A Nazir Like Him

Nazir (1:1) | Yisrael Bankier | 12 years ago

A person who makes a nazir vow become a nazir and takes on three prohibitions: cuttings his hair, becoming tameh met and consuming any grape products. As it is a form of neder, much like masechet nedarim, masechet nazir opens by discussing the kinuyium (alternate but explicit terminology) and yadot (partial but implied phraseology) that have the full weight of an explicit neder nazir.

The first two yadot listed are if the person see “ehei” (I will be) and “ehei naeh” (I will be beautiful). The first question to address is how do these expression qualify as yadot. 

The Gemara (Nazir 2b) is initially unsatisfied as ehei is not necessarily related to nazir, it might relate to fasting. Shmuel explains that Mishnah is referring to a case where the person said “ehei” as a nazir walked by.  The Gemara is still unsatisfied, as “ehei” could be understood as taking on the obligation to provide the korbanot for the nazir. The Gemara explains that he “said it in his heart”; he intended to accept a nazir oath. 

The Tosfot explains that even though he intended to accept a nazir oath, the case still requires that a nazir was walking by. There reason is that a nazir oath, like all nedarim, must be articulated. When the nazir walks by however, his intention helps to make it as if he is saying, “I will be (ehei) a nazir like him”.

The Gemara (Kidushin 50a) concludes that we dismiss devarim she’balev, unarticulated thoughts. Now granted that we have learnt that if one intends to make a neder against wheat but says barley then it is not effective. The Rashba citing Rabeinu Tam however explains that in that case it was a mistaken neder and as if it was never articulated (similar to nidrei shegagot). The Rashba however asks, how then does his desire to become a nazir help in this case? Granted that the novelty of yadot is that the neder can be less specific, however there appears to be a reliance on devarim she’belev in this case. 

The Rashba explains that the principle that we dismiss devarim she’balev is only when those devarim contradict what is said. For example if during a business transaction a person has in mind, but never articulates, a condition of sale. If however they support the articulated word, like in our case, then they are indeed considered. Put simply the principle is not applied in all situations and only when they contradict the articulated word. 

The question raised on the Rashba is that since the devarim shebalev support his statement “ehei” why do we require a nazir to be walking by? The “ehei” and devarim shebalev should be enough.

The Achiezer (II, YD, 19:3) explains that a neder requires two things. The first is that the neder must be articulated explicitly. The second is that speech alone is not enough and it must be with the intention of the noder (much like kinyanim). 

For the first requirement, devarim she’belev never helps. Yet with respect to this requirement, the Torah introduced the concept of yadot. In other words, even a partial articulation is enough provided it is indicative enough toward the neder. Therefore in our case we require the nazir to be walking by to ensure the term “ehei” satisfies the first requirement.

The Rashba is addressing the second requirement. The person must have intention for the neder to take affect, for the “transaction” to occur. Provided that they do not contradict the clear action, devarim she’balev in this case are considered. 

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