Already bound by an Oath from Mount Sinai that Supercedes Later Oaths - Introduction

 

Sources: This week's shiur as well will be an introductory shiur, not for the general rule that "a prohibition does not apply to an item that is already prohibited," but to a concept unique to the world of oaths, "already bound by an oath from Mount Sinai," and to the limitations concerning an oath relating to a mitzva. See the following sources and try to outline the laws regarding an oath to fulfill a mitzva and an oath to annul it, in regard to positive commandments and in regard to negative commandments, with respect to lashes and with respect to a sacrifice:

 

 

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            As was noted last week, this shiur as well will be an introduction to the broad issue that stands at the heart of many passages dealing with oaths and vows – an oath regarding one of the Torah's commandments. In this shiur we will try to create an initial mapping out of the topic.

 

            This issue arises in the case of an oath to fulfill a Torah law and in the case of an oath to cancel a Torah law, and the Torah law in question can be either a positive commandment or a negative commandment. Thus we must relate to four different situations, and concerning each one we must examine whether the oath has validity, both with regard to a sacrifice and with regard to lashes.

 

            From among these four situations, we can see already at first glance that one case borders on the rule that "a second prohibition does not apply to an item that is already prohibited," which was the subject of last week's discussion: When a person takes an oath not to transgress a Torah prohibition; e.g., "I swear that I will not eat neveila," it would appear that the oath does not take effect, owing to the general rule that a second prohibition does not apply to an item that is already prohibited, without any limitations unique to the world of oaths.

 

Let us begin with the passage on p. 27a. The Mishna there establishes that if one swore to annul a mitzva, but did not annul it, he is exempt from all the liabilities connected to an oath. The Tannaim, however, disagree about one who swore to fulfill a mitzva, but did not fulfill it. According to the anonymous first Tanna, whose opinion has been accepted as the law, he is exempt; whereas Rabbi Yehuda ben Betera rejects this view with a fundamental argument:

 

Now, if for an optional matter, for which he is not already bound by an oath from Mount Sinai, he is liable; for a mitzva, for which he is already bound by an oath from Mount Sinai, he should most certainly be liable.

 

According to conventional terminology, the idea of "already bound by an oath from Mount Sinai" is the reason that an oath regarding a mitzva has no validity even when one takes an oath to fulfill the mitzva. But according to Rabbi Yehuda ben Betera the fact that we are bound by an oath already from Mount Sinai is reason to give the new oath more force, not less. It seems that it is easier to give force to an oath regarding an action that God already commanded than it is to create an entirely new halakhic obligation. How do the Sages counter this argument? It is stated in the Mishna:

 

They said to him: No! If you say that for an oath in an optional matter he is liable, it is because Scripture has in that case made negative equal to positive for liability; but how can you say that for an oath to fulfill a mitzva he is liable, since Scripture has not in that case made negative equal to positive, for if he swore to annul a mitzva, but did not annul it, he is exempt.

 

            It may be concluded from here that even the Sages agree that the term "already bound by an oath from Mount Sinai" is in itself a principle that strengthens an oath to fulfill a mitzva, and does not weaken it, and the reason that an oath to fulfill a mitzva has no validity is different than the reason that denies validity to an oath to annul a mitzva. The reason is that we require "negative equal to positive." Chazal learned from the verses that an oath is valid only if it is possible to swear also the negation of that oath. Since it is impossible to take an oath to annul a mitzva, it is also impossible to take an oath to fulfill a mitzva.

 

            However, a Baraita in the Gemara sounds a different note:

 

Our Rabbis taught: I might think that if he swore to annul a mitzva, but did not annul it, he should be liable. Therefore it is stated: "To do evil, or to do good"; just as doing good is optional, so doing evil must be optional; I must therefore exclude: If he swore to annul a mitzva, but did not annul it; for which he is exempt. I might think that if he swore to fulfil a mitzva, but did not fulfil it, he should be liable. Therefore it is stated: "To do evil, or to do good"; just as doing evil is optional, so doing good must be optional; I must therefore exclude: If he swore to fulfil a mitzva, but did not fulfil it; for which he is exempt.

 

            From here it would appear that there is symmetry between the two reasons. One can only take an oath regarding that which is defined as an optional matter. An oath relating to a mitzva, whether it relates to it positively, i.e., to fulfill the mitzva, or it relates to it negatively, i.e., to annul it, is an oath that strays from the autonomous region in which a person can set for himself rules. The realm of mitzvot is not under his control, and he cannot create within it the obligations of an oath.

