Shiur #10: One Who Takes an Oath Not to Eat and He Ate Neveilot

  • Rav Shmuel Shimoni
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Dedicated by the Wise and Etshalom families
in memory of Rabbi Aaron M. Wise,
whose yahrzeit is 21 Tammuz. Yehi zikhro barukh.
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Sources: In the next shiur we will begin to discuss one of most fundamental passages in our chapter regarding the law of "bound by an oath from Mount Sinai." See the end of the Mishna on p. 22b, "shevu'a shelo okhal ve-akhal okhelin…" and in the Gemara on p. 23b until 24b (top), "mi akhsheveih"; Rambam, Hilkhot Shevuot 5:5-6, 10-11.
 

An oath not to eat neveila and the dispute between Rabbi Yochanan and Resh Lakish about an inclusive prohibition

 
            In the two previous shiurim we undertook a general survey of the laws governing the principles "bound by an oath from Mount Sinai" and "a prohibition does not apply to an item that is already prohibited" in relation to a person who takes an oath regarding one of the Torah's commandments. Today we shall once again focus on our chapter and begin to examine one of the passages that clarify these issues.
 
            At the end of the Mishna on p. 22b, we find several different halakhot, which we will number:
 
  1. 'I swear I shall not eat,' and he ate foods which are not fit to be eaten, and drank liquids which are not fit to be drunk, he is exempt.
 
  1. 'I swear I shall not eat,' and he ate neveilot and treifot, or forbidden creeping creatures, he is liable. Rabbi Shimon exempts him.
 
  1. He said, 'I vow that my wife shall not benefit from me, if I have eaten today, and he had eaten neveilot, treifot, or forbidden creeping creatures, his wife is prohibited to him.
 
According to the simple reading of these rulings, it follows that when a person eats something that physically unfit to be eaten, there is a deficiency in defining the act as one of eating. Therefore, eating such an item is not considered a breaking of the oath that 'I shall not eat" (halakha 1). On the other hand, eating something that is halakhically forbidden for consumption, but is physically edible, is considered as an act of eating, and therefore when a person takes an oath on condition that he eat, eating such an item is considered fulfillment of the condition (halakha 3).
 
Regarding the case of a person who took an oath not to eat, and he ate something that is halakhically forbidden, Rabbi Shimon and the Sages disagree about the law (halakha 2). Here we are not dealing with the meaning of the term "eating," but with the problem of imposing the prohibition of an oath on items that are otherwise prohibited. This is, of course, a fundamental dispute that requires explanation. Before we start with the Talmudic passage, let us recall what we learned in the previous shiur: We are dealing with the case of an oath to fulfill a prohibition of the Torah. According to the Ba'al ha-Ma'or, such an oath is removed from liability for a sacrifice, based on a special derivation on p. 27a, and it is also removed from liability for lashes, based on the rule that a prohibition does not apply to an item that is already prohibited. According to the Ramban, the exclusion of "heavenly matters" applies both to lashes and to a sacrifice, to an oath to fulfill a mitzva, as well as to an oath to cancel a mitzva; though it is reasonable to assume that he would agree that along with this there is also the limitation of a prohibition not applying to an item that is already prohibited. [And according to Rabbi Yehuda b. Betera, there is validity to an oath to fulfill a positive commandment. According to the Tosafot on p. 27a, there is no validity to an oath to fulfill a negative commandment because of the rule that a prohibition does not apply to an item that is already prohibited, and according to the Tosafot on p. 20b, Rabbi Yehuda does not take into account the law that a second prohibition does not apply to an item that is already prohibited, with regard to an oath concerning a Torah prohibition].
 
We read the Mishna according to its plain sense, and we distinguished between foods that are physically not suitable to be eaten and those that are halakhically prohibited. However, to our great surprise, at least at the beginning of the passage, the Gemara on p. 23b maintains that there is an apparent contradiction between two parts of the Mishna (halakhot 1 and 2):
 
This itself is contradictory! You say: "I swear I shall not eat," and he ate foods which are not fit to be eaten, and drank drinks which are not fit to be drunk, he is exempt." And then you teach: "I swear I shall not eat," and he ate neveilot, treifot, or forbidden creeping creatures, he is liable. What is the difference between the first clause, where he is exempt, and the second, where is liable?
 
