Heilech

Heilech
By: Rabbi Avi Lebowitz

Rabbi Chiya says that included in the case of modeh b’miktzas where the person partially admits and partially denies is also a case of “heilech”. Meaning, Reuven claims that Shimon owes him one hundred zuz. Shimon responds by denying fifty and admitting on the other fifty, saying “heilech”. Rabbi Chiya holds that Shimon is required to take an oath on the fifty that he denies. Rav Sheishes disagrees and holds that heilech is exempt, because the fifty that he is admitting on is as if it has already been returned to the lender and the entire claim is only on the fifty that is being denied, so it is a case of kofer hakol, which does not require an oath.

Rashi implies that in order to qualify as heilech in a case of a loan, the borrower must say that he didn’t spend the money, but if he would have spent the money and is presenting the lender with other money, that would not qualify as heilech.

The Hagahos Ashri understands Rashi exactly like this, and therefore holds that if the borrower spent the money and is now replacing it by returning other money, even though we rule in accordance with Rav Sheishes that heilech is exempt, the borrower would have to swear because this isn’t a case of heilech.

However, the Bach on the Rosh says that Rashi is not coming to define heilech, rather he is coming to explain Rabbi Chiya who says that even by heilech the borrower must swear. Rashi is coming to say that even if the money has never been spent and it is a supercharged heilech, Rsbbi Chiya would still hold that the borrower must swear. But it is entirely possible that Rashi would hold that according to Rav Sheishes that heilech is exempt, it would even be exempt if the original money was spent so long as now the borrower is presenting the lender with other money in its place.

The Gr”a quotes from the Ran that a case of a loan is always considered as if the money has been spent since it is given to spend, and therefore a loan never qualifies as heilech. The only situation of heilech is when one gives another something to watch, and then presents him with only part of it at the time he returns it and denies the other part of it. Based on these Rishonim, in a case of a loan, even if it hasn’t yet been spent, the borrower would have to swear.

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From their Mouth's and not from their Writings

The Gemora (Gittin 71) states that testimony is valid only from the mouths of the witnesses, not on the basis of any documents. It is evident that writing is not the same as talking.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

Reb Akiva Eiger discusses some other practical applications for this principle.

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The Law of the Kingdom is the Law

The Gemora in Shabbos 88a teaches that when Bnei Yisroel stood at Mount Sinai and heard the word of Hashem, He held the mountain over our heads. Hashem declared, “If you’ll accept the Torah, all will be well. If not, this will be your burial place!” Rav Acha bar Yaakov said: This can now be used as an excuse for Klal Yisroel when they do not perform the mitzvos. For when they are summoned for judgment, they can claim that they were coerced into accepting the Torah; it was not done willingly.

The Perashas Derachim asks from our Gemora (Nedarim 28a) which states that the law of the kingdom is the law and we do not allow a person to vow deceptively. If so, this should certainly apply by The Holy One blessed is He, Who is the King of all Kings. How could Klal Yisroel use the coercion as an excuse? The law of the kingdom is the law, and they took an oath obligating themselves to perform His mitzvos!

He answers that Rabbeinu Tam holds that the principle of the law of the kingdom is the law is only applicable if the king decrees on all his subjects. However, if the decree is issued only on part of his kingdom, this principle does not apply. Since Hashem is the King over all the nations of the world and He only forced Bnei Yisroel to accept His mitzvos, this principle would not apply and hence, a claim of coercion can be effective.

It emerges that regarding the seven mitzvos that were given to all Bnei Noach, the principle of the law of the kingdom is the law would apply, and a claim of coercion would not be valid.

According to this, we can explain the argument between Pharaoh and the midwives. Pharaoh asked them, “Why didn’t you listen to my commandment? The law of the kingdom is the law and since I the king decreed that all the Jewish children should be killed, you are obligated to listen to me!” They responded to him, “Your decree is not a universal one; it was only issued regarding the Jewish children and not to any others. Accordingly, the principle does not apply and we are not obligated to adhere to the laws of the kingdom. Thereupon, Pharaoh immediately decreed that all children born must be thrown into the sea.

