Shiur #11: An Inclusive Oath to Annul a Mitzva
Sources: 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."
I. The Apparent Contradiction Between the Bavli and the Yerushalmi
In the previous shiur we discussed the position of Rabbi Yochanan that the law of an inclusive prohibition is relevant also to the limitation of "bound by an oath from Mount Sinai" regarding an oath to fulfill a mitzva. We saw that according to the Yerushalmi, Resh Lakish disagrees about this point, whereas from the Bavli we concluded that Resh Lakish agrees that the law of an inclusive prohibition overcomes the limitation of "bound by an oath from Mount Sinai," but he disagrees with Rabbi Yochanan about the law that a prohibition does not apply to an item that is already prohibited and says that an inclusive prohibition does not apply to a prohibition that “comes of its own accord.”
But what is the law with respect to an inclusive prohibition regarding an oath to annul a mitzva? As we saw, our passage works with the assumption that if a person takes an oath to eat slaughtered animals and also neveilot, the oath does not obligate him nor permit him to eat neveilot. On the other hand, we saw in the Yerushalmi that according to Rabbi Yochanan, a person who takes an oath not to eat matza all year long is forbidden to eat matza on the night of Pesach, because the law of an inclusive prohibition allows the oath to apply (and according to the Yerushalmi this is only according to Rabbi Yochanan, because, as stated, Resh Lakish disagrees about the law of "bound by an oath from Mount Sinai," which is not the case according to the Bavli). The Ba'al ha-Me'or (12b in the Alfasi) argues that we are indeed dealing with a disagreement between the two Talmuds, and that in practice we of course follow the Bavli, that the law of an inclusive prohibition is irrelevant to an oath to annul a mitzva. However, his words were stated in opposition to the view of the Rif, who rules in accordance with the Yerushalmi (and so too the Rambam, Hilkhot Shevuot 5:18); and it follows from most of the Rishonim that the two Talmuds do not disagree about this point, and that a distinction must be made between the two cases.
One of the students in the Yeshiva, Aviad Shlomo Moriah, proposed that there is a fundamental difference between the types of oaths under discussion. The Yerushalmi deals with an oath not to do something; e.g., not to eat matza. Regarding such an oath, it is indeed clear and evident that there is a concept of an inclusive prohibition, when an attempt is made to apply a broad prohibition that includes additional forbidden units. The Bavli, on the other hand, deals with an oath to do something, e.g., to eat slaughtered animals and also neveilot. Regarding such an oath, it can certainly be argued that there is no concept of an inclusive prohibition, because we are dealing with a set of obligations which do not join together to form a single, organic unit. However, the words of the Rishonim imply that they did not accept this argument, but rather they assumed that even an oath to do certain actions falls into the category of an inclusive prohibition, and therefore they offered their own distinctions between the Bavli and the Yerushalmi, which we will examine below.
II. A Distinction Between Annuling a Mitzva and Annuling a Prohibition – The Ramban
Many Rishonim maintain that the difference between the Halakha that was established in the Yerushalmi and that which was established in the Bavli is the distinction between the efficacy of an inclusive oath to annul a Torah prohibition; e.g., eating neveilot, and its efficacy to annul a positive commandment; e.g., eating matza. Let us see the different ways that the Rishonim explained this distinction:
The Ramban in his Chiddushim and in the Milchamot explains that there is no fundamental difference between positive and negative commandments themselves, and that the difference stems from manner in which one transgresses the commandment (the maase ha-aveira). According to him, when a person takes an inclusive oath, the subject of his oath is defined as an optional matter and therefore the oath applies. This, however, is only the first step. Even after it is established that the oath in itself is valid, this does not annul the Torah commandment. The person who took the oath has placed himself in a situation in which he is bound by two contradictory norms: the oath obligates him to eat neveila, whereas the Torah forbids him to eat it; the oath forbids him to eat matza, whereas the Torah obligates himself to do so. In a situation of two contradictory obligations, the halakhic principle that comes into play is: shev ve-al ta'aseh – "sit and do not act." This principle operates on a different level from the two contradictory obligations themselves – it is an operative guiding principle that instructs a person what he must do in practice in the situation that was created. The practical halakhic ruling in favor of inaction is that in the case of neveilot, there is no allowance to eat them, while in the case of matza there is no allowance to eat it. Here the Ramban adds more novel ideas; let us see what he says in his Chiddushin:
That which we said that an inclusive oath does not apply, that is with regard to negative commandments, because we do not actively feed a person that which is forbidden to him. This being the case, from the time of the oath it was uttered in vain and does not exist. But with regard to positive commandments, an inclusive oath applies to annul them, for we do not tell him to eat matza, and it is preferable that he violate the mitzva passively, and not transgress the oath actively… Even though he is forbidden to don tefilin, if he dons them he is not liable for a sacrifice, since he is bound by an oath to don them…
One novel point that the Ramban makes relates to negative commandments. Since the halakhic guideline is not to fulfill the oath, the oath "was uttered in vain" and never went into effect. We might be dealing here with sort of an oath regarding something that is considered halakhically impossible, even though in reality it is possible, and therefore it moves from the category of shevu'at bitui to that of a shevuat shav, a vain oath (see Rashi 29a: "'We swear that we will not bear testimony for you' – annulling a mitzva is something that is impossible"; 29b: "A person who takes an oath to annul a mitzva and fulfills his oath, does he not transgress the prohibition of a vain oath? Surely when he uttered the oath, it was a lie being something that is impossible, and from that time he transgresses, even if he fulfills his oath"). If so, there are two different reasons that an oath against a Torah mitzva does not take effect: 1) It is not defined as an optional matter, and therefore according to the Ramban it has no validity, neither for lashes nor for a sacrifice. 2) Even when it is an inclusive oath, and it overcomes the aforementioned limitation, if the halakhic guideline in practice is not to fulfill it, it is considered an oath regarding an impossible matter, which has no validity.
A second novel point that the Ramban makes relates to positive commandments. The oath takes effect, and therefore the halakhic guideline is that the person is forbidden to eat matza in such a case. However, since at the same time he is bound by a commandment to eat matza, if he chooses to eat the matza counter to the operative halakhic guideline, this would fall into the category of an obligatory matter, and not an optional matter, and in such a case there would be no sacrifice, but only lashes. The Ramban explains this in his Milchamot (12a in Alfasi): "Even though the prohibition of an oath applies to him in the case of an inclusive oath, if he transgressed the oath and did it, he is not liable for a sacrifice, because the verses were written with respect to an optional matter, and an obligatory matter was excluded. Therefore regarding liability for a sacrifice, there is none where he donned [the tefilin], but nevertheless he is forbidden to do so." If so, like with the Ba'al ha-Ma'or that we saw in previous shiurim, for the Ramban as well there are situations in which an oath is valid for lashes, but not for a sacrifice, only that for the Ramban this is only in the case of an inclusive oath. Further study is needed to clarify whether the Ramban's rationale applies also to an inclusive oath to uphold a Torah prohibition, for perhaps it could be argued that it too should apply only for lashes, but not for a sacrifice. It would appear from our passage that according to Rabbi Yochanan the law of an inclusive oath gives full validity to the oath; from this it follows that the words of the Ramban relate only to an action that violates an oath, but is supported by a Torah command (eating matza) but not to an action that violates both the oath and the Torah's command (eating neveila). This matter requires further study, as the rationale is not fully clear to me.
A point for consideration in the Ramban: What would the law be if a person took an oath to occupy himself every night of the week, which includes the night of Pesach, in an activity that stands in contradiction to eating matza? I will assume for this purpose that regarding the law of "bound by an oath from Mount Sinai" there is no need for an oath that explicitly contradicts a Torah law, and that it suffices if the oath contradicts it in practice, only that in this case we are dealing with an inclusive oath, and therefore according to the Ramban, two obligations apply concurrently. The rule of "sit and do not act" does not help here, because full passivity leads to a violation of both oaths, and choosing to fulfill one involves a practical violation of the other. It might be argued that in such a case, according to the Ramban, both oaths apply; and the person taking the oath can decide which one he wishes to fulfill. He is not considered coerced by circumstances beyond his control with regard to either one of them, but it could be argued that he is coerced to violate one of the two. However, a student in the Yeshiva, Shlomi Edelman, proposed that in this case the oath would not apply, because for that it is not necessary that the operative halakhic guideline be not to fulfill the oath, but rather it suffices that there not be such a guideline to fulfill the oath. I leave this question open for those participating in this shiur.
III. A Distinction Between Annulling a Mitzva and Annulling a Prohibition – Other Views
We dealt at length with the view of the Ramban. Other Rishonim who adopted a similar distinction in practice did not mention the principle of "sit and do not act," and it is possibly that they based their position on a different principle. Thus, for example, there is room to consider the words of the Ri in our Tosafot (24a, s.v. ela hen), and to ask whether he is saying the same thing as the Ramban, or not.