The Gemara understands that prohibited foods are considered foods that are not fit to be eaten – whether objectively, or based on the assumed intentions of the person taking the oath – and therefore it sees an internal contradiction in the view of the Sages. The Gemara chooses to understand the Mishna in this manner, despite the difficulty noted already by the Tosafot: "It may be asked: Seeing that the first clause and the second clause are both dealing with neveila and treifa, what is the difference, that the first clause refers to "foods that are unfit to be eaten," whereas the second clause refers to "neveila and treifa"?" It would appear that the reason for this is that prohibited foods are indeed considered unfit to be eaten (which tends more to an objective understanding of the status of the foods, rather than a subjective one, based on the intention of the one taking the vow); or as the Ran formulates it: "Our Gemara maintains that prohibited foods are considered like dust for members of the covenant" (12b in Alfasi).
 
The Gemara answers that perforce we must understand the two parts of the Mishna as referring to two different situations: "The first clause relates to an undefined oath, and the second to a defined oath." According to the simple understanding this distinction is not connected to the parameters of the rule regarding "bound by an oath from Mount Sinai." Rather, when a person takes an undefined oath that he will not eat, the correct understanding of this oath is that he is imposing a prohibition only on food that is both fit to be eaten and permitted to be eaten. But where he explicitly swears that he is prohibiting to himself neveilot and treifot, according to the Sages, the oath applies. And here, naturally, the Gemara raises the issue of "bound by an oath from Mount Sinai." The Amoraim disagree about the answer, and we will deal today with the resolution proposed by Rav, Shemuel, and Rabbi Yochanan and their disagreement with Resh Lakish, who does not accept their answer (in a future shiur we shall deal also with the resolution proposed by Resh Lakish):
 
Rav and Shemuel and Rabbi Yochanan said: Because he included permitted foods with the prohibited foods…
What is Rabbi Shimon's reason for exempting him? Is not the reason [that the Sages make him liable] because it is a more inclusive prohibition? Rabbi Shimon is consistent in his view that a more inclusive prohibition cannot take effect; for it has been taught: Rabbi Shimon says: He who eats neveila on Yom Kippur is exempt.
 
We already encountered the concept of an "inclusive prohibition" as one of the exceptions to the rule that "a prohibition does not apply to an item that is already prohibited."  As is explicated in this sugya, the exception is the subject of a Tannaitic dispute. According to the Sages, one who eats neveila on Yom Kippur is liable for excision, because the prohibition of Yom Kippur, which applies even to kosher items, applies to that which is already forbidden by the prohibition of neveila. Rabbi Shimon disagrees, arguing that a  prohibition does not apply to an item that is already prohibited, even if the second prohibition is a more inclusive one. This dispute is of course a general disagreement regarding the laws of a second prohibition not applying to an item that is already prohibited, and it is not related to the laws of oaths. The implication here is that Rabbi Yochanan provided a good answer to the problem of a second prohibition not applying to an item that is already prohibited, which explains also the Tannaitic dispute in our Mishna. This, however, is difficult to understand: How does this answer the question that was raised above: "[In the case of] a defined oath itself it may also be asked: Why? Surely he is bound by an oath from Mount Sinai!" Surely we have seen that there are limitations that do not stem from the law that a second prohibition does not apply to an item that is already prohibited, and according to the Ramban, they suffice to exempt a person both from lashes and from a sacrifice; and even according to the Ba'al ha-Ma'or, they suffice to exempt a person from a sacrifice.
 
Ostensibly, it may be suggested that a single idea explains how an inclusive prohibition resolves both the issue of a prohibition not applying to an item that is already prohibited and issue of "bound by an oath from Mount Sinai": The oath applies to the items that are permitted, and once a prohibition applies, it does not apply partially. Rabbi Shimon does not accept this principle, and therefore he disagrees both with respect to a neveila on Yom Kippur and with respect to an oath that includes both permitted and forbidden items. There is also room here to suggest that regarding this point Resh Lakish disagrees with Rabbi Yochanan and says that a distinction can be made between the two: "But why does not Resh Lakish agree with Rabbi Yochanan? He will reply to you: We say that a more inclusive prohibition [falls on a less inclusive one] only when the [more inclusive] prohibition comes of its own accord, but when the prohibition is imposed by himself, we do not say this." It seems that Resh Lakish distinguishes between the rule that a prohibition does not apply to an item that is already prohibited - regarding which we can invoke the exception of an inclusive prohibition, because the problem is the insignificance of the new prohibition given the existing prohibition, and when the prohibition bears significance with respect to other pieces, it applies in its entirety - and the law of "bound by an oath from Mount Sinai," the significance of which is the absence of authority on the part of the person taking the oath with regard to certain things, and the problem of the absence of halakhic authority over the forbidden pieces cannot be resolved by the authority that I have over other pieces.
 