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Holding a Sacred Object

The Gemora (Nedarim 25a) relates the following incident: There was a person who was owed money by his friend, and the two of them came before Rava. The lender said: Pay me! The borrower said: I already did! Rava said: Swear that you paid him. The borrower then filled his cane with the amount of money he borrowed and leaned on it while walking to Beis Din. Before he took the oath, the borrower asked the lender to hold his cane for him while he took the oath. The borrower then took a Sefer Torah and swore that he had given the lender whatever he had owed him. When the lender heard this he got upset and broke the cane, causing the money to fall out. It was apparent that he had “paid” him all of the money.

Rabbeinu Tam understands this Gemora to mean that the borrower denied the entire claim and was liable only for a Rabbinic oath (called a shevuas hesseis). Nevertheless, he took the Sefer Torah in his hand prior to taking the oath. This would prove that one needs to hold a sacred object even by a Rabbinical oath.

He also presents proof to this from the Gemora in Shavuos (41a) which inquires as to the differences between a Biblical oath and a Rabbinical one. The Gemora does not offer this difference; namely, that a Biblical oath would necessitate the holding of a sacred object and a Rabbinical one would not. This proves that a Rabbinical oath also required the holding of a sacred object.

The Gaonim disagree and maintain that one is not required to hold a sacred object when taking a Rabbinical oath. The Meiri writes that our Gemora cannot serve as a proof against this, for we are discussing a case where the borrower decided himself to hold the Sefer Torah. He did this as a ruse in order to get the lender to hold his cane.

According to the Ran’s explanation of our Gemora, there would be no proof at all. For our Gemora is discussing a case where the borrower admitted to part of the claim made against him. Since he wishes to avoid paying the rest of the claim, he is Biblically obligated to take an oath that he does not owe the remainder of the claim. This oath obviously requires him to hold a sacred object.

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Second One Takes Effect

The Gemora (Nedarim 18a) states: Although the Mishna had stated that if someone makes two consecutive oaths that he will not eat something and he eats it, he has transgressed one prohibition (for the second one does not take effect), if the person asked for the first oath to be permitted (and it was), the second oath is now valid.

There is a discussion if the second oath (before the first one was annulled) is regarded as an oath taken in vain (similar to an oath to nullify a mitzvah).

The Ritva writes: If he has the first one annulled, the second one is not regarded as an oath taken in vain, for now, it takes effect. He, therefore, would not incur lashes for the second oath.

The Nimukei Yosef maintains that even while the first oath is intact, the second oath is not regarded as an oath taken in vain. This is because it has potential for being a valid oath, i.e. if the first one is annulled. Others say that it is not considered in vain for the second oath is essentially an oath in order to uphold a mitzvah (fulfilling the first one), and we learned above that this is an admirable thing to do.

Rashi in Shavuos explains the reason why the second oath takes effect after the first one is annulled. He says it is because a sage has the power to retroactively revoke the oath in a manner as if the oath was never uttered. Accordingly, the second one is valid, for there is no first one any longer.

The Shach writes that according to this, the second one will only take effect if a sage annulled the oath. However, if the husband annulled the oath of his wife, her second oath would not take effect. This is because a husband does not retroactively revoke her oath; it is only considered void from this moment and on. The first oath is not regarded as if it never existed and therefore, the second one does not take effect.

Reb Akiva Eiger disagrees. He states: The reason why the second oath does not take effect initially is because one prohibition cannot take effect upon another. The second prohibition exists, but it is in a pending state. As soon as the first prohibition is removed, the second one “wakes up” and takes effect. This would be true when the husband annuls the oath of his wife as well.

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Incidental Benefit

Abaye explains the Gemora (Nedarim 16b) as follows: In the case of a vow, one says, “The pleasure of the sukkah should be forbidden upon me.” (Since the vow is upon the object, not the person, it is effective.) However, in the case of an oath, one says, “I swear that I will not derive any pleasure from the sukkah.” (Since the oath is upon the person and the mitzvah is upon the person, they are contradicting each other and the oath cannot take effect.)

