

 

It was not said that the size of an olive is necessary except for a sacrifice – Only with regard to other prohibitions do we require a ke-zayit for a sacrifice, for the sacrifice depends on karet, and karet in the case of deliberate transgression requires a ke-zayit. But in the case of shevuat bitui, where there is no karet but only a prohibition that is punishable with lashes, and the sacrifice depends on the prohibition that is punishable with lashes, just as there are lashes for a minute quantity, so must a sacrifice be brought for a minute quantity.

 

            The first part of Tosafot we saw already two shiurim ago. We noted the novelty in Tosafot's position that not only does Rabbi Shimon exempt a person from a sacrifice if he ate less than a ke-zayit; he even exempts him from karet. We explained that liability for lashes relates to the very rebellion against God's command, whereas liability for a sacrifice as well as liability for karet relate to the negative essence of the act, and therefore a minimal measure is required. Now we see that the Tosafot add that the sacrifice for a shevuat bitui, which is similar to a fixed sin-offering in that it is brought for an inadvertent transgression, but is different from it in that we are not dealing with a prohibition, the deliberate transgression of which is punishable by karet, but only lashes, is a sacrifice that depends on the prohibition, and therefore it applies even to less than a ke-zayit; for every shevuat bitui for which there are lashes in the case of a deliberate transgression, there is a sacrifice in the case of an inadvertent transgression. This argument is by no means simple, and it is even possible that it undermines our explanation of the first part of the Tosafot, for it allows for liability according to Rabbi Shimon for less than a ke-zayit, even when there is no rebellion against God's commandment; e.g., in the case of a sacrifice that is brought for an inadvertent transgression.[1] But what is more difficult with regard to our attempt to understand the views of Rabbi Akiva and the Sages is the Tosafot's very need for this problematic explanation, rather than to accept the words of Rashi, which we would have thought would work even better according to the Tosafot. For we saw that according to the Tosafot, both according to Rabbi Akiva and according to the Sages, the critical issue is the intention of the person taking the oath, and their dispute is limited to how we assess his intention. If so, if Rabbi Akiva agrees with Rabbi Shimon, and this brings him to understand that when a person takes an oath not to eat, he has in mind even less than a ke-zayit, why should there be a difference between lashes and a sacrifice?

 

            We are forced to say that the Tosafot's explanation of the Tannaitic dispute was proposed only according to the Gemara's conclusion. When the Gemara suggested to base the view of Rabbi Akiva on that of Rabbi Shimon, the assumption was that we are dealing with objective halakhic principles similar to the principles that apply in other areas of the Torah. Therefore, according to the Sages we require a ke-zayit, whereas according to Rabbi Akiva, like according to Rabbi Shimon, a minute quantity suffices, only that we have to deal with the fact that even according to Rabbi Shimon, a ke-zayit is required for a sacrifice, and therefore the Tosafot must distinguish between a fixed sin-offering and a sacrifice for shevuat bitui. Only after it becomes clarified that Rabbi Akiva's position is not connected to that of Rabbi Shimon, do we learn that the issue according to Rabbi Akiva is assessing the intention of the person taking the oath, and from here we come to understand that this issue is important even according to the Sages, and that the entire dispute is about how to assess that intention.

 

 

            In the previous shiur we saw various understandings of the dispute between Rabbi Akiva and the Sages. Regarding the Ri Migash, we suggested that there is a connection between Rabbi Akiva's position in our Mishna and his position in the Mishna on p. 25a, even though it stands to reason that the view of the Sages in our Mishna does not necessarily accord with the view of Rabbi Yishmael, and that they could agree with Rabbi Akiva on p. 25a, even if for a different reason. Let us now examine the view of the Rambam on our passage, regarding which he rules in accordance with the Sages, alongside his ruling in accordance with Rabbi Akiva in the Mishna on p. 25a. This is what the Rambam writes:

 

When a person takes an oath that he will not eat anything on that day and he ate less than an olive-sized portion of food, he is not liable. For "eating" does not involve a quantity less than an olive-sized portion. It is as if he partook of less than the minimum measure of a nevela, a trefe, or the like. If he said: "[I am taking] an oath that I will not eat this substance," and he ate it, he is liable even if the substance concerning which he took the oath is one mustard seed or smaller. If he took an oath that he would not taste anything and partook of even the smallest amount of food, he is liable. (Hilkhot Shevuot 4:1-2)