However, in the shiur about a prohibition not applying to an item that is already prohibited, we saw that the dominant understanding regarding an inclusive prohibition is not that a prohibition cannot apply in partial fashion, because in fact it can; rather the novelty that it introduces with respect to the other pieces is a sign that it is a significant and important prohibition. This idea does not seem to be relevant regarding the matter of bound by an oath from Mount Sinai. Similarly, we will see below that the explanation that we proposed for Resh Lakish's reservations is not the explanation that emerges from the Gemara.
 
It seems, therefore, that it is preferable to argue that two separate principles regarding an inclusive prohibition are operative here, in order to contend with the two limitations that stand before us. An inclusive prohibition resolves the problem of "bound by an oath from Mount Sinai," because it defines the object of the oath as "optional matters" ("I might think that if he swore to fulfill a mitzva, but did not fulfill it, he should be liable. Therefore it is stated: "To do evil, or to do good"; just as doing evil is optional, so doing good must be optional"). This point does not depend on the dispute between Rabbi Shimon and the Sages, as it stands apart from the law of an inclusive prohibition regarding the rule that a second prohibition does not apply to an item that is already prohibited. However, alongside the limitation of "bound by an oath from Mount Sinai," there is also the limitation of "a second prohibition does not apply to an item that is already prohibited," and here the resolution of an inclusive prohibition depends on the dispute between Rabbi Shimon and the Sages.
 
Here we must try to understand the position of Resh Lakish and sharpen our understanding of the Amoraic dispute. There seems to be a difference between the Bavli and the Yerushalmi (halakhot 3-4) on this matter. The Yerushalmi states:
 
R. Yochanan says: This [that he is liable more than once] is when there is an inclusive prohibition, but with a specific oath, oaths do not apply to prohibitions. Resh Lakish says: Even with an inclusive prohibition, oaths do not apply to prohibitions.
 
This formulation suggests that Rabbi Yochanan's novel point is the ability of an inclusive prohibition to overcome the stumbling block of "bound by an oath from Mount Sinai" ("oaths do not apply to prohibitions"), and that it is this point which Resh Lakish does not accept. Of course, along with this it is necessary to deal with the issue of a prohibition not applying to an item that is already prohibited, and the Yerushalmi as well explains that this, according to Rabbi Yochanan, is the reason that Rabbi Shimon disagrees:
 
According to Rabbi Yochanan, why does Rabbi Shimon exempt him? Rabbi Ze'ira said: Rabbi Shimon is consistent with his own opinion. It was taught in the name of Rabbi Shimon: "You shall afflict you souls" – from that which is permitted to you, and not from that which is forbidden to you."
 
As stated, however, it would appear that Rabbi Yochanan's novel idea, the one which Resh Lakish disputes, is that concerning an inclusive prohibition as a resolution of the problem of "bound by an oath from Mount Sinai." Against this background, the Yerushalmi brings an assertion, which we will examine in greater depth in the next shiur:
 
According to Rabbi Yochanan, one who said: "I swear that I will not eat matza," is forbidden to eat matza on the night of Pesach. "I swear that I will not eat matza on the night of Pesach," he is flogged, and he eats matza.
 
The Yerushalmi states that according to Rabbi Yochanan the principle of an inclusive prohibition also helps overcome the problem of "bound by an oath from Mount Sinai," with respect to an oath to cancel a Torah mitzva. Without thoroughly clarifying this assertion, it certainly stems from the law of an inclusive prohibition with respect to "bound by an oath from Mount Sinai," and not with respect to the rule that a prohibition does not apply to an item that is already prohibited. The Yerushalmi explicitly states that this is true according to Rabbi Yochanan, but not according to Resh Lakish. This means that the disagreement between Rabbi Yochanan and Resh Lakish is not about the rule that a prohibition does not apply to an item that is already prohibited, but rather the law regarding "bound by an oath from Mount Sinai" – does an inclusive prohibition overcome this hurdle or not?
 