Rava asks on Abaye’s language: Were mitzvos given to derive benefit from them? (He should still be able to sit in the sukkah?)

Rather, Rava explains: In the case of a vow, one says, “The sitting in the sukkah should be forbidden upon me.” However, in the case of an oath, one says, “I swear that I will not sit in the sukkah.”

The Reshash asks on Rava’s question: Although the mitzvos were not given for the purpose of deriving benefit from them, it still should be forbidden to sit in the sukkah in this situation? This is because he is enjoying the incidental pleasure of the shade!

He answers that if it is shade that the person desires, he could stay inside the house. The reason he chose to sit in a sukkah is solely because of the mitzvah. It is therefore not regarded as if he is befitting from the shade of the sukkah.

The Machaneh Efraim is not satisfied with this answer. He asks that the bottom line is that he is not dwelling in his house; he is inside the sukkah and enjoying its shade! Why should this be permitted?

The Oneg Yom Tov answers: We are only concerned with the physical pleasure when the benefit is purely incidental and not related to the mitzvah. However, the mitzvah of sukkah is different. The Torah commands us to dwell in the sukkah in the same manner that one would live in his house. The enjoyment of sitting in a sukkah is not regarded as an incidental benefit; this is the fulfillment of the mitzvah. And since mitzvos were not given for the purpose of deriving pleasure from them, the (direct) benefit that one receives as he is fulfilling the mitzvah is not regarded as a benefit, and is therefore permitted.

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Ran Elucidated - Daf 16

Distinction between a vow and an oath - The Gemora cites the Scriptural source for this: How do we know that one cannot swear to transgress a mitzvah? It is because it is written [Bamidbar 30:3]: If a man makes a vow to Hashem or makes an oath to prohibit himself, he shall not desecrate his word; according to whatever came out of his mouth, he shall do. We see from here that only “his word” (a discretionary matter) he should not desecrate. However, he may desecrate it when it involves the wishes of Heaven (where his oath contradicts a mitzvah).

The Gemora asks: Why is a vow any different? If it is because it says makes a vow to Hashem, which implies that he should not desecrate his word even when his vow involves the wishes of Heaven, why, by an oath, it is also written makes an oath to Hashem (since the words “to Hashem” is written between a vow and an oath)?

Abaye answers: In the case of a vow, one says, “The pleasure of the sukkah should be forbidden upon me.” (Since the vow is upon the object, not the person, it is effective.) However, in the case of an oath, one says, “I swear that I will not derive any pleasure from the sukkah.” (Since the oath is upon the person and the mitzvah is upon the person, they are contradicting each other and the oath cannot take effect.)

The Ran explains: It is reasonable that the word “to Hashem” should be referring to a vow, but not an oath. It is logical to assume that a neder in this manner will take effect. This is because he is not vowing directly against the Torah’s commandment. The neder takes effect and he is prohibited from deriving benefit from the sukkah because we cannot force a person to eat something that is forbidden to him. However, by an oath, he is saying that he will not sit in the sukkah. This is a direct contradiction to the Torah’s commandment and he doesn’t have the power to free himself from the Torah’s commandment to sit in a sukkah.

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Zohar and the Gemora

The Gemora cites a braisa: There is greater stringency in oaths than in vows, and greater stringency in vows than in oaths. There is greater stringency in vows, for vows apply to objects necessary for the performance of a mitzvah just as to optional matters, which is not so regarding oaths (which do not take effect if one would take an oath against performing a certain mitzvah). And there is greater stringency in oaths, for oaths are valid with respect to matters that have substance and matters that are intangible, which is not so regarding vows (which do not take effect on intangible things).

It is noteworthy that the Zohar writes exactly the opposite. An oath, he says, can only take effect on a davar she’yeish bo mamash, something that has substance, whereas a vow can take effect even on a matter that lacks substance.

