Shiur #07: One who takes an oath not to eat, and he ate less than a ke-zayit (Part III) – The Laws of Mefaresh and Berya

  • Rav Shmuel Shimoni
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-zayitchad ke-zayit michayev"; and Tosafot ad loc., s.v. mai, until "ve-im tomar di-tenan."
 
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I. The Law of Mefaresh – According to Rashi
 
            In our previous shiurim we tried to clarify the dispute between Rabbi Akiva and the Sages regarding a person who took an oath not to eat, what measure of food must be eaten in order for him to incur liability. According to the simple understanding, the disagreement is limited to the case where the person did not specify an amount in his oath. It is clear that if the person taking the oath explicitly states that he is only forbidding to himself a ke-zayit, there is no room to say that he is subject to a more stringent prohibition (at least with respect to liability for a sacrifice or lashes; as for the prohibition of half a measure, we saw that there are differing views on the matter). When the person taking the oath explicitly states that he forbids to himself even a minute quantity, the answer should be clear and simple in the other direction: On the face of it, he is the master of his oath, and he determines its parameters. To our great surprise, however, this point is not as clear as would be expected.
 
            At the beginning of the passage, when the Gemara proposes that Rabbi Akiva agrees with Rabbi Shimon that regarding all Torah prohibitions one can be liable for lashes even if he eats less than a ke-zayit, the Gemara also proposes an alternative suggestion that Rabbi Akiva agrees with the Sages - which, as may be recalled, is the possibility that in the end is accepted - as follows:
 
Generally, Rabbi Akiva agrees with the Sages (rather than R. Shimon), but here, this is the reason: since if he expressly specifies [a minute amount] he is liable, he is also liable if his oath is unspecified.
 
            The Gemara seems to imply here that in the case where a person explicitly specifies a minute quantity (mefaresh), it is clear that he is liable, and Rabbi Akiva expands this to the case where he did not specify, because presumably he intended to forbid to himself even a minute amount, and therefore since there is liability in the case where he specified, he is liable also in the case where he did not specify. However, even though it appears that according to Rabbi Akiva, the law in the case of mefaresh is simple, as Rabbi Akiva bases his position on an assessment of the intention of the person taking the oath, it follows from the continuation of the Gemara that according to the Sages the matter is more complicated.
 
            The Gemara deals with the argument raised by the Sages in the Mishna against Rabbi Akiva: "Where do we find that he who eats a minute quantity is liable, that this one should be liable!?"; and it examines the cases that do not accord with this argument. For our purposes, two of the cases mentioned in the Gemara are relevant:
 
Do we not? Is there not an ant (which engenders lashes even though it is less than a ke-zayit(?  A creature (berya) is different…
Is there not the expressly specified oath (mefaresh)? An expressly defined oath is also comparable to the case of berya.
 
            The first objection relates not to the laws of oaths, but to the laws of lashes everywhere else in the Torah. Even the Sages who disagree with Rabbi Shimon, and refrain from imposing liability for less than a ke-zayit, agree that one who eats a whole ant is liable for lashes. The Gemara answers that this is an exceptional case of a creature, which does not pose a difficulty to the Sages. Later in our discussion we will review the explanations proposed by the Rishonim for the law of a berya.
 
            The second objection brings us back to the laws of oaths, arguing that even the Sages agree that one who explicitly forbids to himself even a minute quantity is liable for such a quantity. This objection is puzzling, for it would seem that the Sages' argument was based on the fact that the person took the oath without defining the amount. But as for one who takes an oath explicitly forbidding less than a ke-zayit, there should be no difference between Rabbi Akiva and the Sages. It is even difficult to understand this as a factual objection against the argument put forward by the Sages, that we do not find that one who eats a minute quantity is liable, for this argument relates to the rest of the laws in the Torah, on the assumption that they are relevant to oaths taken in a non-specified manner. Ostensibly, if the Gemara is already asking about the case of mefaresh, the answer should be simple – a total rejection of the question, on the grounds that the case of mefaresh is irrelevant, because there we are dealing with a person who establishes the parameters of his oath.  To our surprise, however, at least according to Rashi's understanding, the Gemara offers an answer that does not reject the question. The Gemara makes the law in the case of mefaresh dependent on the law of berya that was mentioned in resolution of the previous objection. Rashi explains:
 
An expressly specified oath is like a creature – An express definition with regard to an oath is like a creature regarding the rest of the prohibitions. [In the case of] a creature, what is the reason [that he is liable]? Because it is important. [In the case of] an expressly defined oath as well, he attached importance to it when he forbid it to himself.
 