 

            As for the position of Rabbi Yehuda ben Betera, that an oath to fulfill a mitzva is valid, the Tosafot on p. 27a, s.v. le-kayem, argue that we are dealing only with positive commandments; but even Rabbi Yehuda ben Betera agrees that an oath to fulfill a negative commandment does not take effect, because of the rule that a second prohibition does not apply to an item that is already prohibited.[1] In contradiction to what is stated here, the Tosafot on p. 20b, s.v. de-khi write:

 

The fact that vows apply to a mitzva object relates to the annulment of a mitzva, as is taught in the second chapter in Nedarim (16a): How so? If one said: Konam, that I will not take a lulav, that I will not don tefilin, as is concluded there in the Gemara from "If one takes a vow to God," which teaches that it applies even to a matter of God. But if one took a vow to fulfill a mitzva, e.g., if he said: Konam that I will not eat on Yom Kippur, or that I will not eat neveilot and tereifot, it does not apply, because a second prohibition does not apply to an item that was already prohibited. Therefore we need the rationale that it is by Rabbinic law. However, according to Rabbi Yehuda ben Betera, who maintains below in our chapter (27a) that one who swears to fulfill a mitzva is liable, all the more so a vow that applies to annul a mitzva should apply to fulfill a mitzva.

 

            The Tosafot on p. 20b maintain that Rabbi Yehuda ben Betera disagrees about applying the rule that "a prohibition does not apply to an item that is already prohibited" in the world of oaths and vows, and therefore oaths and vows to fulfill Torah prohibitions apply. See also Ramban (ad loc., s.v. hakhi garsinan) who says that even according to Rabbi Yehuda ben Betera, a prohibition of a vow (neder) does not apply to an item that is already prohibited, and only with regard to an oath (shevua) can a second prohibition apply to an item that was already prohibited, but this is because "it is a more stringent prohibition, and it applies to make him liable for a sacrifice." According to Rabbi Yehuda ben Betera, a second prohibition does apply to an item that is already prohibited when the second prohibition has a special stringency regarding a sacrifice and lashes.

 

In the Hagahot to Responsa Noda Be-Yehuda (1^st series, Orach Chayim, no. 36), it says:

 

It is true that from the fact that it says in many places: "But surely he is already bound by an oath from Mount Sinai," and it doesn’t say simply: "But surely a second prohibition does not apply to an item that is already prohibited," the implication is that were it not for the fact that he is already bound, the oath would apply, for it is only an oath that does not apply to an oath. However, this matter requires examination in several places in the Gemara, but this is not the place for that.

 

            According to this opinion, in the case of an oath to fulfill a prohibition, the rule that a second prohibition does not apply to an item that is already prohibited does not apply. To explain this, it seems that if an oath does not create a prohibition, but merely leads to the situation that breaking the oath turns it into a falsehood, we are not dealing with a second prohibition applying to the same thing.[2] If we were to apply this to the view of the Tosafot on p. 20b, we must expand this to the world of vows, and say that the prohibition of "He shall not break his word," is a prohibition that stands on a plane that is essentially different from other prohibitions, as it is focused on the breaking of one's word, but this is not the forum in which to expand upon the matter.

 

            In any event, according to many opinions, and especially according to the Sages, the general rule that a second prohibition does not apply to an item that is already prohibited applies to an oath to fulfill a prohibition parallel to the limitations unique to the world of oaths and vows.

 

 

            The Gemara in Nedarim 16b-17a brings two different sources for an oath's inability to annul a mitzva. The second source brought is that which we already saw in the Baraita in Shevuot 27a: "'To do evil, or to do good'; just as doing good is optional, so doing evil must be optional; I must therefore exclude: If he swore to annul a mitzva, but did not annul it, because it is not optional." But before that the Gemara brings a source that we have not yet seen:

 

From where do we know that one cannot swear [a valid oath] to violate the mitzvot? From the verse: "[When a man… swear an oath…] he shall not break his word," [this implies,] he may not break his word, but he must break a word [i.e., an oath] in respect of heavenly matters.