The Shoel U’meishiv in his haskamah to the sefer Beis Yisroel cites from the Neizer Yisroel that it is a printer’s mistake and the correct version of the Zohar is the way the Gemora states.

Reb Reuven Margoliyos disagrees and cites a Ramban in Shavuos who hints to the version that we have in the Zohar. The Ramban writes that according to Sod, vows do not take effect on matters of substance, whereas an oath will be effective on matters of substance.

In the sefer Mei Hashiloach, he explains the Zohar in a manner that is identical to our Gemora. We find in the Zohar that a davar she’yeish bo mamash frequently means something that has the ability to reproduce. The reason that an oath can take effect even on intangible matters is because an oath is an issur gavra, one is prohibiting himself from the object. The oath, therefore, is taking effect upon the person. The meaning of the Zohar is that an oath takes effect on the person, for he is a davar she’yeish bo mamash, i.e. man has the ability to reproduce; objects do not! An oath takes effect upon the person and not on the object. A vow, on the other hand, takes effect even on a davar she’ein bo mamash, something that does not have the ability to reproduce, i.e. objects. For by a vow, one is prohibiting the object upon himself (issur cheftza), and therefore, the vow takes effect upon the object, not upon the person.

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Oath to Study a Certain Tractate

The Gemora (Nedarim 8a) states that when one makes a vow to learn a specific tractate, it is binding even in regard to a korban, and it is not regarded as a vow to fulfill a mitzvah. The reason is that since the Torah does not explicitly indicate an obligation to learn any more than just kerias shema in the morning and evening, the vow is completely binding on anything beyond what is explicitly stated in the Torah.

The Reshash asks that since one is not obligated to learn that specific tractate, the vow should be binding to learn that specific tractate? Actually, the Ritva uses this approach to understand what the Gemora is saying. Since one can fulfill their obligation with some other type of learning i.e. kerias shema, or any other tractate, therefore, when he makes a vow on a specific tractate, it is fully binding.

Tosfos writes that even if one makes a vow not to learn something specific, the vow is binding. Reb Avi Lebowitz cites Reb Moshe (Dibros Moshe heora #43), who explains that Tosfos cannot be understood to be saying that one is not obligated to learn all sections of Torah, because both the obligation of knowing Torah and the obligation of constantly learning Torah actually requires a person to learn all sections of Torah every day. While it may be impossible to do so, there is still technically an obligation on every single aspect of Torah. Therefore, Tosfos can only be explained like the Ran that the obligation to learn every section of Torah is not stated explicitly. Based on this, the Rosh and Ramban would hold that a vow not to learn even a specific or obscure section of Torah on any particular day would not be binding at all.

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Oath to Fulfill a Mitzvah

The Ran and Rosh (Nedarim 8a) argue whether an oath to fulfill a mitzvah is binding in the sense that one would be in violation of “desecrating his word” for not keeping his promise. Ran understands that an oath on a mitzvah is not binding for the purpose of being liable for a korban, but is binding, and if he transgresses the mitzvah, he has violated the prohibition against desecrating his word. The Rosh seems to understand that it is not binding at all. This is also the opinion of the Ramban brought by Reb Akiva Eiger.

Reb Avi Lebowitz points out that based on this understanding, they also argue as to what the novelty of Rav Gidal’s teaching is. The Ran understands that the oath is binding and therefore obviously not an oath taken in vain, so the novelty is that one is encouraged to make these types of oaths (even those who generally refrain from taking oaths), for it will inspire him to fulfill the mitzvah. But, according to the Rosh that the oath is not really binding, the novelty is simply that by making such an “oath,” it is not an automatic violation of an oath taken in vain, since it at least accomplishes a function of encouraging the person to fulfill the mitzvah.

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Master of All

The Ran (Nedarim 2a) maintains if one states that he will not do something and includes the Name of Hashem, that itself is regarded as an oath. He proves this from a Gemora below (22b) which says that if one says, “By the Master of all, I will not eat it,” he is prohibited from eating it, although he did not say that he was invoking an oath.