            Our passage forced Rashi to explain the foundation of the law of berya. According to his explanation, according to the Sages who disagree with Rabbi Shimon, there are no lashes for less than a ke-zayit, with the exception of the case where a person eats an entire organism. In such a case, owing to its importance, there is a substitute for a ke-zayit. This is easily understood if the measure of a ke-zayit is a quantitative measure that is required so that the eating be considered an action sufficiently important to bear lashes. But even if the measure of a ke-zayit is required to define the action as eating, this is based on the fact that less than a ke-zayit is not important, and an insignificant act is not defined as eating, but rather as tasting or the like. The importance of a creature might then offer an alternative path to defining the action as one of eating.
 
            As for the matter at hand, argues Rashi, a person who specifies in his oath that he is forbidding to himself even less than a ke-zayit, sets into motion a halakhic principle which leads us to an idea that is similar to the law of a berya, namely, the principle of "attaching importance." The person taking the oath reveals through his words that he attaches importance to a partial measure, and this importance creates a significant act of eating, similar to what happens with a berya.
 
            This novel answer certainly does not cancel out the original question. Even when a person takes an oath in a specified manner, it is not obvious that a person can take an oath on less than a ke-zayit, simply because by eating that crumb he would break his oath. It is necessary to enlist the novel halakhic tool of "attaching importance" in order to create an alternative importance so that it be considered an act of eating for which there is liability.
 
            Why is it not enough that the person takes an oath not to do a specified act, and he breaks that oath? It seems to me that we are dealing here with a far-reaching expression of a particular understanding that we saw regarding the position of the Sages in our Mishna: They do not require a ke-zayit because they maintain that the person who took the oath only intended to forbid to himself a ke-zayit, but because the oath not to eat is governed by the laws applying to all the other prohibitions of eating in the Torah, for which there is no liability for less than a ke-zayit. This principle is taken to the extreme, so that even when the oath relates specifically to less than a ke-zayit, we would have said that the person taking the oath cannot establish a prohibition to eat less than a ke-zayit. Only through the application of the principle of "attaching importance," which makes it similar to a berya, does he succeed in establishing the oath for less than the ke-zayit.
 
            Up until now we have seen clear expressions of this understanding of the position of the Sages in the formulations of the Ri Migash and the Rambam. We saw an allusion in this direction in Rashi's commentary on our Mishna, where Rashi implies that it was Rabbi Akiva who introduced the idea that liability is imposed for breaking the words of the person who took the oath, which implies that the Sages agree with Rabbi Akiva's interpretation, that it is reasonable to assume that the person taking the oath intended to forbid himself even from a minute quantity, only that they say that the formula, "I shall not eat," forces us to follow the laws governing all the prohibitions of eating in the Torah, for where do we find that a person who eats a minute quantity is liable, that this person should be liable. Now we saw a basis for this in Rashi's words on our passage, and even a further novelty, that even when a person takes an oath in a clearly defined manner, we still need the tool of "attaching importance."
 
II. Explaining the Passage According to the Tosafot in Shevuot and in Chullin
 
            We must, of course, explain the passage also according to the approach of the Tosafot. As we saw in previous shiurim, the Tosafot understand that the position of the Sages as well is based on the interpretation of the intention of the person taking the oath, and that this is the plane on which Rabbi Akiva and the Sages disagree:
 
Where do we find that one who eats a minute quantity – Even though one who specifies a minute amount is liable, as is stated in the Gemara, presumably his intention is in accordance with unspecified acts of eating in the Torah.
Where do we find that he who speaks brings an offering – Therefore since it is more stringent, his intention is for a minute quantity.
 
            According to the Tosafot, it is of course very difficult to understand the Gemara's question from the case where he clearly expresses a minute quantity, and it is certainly very difficult to understand the answer that requires the comparison to the law of berya in order to understand the novel law, as it were, of mefaresh. Surely the view of the Sages stems from the fact that the person did not specify a minute amount!
 