 

            According to this derivation, one is permitted to break one's word for the purpose of a mitzva (the simple understanding is that this derivation is in accordance with the view of Rabin in Shevuot 21a, that an oath relating to the future is derived from "He shall not break his word"). It may ostensibly be concluded that the oath to annul a mitzva takes effect, only that one is permitted to break it, and thus he is obligated to do so because of the mitzva. But it seems that the simpler understanding is that the oath does not take effect, and therefore it falls into the category of a vain oath.

 

            Here, the Gemara explains, we must distinguish between a vow, which takes effect to annul a mitzva, and an oath, regarding which we apply the aforementioned Scriptural decree. This is because an oath relates to the person, whereas a vow relates to the object. The Ran explains that one cannot remove the obligation of a mitzva from a person by way of obligating himself with an oath: "One cannot release himself from the mitzva of sukka regarding which he is commanded."

 

            It should be noted, and it is possible that this will have significance later in our study, that a slightly different explanation may be found in the Rosh:

 

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 look. We are dealing with a Scriptural decree, but it is based on giving weight to the denial of validity to formulations that express rebellion against the Torah.

 

            In any event, the Gemara asks why is it that two derivations are necessary, and it answers: "One verse is to exempt him from the sacrifice due for violating an oath, and the other is to exempt him from punishment for having violated the injunction concerning an oath." The derivation from "to do evil or to do good" is an exclusion from the sacrifice brought for a shevuat bitui, but this does not suffice to teach us that there is no violation of the prohibition to annul an oath when one breaks an oath to annul a mitzva, and therefore we need the derivation from "He shall not break his word," which is found in a passage, which deals exclusively with the prohibition. However, attention should be paid to a major difficulty relating to this passage, namely, the reverse necessity for the two derivations. If we learn from "He shall not break his word," that there is no prohibition regarding an oath to annul a mitzva, and that when a person swears not to eat matza on the night of Pesach the Halakha tells him that he is obligated to eat matza, how could I have thought that he would be liable for a sacrifice if he eats the matza and carries out the halakhic guidelines that he had received? We will return to this objection later in our study.

 

            In any event, let us try now to examine the law in the various cases (an oath to fulfill a mitzva and an oath to annul it; a positive commandment and a negative commandment) with regard to a sacrifice and lashes. In the case of an oath to annul a mitzva, we see in the Gemara in Nedarim that one who takes such an oath is removed not only from a sacrifice, but also from lashes (presumably this is true for both positive and negative commandments).

 

Regarding an oath to fulfill a negative commandment, it clearly follows from the Gemara in Makkot 22a that there are no lashes: "Why not include [for the purpose of counting lashes] also the case of one who swore: I shall not plow on the Festival day? In that case the oath does not take effect, because he is already bound by an oath from Mount Sinai." It would seem that the rationale that removes the lashes is that "he is already bound by an oath from Mount Sinai." It should be noted that according to the Commentator there (who is not Rashi), the source for this is that "he is already bound by an oath not to annul the mitzva, and we derive from 'to do evil or to do good' in Shevuot that this is not an oath." According to him, the exclusion from the words "to do evil or to do good" relates not only to the sacrifice but also to lashes.

 

            Regarding the fourth case, an oath to fulfill a positive commandment, the Rishonim disagree whether the oath is removed only from a sacrifice, or also from lashes. This dispute rests on different readings of the fundamental passage in Nedarim 8a, but we will not address this passage at the present time, but only note the opinions of the Rishonim.

 

            The Ba'al ha-Ma'or at the end of our chapter writes (the Ran in Nedarim 8a agrees):

 

Regarding one who swears to fulfill a positive commandment, the oath and the vow take effect with regard to lashes, but not with regard to a sacrifice, because Scripture only excludes that where the negative is not equal to the positive from a sacrifice, regarding which it is written: "To do evil or to do good." (12b)

 

            According to the Ba'al ha-Ma'or, as opposed to an oath to annul a commandment, which is a norm that a person has no authority to cancel, an oath to fulfill a mitzva takes effect, though it does not meet the conditions set for a sacrifice brought for a shevuat bitui, since the negative is not equal to the positive. Why then are there no lashes in the case of an oath to fulfill a negative commandment? Here, says the Ba'al ha-Ma'or, enters the rule that a second prohibition does not apply to an item that is already prohibited:

 

Regarding one who swears to fulfill a negative commandment, there is no punishment for the oath, whether he fulfilled it or annulled it, for he is not liable for the annulment of the commandments because of the oath, either for a sacrifice or for lashes. This is what they said at the end of Makkot: "Why not include [for the purpose of counting lashes] also the case of one who swore: I shall not plow on the Festival day? In that case the oath does not take effect, because he is already bound by an oath from Mount Sinai." That is to say, the prohibition of the oath does not take effect in addition to the prohibition of the commandment, because as second prohibition does not apply to an item that is already prohibited.