It is evident from this Ran that the words “Master of all” is regarded as saying the Name of Hashem. If so, Reb Shlomo Zalman Auerbach asks: How would one be permitted to mention this expression (Adon Olam) in his daily speech; it should be regarded as pronouncing the Name of Hashem in vain?

The Chasam Sofer writes that this is indeed the halacha. Just as saying “The Compassionate One” in Hebrew is considered an oath, so too, if he says “Rachmana” in Aramaic, it is regarded as an oath. And just as these expressions are included in the prohibition of swearing with the Name of Hashem in vain, so too, if one uses this expression in vain, he has violated this prohibition, for both of these transgression (swearing falsely and saying Hashem’s Name in vain) are derived from the same verse. Reb Shlomo Zalman is deeply troubled by this ruling, for if so, it would be forbidden to say “Ribbono shel Olam,” or “Adon Olam,” and this is not found in the poskim.

The Netziv cites a different ruling of the Chasam Sofer: If one finds himself in a situation where he is uncertain if he should recite a certain blessing or not, he may say the following: Brich Rachmana Mara D’alma (Blessed is the Compassionate One, Master of all). This would seemingly be a contradiction to the other ruling of the Chasam Sofer. If “Master of all” is considered the Name of Hashem in regards to an oath and in respect to uttering the Name of Hashem in vain, what remedy is there by reciting this other version of the blessing; he is anyway saying the Name of Hashem? Reb Akiva Eiger rules that one is prohibited from using this other version because of this concern.

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Biblical and Rabbinical Oath

The Gemora (Kesuvos 88a) had stated: Rav Papa said (regarding the case where there is one witness testifying that the woman collected her kesuvah): A wise husband could bring his wife to take a Biblical oath with the following method: He pays her the kesuvah (a second time) in front of another witness (and now, if se will deny receiving the kesuvah, there will be two witnesses against her) and he claims that the first monies that he paid her were actually a loan (and if she denies the loan, there will be one witness testifying against her; she will be Biblically obligated to take an oath; this will be a case of taking an oath in order to retain the money and it will be a case which doesn’t involve a lien on land)!

The Raavad explains: Even if there is no severity in the Biblical oath more than the Rabbinical one, it is still regarded as advantageous for the husband to force her to be subject to a Biblical oath besides a Rabbinical one.

Rashi explains that there is a halachic severity in taking a Biblical oath. One is required to use the Name of God and hold a Torah scroll when he takes a Biblical oath; a Rabbinical oath does not have this stringency.

Tosfos points out that Rashi himself maintains that a Rabbinical oath of our Mishna is of the same severity as a Biblical oath; it is only an oath instituted by the Amoraim that is treated leniently.

The Rishonim discuss at great length other differences between the two oaths.

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Lashes without an Action

The Gemora (Kesuvos 46a) states: If the husband defames his wife, he receives lashes. This is true even though this prohibition does not entail any action.

Tosfos in Shavuos (21a) asks: The Gemora there lists three prohibitions that one violates without performing an action, and nevertheless, one incurs lashes for transgressing them. They are: Violating an oath, making a temurah (attempting to exchange an animal that possesses sanctity with one that does not) and one who curses his fellow using the name of Hashem. Why doesn’t the Gemora include the case of a husband who defames his wife? It is also a prohibition that does not involve an action, but yet, one incurs lashes for its violation.

Tosfos answers: It is not necessary for the Gemora to include this case in the listing because the fact that the husband receives lashes is explicitly written in the Torah. Tosfos adds that even if you say that this case should be included in the listing, it is not a question as to why it was omitted because the Gemora wasn’t listing every applicable case.

The Ramban answers that the Gemora is in accordance with Rabbi Yehudah who rules that the husband does not receive any penalties unless he has hired the witnesses. Accordingly, this prohibition does involve an action, and that is why it is not included in the listing.