            We find in the words of the Tosafot elsewhere a different and amazing explanation of our passage, which sheds light on it in accordance with the approach of the Tosafot on our passage.
 
            The Gemara in Chullin brings a Tannaitic dispute on the question whether one who eats an entire gid ha-nasheh which is less than a ke-zayit is liable for lashes. It explains the view of those who impose liability as follows:
 
If a person ate [the whole of] it and it was not as much as an olive's bulk, he is nevertheless liable. Rabbi Yehuda says: [He is not liable] unless it was as much as an olive's bulk. What is the reason of the Rabbis? Because it is a complete entity (berya) in itself. And what does Rabbi Yehuda [say to this]? The term "eating" is used in connection with this. And the Rabbis? The term "eating" comes to teach that if it [the gid ha-nasheh] consisted of four or five olives' bulk, and he ate the size of one olive, he is liable. (Chullin 96a-b)
 
It follows from the Gemara that the liability for a berya in the case of gid ha-nasheh is not a realization of the classic halakhic concept of eating. This concept is realized when a person eats a ke-zayit, even if that is only part of the gid ha-nasheh. When one eats a gid ha-nasheh in its entirety, even if does not contain a ke-zayit, one is liable because it is a berya. The Tosafot there explain this point incidentally to their discussion of a difficulty concerning the question, regarding which prohibitions does the law of berya apply: In the cases of gid ha-nasheh and unkosher animals there is liability for a berya, but in the cases of nevela and tevel there is no such liability. The Tosafot explain:
 
When the Torah says: "You may not eat gid ha-nasheh," or "You may not eat a non-kosher bird," and similarly regarding an organ from a living creature, it is as if it specified "whether it be large or small," as they are all called gid ha-nasheh or a bird. This is provided that they are whole. But as for a nevela, even a piece is called nevela, and similarly tevel. For had it stated: "You may not eat a grain of wheat that is tevel," then a berya would have significance.
 
            According to the Tosafot, the law of berya is not based on importance as an alternative path for realizing the concept of eating. The liability for berya is sort of based on the idea that "a verse cannot depart from its plain meaning." When the Torah prohibits a certain entity, and we eat that entity, there is a transgression of an explicit Torah command for which liability is imposed, even if the act does not meet the usual conditions for an act of eating. Those conditions are needed in order to impose liability even when we don't eat that entity that the Torah explicitly prohibited, whether because the Torah did not prohibit a unit but rather a certain matter, like nevela or tevel, or because we eat only a portion of the gid ha-nasheh or non-kosher bird or the like. But when we eat the "thing itself" that the Torah forbade, liability can be imposed for this direct transgression, even without fully meeting the parameters for an act of eating.
 
            Here the Tosafot add an exceedingly important explanation for our passage:
 
And so it is implied in the third chapter of Shevuot (21b), where it says: "Where do we find that one who eats a minute quantity." And the Gemara asks: "Can we not? Is there not the expressly defined oath?" That is to say: "I swear that I will not eat even a minute quantity." And the Gemara answers: "An expressly defined oath is like a creature." This implies that the reason for [the prohibition of] a creature is that it is as if the verse expressly stated that you may not eat it whether it is large or small.
 
The Tosafot explain that the Gemara's comparison in our passage, that an expressly defined oath is like a creature, to a certain degree also teaches us that a creature is like an expressly defined oath. In the case of an expressly defined oath the person taking the oath is the master for establishing the parameters of the oath, and it is he who determines that even a minute quantity is included in the prohibition, and thus this is the way that the prohibition applies. In the case of a berya, he who expressly defines the matter is God Himself who gave the Torah, and we say that He essentially defined that one may not eat a particular unit whether it is big or small, and thus there is liability for it. According to the Tosafot, the Gemara's answer in our passage essentially rejects the question's initial assumption, and says that in the case of an expressly defined oath there is no veering from the rule that says that we do not find that "one who eats a minute quantity is liable," for this is a case in which the person taking the oath expressly states his intention, and so this is like a case in which God explicitly expressed his intention to forbid a certain thing even if it is less than a ke-zayit. In this way the Tosafot in Chullin reconcile our passage even according to the Tosafot in our passage: Indeed the position of the Sages is based on the fact that the person taking the oath did not expressly define his intention, and this is precisely the Gemara's answer.
 