 

            In contrast to the plain understanding of the Gemara in Makkot, the source lies not in the laws of oaths ("he is already bound by an oath from Mount Sinai), but in the general law that a second prohibition does not apply to an item that is already prohibited, which includes an oath regarding that which is prohibited by Torah law.

 

            Considering the laws of oaths in themselves, an oath to fulfill a commandment creates a prohibition, but no liability for a sacrifice. Can we explain this logically? According to what we suggested in the past regarding the opinion of Rabbi Yishmael, and especially according to Rav Dimi (20b), the liability for a sacrifice focuses on the creation of an autonomous law - "To do evil or to do good" - whereas the liability for lashes focuses on the falsehood in the oath. Following this line, there is room to suggest regarding the view of the Ba'al ha-Ma'or that creating such a law has no meaning when it is impossible to act in opposition to the proposed law; therefore, the oath is removed only from the sacrifice. However, as may be recalled, we must deal also with the opposite distinction. According to what we suggested regarding the opinion of Rabbi Akiva, and especially according to Ravin (21a), the liability for a sacrifice focuses on the false utterance of the person's lips; whereas the liability for lashes is for breaking the new law, similar to vows ("He shall not break his word"). According to this, it follows that the need for the negative being equal to the positive is precisely in the area of false utterances, and so, the matter requires further investigation.

 

            In two places the Ramban disagrees with the opinion of the Ba'al ha-Ma'or and the Ran. In the Milchamot ad loc. (13b) he writes:

 

Even an oath to fulfill a positive commandment does not take effect either for a sacrifice or for lashes, for it is written: "He shall not break his word," and heavenly matters are not included, which excludes it from the prohibition of an oath.

 

            The Ramban uses the derivation brought in the Gemara in Nedarim as a source for the fact that there is no prohibition of an oath in the case of an oath to cancel a mitzva, and he assumes that this is valid also for an oath to fulfill a mitzva. The Ramban writes something slightly different in his commentary to the Torah (Bemidbar 30:3):

 

Oaths come only to prohibit that which is permitted, they do not apply at all to a mitzva, not to annul a negative commandment nor to fulfill it; not to annul a positive commandment, e.g.: I swear that I will not build a sukka or that I will not don tefilin; and it does not apply even to fulfill a positive commandment. For one who takes an oath to fulfill a commandment, but doesn't fulfill it, is not liable because of an oath either for lashes or for a sacrifice.

 

            Here too the Ramban takes a derivation brought in the Gemara and expands it. His words imply that this is the derivation that states that oaths are valid only with regard to voluntary matters, with the Ramban assuming that in this matter there is no difference between fulfilling the commandment and annulling it, between positive commandments and negative ones, or between a sacrifice and lashes. It is a sweeping exclusion, whether it is derived from "his words," and not heavenly matters, or it is derived from "to do evil or to do good" – there is a whole realm in which oaths do not apply at all, namely, the Torah's commandments.[3]

 

            To complete this survey, I wish to note that an exceptional view is brought in Responsa Tashbetz (I, no. 100):

 

There is an authority who says that an oath applies to a positive commandment, from what we said in Nedarim (8a): "From where do we know that an oath may be taken to fulfill a mitzva?" And this authority maintains that the oath applies even for a prohibition, from that fact that it says there "that one may encourage himself," and if it doesn't take effect, what encouragement is there….

 

            According to this opinion, since legitimization was given to take an oath to fulfill a positive commandment as an encouragement to observe the mitzva, it can be argued that the oath was given full force so that it carries liability for lashes and a sacrifice. It stands to reason that according to this the passage in Shevuot 27a should be understood as relating exclusively to an oath to fulfill a negative commandment, regarding which encouragement does not apply (and according to this we are forced to say that Rabbi Yehuda ben Betera disagrees also about this and gives validity to an oath to fulfill a negative commandment, and that he is not bothered by the problem of a second prohibition applying to an item that is already prohibited, similar to the opinion of Tosafot on p. 20b that we saw above).

