Nedarim and Doctors

Nedarim (4:4) | Yisrael Bankier | 10 months ago

The Mishnah (4:4) discusses a case where one person, Reuven, made a neder preventing another, Shimon, from deriving any benefit from him. After that, Shimon then fell ill. The Mishnah teaches that Reuven would be able to visit Shimon if he stands but does not sit there. The Bartenura explains that the Mishnah is referring to a location where people are paid to sit by sick people. Were Reuven to sit there without being paid, it would be a violation of the neder.

The Mishnah continues that Reuven would also be able to provide refuat nefesh but not refuat mamon. The Bartenura explains that refuat nefesh¹ refers to healing any of Shimon's physical ailments, which would be allowed. Refuat mamon refers to healing his animals, which is not allowed. The difference is that one is obligated to heal his friend, which is covered by the mitzvah of returning his lost property. Consequently, it would not be a violation of the neder. The Rashba however finds this explanation difficult considering that hashavat aveida could easily include refuat mamon also.

The Ran (41b) explains that this case is where there is another doctor that can assist. Consequently, for the refuat mamon it is no longer hashavat aveida since someone else can tend to the problem. Nevertheless, for refuat nefesh, Reuven would still be allowed to heal Shimon since one is not necessarily healed from any doctor.

The Rashba however*,* understands that even if there was no one else, refuat mamon would not be allowed. This is because providing health recommendations for medicines, etc. would be sufficient in most cases, rather than providing active care. Consequently, in such cases it would be considered like there is someone else that could provide the service. In other words, in principle the Rashba agrees with the Ran, yet reduces the scope of where one can be lenient.

The Chazon Ish (YD 144:3) cites R' Akiva Eiger who poses a question on the Ran. He argues that refuat mamon is different to hashavat aveida. Hashvat aveida is simply returning to the owner what belongs to him. Refuat mamon however is comparable to feeding his animal, which clearly prohibited in this context. That being the case, refuat mamon should always be prohibited.

The Chazon Ish however argues that even hashavat aveida is effectively increasing his wealth, considering the alternative if it was never found. Viewed in that light, there should not be difference between refuah mamon and hashavat aveida.

The Chazon Ish therefore explains that the issue is not whether Reuven would cause an increase in Shimon's property. Instead, it is the effort exerted by Reuven, which has a value. It is the effort that Reuven is providing for Shimon that could potentially violate his neder. When considering hashavat aveida, the exertion is a mitzvah obligated by the Torah. Reuven's prime effort is in the mitzvah and Shimon simply benefits by extension. That would not be a violation of the neder and is also the reason why Reuven can visit him when he is unwell.

If so, how then do we understand the distinction presented by the Ran? What difference does it make if there is another person that can tend to the animal? If Reuven was a kohen he would be able to offer Shimon's korbanot even if there were other kohanim available. The Chazon Ish explains that behind this distinction is whether there is a mitzvah of hashavat aveida. Being defined as an aveida in the presence of the owner, is when there is only one person that can save the situation. However, when there are options available, even if the owner cannot do it himself, it is not defined as an aveidah or mitzvah. If not defined as an aveidah, then the Torah does not obligate the service provider to do so for free.

¹ The Shoshanim le'David picks up on the language refuat nefesh, noting that the more direct term would have been refuat guf. He explains that the choice of words informs the mitzvah of bikur cholim -- visiting the sick. In other words, when visiting the sick, one need not only be concerned for the physical wellbeing of the sick person, but he also need to tend to his spiritual concerns also.

The Shoshanim le'David provides an additional explanation for the choice of words. The Tosfot Yom Tov cites the Rosh who explains that he permits from Reuven to heal Shimon is only in a location where one does not get paid for this service. For example, a Hatzalah responder. Otherwise, it would be forbidden for Reuven to heal him for free, since forgoing the fee would be providing Shimon with a financial benefit. The Shoshanim le'David therefore suggest that the choice of the refuat nefesh refers to the intention that the reward for his service is purely for his nefesh and not compensation.

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