III. Another Clarification of Rashi’s Position
 
            We saw the Tosafot's explanation of the passage. If we combine the words of the Tosafot in our passage and in Chullin, we see that the disagreement between Rabbi Akiva and the Sages is a disagreement about how to interpret the words of the person taking the oath, stemming from the fact that he did not spell out what he meant to forbid to himself. Hence, the law in the case of mefaresh is self-evident, and this is the Gemara's answer in our passage. We contrasted this to the approach taken by Rashi, who had a different understanding of the Gemara's answer regarding the objection from the case of mefaresh, and we connected this to the way that Rashi in the Mishna explains the point in dispute between Rabbi Akiva and the Sages.
 
            Alternatively, one might argue that Rashi explains the position of the Sages precisely as did the Tosafot. This follows from several comments of Rashi on the page before us (21b). When Rashi relates to the position of the Sages throughout the passage, he uses the following formulations:
 
This teaches us that they exempt him – For they maintain that his intention was for a measure of eating…
 
For the Sages in our Mishna who say that when he does not specify, his intention is not for a minute amount. But in a case where he specified, they agree…
 
Ostensibly, these comments of Rashi imply that the position of the Sages is based on the assumption that the person who took the oath only intended to forbid himself from a ke-zayit. In my opinion, this stems from the fact that were we to understand that when the matter is left unspecified, the person taking the oath means to forbid himself even from a minute quantity, we would have to impose liability for a minute quantity, as in the case where the matter was expressly stated. Rashi explains that the law in the case of mefaresh is not self-evident, and that it is based on the principle of "attaching importance." In the end, however, specification has validity, and therefore practically speaking the matter depends on the intention of the person taking the oath, that if he said explicitly or by implication that the oath should apply even to less than a ke-zayit, this would have validity, even if only based on the law of mefaresh and "attaching importance." One could disagree with this and say that "attaching importance" only works for an explicit statement but not for an implied meaning, but Rashi does not make this distinction. Therefore, in effect, Rashi is similar to the Tosafot in that the matter depends on the intention of the person taking the oath, only that for Rashi this does not mean that the basis for the position of the Sages lies in the interpretation of that intention. This creates a rather complicated picture, for it follows that Rabbi Akiva and the Sages disagree about two separate issues. One dispute is halakhic: Rabbi Akiva follows the intention of the person taking the oath, he being the master over his words, whereas the Sages maintain that an oath of "I shall not eat" joins with the other prohibitions of eating in the Torah. The second dispute is one of interpretation: According to Rabbi Akiva, the intention of the person taking the oath is to forbid to himself even a minute quantity, whereas the Sages are forced to disagree, for were it their assessment that his intention is to forbid even a minute quantity, this would have validity, based on the principle of "attaching importance." In my opinion, it stands to reason that this second dispute follows in part from the first one: Since according to the Sages, the way to impose liability upon the person taking the oath on less than a ke-zayit is through the principle of "attaching importance," this presents a higher standard for arguing that the person intended to forbid to himself even a minute quantity, and therefore it is easy for the Sages to deny this and to reach the conclusion that his intention is for the standard measure of eating. According to Rabbi Akiva, there is no need for the principle of "attaching importance," because the person taking the oath is master over his words, and therefore he can easily reach the conclusion that the person intended to forbid even a minute quantity. I recognize that there is a certain measure of convolution here, but it would appear to me that this is the way to understand the dispute between Rabbi Akiva and the Sages.
 
I would further like to note that there would seem to be a practical difference between Rashi and the Tosafot in their explanations of the laws of mefaresh and berya, in the case where a person took an oath that he would not eat, and then he ate a kosher berya that was less than a ke-zayit. According to the Tosafot, it is clear that the Sages would not impose liability upon him, because he only forbade an act of eating, and did not specify otherwise. But according to Rashi, there is room to say that since a berya has importance, he defines this as an act of eating, and liability can be imposed upon the person who took the oath.
 
IV. The Positions of the Ri Migash and the Rambam
 
            As we have seen, the Ri Migash clearly said that the position of the Sages is fundamentally a halakhic position and not an issue of interpretation: "For regarding all the prohibitions in the Torah, one who eats of them is only liable if he eats a ke-zayit, and this one, since he took an oath not to eat this loaf, it becomes prohibited to him."
 
