Shiur #05: The Dispute Between Rabbi Akiva and the Sages - One who takes an oath that he will not eat, and he eats less than a Ke-zayit (Part I)
19b in the Mishna; 21b: "Shevu'a shelo okhal… shema mina"; 21b, Tosafot, s.v. heikhan matzinu be-okhel, heikhan matzina be-medaber; Rashi, 19b, s.v. be-medaber; Ri Migash 21b, s.v. matnitin (below); Mishneh le-Melekh, Hilkhot Shevu'ot 4:1, "Ve-da de-be-resh perek gimmel de-Shevuot… ve-divrei ha-Re'em tzerikhin talmud"; Yerushalmi, Shevuot 3:1, "Ma nan kayamin im be-omer… al da'ateih de-Rabbanan asurin."
Mishna: "I swear I shall not eat," and he ate a minute quantity, he is liable; these are the words of Rabbi Akiva. They [the Sages] said to Rabbi Akiva: Where do we find that he who eats a minute quantity is liable – This means: Regarding all prohibited foods in the Torah, one who eats them is only liable if he eats of them the size of an olive. And this person, once he swears about this loaf that he will not eat it, it becomes forbidden to him. This being the case, why should he become liable for it for a minute amount? He said to them: But where do we find that he who speaks brings an offering, that this one should bring an offering?
I. The Tannaitic dispute as a disagreement about how to interpret the oath-taker's intention
The first Mishna in the chapter records a Tannaitic dispute about the minimal measure that a person must eat in order to incur liability after having taken an oath: "I will not eat," without further specification:
"I swear I shall not eat," and he ate a minute quantity, he is liable; these are the words of Rabbi Akiva. They [the Sages] said to Rabbi Akiva: Where do we find that he who eats a minute quantity is liable, that this one should be liable? Rabbi Akiva said to them: But where do we find that he who speaks brings an offering, that this one should bring an offering?
This dispute requires explanation. In the previous shiur we saw many sources relating to the question whether or not the Torah's definition of an act of chewing and swallowing as an act of eating depends on consuming the measure of an olive. It would seem, however, that those sources are irrelevant to our discussion, owing to the principle that regarding vows, we follow the language of ordinary people (a principle that the Rishonim assumed was valid regarding oaths as well). Therefore, the critical issue is not the Torah's dictionary, but the dictionary of the person taking the oath. We must therefore try to understand the issue about which these Tannaim disagree. So too we must try to understand the argument that each side puts forward to bolster its position.
Ostensibly, the simple understanding of this disagreement is that which emerges from the words of the Tosafot on p. 21b. The Tosafot explain the position of the Sages, who maintain that there is no liability if the person ate less than a ke-zayit, as follows:
Where do we find that he who eats a minute quantity is liable – Even though a person who specifies: "[I shall not eat] a minute amount" is liable [for eating a minute amount], as is stated in the Gemara, it was presumably his intention [to forbid the measure of] unspecified acts of eating in the Torah.
The Tosafot note that even according to the Sages a person can prohibit himself by way of an oath from eating even a minute amount if he so specifies, but in their opinion, the most reasonable interpretation of the words of a person who takes an oath not to eat without specifying a measure is that he wishes to prohibit himself from eating the measure of a ke-zayit, because in their opinion, it is reasonable to assume that when the person speaks of "eating" he is referring to the Torah's definition of an unspecified act of eating. In contrast, Rabbi Akiva maintains that when a person takes an oath without specifying (in contrast to a person who swears: "I shall not eat a ke-zayit"), it is reasonable to assume that his intention is to prohibit even a minute amount, for the reason offered in the Mishna, which is explained by the Tosafot as follows:
Where do we find that he who speaks brings an offering? – Therefore, owing to this stringency, his intention is to forbid even a minute amount.