The Brisker Rav (Temurah 3a) answers that the lashes received is not because the husband violated the prohibition of slandering, for anyone who talks lashon harah does not receive lashes. The lashes are one of the laws for one who defames his wife; he is required to pay a fine, he may not divorce her and he receives lashes. The Gemora required a verse for the warning only because there is a rule that one may not receive lashes unless the Torah states a warning. Accordingly, this is why it is not included in the listing; he does not receive lashes because he violated a negative prohibition, but rather, it is one of the components of the laws for one who defames his wife.

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Desecrating his Words - Yevamos 34 - Daf Yomi

The Mishna in Makkos states that a person can commit one action of plowing and be liable for eight transgressions.

The Gemora asks: Couldn’t the Mishna list a ninth; if he took an oath not to plow on Yom Tov?

The Gemora answers: He has already been sworn from Har Sinai not to violate Yom Tov and therefore the oath does not take affect.

The Ran explains the principle: An oath must be regarding something voluntary; anything that a person is obligated to do regardless of his oath is not binding. However, this is only relevant to the bringing of a korban chatas if he would violate the oath, but in respect of transgressing the oath intentionally, he would incur the thirty-nine lashes.

Reb Akiva Eiger asks on the Ran from the Gemora in Makkos: The Gemora was discussing the amount of lashes one could possibly receive for committing one action that entails many different transgressions. The Gemora states that an oath cannot be included for a person is sworn from Har Sinai prior to uttering the oath against plowing on Yom Tov. According to the Ran, it should still be included because it is another prohibition that incurs the penalty of lashes?

Reb Akiva Eiger understands the Gemora that the oath does not have any validity whatsoever because of the principle that one prohibition cannot take effect on an existing prohibition.

Reb Shmuel Rozovksy asks: Why don’t both prohibitions take effect simultaneoulsy; the oath does not take effect until the beginning of Yom Tov and that is precisely the same moment that the prohibition against engaging in labor on Yom Tov commences?

Reb Elchonon Wasserman states: The principle that one prohibition cannot take effect on an existing prohibition is not applicable to an oath. He cites a Tosfos as proof to this: Tosfos states that the principle of one prohibition not taking effect on an existing prohibition would not apply to a case where one eats on Yom Kippur and simultaneously carries the food in his mouth from one domain to another. Although, the swallowing of the food causes both transgressions it is regarded as two different actions; swallowing and carrying.

Reb Elchonon explains regarding one who violates an oath by eating something he swore not to eat or by plowing a field when he swore that he wouldn’t; the transgression is not the eating or plowing, but rather the desecration of his words the oath. It is therefore not considered the same action which causes the other prohibition, and the principle of one prohibition not taking effect on an existing one would not be applicable.

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WHERE DOES THE SECOND PROHIBITION GO? - Yevamos 33 - Daf Yomi

The Shach (Y”D 238) rules that one who takes an oath that he will not eat neveilah (an animal that was not slaughtered properly), and subsequently got sick in a manner that he was permitted to eat neveilah; he is allowed to eat it, and he is not required to have his vow annulled.

The Peri Megadim in his introduction to Hilchos Pesach asks on this ruling. He states: That which we say that one prohibition cannot take effect on an existing prohibition merely means that the he will not be liable for violating both prohibitions; however, he is violating two prohibitions and he will be buried together with the completely wicked.

Accordingly, he asks on the ruling of the Shach: While it’s true that the prohibition stemming from his personal oath not to eat neveilah will not take effect because he is already prohibited from eating neveilah from the Torah, nevertheless, the oath is valid and is existent; he will not be liable for transgressing the oath. However, when he is dangerously ill and he is permitted to eat neveilah, the oath would subsequently take effect and he must have it annulled.

The Avnei Miluim (teshuva 12) does not agree with the way the Peri Megadim understands the Shach. He states: The ruling of the Shach is not based on the principle of one prohibition not taking effect on an existing prohibition, but rather, it is because of the principle mentioned specifically regarding an oath. One oath cannot take effect on another one and every person took an oath at Mount Sinai that he will not eat neveilah; this is why his personal oath is not valid and does not require annulment.