 

 

            What is the meaning of the concept of "already bound by an oath from Mount Sinai? Let us examine the wording of the Gemara in Nedarim 8a:

 

Rav Giddal said in Rav's name: He who says: "I will rise early to study this chapter or this tractate," has vowed a great vow to the God of Israel.

But is he not already bound by an oath from Mount Sinai, and an oath cannot fall upon another?....

 

            The wording of this passage implies that our commitment to observe the Torah is based on a sort of oath, and a person who takes an oath about a certain matter has already used up his power to swear about that matter and he cannot invoke it a second time, since one oath cannot fall upon another. See Devarim 27:26, where we are commanded that upon entry into the land of Israel we are to proclaim on Mount Eival the words of the curse: "Cursed be he that confirms not the words of this law to do them. And all the people shall say: Amen." Rashi explains: "Here he included [the infringement of the commands of] the entire Torah [under a curse] and they took it upon them [pledging themselves] by an execration and an oath." If so, we have before us an acceptance by way of an oath of the entire Torah, except that this is not from Mount Sinai, but rather from Mount Eival. In Nedarim 25a, mention is made of an earlier oath, in the plains of Moav: "Thus we find that when Moshe swore the people of Israel in the plains of Moav, he said to them: 'Know that I do not swear you according to your understanding, but according to mine, and to that of God'". In Sota 37a-37b, the Gemara adds that the oaths commenced at Sinai, continued in the plains of Moav and ended on Mount Gerizim and Mount Eival, and "there is not a single precept written in the Torah in connection with which forty-eight covenants were not made" (see there the different opinions). It is possible that there are two different layers of oath: An oath on general commitment to God's Torah, and an oath on each and every commandment by itself. And while it is clear that our obligation to the Torah is not solely by way of an oath, but also by way of a Divine command, nevertheless it rests also on the foundation of these oaths, and we can understand that it is this foundation that limits our capacity to take additional oaths.[4] See the Ran in several places[5] where he argues that the law of "already bound by an oath from Mount Sinai" applies only to that which is stated explicitly in the Written Law, but not to the expositions of the Sages. This indicates that we are not dealing with a limitation based on our obligation to the Torah, but precisely because of our oath, with the Ran maintaining that this oath was only made in connection with the Written Law.[6]

 

            The Avnei Nezer followed in this path. He had difficulty understanding the force of an oath to accept the Torah before we received the various prohibitions relating to an oath. He writes as follows:

 

I have another difficulty with the oath at Mount Sinai, which is the foundation of our acceptance of the Torah. Surely all that time that they had not yet received the Torah, they were not commanded about oaths! And furthermore, even if they were commanded, nevertheless the entire force of an oath is because of the mitzva: "He shall not break his word." And how is this prohibition greater than the rest of the prohibitions in the Torah? What does the force of an oath add to the prohibitions of the Torah, seeing that an oath is also based merely on a prohibition? Therefore, the matter seems to be as follows: Certainly one who takes an oath to another person, reason dictates that he is obligated to fulfill it, and there is no need for any prohibition. This is the oath of Avraham, Yitzchak and Eliezer, and the same is true of one who swears to God. But someone who takes an oath to himself that he will not do a certain thing or that he will do it, regarding this there is no reason, for to whom did he obligate himself? If you say: to God, from where do you know that God desires this obligation or prohibition? It was therefore necessary for the Torah to command: "He shall not break his word; he shall do according to all that precedes out of his mouth." And therefore we also understand the oath of Mount Sinai where they swore to God to fulfill His commandments. This is by way of reason. But for an obligation based on reason we do not find in the Torah any punishment at the hand of man. (Responsa Avnei Neizer, Yoreh De'a, 306, nos. 16-17)

 

In this context it is interesting to note the words of the Shakh (Yoreh De'a, 119, 21), who explains that a person who is suspected about a certain matter is not believed about that matter even if he takes an oath (Shulchan Arukh, Yoreh De'a 119:8), even though ostensibly he is suspect only about the matter under discussion, and not about swearing falsely, because "he is already suspect of transgressing an oath, since he is already bound by an oath from Mount Sinai." This implies that anyone who transgresses a Torah prohibition transgresses also the prohibition of swearing falsely. It is, however, difficult to accept these words in their plain sense, and the Chazon Ish already objected to them:

 

We must examine the matter. If so logic dictates that for every trivial transgression that a person commits he should be disqualified from taking an oath. But in Choshen Mishpat 92 it says only that if one committed a transgression that disqualifies him from being a witness is he disqualified from taking an oath, and that is a transgression for which one receives lashes, as is explained in no. 34. And it seems, that even though Moshe swore Israel in his sense and in God's sense to keep the Torah, as is stated in Nedarim 25a, nevertheless the later generations are not subject to a real prohibition of oath, but rather to a covenant, which is like an oath, but there is no liability for it on account of an oath. For if this were not so, every negative commandment for which there are no lashes, let them warn him based on the prohibition of an oath and then let him receive lashes. And furthermore, surely an oath does not apply to an item that is prohibited, because of the rule that a prohibition does not apply to an item that is already prohibited. But it seems that that which they said in Nedarim 8a; Shevuot 23b; Makkot 22a, "he is already bound by an oath from Mount Sinai," is not precise, but rather "he is already bound by a warning [from Mount Sinai], and an oath does not take effect. (Chazon Ish, Yoreh De'a, 2, no. 27)

 

The Chazon Ish himself maintains that the expression "already bound by an oath from Mount Sinai" is imprecise, and the foundation of the rule is that we are already "bound by a warning" regarding the Torah's commandments, and this is what limits our power to take an oath about them.

 

This is an understanding that is different from the understanding that we saw earlier, which argues that the critical point is the obligation and not the oath. We find even more in the Yerushalmi and in the words of Rashi in several places in our chapter. In the Mishna on p. 29a it is stated that one who takes an oath that contradicts an oath that he had taken previously is not liable for the second oath for shevu'at bitui (but only for a vain oath); and in the Mishna on p. 27b it is stated that even one who takes an oath that supports an oath that he had taken previously is not liable for the second oath for shevu'at bitui. It would seem that these laws are the conceptual foundation for the invalidity of an oath regarding a mitzva, because even the mitzvot fall into the category of "already bound by a previous oath." In the Yerushalmi, however, we find the opposite causal relationship between the cases: "Because he mentioned an oath in its connection, he made it like a neveila, from now on it is like applying oaths to prohibitions, but oaths do not apply to prohibitions" (3:7). Here we are dealing with an oath that supports another oath, and it is stated that the point is that the first oath created a Torah prohibition in the loaf of bread similar to the prohibition of neveila, and therefore an oath that supports it is essentially an oath that supports a Torah prohibition, and this is the reason that it does not apply, this being the reverse of the argument that an oath that upholds the commandments of the Torah does not take effect because "one oath does not apply to another" in accordance with the plain sense of the Gemara in Nedarim 8a. Thus writes also Rashi: "Because an oath does not apply to another oath, for since he took the first oath, the second oath comes to uphold the mitzva, and we learned in the Mishna that he is exempt (21a, s.v. eino); and he adds that the same applies to an oath that contradicts a previous oath: "And the second is a vain oath, since he swore to annul a mitzva" (29a). If so, not only is the point of an oath regarding the mitzvot of the Torah not that of an oath on an oath, but rather an oath on a halakhic commitment, as argued by the Chazon Ish, but even an oath on an oath is based on the halakhic obligation and not on the oath.

 

 

            As we have seen, the limitations of taking an oath with regard to a mitzva are certainly not only because of the rule that a prohibition does not apply to an item that is already prohibited, for they exist even in relation to an oath to annul a mitzva and in relation to an oath to fulfill a positive commandment. We are dealing then with two separate limitations, which according to many opinions apply in tandem to an oath to fulfil a negative commandment.[7] Is there a practical difference between them?

 

            The Shulchan Arukh writes:

 

If one said: I swear that I shall not eat neveilot and tereifot, and he ate, he is not liable for swearing falsely, since he is already bound by an oath from Mount Sinai (Yoreh De'a 238:4)

 

            We find an important novel idea in the words of the Shakh:

 

There seems to be a practical difference even today with regard to a sick person who may be fed neveila, that there is no need to annul his vow. (no. 5)[8]

 