 

            The Rambam's goal is to clarify the Halakha and not to interpret the Talmudic passage. Since the person uses the term "eating," his oath is governed by parameters that are familiar to us from this halakhic concept. There is no eating less than a ke-zayit, and this is governed by the law of half a measure, just like someone who eats half a ke-zayit of nevela or trefe. We will return later to this novel point, from which it follows that the Rambam accepts that there is a prohibition of half a measure with regard to an oath, but at this point, it suffices for us to see that according to the Rambam an oath not to eat brings the person who took the oath to a place similar to the ordinary prohibitions of eating in the Torah, regarding which there is no liability with less than a ke-zayit, because "eating" requires a ke-zayit, and with less than a ke-zayit there is a prohibition of half a measure. According to the plain understanding of the Rambam, it would seem that there is no validity to the oath: "I am taking an oath that I will not eat today even less than a ke-zayit," because such an oath involves an internal contradiction, in light of the fact that there is no eating less than a ke-zayit. A person can only forbid a minute quantity to himself if he formulates his oath without the word eating ("I am taking an oath that I will not taste anything"), or if he takes an oath about a specific object: "I am taking an oath that I will not eat this substance," for in that case there is room to forbid even a minute quantity even if he uses the term eating, for the reasons that will be explained in the next shiur. But even if we do not go that far,[2] at least when the person's wording forbids eating in a non-specific manner, this is governed by the general laws of forbidden foods.

 

            This understanding of the Rambam is close to what we saw in the words of the Ri Migash: "Since he took an oath that he would not eat this loaf, it became forbidden to him." Only that according to the Ri Migash we suggested that the Sages understood that an oath creates a new autonomous law for the person who took the oath, this being in contrast to the view of Rabbi Akiva, who, according to the plain understanding of his words in the Mishna on p. 25a, maintains that the liability in the case of an oath relating to the future is based on the same principle as the liability in the case of an oath relating to the past – the principle of falsehood, and therefore he is liable for a minute quantity, because his intention was to prohibit a minute quantity. It is difficult to say this according to the Rambam, for we already saw that he rules in accordance with the view of Rabbi Akiva, and that he subordinates an oath relating to the past and an oath relating to the future, regarding lashes and a sacrifice, to the principle of falsehood: "If a person takes an oath concerning one of these four categories and does the opposite, he has taken a false oath. For example, he took an oath not to eat and he ate, that he would eat and he did not eat, that he ate, when he did not or that he did not eat, when he had eaten. With regard to these matters, it is stated (Vayikra 19:32): 'You shall not swear falsely in My name.' If he willfully swears falsely, he is liable for lashes. If he does so inadvertently, he must bring an adjustable guilt offering" (Hilkhot Shevuot 1:3)

 

            It would appear that according to the Rambam, even though the essence of the prohibition is the falsehood, it is not that retroactively we conclude that he lied when he said that he would not eat the food; there is no false declaration or false undertaking. In contrast to what would appear to be implied by the plain meaning of the verse, "You shall not swear," the prohibition lies not in the oath, but in the fact that the person eats the food. With his eating, he is "falsifying his oath," as Rashi puts it (20b, s.v. ve-azharteih: "meshaker bi'shevuato") – he performs an action that turns his oath into a lie and this is an act of lying (similar to the verse "the Eternal One of Israel will not lie" – nullify an oath is an act of lying). Here the Rambam adds another novel idea, that since the act of eating is the forbidden action, even though it is forbidden not because of the eating, but because of the nullification of truth that this entails, it is governed by the same parameters as the ordinary Torah prohibitions of its type. Since it is defined as eating, it is categorized as a prohibition of eating. This is my understanding of the Rambam's position and of the difficulties that arise in connection with it. If anybody has a better explanation, I would be happy to hear it.