He explains the distinction between the two principles: One cannot be liable for a second prohibition when a previously existing prohibition is in effect, but there are obviously both prohibitions present. Regarding an oath, one does not have the capabilities to take an oath prohibiting himself on something that he already is sworn to uphold anyway; the second oath has no legitimacy whatsoever.

Rav Shach in Hilchos Shavuos (5:16) asks on the premise of these Acharonim. If the second prohibition is present, why isn’t one liable for violating it? If a second prohibition cannot take effect on an existing one only means that we do not administer punishment for the second prohibition, why should there be an exception for an extensive or an inclusive prohibition? He therefore learns that the second prohibition does not take effect at all. The Gemora, which states that one who violates such a prohibition will be buried with the completely wicked does not mean to say that he has indeed violated two transgressions; rather, it means that he is regarded as completely wicked since he is committing an action which involves two prohibitions even though in fact, he has only violated one.

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FROM THEIR MOUTHS AND NOT FROM THEIR WRITING - Yevamos 31 - Daf Yomi

The Gemora states that testimony is valid only from the mouths of the witnesses, not on the basis of any documents. It is evident that writing is not the same as talking.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

Reb Akiva Eiger discusses some other practical applications for this principle.

(http://weeklyshtikle.blogspot.com/2007/05/weekly-shtikle-emor.html) The Weekly Shtikle writes the following: The topic is the discussion as to whether or not writing may qualify as a valid means of fulfilling the mitzvah of Sefiras HaOmer. That is, if one was to write, "Hayom Yom X La'Omer," would that be sufficient to fulfill one's obligation and would this action disallow one from repeating the count with a brachah?

The discussion of this halachic quandary follows an interesting family tree. This issue is first dealt with in Shaalos uTeshuvos of R' Akiva Eiger, siman 29. The teshuvah is actually written by R' Akiva Eiger's uncle, R' Wolf Eiger. Unable to attend his nephew's wedding, he made a simultaneous banquet of his own to celebrate the occasion. He wrote to his nephew about this halachic issue which was discussed at the banquet. He cites a number of related issues which he builds together to try to reach a conclusion. The gemara (Yevamos 31b, Gittin 71a) teaches that witnesses may only testify by means of their mouths and not by writing. The gemara (Shabbos 153b) states that mutes should not separate Terumah because they cannot say the brachah. It is assumed that writing the brachah would not have been sufficient. Also, there is a discussion amongst the commentaries with regards to the validity of a vow that is written and not recited. R' Wolf Eiger concludes that writing is not a sufficient means of fulfilling the mitzvah of Sefiras HaOmer. However, this sparks a debate between him and his nephew which stretches out to siman 32.

This issue is eventually discussed in Shaalos uTeshuvos Kesav Sofer (Yoreh Dei'ah siman 106) by R' Avraham Shmuel Binyomin Sofer, R' Akiva Eiger's grandson who was, in fact, named after R' Wolf Eiger. He covers a host of related topics and eventually discusses the exchange recorded in his grandfather's sefer. The debate, although it encompasses various pertinent issues, never produces any concrete proof directly concerning the act of counting. However, Ksav Sofer quotes his father, Chasam Sofer, in his footnotes to Shaalos uTeshuvos R' Akiva Eiger (his father- in-law) where he provides a more concrete proof. The gemara (Yoma 22b) teaches that one who counts the number of B'nei Yisroel transgresses a prohibition as it is written (Hoshea 2:1) "And the number of B'nei Yisroel shall be like the sand of the sea that shall not be measured nor counted." The gemara cites two examples (Shmuel I 11:8, 15:4) where Shaul HaMelech went out of his way to avoid this prohibition by using pieces of clay or rams in order to perform a census. Chasam Sofer suggests that Shaul could simply have counted the men by writing down the numbers and not saying them. Since Shaul went to far greater lengths, we are compelled to say that writing the number of men would still have qualified as counting them and he would hot have sufficiently dodged the prohibition. Thus, concludes Chasam Sofer, if one has explicit intention to fulfill the mitzvah, writing is a valid means of performing the mitzvah of Sefiras HaOmer. However, Kesav Sofer suggests that perhaps the brachah should not be recited in this case.