In contrast, from the Bavli we get a different impression as to the point regarding which Resh Lakish disagrees:
 
But why does not Resh Lakish agree with Rabbi Yochanan? He may reply to you: We say that a more inclusive prohibition [falls on a less inclusive one] only when the [more inclusive] prohibition comes of its own accord, but when the prohibition is imposed by himself, we do not say this.
 
I suggested above that Resh Lakish means to distinguish between the rule that a prohibition does not apply to an item that is already prohibited (a prohibition "that comes of its own accord"), regarding which an inclusive prohibition is effective, and the law regarding "bound by an oath from Mount Sinai" ( a prohibition "imposed by himself"), regarding which it is not effective. However, Resh Lakish's wording suggests that he is making an internal distinction regarding the law that a prohibition does not apply to an item that is already prohibited, namely that an inclusive prohibition helps to overcome a prohibition that comes of its own accord, but not a prohibition that a person imposes upon himself. As Rashi explains, "with a prohibition that is imposed by himself, that is to say, by the person himself, e.g., the prohibition of an oath that is imposed upon a person by his own speech, we do not say this." It would appear that according to Resh Lakish a wide prohibition that a person freely creates for himself is not defined as an inclusive prohibition, as it is essentially a collection of specifics that a person chose to include in a single category, as opposed, for example, to the prohibition of Yom Kippur which applies to all the foods in the world as a single organic unit. Even if a person swears that he will not eat on a certain day, there will not be for Resh Lakish an essential connection between the various components of the set. This being the case, according to Resh Lakish, the fact that the prohibition applies to one component does not teach us that it has significance also with regard to a different component.[1]
 
 The Rishonim concretized this point, when they objected to Resh Lakish's distinction from the fact that consecration (hekdesh) is considered an inclusive prohibition, although it is imposed by the maker of the vow. There are various difficulties with this question, and the Acharonim go to great lengths to explain it and the resolutions of it offered by the Rishonim. For our purposes it suffices to teach us that Resh Lakish's distinction is a general distinction relating to the rule that a prohibition does not apply to an item that is already prohibited, and that it is not limited to the difference between an oath and other Torah prohibitions, and between the rule that a second prohibition does not apply to an item that is already prohibited, and the law of "bound by an oath from Mount Sinai."
 
The Continuation of the Gemara
 
At the beginning of the passage we saw the Gemara's novel assumption that a prohibited food is not included in an "oath not to eat," just like foods that are physically not eaten. According to Rashi, this assumption is rejected at the Gemara's conclusion. The Gemara raises an objection to Rabbi Yochanan's view, that the combination of his position regarding an inclusive prohibition and the Gemara's position regarding a defined oath teaches that the Mishna is dealing with a person who took an "oath that I will not eat slaughtered animals and neveilot," and the oath applies even to the neveilot because it is an inclusive prohibition. The Gemara objects that this oath is not valid, at least with respect to a sacrifice, because "the negative is not equal to the positive" – an oath can impose liability for a sacrifice only when it is possible to take an oath also about its negative; and here an oath cannot be taken about the negative, based on the assumption that the negative is "I swear that I will eat slaughtered animals and also neveilot," and it is clear that such an oath will not permit a person to eat neveilot (we will deal with this issue at greater length in the next shiur).
 
According to Rashi's reading and interpretation, the Gemara answers that we must retract the novel assumption mentioned above, and explain the Mishna in accordance with its plain sense. Foods that are unfit to be eaten are not included in an oath "not to eat," whereas prohibited foods are included. That is to say, we are dealing with a person who took an oath "not to eat," and the Sages and Rabbi Shimon disagree if he is liable if he eats neveila. Rabbi Shimon exempts him because he is "bound by an oath from Mount Sinai" and because a prohibition does not apply to an item that is already prohibited, whereas the Sages hold him liable. It may be suggested that the Sages do not hold him liable because of the narrow technical term of an inclusive prohibition, but rather because the oath relates to the sweeping concept of eating, and eating neveilot is just a way to realize this sweeping concept. However, from the plain reading of the passages that in several contexts mention the words of Rabbi Yochanan that he understands the case as one of an inclusive prohibition, it would appear that the words of Rabbi Yochanan and Resh Lakish are required even without saying that we are dealing with a defined oath.
 
