Can a Verbal Declaration Violate Halakhic Norms?

 

The gemara in Nedarim (16b) distinguishes between a shevu’a to cancel a mitzva, which is meaningless, and a neder to cancel a mitzva, which may obtain. Most Rishonim believe that this difference is structural and speaks to the respective mechanisms of neder and shevu’a. Some Rishonim, however, suggest a dramatically different approach, which has echoes in a different but possibly related halakha.

 

The Shita Mekubezet in Nedarim cites the Re”em (R. Eliyahu Mizrachi) as arguing that by taking a shevu’a not to eat matza, for example, one overtly and explicitly cancels the mitzva. A shevu’a explicitly mentions a mitzva cancellation and since this is a frontal attempt to negate a halakha, it cannot operate. By contrast, a neder indirectly tampers with mitzva performance by banning benefit from an object, such as a sukka or matza, which only indirectly prevents performance of a mitzva. The neder doesn’t actually mention mitzva cancellation but only bans use of the mitzva item.

 

If the clash between shevu’a and mitzva occurs at a structural level, it should matter little that the shevu’a explicitly contradicts a mitzva while a neder does not. Evidently, the Rishonim who adopt this distinction imply a different reason that shevu’a cannot cancel a mitzva – halakhic declarations that explicitly oppose Halakha are not valid. The Torah empowers various verbal declarations to create changed halakhic realities; when these realities clash with halakhic norms, the verbal declarations are disqualified.

 

Interestingly, the Rosh (Nedarim 16b) also explains the surprising effectiveness of a neder to cancel a mitzva (as opposed to a shevu’a, which cannot) due to the fact that a neder does not appear to directly and explicitly subvert the mitzva, since it only addresses serving benefit from an object, necessary for mitzva performance.

 

The Machaneh Efrayim appears to adopt this logic as well when he limits the ability of a neder to cancel a mitzva only to nedarim articulated about mitzva objects. Certain nedarim actually transform the halakhic status of a human body (such as the neder discussed in Nedarim 13b about banning benefit from someone's hands). A neder that alters the halakhic status of a human body would more directly contradict a mitzva, as it transforms the identity of a human otherwise meant to perform a mitzva. In this instance, a neder would not override the mitzva. This striking exception corroborates that the distinction between neder and shevu’a is not structural, but rather at the level of appearance. Ultimately, a shevu’a fails to cancel a mitzva in this case because it appears to be a more direct cancellation than a neder. A neder that is more direct than the standard neder would, in fact, also fail.

 

The Machane Efrayim notes a reverse situation as well – varieties of shevu’a that do not appear to directly contravene Halakha and might be effective in indirectly cancelling a mitzva. If the person who takes a mitzva- cancelling shevu’a is unaware of the halakhic clash, perhaps the shevu’a should obtain. The gemara in Gittin (46a) discusses the oath taken to the Givonim under false pretenses. Technically, this oath to ensure their wellbeing contradicted the Halakha to eliminate all the indigenous populations of Cana'an. The gemara discusses various elements regarding the binding nature of this shevu’a and never questions its effectiveness, even though it clashes with a halakha. The Machaneh Efrayim (as well as the Me'iri in Gittin and in his comments to Shavuot 25) assert that since the Jews were not aware of the halakhic clash (as they assumed that the Givonim had migrated from a distant land), their shevu’a was effective even though it contradicts a mitzva. Once again, if a shevu’a to break a mitzva fails on structural issues, the intention and awareness of the person taking the oath should be inconsequential. Evidently, verbal declarations cannot contradict Halakha; if the person is unaware, perhaps the level of contradiction is mitigated and the shevu’a can obtain.

 

Perhaps this logic is also latent in a fascinating distinction developed by the Ritzva (one of the Ba'alei HaTosafot) in his comments to Shavuot 24a (s.v. ela hein). He allows a shevu’a to break a mitzva if it meets two conditions: 1) It is a broad spectrum shevu’a banning broader activities and not just a mitzva activity. 2) The mitzva cancellation cannot be directly mentioned in the shevu’a, but must be alluded to and included in the broad spectrum of activities that are forbidden. For example, if a person takes an oath not to consume matza, he can ban matza on Pesach night as well. In his oath, he did not mention Pesach night, and he also addressed a broad spectrum of year-round matza consumption. By contrast, if a person takes an oath to eat general foods as well as forbidden food, even though he has included a broad spectrum of activities in his shevu’a, since he mentioned non-kosher foods, he ruins the shevu’a.