However, in this forum, I wish to examine a fascinating position brought by the Meiri:
Some answer that regarding a positive commandment a person's obligation is like a pledge (shiabud), namely, that he is pledged to the mitzva, and in the case of an inclusive oath, his pledge is cancelled by his pledge to his oath. But regarding a negative commandment, when he swears to eat it, it is as if he swears that it is permitted, and it is similar to swearing that a pillar of stone is gold. (Meiri, Shevuot 25a)
What this means is that negative commandments are treated like physical reality: The object is forbidden and denied to me, as are certain actions, like the desecration of Shabbat. In practice, one can be a sinner and transgress a prohibition, but this involves a clash with negative reality. To say that I will eat neveilot is essentially to say that the neveila is in the category of a permitted food, and this is a case of swearing to change the present reality, which is a vain oath that does not take effect. In contrast, a positive commandment is not a reflection of reality, but rather an obligation to do something that is imposed upon me, and this obligation can be cancelled by way of an inclusive oath. This is a fascinating understanding of the relationship between mitzvot and prohibitions, and also an interesting resolution of the difficulty in our passage. It should be noted that like with the Ramban, there is a first stage which must be passed, namely, that the oath not be about that which a person has no authority over, and this problem can be overcome with an inclusive oath. So too, were it possible for the oath to apply, we would have to decide which of the two contradictory obligations wins out. This opinion in the Meiri does not deal with this question. The difference is in the middle stage. The Ramban moved on already to examine the result of the contradiction between the obligations and from there reached the conclusion that that in the case of prohibitions the oath is a vain oath because it is a matter that cannot be fulfilled, as we explained above. The opinion cited by the Meiri reached the category of a vain oath, not because of the impossibility of fulfilling it, but on the basis of an oath that denies reality, like "stone being gold." And this is based on their understanding of prohibitions as opposed to positive commandments.
IV. A Distinction Between an Undefined Oath and a Defined Oath – The Opinion of the Ritzba
The Tosafot in the name of the Ritzba proposes a different distinction between the case discussed in the Bavli and the case brought in the Yerushalmi:
It is only here that the oath does not apply, because he mentioned neveila and swore not to eat it; but there, where he did not mention Pesach, the oath applies. According to this, there is a case where it can apply in the positive even with regard to forbidden items, when he says without specifying: I swear that I will eat.
It should be noted once again that there are two separate stages in testing whether the oath applies. First, we must overcome the problem that an oath can only be taken about optional matters, and therefore there is no way to swear about a mitzva, other than by way of an inclusive oath. Even after we have passed that hurdle, we are faced with the second stage, which, according to the Ritzva, tests whether we are dealing with a statement that explicitly contradicts a Torah law. When there is a statement that explicitly contradicts a Torah law we are dealing with explicit rebellion, and the Torah does not bestow validity on such rebellion.
This brings to mind the words of the Rosh in his commentary to Nedarim 16b, which we saw in the introductory shiur to the law of "bound by an oath from Mount Sinai." The Rosh explains there why vows that annul a mitzva apply, whereas oaths that do that do not:
This is the reason that regarding a vow we expound from "When a man vows a vow unto the Lord," that vows apply to matters of mitzva, because every vow forbids the object to the person. Therefore, it does not appear as if he were taking a vow to annul a mitzva, for he did not accept anything upon himself. But every formulation of an oath involves forbidding himself to do something, and since he is obligated to do the mitzva, he cannot release himself from the obligation of the mitzva. Therefore we do not expound "unto the Lord" in connection with "or swears an oath."
The Rosh focuses on the way things appear. We are dealing with a Scriptural decree, but it is based on consideration given to denying validity to words that express rebellion against the Torah. As stated, a similar idea is found in the words of the Ritzba, only that it finds expression only after we have passed the hurdle of the need for an optional matter.
Let us also mention in this context a most surprising position found in the writings of one of the Rishonim of Provence: the Sefer Hashlama on our passage. According to him, an oath to annul a mitzva takes effect, even if it is not an inclusive oath, if the person taking the oath was unaware that his oath contradicts Torah law:
In a case where a person takes an oath and he thinks that his oath does not involve an annulment of a mitzva, but it later turns out that that it does annul a mitzva, the oath takes effect for him… [see there his proofs].
According to the Ha-Hashlama, the measure of the rebellion is not the formulation of the oath, but the awareness of the person who took the oath. Absence of rebelliousness suffices for the oath to apply! This is a very novel idea and it reflects a novel understanding of the notion of "bound by an oath from Mount Sinai."