According to this explanation, since we are dealing with a unique case in which a person incurs liability for an offering for mere speech, this speech has a special stringency, and it is reasonable to assume that the person taking the oath is aware of this, and his intention when he utters his words is for their most stringent meaning. The Mishneh le-Melekh (Shevuot 4:1) relates to the possibility that Rabbi Akiva and the Sages "disagree whether in ordinary human parlance eating requires a ke-zayit or even a minute amount" (without mentioning the Tosafot), and forcefully rejects it: "This cannot be said at all." It is not reasonable, in his opinion, that the Tannaim disagree about the intentions of a person who takes an oath not to eat without specifying a quantity. The Mishneh le-Melekh proposes that in human parlance even the consumption of a minute quantity is considered eating, whereas in the language of the Torah, eating requires a ke-zayit, and the Tannaim disagree about whether we follow human parlance even when it contradicts the language of the Torah (Rabbi Akiva) or not (the Sages). But the Mishneh le-Melekh rejects this understanding as well, and proves that all agree that we follow human parlance even when it contradicts the language of the Torah, at least when human parlance is more stringent, as in our case. Therefore, argues the Mishneh le-Melekh, we must say that in human parlance the consumption of even a minute quantity is considered eating, and the Sages exempt the person if he eats less than a ke-zayit, not because we follow the Torah's language, but because there is good reason to assume that the person who takes the oath does not mean to be more stringent with himself than the accepted level of stringency in Torah prohibitions. On this point it would appear that the Mishneh le-Melekh is suggesting the same explanation for the position of the Sages as did the Tosafot, but we still must understand the issue about which Rabbi Akiva disagrees. It might be that we are dealing with a disagreement about the principles of interpreting oaths. For example, it is possible that the Sages are ready to veer from the language of the person taking the oath and add a qualification that leads to leniency which is clearly not part of the language (setting a minimal measure as we find with Torah prohibitions); whereas Rabbi Akiva is not prepared to add any qualifications that are not supported by the language.
The wording of the Meiri's commentary on the Mishna suggests a slightly different understanding of the Sages' position: "And the Sages maintain that nowhere do we find that one who eats a minute amount is liable. This does not involve cancellation of the words [of the person who took the oath, which is the factor that imposes liability according to Rabbi Akiva], for eating a minute amount is not called eating at all." This implies a more objective definition of the position of the Sages, which is perhaps closer in its nature to "the language of the Torah" position to which the Mishneh le-Melekh objected, that the term eating cannot be interpreted as eating less than a ke-zayit. Even though we will still have to explain how it is possible to impose liability upon one who explicitly swears that he will not eat less than a ke-zayit, the word eating has an objective meaning that includes also a minimal shiur.
The Yerushalmi (ad loc.) mentions several cases in which the dispute between Rabbi Akiva and the Sages has practical ramifications:
1. "I swear that I will eat this loaf," and he ate the loaf from which a minute amount of the loaf was missing -– according to Rabbi Akiba, he is liable, whereas according to the Sages, he is exempt." According to Rabbi Akiva, unspecified eating is of a minute amount, and therefore when a small amount of the loaf is missing, he has cancelled the oath to eat it, which is not the case according to the Sages.
2. "I swear that I will not eat this loaf, and he ate the loaf from which a minute amount of the loaf was missing – according to Rabbi Akiva he is exempt, whereas according to the Sages he is liable."
3. "I swear that my wife will be forbidden to derive pleasure from me, if I eat this loaf, and he ate the loaf from which a minute amount was missing – according to Rabbi Akiva, his wife is forbidden [to derive pleasure from him], whereas according to the Sages, his wife is permitted [to do so]." See the Yerushalmi for additional cases.
It is clear from the Yerushalmi that the dispute between Rabbi Akiva and the Sages is a disagreement about the meaning of the word "eating" in human speech, at least in the area of oaths, but not just in the content of the oath itself, but also in the conditions attached to the oath. This is certainly not a halakhic dispute in which Rabbi Akiva adopts a more stringent opinion regarding the foundation of an oath not to eat, for the disagreement reverses itself in the appropriate cases and applies also to conditions attached to the oath. (See also Tif'eret Yisrael on our Mishna, Boaz, no. 2, who argues that the Tannaitic dispute is clearly not limited to an oath regarding the future, but applies also to an oath regarding the past, "I swear that I ate").
II. The Tannaitic dispute as a Halakhic disagreement
A different and fascinating understanding of the positon of the Sages emerges from the words of the Ri Migash (21b, s.v. matnitin):
They [the Sages] said to Rabbi Akiva: Where do we find that he who eats a minute quantity is liable – This means: Regarding all prohibited foods in the Torah, one who eats them is only liable if he eats of them the size of an olive. And this person, once he swears about this loaf that he will not eat it, it becomes forbidden to him. This being the case, why should he become liable for a minute amount?
It follows from the words of the Ri Migash that according to the Sages, when a person swears that he will not eat a certain food, he joins that food to the group of foods that are forbidden to him by Torah law, and the food that he forbade to himself automatically becomes subject to the rules governing all the other prohibited foods. "Once he swears about this loaf that he will not eat it, it becomes forbidden to him" – the simple understanding is that we are dealing with an issur gavra – a prohibition applying to the person, and not an issur cheftza – a prohibition applying to the commodity, since we are dealing with oaths. But nevertheless we are dealing with a prohibition to eat, and not, for example, a prohibition to lie. Of course, a person can forbid upon himself, by way of an oath, any type of activity. If a person forbids himself by way of an oath to play the piano, the prohibition will not come under the Torah laws of playing the piano, because there are no such laws, but when he forbids himself to engage in an halakhically-recognized activity, such as eating, a prohibition is created that joins with the relevant Torah prohibitions.