 

 

            Now that the Halakha has been decided in accordance with the Sages, that if one takes an oath not to eat, there is no liability for lashes or a sacrifice if he eats less than a ke-zayit, the question arises whether one violates the prohibition of half a measure when he eats less than a ke-zayit. The simple answer is no. In the case of a Torah prohibition, such as nevela, even when he eats less a ke-zayit, he eats, or at least consumes, a food that the Torah prohibits, and one can understand that this involves a certain level of prohibition even if no liability is incurred. However, in the case of an oath, if we assume that the person only prohibited to himself eating a ke-zayit, what is the basis for saying that there is a prohibition of half a measure for less than a ke-zayit? That is not what he forbade to himself! The Ran (9a in the Alfasi) brings this opinion in the name of "some say":

 

This is not similar to the rest of the prohibitions in the Torah, regarding which we maintain in accordance with the view of Rabbi Yochanan in the last chapter of Yoma that half a measure is prohibited by Torah law, and even Resh Lakish who disagrees with him agrees that it is forbidden by Rabbinic law, as is stated there. For this applies to Torah prohibitions, but here it is a prohibition whose source is the individual, and since his intention was only for a ke-zayit, less than a ke-zayit is entirely permitted.

 

The Rambam, on the other hand, in the halakha that we saw above, writes that eating less than a ke-zayit of a food prohibited to a person because of an oath is "as if he partook of less than the minimum measure of a nevela, a trefe, or the like." It is clear from this that there is a prohibition of half a measure, and the matter requires explanation.

 

The Ran testifies about himself that he changed his mind on this point. In his novellae he had accepted the position of the "some who say," and he expresses surprise about the Rambam's ruling, but in his commentary to the Rif, he changes his mind and supports the Rambam:

 

His words seem right to me, even though I did not write this in my novellae. For we said in chapter Yom ha-Kippurim: Half a measure… Rabbi Yochanan says: "Since it could be joined [to form a minimum] it is forbidden food that he is eating." This implies that half a measure even with regard to Torah prohibitions is only forbidden because it could be joined to form a minimum measure. And in the case of oaths as well, even though his intention is only for a full measure, that is for lashes or a sacrifice. But since it can be joined to form a minimum measure and complete a ke-zayit, it is still forbidden.[3]

 

            The Ran argues that the prohibition of half a measure is not based on a partial level of the prohibition that exists even with half a ke-zayit, for in that case it would be reasonable to come to the conclusion that there is no prohibition of half a measure in connection with oaths, because that was not his intention when he took the oath. The prohibition of half a measure is based on the principle of "since it could be joined," that is to say, on the fact that if we join this half a ke-zayit to another half a ke-zayit, there would be a full-fledged prohibition. This being the case, the same applies in the case of an oath. His words imply that "since it could be joined" is not a sign, but rather a reason that stands on its own. This reason can be understood as a precautionary measure by Torah law against transgressing the full prohibition (a point that is not stated explicitly in the Ran) or some other principle.

 

            However, it is possible to explain the words of the Rambam in a different manner. If we pay attention, we see that when the Ran presents the position that disagrees with the Rambam, he formulates it as follows: "And since his intention was only for a ke-zayit, less than a ke-zayit is entirely permitted." This wording implies that the assumption is that the person intended only to prohibit a ke-zayit, and that less than a ke-zayit is not something the he had forbidden, and therefore it is a very novel idea that there should be a Torah prohibition to eat even less than a ke-zayit. The Ran's wording suggests that the Rambam disagrees with this and accepts this very novel idea, and then perhaps we need the explanation that the Ran suggested for the Rambam.

 

            It is, however, very possible that the Rambam agrees that when it is clear that the person only intended to prohibit a ke-zayit, e.g., where he explicitly states that he is prohibiting to himself by way of an oath the eating of a ke-zayit or more, there is no room to prohibit half a measure. As we saw earlier, the Rambam's position that there is no liability for less than a ke-zayit, is not based on our interpretation of the intentions of the person who took the oath, i.e., that it was not his intention to prohibit less than a ke-zayit, but rather it is based on the fact that oaths are given the parameters similar to those governing Torah prohibitions of eating, regarding which there is no liability for less than a ke-zayit. Therefore, it is not correct to say that eating less than a ke-zayit is not part of the oath, because the person takes the oath not to eat without further specification. When a person takes such an oath, the Halakha takes hold of the reins, and states that significant eating for which there is liability requires a measure of a ke-zayit, while eating less than that measure is included in his oath and therefore forbidden by Torah law, but there is no liability, and in this it is similar to ordinary Torah prohibitions. There is a novelty here, for it would seem that if eating less than a ke-zayit is included in his oath, it is difficult to understand why he should be exempt from lashes and a sacrifice, since a person can forbid by way of an oath actions that are not recognized in the world of halakhic prohibitions (and it stands to reason that it was for this reason that the Ran had difficulty explaining the Rambam in this manner). But the Rambam apparently understood that there is a scale among the things that are included in the person's oath, and that from a certain level and on there is full nullification of his oath which leads to liability for lashes and a sacrifice, but until that level there is a prohibition of half a measure similar to all the prohibitions in the Torah.