 

Why should a mere mention of the cancellation of the mitzva scuttle the shevu’a? Perhaps the Ritzva agrees that a shevu’a fails to break a mitzva because verbal declarations cannot directly contradict Halakha. Shevu’a generally directly contradicts and is ineffective. If the shevu’a does not mention the mitzva violation and also addresses many other types of activities, it does not directly clash with a mitzva, and is therefore effective.

 

The notion that verbal declarations that counter Halakha may be illegitimate is supported by an interesting comment by the Brisker Rav. Classically, a person cannot condition a halakhic transaction that counters halakhic expectations. This limitation, known as matneh al ma shekatuv ba-Torah, applies (at least according to most Tanna’im) to both legal as well as monetary/contractual interactions. For example, a person cannot sell an overpriced item with the stipulation that the laws of ona'ah (which limit profiteering to 1/6 margin) should be suspended. Likewise, a person cannot conduct a Kiddushin on the condition that he is exempt from the marital obligations of she'er, kesut, and onah (sustenance, clothing, and marital relations). In each instance, a transaction was qualified by a condition that clashes with halakhic dictates. Presumably, this halakha of matneh al mah shekatuv ba-Torah limits the impact of “conditions.” Although stipulated “conditions” can typically reshape halakhic transactions, anti-halakhic conditions may not. As such, this halakha would be limited to transactions about which conditions or tenaim were stipulated.

 

Based on a gemara in Bava Batra (126), the Ketzot suggests that the rule of masnah al mah shekatuv does not merely govern the stipulation of conditions, but rather disallows any halakhic action/statement that are typically empowered to create halakhic effects but are used now to subvert Halakha. For example, a father is typically empowered to verbally allocate his estate prior to his death. Yet the gemara disallows a father from disowning his child from inheritance, since this would clash with the halakha that a child should inherit. Inheritance is not a transaction; the estate automatically transitions to the children without a legal transaction. In the absence of a transaction, this statement cannot be defined as a condition or tenai governing a transaction. Evidently, halakhic verbal actions (such as redistributing inheritance) that typically create halakhic effects are ineffective in countering halakhic expectations.

 

This very interesting concept may underlie an exemption to this rule of al matneh shekatuv ba-Torah. This exception is asserted by R. Ada bar Ahava (Gittin 84). The gemara discusses the case of a man who divorces his wife conditioned upon her violating an issur (such as consuming non-kosher foods). The gemara does not disqualify this ability, even though it is clearly anti-halakhic. R. Ada asserts that since the author of this halakhic process (the man) is not violating Halakha, but merely facilitating (and encouraging) the woman's violation, the “condition” or tenai is not suspended. If stipulated conditions cannot counter Halakha, it would make little difference who is violating Halakha through the fulfillment of a condition. Perhaps R. Ada agreed to the view of the Ketzot; the matneh al mah shekatuv limitation prevents halakhic activities and halakhic declarations from violating Halakha. Since the Halakha will not be violated by the author of this halakhic declaration (but will evolve as a byproduct), it does not breach the principle of matneh.

 

The Brisker Rav asserted this view of matneh in his comments to Nazir (11a). According to R. Shimon, a nazir must willfully adopt the three aspects of nezirut. Stipulating classic nezirut assumes awareness of the entire package and yields full nezirut. However, if a nazir is unaware that he will be forbidden do drink wine, he has not “bought-in” to that aspect and is permitted to drink wine. Yet R. Shimon concedes that if a nazir states he is interested in the nezirut package but stipulates that he will drink wine, he is still forbidden to drink wine. Why should an unaware nazir be permitted to drink but one who stipulated his disinterest in the wine prohibition be forbidden to drink wine? The gemara defends this anomaly by asserting that the nazir who explicitly seeks wine permissibility has violated matneh al ma shekatuv ba-Torah.

 

The Brisker Rav questions this rule, since the nazir hasn’t willfully adopted the entire nezirut package, and he should therefore be exempt, similar to the nazir who was unaware of the wine prohibition. Based on the above definition of matneh, the Brisker Rav suggests that any halakhic declaration that contradicts Halakha is rendered meaningless. Asserting permissibility of wine to a nazir is such a violation, and the statement is therefore deleted. The nazir who stipulated wine exemption is equivalent to a regular nazir who is aware of the full package and who merely articulated “general nezirut” and the entire package applies. He was aware and his statement about wine is omitted.

 

This concept may reflect the logic of the Machaneh Efrayim and R. Eliyahu Mizrachi about a shevu’a to cancel a mitzva. The failure maybe similar to the failure of a condition that attempts to subvert Halakha. In each case, a verbal declaration is attempted, which under normal circumstances is halakhically empowered to create a challos or halakhic transformation. Yet since both the shevu’a and the “condition” counter Halakha, they are deleted, as if they had not been uttered.