Here is the place to mention that when we dealt with the opinion of Ravin (21a) regarding the source of the prohibitions concerning oaths, who forbade a false oath regarding the past because of "You shall not swear by My name falsely," while a false oath concerning the future is forbidden according to him because of "He shall not break his word," we saw that the Ri Migash on that passage – whether as an interpretation, or because he had a different reading in the Gemara - narrowed the difference between the two prohibitions:
When Ravin came, he said in the name of Rabbi Yirmeya who said in the name of Rabbi Abuha who said in the name of Rabbi Yochanan: "[I swear] I have eaten," "[I swear] I have not eaten" [and it was untrue], are false oaths, and their prohibition is from: "You shall not swear by My name falsely." "[I swear] I shall eat," "[I swear] I shall not eat" [and he broke the oath], are false oaths, and their prohibition is from: "When a man vows a vow to the Lord, or swears an oath to bind his soul with a bond, he shall not break his word."
It follows from his words that not only according to Rav Dimi, who prohibits a false oath concerning the future because of "And you shall not swear by My name falsely," but even according to Ravin who prohibits such an oath because of "He shall not break his word," the prohibition is one of a false oath. In contrast, from his words on our passage regarding the position of the Sages in the Mishna, it clearly follows that the oath creates a new prohibition, which naturally joins with the Torah prohibitions that are similar to it in nature. Is there a contradiction here? It may be suggested that what he says here was said only according to the view of the Sages, whereas Rabbi Akiva disagrees on this point, how to understand the essence of the prohibition of swearing falsely. According to Rabbi Akiva, as we already inferred from a close reading of his words on p. 25a, the prohibition regarding an oath concerning the past and the prohibition regarding an oath concerning the future are essentially the same ("If the verse amplifies for that, it amplifies for this also"), and it stands to reason that the basis of the prohibition is the falsehood, which of course is the essence of an oath concerning the past. It may therefore be argued that the Ri Migash's comments on p. 21a were said according to the position of Rabbi Akiva, and not according to the Sages.
If we are correct about this, there are several different opinions among the Tannaim concerning the essence of the prohibitions regarding false oaths. According to Rabbi Yishmael, an offering for a shevuat bitui is only brought for breaking the law that the person who took the oath created for himself, and therefore no offering is brought for an oath regarding the past. According to Rabbi Akiva, the offering is brought for the falsehood, and therefore the offering for an oath concerning the past and the offering for an oath concerning the future flow from one source. And if we combine this with the opinions of the Amoraim – Rav Dimi and, according to the reading of the Ri Migash, Ravin as well – also lashes in the two contexts (past and future) are imposed for the same principle, the falsehood. According to the Sages, on the other hand, the offering for a shevuat bitui concerning the future comes for breaking the law that the person himself created, and on the assumption that they do not accept the opinion of Rabbi Yishmael (for in the Mishna at the beginning of the chapter we are dealing with a dispute between Rabbi Akiva and the Sages, an in the Mishna on p. 25a we are dealing with a dispute between Rabbi Akiva and Rabbi Yishmael, and there is no hint that the two disputes are dependent upon each other), it turns out that, according to them, an offering for a shevuat bitui is brought on the basis of two essentially different bases: in the case of an oath concerning the past, the offering is based on the falsehood, whereas in the case of an oath concerning the future, it is based on breaking the law that the person had created for himself.
Thus it is reasonable to add that this is the issue disputed by the Tannaim in our Mishna. The Sages, as stated, base themselves on the breaking of the new law and the similarity to the other Torah prohibitions: "Where do we find that he who eats a minute quantity is liable"; whereas Rabbi Akiva, who bases himself on the principle of falsehood, counters with a fundamental argument: "But where do we find that he who speaks brings an offering" – the liability here is for his swearing falsely and not for his breaking the law that was created. This point is not found in the words of the Ri Migash, who only explains the position of the Sages. But it may be alluded to in the words of Rashi on the Mishna in his explanation of Rabbi Akiva's argument:
He who speaks brings an offering – for breaking his word; and since [his liability] is for breaking his word, this too breaks his word, for one who swears: "I shall not eat," has in mind to forbid to himself even a minute amount.