            As for understanding the Gemara's discussion regarding the case of mefaresh, the Ri Migash's wording implies that he understood the Gemara's answer as did the Tosafot in Chullin, and not like Rashi on our passage:
 
They said to Rabbi Akiva:   Where do we find that he who eats a minute quantity is liable, that this one should be liable! And the Gemara asks: Do we not? But surely one who eats an ant is liable even though it is not a ke-zayit! And the Gemara answers: A creature is different; since it is a creature, and the Torah forbade it, he is liable for it even if it is less than a ke-zayit. But surely one who expressly specified less than a ke-zayit is liable! And the Gemara answers: We cannot learn the law in the case where he did not specify from the law in the case where he specified.
 
The Ri Migash explains the law of berya in a manner similar to the idea of the Tosafot in Chullin: "Since it is a creature, and the Torah forbade it, he is liable for it even if it is less than a ke-zayit." We are not dealing here with alternative importance which defines the act as eating, but rather liability for transgressing the Torah's prohibition. As for the Gemara's objection from the law of mefaresh, the Ri Migash explains that the answer is simple: "We cannot derive the law in the case where he did not specify from the law in the case where he specified." We cannot compare non-specific language, about which there is room for various interpretations, to an explicit determination on the part of the person taking the oath. Whether this is the Ri Migash's interpretation of the standard reading of the Gemara's answer, which says that an expressly defined oath is like a creature (which is the interpretation of the Tosafot in Chullin), or this is a different reading of the Gemara's answer, which expresses the same idea in a simpler manner, we have here a rejection of the assumption underlying the question that an objection may be raised against the Sages from the law of mefaresh.
 
            From here it follows that the Ri Migash did not go as far as Rashi. The position of the Sages is indeed based on the fact that an oath that "I shall not eat" joins the other prohibitions of eating in the Torah. When, however, a person explicitly states that he will not eat even a minute quantity, he removes his oath from the Torah's parameters for eating, and it is as if he took an oath not to play the piano or engage in some other activity which is not an activity otherwise recognized by the Torah, and his oath has validity even without resorting to the idea of "attaching importance."
 
            As for the position of the Rambam, we saw that his ruling in accordance with the Sages is accompanied by an explanation that is similar to that of the Ri Migash: "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" (Hilkhot Shevuot 4:1). It is possible that the Rambam took the matter further on this point. As we saw, it is possible to understand according to the Rambam that when a person swears that he will not eat on that day even a minute quantity, this does not forbid him to eat even a minute quantity (and this might be explicit in the Rambam's words: "that he will not eat anything on that day"). But when a person swears that he will not taste anything on that day, he is forbidden to eat even a minute quantity (halakha 2), for he did not mention the word "eat" (and the same is true if he forbade the matter by way of a vow [Hilkhot Nedarim 1:5]): "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." The Rambam appears to have learned this from our passage concerning mefaresh, which he understood as referring to one who forbids to himself a particular substance, in which case the person taking the oath gives it the law of a berya. This implies that the Rambam understood the passage in accordance with Rashi's reading and interpretation, only that in contrast to Rashi, the creation of importance in the case of mefaresh is only with regard to a particular substance. I am still uncertain about how to understand the position of the Rambam, and I would be happy to hear your suggestions.
 
(Translated by David Strauss)
 
 
Sources for the next shiur: A second prohibition does not apply to an item that is already prohibited – introduction.
 
Since this series of shiurim is very limited as to the number of shiurim, we will now begin to examine an issue that is discussed at length in our chapter – an oath that relates to other Torah prohibitions or positive commandments. Sometimes we are dealing with an oath to act in opposition to a Torah command and sometimes we are dealing with an oath to fulfill a Torah command, and there too sometimes the oath has no validity for various reasons. As background to this issue, we will dedicate one shiur to an introduction regarding the rule that a second prohibition does not apply to an item that is already prohibited – a rule that is not unique to the world of oaths, but which fits in with the issues discussed in our passage. We will then dedicate the next shiur to the idea of "bound by an oath from Mount Sinai that supersedes later oaths," and the validity of an oath for or against a Torah commandment.