Failing To Sin

Nazir (4:3) | Yisrael Bankier | 7 months ago

The Mishnah (Nazir 4:3) discusses a case where a woman makes a neder to become a nazir and then subsequently violates the prohibitions of a nazir with prior warning. The husband heard about the neder and was meifer her neder. The Mishnah explains that the timing of the hafarah and the violations is critical. If the hafarah was after the violations, she would be liable to lashes. While the hafarah puts a stop to the neder, she is still considered a nazir until that point. Consequently, she was a nazir when she drank wine and became tameh met. If however, the hafarah was prior to the violations, according to the Chachamim, since she is was not nazir at the time she drank wine, no prohibitions were transgressed and she is no liable to any punishment. R' Yehuda however argues that even though she has technically not violated any biblical prohibitions, she would still be liable to makkot mardut -- a punishment delivered at a rabbinic level. We shall try to understand this Mishnah.

The Gemara cites the pasuk, "...Hashem will forgive her since her father restrained her" (Bamidbar 30:6) as referring to this case; implying that she requires forgiveness. Rashi explains that if the pasuk was discussing a simple case of hafarah, then forgiveness is unnecessary. Rather it must be referring to our case, where she thought she was sinning and was unaware of the hafarah. The Meiri explains that if someone fantasizes about committing a sin and then acts on it, even though no sin was committed, it requires atonement. It follows that kapara is required for that intention to sin.

The Mishnah appears to be recording a debate and that is indeed how the Tosfot (21b) understands the Mishnah. The Rambam (Nedarim 13:18) however explains as follows. Despite the fact that she intended to sin, since she was not a nazir as a result of the hafarah, she is exempt on a biblical level from lashes. The Rambam continues by citing the pasuk above. In this context, it seems that the Rambam understands that the pasuk is the basis to exempt her from the punishment of lashes. In other words, the Torah teaches in this case she "only" requires an atonement and is exempt from lashes. The Rambam then continues that nonetheless she would receive makkot mardut. It appears that the Rambam is ruling like R' Yehuda. Nevertheless, the Kesef Mishnah explains that the Rambam understands that R' Yehuda is not arguing with the Chachamim, but instead explaining their position -- there is no debate.

The way the Rambam understands what the pasuk teaches, explains why he maintains that R' Yehuda is explaining the position of the Chachamim. Recall that the Rambam appears to use the pasuk to exempt the woman in this context from lashes. The Griz (Nazir 23a) notes that it follows that were it not for the pasuk, one would think that she would be liable to lashes. In other words, there is a maaseh issur. What she did is a forbidden act. With this we can understand why R' Yehuda maintains that she should nonetheless receive makot mardut. Even though the Torah exempts here for malkut, she still did a maaseh issur. It is not that she requires a kapara because of her intention to do the wrong thing. It is that the act itself, which is a maaseh issur, requires a kapara. The Griz notes however that the pasuk applies to this specific case. One cannot assume that it in other cases where one attempted to do an issur unsuccessfully, that the Beit Din would give makko mardut. That is because it is only in this case that the Torah defines the act as an maaseh issur.

The Griz uses this to explain the difference between the Tosfot and Rambam. According to the Tosfot the fact that she is exempt is not a novelty; the neder was halted. Furthermore, this is like any other case where one intended to sin, but did not do so in practice. Consequently, the opinion of the Chachamim is only included in the Mishnah to contrast it with R' Yehuda, who would apply makot mardut in these cases. According to the Rambam however, the novelty in this case is the exemption from malkut, from which we derive that the act is nonetheless a maaseh issur. Since the hafarah is not affective to relieve the action from being defined as a maaseh issur, the is no reason to assume that the Chachamim would disagree with R' Yehuda that she would nonetheless be liable to makot mardut.¹

¹ The Griz uses this understanding of the Rambam to explain why the Rosh rules that, even though makot mardut is applied ad she'teizteh nafsho, in this case he rules that it is limited to the standard "forty" lashes. It is because in this case the makot is not for the intention to sin, but rather related to the issur nazir , which while on a biblical level is exempt for lashes, is still defined as an issur.

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