Rashi is clearly indicating that the argument that the liability for an offering is "for breaking his word" is the novel position of Rabbi Akiva vis-à-vis the Sages, and if we accept this novel idea the natural conclusion is that liability should be imposed even if he ate only a minute amount, because the intention of the person who took the oath was to forbid to himself even a minute amount. This implies that the Sages do not disagree with this last point and say that we should understand his words that he only intended to forbid himself to eat a ke-zayit, but rather that they had a different understanding of the essence of the prohibition of a false oath, that we are not dealing with the breaking of his word in the sense of the falsehood that this involves, but rather with a breaking of the law that he had created for himself. This is not absolutely necessary, for the concept of "breaking his word" can also relate to breaking the law with emphasis placed on the fact that the person who determines the boundaries of the new law is the one who created it – the person who took the oath. But it seems to me that Rashi's wording alludes to the direction that we have suggested. In one of the coming Shiurim we will return to this point, and we will see that even though there are valid objections to it from the words of Rashi on p. 21b, there is solid support for it from his words in our passage, and the objections can be answered.
In the next shiur we will continue to examine this issue. We will briefly relate to the suggestion raised and rejected on p. 21b to base the view of Rabbi Akiva on the view of Rabbi Shimon with which we dealt in the previous shiur. Then we will examine the Rambam's position on the passage, which will lead us to a discussion of the question whether the prohibition of "half a measure" applies also to the prohibitions connected to shevuat bitui.
(Translated by David Strauss)
Sources for the next shiur: One who Swears Not to Eat, and Then Eats Less than a Ke-zayit (II)
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."
 This last point is not entirely clear to me, but I will note here a comment of the Afikei Yam (I, 35, 7). If we undestand that the dispute between Rabbi Akiva and the Sages is in some way or another a disagreement about how to interpret a person's intentions when he refers to the concept of "eating," it should also be applied to a person who swears that he will eat, whether he fulfills his commitment if he eats only a minute amount, as we shall see below. The Afikei Yam comments, according to the approach of Tosafot, that we are dealing with stringent interpretation owing to the stringency of the offering, and so there is no room to apply it in the context of a leniency, e.g., where one swears, "I will eat."
 According to this suggestion, Rabbi Akiva, who in his exegetical approach to the Torah does not adopt the rule that "the Torah speaks in the language of man," reverses his position regarding oaths, where man is the master and we follow his language.
 This as opposed to the language of the Torah, about which the Mishneh le-Melekh adopts the clear position that eating less than a ke-zayit is not considered eating, even according to Rabbi Yochanan who forbids half a measure. He says this in contrast to the view of the Re'em, whose position he disproves from our passage: "This seems to contradict the words of the Re'em cited earlier that unspecified eating in the Torah is even a minute amount, for if so, what is the rationale of the Sages? For even if we say that the person's intention is to unspecified eating in the Torah, unspecified eating in the Torah is even a minute amount. You might say that the Rabbi would say that the rationale of the Sages is an assessment of his intentions, for presumably he only forbade himself to eat a measure for which the Torah imposes punishment, this is not true, for if so even with vows we should say this. You must therefore say that the reason in the case of an oath is that he mentioned eating, as is stated in the Gemara. But according to the Rabbi, it doesn't help at all that he mentioned eating, for he maintains that unspecified eating in the Torah is even a minute amount. However, it may be answered that what this means is that the Sages maintain that the intention of the person who took the oath is that he would not eat like unspecified eating in the Torah, regarding which there is punishment for eating a measure, and a prohibition for eating even a minute amount. So too this person who takes an oath not to eat, his intention is to forbid himself even from a minute amount, but only to become liable for a punishment for eating a measure, similar to the prohibitions of the Torah. According to this, we have resolved the objection that we raised above agaisnt the Re'em. But this is manifestly forced, and the words of the Re'em require further examination."
 We might return to this issue in the future. Let us note here the great novelty in the Yerushalmi's assertion that if there is no eating with less than a ke-zayit then eating a whole loaf minus less than a ke-zayit is considered fulfillment of an oath to eat the entire loaf. Recognition is given to incomplete fulfillment of an oath as long as what is missing is less than a measure. This is a novel idea. (For comparison: 1. In Tosafot 4Oa, s.v. be-to'ano, it follows that the measure of two kesef in shevuat ha-dayanim is fulfilled even when a small amount is missing from the two kesef, as long as what is missing is less than a peruta, and see Ketzot ha-Choshen 88, no. 1, who questioned this conclusion; 2. See Beit Yosef in Hilkhot Mikva'ot: "One cannot immerse in forty se'a minus a kortov. R. Shimon bar Tzemach writes (I, no. 1) … that the measure of a kortov is the weight of a dinar. And he learned this from what is stated in Bava Batra (90a) that a kortov is one eighth of an eighth of a log. But it seems to me that kortov is not precise, for even less than a kortov, even if a minute amount is missing from the forty se'a, it is disqualified for immersion" [Yoreh De'a, 201]).