 

            The Shulchan Arukh (Yoreh De'a 238:1) rules in accordance with the Rambam that there is a prohibition of half a measure with regard to oaths, and he adds that even when a person explicitly swears that he will not eat a certain loaf, in which case he is not liable until he eats the entire loaf, he still transgresses the prohibition of half a measure when he eats half the loaf. From here it would appear that the Shulchan Arukh adopts the Ran's broad interpretation of the Rambam, that the prohibition of half a measure applies even when a person explicitly limits his oath that it only prohibits from a certain quantity and on or a certain unit. However, the Shakh[4] there writes that a distinction should be made between the cases:

 

It is certainly not similar to half a measure, for there since he forbids something to himself without specifying, we say that even though lashes are imposed only for a ke-zayit, as far as the prohibition is concerned, even half a measure is forbidden by Torah law. But here he only swore not to eat the entire loaf, and this is similar to one who explicitly swears that he will not eat a ke-zayit of the loaf, who is certainly not forbidden to eat half a measure. (no. 12)

 

The Avnei Milu'im (in the responsa at the end of his book, no. 14) had difficulty understanding the Shakh, and he explains the prohibition of half a measure with regard to oaths differently than did the Ran:

 

It would appear from the words of the Shakh… the fact that even a minute quantity is forbidden when one swears not to eat, this is because that is the intention of the person taking the oath, to prohibit to himself even a minute quantity, but to become liable for punishment only for a measure [of a ke-zayit]. And the Shakh introduced the novel idea that one who explicitly swears that he will not eat a ke-zayit is permitted by Torah law to eat a minute quantity, because the person who took the oath only intended to prohibit the measure of a ke-zayit… In my humble opinion, this is impossible, for if it was the person's intention to prohibit to himself even a minute quantity, but to become liable to lashes and a sacrifice only for a measure, this would not help him be exempt from punishment. For if a person takes an oath not to eat even a minute quantity, on condition that he not become liable for lashes or a sacrifice, this would certainly not help, as this would be a stipulation against something that is written in the Torah. Here too then, if his intention is to prohibit even a minute quantity, his oath relates to a minute quantity, and anybody who takes an oath is liable for lashes or a sacrifice, even if he stipulates that he should not be liable for lashes, and that it should be like the rest of the Torah's prohibitions, this would not help, as this is a stipulation against something that is written in the Torah.

 

According to the Avnei Milu'im's understanding of the Shakh, the person meant to forbid himself to eat even less than a ke-zayit, but his intention was only to forbid it to himself at the level of a Torah prohibition, but not that there should be liability for lashes or a sacrifice. Therefore when the person taking the oath explicitly states that he is only forbidding himself to eat a ke-zayit, there is no Torah prohibition here. But the Avnei Milu'im objects to this understanding: Does a person have the authority to determine that his oath should not be liable to lashes or a sacrifice?

 

In light of what we said earlier, this is not what the Shakh meant. The person did not intend to create for himself two different levels of prohibition. He swore not to eat without specification, and this oath is subject to the Torah's rules governing prohibited food, namely, that a ke-zayit is prohibited at a full level with all the liabilities that this entails, whereas less than a ke-zayit is subject to a Torah prohibition, but there is no liability. As stated above, this understanding seems to fit the position of the Rambam.

 

(Translated by David Strauss)

 

 

Sources for the next shiur: One who takes an oath not to eat, and he ate less than a ke-zayit (Part III) – The Laws of Mefaresh and Beriya

 

Sources:

In the next shiur we will continue to clarify the dispute between Rabbi Akiva and the Sages, focusing on the position of the Sages and its application in the case of mefaresh. Continue with the Gemara until p. 22a, "konamot nami ki-mefaresh dami," and carefully examine the words of Rashi. What difficulty arises from this passage for the opinion of the Tosafot on p. 21b, s.v. heikhan matzinu be-okhel?

 

See also Chullin 96a (bottom) regarding gid ha-nasheh: "Okhelo ve-ein bo ke-zayit… chad ke-zayit michayev"; and Tosafot ad loc., s.v. mai, until "ve-im tomar di-tenan."