Another opinion found in the Rishonim which we have not addressed here is that of the Ra'avad in his strictures to the Ba'al ha-Ma'or on Pesachim. It is discussed by the Ketzot ha-Choshen in no. 73, 3, and you are invited to study it on your own.
(Translated by David Strauss)
Sources for the next shiur: An oath concerning half a measure of a prohibited item.
In the next shiur we will examine the view of Resh Lakish who understood the Mishna as referring to an oath concerning half a measure. We must consider whether his explanation is possible even according to Rabbi Yochanan who says that the prohibition of half a measure is by Torah law, and if so, why.
1. Review Resh Lakish's understanding of the Mishna: 23b from the colon at the bottom to 24a, "ela le-korban"; Yoma 73b in the Mishna until "u-bi-shetiya" and in the Gemara until 74a, "lav bar hagada hu kelal," and Rashi, ad loc., 74a, s.v. ve-aliba.
2. Rashba, 23b, s.v. ha de-amrinan; Rambam, Hilkhot Shevuot 5:7 and beginning of 8 and Radbaz on both of them; Tosafot 22b, s.v. a-hetera; Tosafot 23b, s.v. de-moki. Consider the similarities and the differences between the Tosafot and the Rambam; Ritva 22b, s.v. o dilma da'atei, "ve-ha de-mashma de-lo mitsar… ve-zeh ikar; Chiddushei ha-Ran 23b, s.v. de-mokim.
 What is the law governing a person who follows the halakhic guideline and doesn't eat matza? He does not transgress the positive commandment of "In the evening you shall eat matzot" because he is barred from doing so by circumstances beyond his control (oness), especially if he took the oath before the onset of the festival. But he is certainly not behaving properly, and it is possible that he even transgresses: "Cursed be he that confirms not the words of the law to do them" (Devarim 27:26). See Ramban, ad loc.
 It might be argued that this would be a mitzva achieved by way of transgression; however, the Ramban in Pesachim 35a agrees with those who maintain that this disqualification is only by Rabbinic decree.
 This in contrast to what is implied by the wording of the Rambam in Hilkhot Shevuot 5:18. It is also worthwhile to compare the words of the Ramban to what is brought in his name by the Ritva, ad loc., s.v. ela le-Rabbi Yochanan, and to the opinion that is rejected there.
 For those interested in delving further into this issue: Where would you place the following words of the Rosh in light of the Rosh in Nedarim, the Ritzba and the Ha-Hashlama: "Question: Reuven swore to Shimon that he would give him a maneh on the seventh of Nisan, and it turned out that year that the seventh of Nisan fell out on Shabbat. And Reuven claims that since he swore to give it to him on a particular day and that day fell out on Shabbat, he is free from his oath…. Answer: Nevertheless, he is not free from his oath. Since at the time that he took the oath he did not know that the seventh of Nisan would be on Shabbat, this is not like one who takes an oath to annul a mitzva, and therefore the oath is valid. This is similar to what we said in the Yerushalmi that if a person swore not to eat matza on the night of Pesach, he receives lashes and eats matza, for since he mentioned the night of Pesach, it is not an oath, for one cannot take an oath to annul a mitzva, and it is a vain oath, and so he receives lashes and eat. But if he swore not to eat matza, he does not receive lashes, for since he did not mention the night of Pesach, this is not an oath to annul a mitzva, and his oath is valid. And so too in our case, his oath is valid since he did not know that the seventh of Nisan would fall out on Shabbat, and he must pay before the seventh of Nisan in order not to violate his oath" (Responsa ha-Rosh, 8, 16).
 "One who vowed not to eat matza is immediately forbidden to eat matza, and so his vow applies before he becomes obligated to eat matza. And without the Yerushalmi, we learned in our Mishna in Shevuot: 'I swear that I will not eat neveilot and tereifot, and he ate, he is liable.' And Rav and Shemuel and Rabbi Yochanan set the case as one in which he includes permitted items together with prohibited items, and this too is an inclusive oath…. One who vowed to fast may not break his fast, without annuling the oath, as with the matza. However, this is only when the vow took effect before the Torah prohibition, so that the prohibition was included together with that which is permitted. But if the vow did not take effect first, he interrupts his fast even for a day mentioned in Megilat Taanit, and all the more so for a day when fasting is prohibited by Torah law, because this is not an inclusive vow, but rather it begins with what is already prohibited" (26b-27a in Alfasi).