In any event, the undefined oath of "I will not eat" is considered as "being found in the positive," because a person can take an oath that he will eat, and he does not necessarily have to eat neveilot. Here arises an interesting question regarding the position of Rashi: Does it suffice that the oath be valid, or perhaps we need the oath to apply in practice to the eating of neveilot, that is to say, that the eating of neveilot as well should be considered a fulfillment of the oath. The Rashba (ad loc.) explicitly accepts the second possibility:
 
It is found in the positive, for if he took an undefined oath to eat, if he would eat nothing he would be liable for shevuat bitui, but if he ate neveilot this eating exempts him from [liability for] his oath. Even though he is bound by an oath from Mount Sinai not to eat neveilot, nevertheless this eating exempts him. However, it is not like where he actually swore to eat neveilot, for if he wishes, he could fulfill his oath by eating permitted foods.
 
It is clear from the words of the Rashba (which were stated in the context of Rashi's position) that it is necessary for the oath to apply in practice to neveilot, in the sense that eating neveilot would be considered a fulfillment of his oath. The oath does not contradict the laws of the Torah, because it casts upon the person who took the oath the burden of eating anything; and since in practice the eating of neveila is considered eating, there is no reason not to see this as a fulfillment of the oath (see also Rambam, Hilkhot Shevuot 5:5).
 
However, in the words of Rashi himself the matter is less clear:
 
It is found in the positive, because he said "I will eat" without defining, and he fulfills his oath with items that are permitted to him, and if he did not eat, he is liable.
 
It is possible to understand that when Rashi says: "and he fulfills his oath with items that are permitted to him," he means to demonstrate that the oath "I will eat" does not contradict the Torah, and in practice he agrees with the assertion that the oath can be fulfilled with prohibited foods. It seems, however, that a simpler reading of Rashi leads to the conclusion that he disagrees and maintains that one cannot fulfill the oath "I will eat" with prohibited foods, because eating them remains prohibited because of a Torah prohibition. And there is no need for this because regarding the matter of "being found in the positive," the very validity of the oath "I shall eat" suffices. An interesting question arises here regarding an oath to perform a certain action, if the oath applies to the entirety of things with which a person can fulfill the oath, in similar fashion to an oath that I will not eat. We might return to this question in the continuation of our studies.
 
Thus far we have learned the end of the passage based on the reading and interpretation of Rashi, who understood that the novel assumption at the beginning of the passage was rejected. However, many Rishonim had a different textual reading and understanding of the passage, and according to them the novel assumption remains even at the conclusion, and it is still necessary to set the dispute between Rabbi Shimon and the Sages in the case of a defined oath.
 
Thus, for example, the Rambam (Hilkhot Shevuot 5:5-6, 10-11). According to him, a person who swears "that I will not eat," is exempt if he ate food that is either unfit or prohibited to be eaten, since this is not included in his oath. Only with respect to the case of a defined oath does the Rambam say that the law of an inclusive prohibition allows his oath to apply even to neveilot. As the Ramban (ad loc.) explains, according to this approach, the Gemara's answer is that an oath "that I will not eat slaughtered animals or neveilot" is considered "included in the positive" because there is validity to the oath, "I swear that I will eat," and there is no need for validity of the oath, "I swear that I will eat slaughtered animals and also neveilot," as argued by Rashi. This is an interesting question regarding the parameters of "included in the negative and in the positive," but this is not the forum to discuss the matter.
 
(Translated by David Strauss)
 
 
Sources for the next shiur: An Inclusive Oath to Annul a Mitzva
 
In the next shiur we will deal with the question whether or not an inclusive oath that annuls a mitzva takes effect. See Yerushalmi, end of halakha 4: "al da'at de-Rabbi Yochanan" at least until "ve-yoshev be-tzel sukka"; Rambam, Hilkhot Shevuot 5:18; Tosafot 24a, s.v. ela; Ramban, s.v. bishlama lav; Ba'al ha-Ma'or, 12b in Alfasi, s.v. katav ha-Rif: "… ve-ein lanu lilmod mimenu"; Ramban, Milchamot, ad loc.: "… ve-ha-hefresh she-hifrashnu nakhon u-barur."
 
 

[1] R. Elchanan Wasserman (Kovetz He'arot al Yevamot, 34, par. 2) explains this differently, based on the idea that a prohibition cannot apply in partial manner, that regarding a prohibition that a person imposes upon himself, there is no problem for a prohibition to apply in partial manner. However, as may be recalled, we had our reservations about this explanation of the law of an inclusive prohibition.