            The Shakh argues that when a person takes an oath not to eat neveila, his oath does not take effect, so that even if he will have to eat neveila for the purpose of saving his life (pikuach nefesh), it is not necessary to annul his oath. The Peri Megadim (in his introduction to Hilkhot Pesach) questions this, for even when "a prohibition does not apply to an item that is already prohibited," the second prohibition takes effect, only that it does not carry any punishment (which, as may be recalled, is the Peri Megadim's position); if so, in our case as well, the second oath should take effect, but without any punishment. If so, why should there be no obligation to annul the oath in a time of need? Of course, the Peri Megadim's assumption is that the invalidity of an oath that confirms a Torah's prohibition is part of the rule that "a prohibition does not apply to an item that is already prohibited," and subject to its conditions. The Avnei Milu'im (Responsa, no. 12) disagrees with this assumption, arguing as we do that we are dealing with different halakhic limitations: "This is the difference between the rationale that a prohibition does not apply to an item that is already prohibited and the rationale that one is already bound by an oath from Mount Sinai. According to the former, the second prohibition takes effect, only that there is no liability for the punishment of a sacrifice or lashes, but there is still a prohibition. But according to the latter rationale, a person cannot prohibit the matter to himself, and the oath does not take effect at all." "Already bound by an oath from Mount Sinai" results in the fact that the oath has no validity whatsoever, and therefore there is no need to annul it.

 

            Now it emerges from the words of Rabbi Akiva Eiger (Hagahot to the Shulchan Arukh, Yoreh De'a 238, no. 26) that he understood that the Shakh's novelty depends on the dispute between the Ba'al ha-Ma'or and the Ramban regarding an oath to fulfill a mitzva. According to the Ramban, there is no difference between an oath to fulfill a mitzva and an oath to annul it, for in any case we are dealing with a realm regarding which a person has no authority to take an oath; according to him, there is room for the opinion of the Shakh and the Avnei Milu'im. However, according to the Ba'al ha-Ma'or and the Ran, an oath to fulfill a positive commandment takes effect with respect to lashes, and an oath to fulfill a negative commandment does not take effect even with respect to lashes, but that is only because of the rule that a second prohibition does not apply to an item that is already prohibited; and therefore an oath not to eat neveila is governed by the same rules as the rules for "a second prohibition does not apply to an item that is already prohibited" (with respect to lashes). What this means is that the oath takes effect, only there is no punishment for it, but it is necessary to annul it in order to eat neveila when that is permitted in order to save a life. This is based on the Avnei Milu'im's struggle with the Peri Megadim's difficulty, who understood that the way to reconcile the words of the Shakh is by basing the invalidity of the oath on the laws of "already bound by an oath from Mount Sinai," and not on the laws of "a second prohibition not applying to an item that is already prohibited." However, there may be another way to reconcile the words of the Shakh. It is possible that even if the invalidity of the oath is based on the law of "a second prohibition not applying to an item that is already prohibited," it is not like the usual case where it can be argued that the second prohibition is fundamentally in effect. In the usual case we are dealing with a prohibition that has an identity of its own. Thus, for example, when Reuven betroths Lea, Rachel's sister, and Rachel is a nidda at the time of the betrothal, and therefore the prohibition of "a wife's sister" does not apply to her, it is clear that Rachel turns into a "wife's sister" at the time of the betrothal, and thus there is room to say that in fact the prohibition of a wife's sister does take effect, only that there is no liability for punishment. With an oath, however, there is no status that applies to the object of the oath, and we are dealing with a prohibition that takes effect because of the moment of the oath. If the time of the oath lacks validity, even if for the reason that a second prohibition does not apply to an item that is already prohibited, there is ample room to argue that this oath leaves no impression whatsoever and has no practical ramifications.

 

            In this shiur I tried to review the various sources and the main opinions regarding the validity of an oath concerning a mitzva. In the next shiur we will once again advance in our chapter and begin to study the passage dealing with this issue, armed with the fundamental concepts regarding "already bound by an oath from Mount Sinai" and "a second prohibition does not apply to an item that is already prohibited."

 

(Translated by David Strauss)

 

Sources for the next shiur: One Who Takes an Oath Not to Eat and He Ate Neveilot

 

In the next shiur we will begin to discuss one of most fundamental passages in our chapter regarding the law of "already bound by an oath from Mount Sinai." See the end of the Mishna on p. 22b, "shevu'a shelo okhal ve-akhal okhelin…" and in the Gemara on p. 23b until 24b (top), "mi akhsheveih"; Rambam, Hilkhot Shevuot 5:5-6, 10-11.