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Daf Yomi - Chagigah 10 - TAKING A VOW THROUGH WRITING

Shmuel states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on a dispute between the Rambam and Rabbeinu Tam regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present.

Accordingly, we can say that an oath taken through writing will be binding.

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Daf Yomi - Taanis 27 - Floods - Never Again!!

The Gemora states that Avraham Avinu asked the Ribbono shel Olam by the Bris Bein Habesarim "Perhaps Klal Yisroel will sin before You and You will do to them like You did to the Generation of the Flood?" The Ribbono shel Olam responded that He will not.

The Maharitz Chayus asks the obvious question that Hashem had made an oath previously in the times of Noach that He will never again bring a flood to the world. What was bothering Avraham Avinu? He answers that Hashem's oath was specifically regarding a flood of water, however, He can destroy the world through other means, such as through fire.

The Sifsei Chachamim (Megillah 31a) answers based on Rashi (Shmos 1:10) that Hashem's oath was explicitly regarding a flood to the entire world, however, He can bring about a flood of water to a particular country or nation.

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Daf Yomi - Taanis 10 - Conditional Oath

We learned in a braisa that if one was fasting on account of troubling situations and it passed or he was fasting because of a sick person and he recovered before he completed the fast, he should nevertheless complete the fast.

Rashi and the Rosh learn that this halacha is even if the sick person dies, nevertheless one is obligated to finish the fast.

The Ohr Sameach in Hilchos Taanis (1) asks from Dovid Hamelech where he was fasting when his son from Bas-Sheva was sick. The Novi explicitly says that when they informed him that his son died, he got up from the ground, washed and anointed himself and began to eat. We see that he did not complete the fast.

In the sefer Peiros Te’eina he says that perhaps Dovid never made an oath to fast; rather because he was in such pain, he refused to eat and he slept on the ground. This is why he ate immediately after being informed that his son passed away since the halachos of a Taanis did not apply to him.

It would seem that this is the correct interpretation from the pesukim there which state that Dovid’s family tried convincing him to get up from the ground and to eat. If Dovid would have made an oath to fast, they would not have tried to persuade him to eat.

The Darkei Moshe rules that one should complete his fast only when he accepted to fast regularly. If he specifically stipulated during the acceptance of the fast, that he is fasting on condition that his son will get better; if the son dies, he will not be obligated to conclude the fast. The halacha by an oath is we consider the intent of the person and here his intention was clear that he was fasting on that condition.

This case would not be inconsistent with the Gemora which rules that a person should not test Hashem except by charity since that applies only if he stated that he is fasting in order for his son to recover from his illness. That is forbidden because it appears like he is testing Hashem; however to make such a stipulation would be permitted like we find by Yaakov where he made a vow and said “If Hashem will be with me.”

The sefer Tuv Taam V’daas asks on the Darkei Moshe from Rashi here. Rashi states that he must complete his fast in order that it does not appear that he made his commitment to fast conditional on the trouble not passing. It is evident from Rashi that pledging with a condition is not a correct thing to do.

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Daf Yomi - Rosh Hashanah 12 - VOW FOR A YEAR

Question from a Daf Yomi learner, Michael Post:

Towards the end of today’s daf (12), it says that if one makes a vow “for a year”, that it lasts for 12 months from the time it was said. This is to contrast it to saying ‘for the year’, which is until Rosh Hashanah. When it says ’12 months’, does it mean it literally, or does it mean a year? In other words, if a person makes a vow on the first of Kislev “for a year”, but the year is a leap year, does the vow end on the first of Kislev the following year or the first of Mar-Chesvan the following year?

Answer: The Ritva states that if one takes an oath during a leap year and he states “for a year,” the vow will have effect for twelve months. However, if he would state “for this year,” then the vow will have effect the entire year, including the extra month.

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