QUESTION: Rebbi Yirmeyah asserts that the opinion of Beis Hillel may be inferred from the opinion of Beis Shamai. Beis Shamai, who maintains that Hekdesh Ta'us is Hekdesh, agrees that in the case of a Nazir who designated animals as his Korbenos Nezirus and then annulled his Nezirus (through She'eilah), the animals become Chulin (see previous Insight). From Beis Shamai's opinion in that case it can be inferred that Beis Hillel similarly agrees with Beis Shamai in the case of Temuras Ta'us. Although a Temurah made in error normally retains its Kedushah, when a person sanctifies an animal as Temurah for an Olah and then annuls the Kedushah of the Olah (through She'eilah), the Temurah animal does not remain Kadosh but becomes Chulin.

Why does Rebbi Yirmeyah assume that Beis Hillel agrees with Beis Shamai in the case of Temuras Ta'us? The Mishnah's intent is to teach that Beis Hillel does not differentiate between a case of She'eilah of Hekdesh (where the She'eilah works and the object is not Hekdesh) and every other case of Hekdesh Ta'us (where, according to Beis Hillel, the object is not Hekdesh). Beis Hillel challenges Beis Shamai and says that if Beis Shamai agrees that She'eilah removes Hekdesh, Beis Shamai should also agree that Hekdesh Ta'us should not be Hekdesh. It follows that in the case of Temurah, Beis Hillel should maintain that the She'eilah of the Kedushah of the original animal is the same as Hekdesh Ta'us, and the Temurah animal should remain Kadosh even after the original animal's Kedushah is annulled through She'eilah! (TOSFOS RABEINU PERETZ; REBBI AKIVA EIGER asks the same question and leaves it unanswered, "Tzarich Iyun Gadol.")

(a) TOSFOS RABEINU PERETZ suggests that Beis Hillel was unaware that Beis Shamai's source for his ruling (that Hekdesh Ta'us remains Hekdesh) was Temurah. Beis Hillel argued that if Hekdesh Ta'us is Hekdesh, then even when a Nazir is Sho'el on his Nezirus the Hekdesh should remain Hekdesh. Had Beis Hillel known that Beis Shamai's source was Temurah, he certainly would have agreed with Beis Shamai that when a Nazir is Sho'el on his Nezirus the Kedushah of the animals is also annulled.

(Tosfos Rabeinu Peretz implies that Beis Shamai allows a Neder of Hekdesh or of Nezirus to be repealed through "Charatah." His intention is unclear, because the Gemara says clearly that "Ein She'eilah b'Hekdesh" according to Beis Shamai.)

The ARZEI HA'LEVANON (fn. 34) asks, how does Rebbi Yirmeyah know that Beis Hillel misunderstood the source for Beis Shamai's ruling? (The Arzei ha'Levanon suggests that Rebbi Yirmeyah received a tradition from his teachers to that effect.) The answer must be if Beis Hillel knew that Beis Shamai's source was Temurah and he still ruled that even She'eilah of the Kedushah of the original animal does not revoke the Kedushah of the Temurah, there would be no way to answer Beis Hillel's question on Beis Shamai. Since Beis Shamai does not consent to Beis Hillel, Beis Shamai must have had an answer to Beis Hillel's question. That answer was that Beis Shamai derives his view from the case of Temurah. Since there is no reason to create a new dispute between Beis Shamai and Beis Hillel (with regard to the ability of She'eilah of the original animal to revoke the Kedushah of the Temurah), it is more logical to explain that Beis Hillel did not realize that Temurah was the source for Beis Shamai's ruling.

However, this approach is not viable according to Tosfos. Tosfos implies that Beis Hillel asked a valid question on Beis Shamai, and Beis Shamai had a logical response to Beis Hillel which is not recorded in the Mishnah (Tosfos 31b, DH Amru Lahem and DH Nish'al; see previous Insight).

(b) Perhaps Beis Hillel's question on Beis Shamai is not that the state of Hekdesh after She'eilah is the same as every other Hekdesh Ta'us. Rather, Beis Hillel's question is that the state of Hekdesh after She'eilah is similar to one particular type of Hekdesh Ta'us -- that of "Shor Shachor" discussed by the Mishnah earlier (31a). However, there is another type of Hekdesh Ta'us which differs from the Hekdesh Ta'us which results from She'eilah, even according to Beis Hillel. That Ta'us is the classic case of a person who said, "This animal shall be an Olah," when he intended to say "Shelamim." In that case, the person certainly wanted to make the animal Hekdesh; his error was the type of Hekdesh that he made. In contrast, in the case of She'eilah the mistake was that the person did not want to make Hekdesh in the first place (he did not want to become a Nazir and did not want his animals to become Hekdesh). Beis Hillel maintains that the case in the Mishnah ("Shor Shachor") is similar to the case of the Nazir who was Sho'el on his Nezirus. In the case of "Shor Shachor," the person expressed his intent in such a way that no Kedushah can take effect (just as no Kedushah takes effect in the case of a Nazir who was Sho'el on his Nezirus), because the person said that he consecrates "a black ox, which will be the first to come out of my house," and no black ox left his house first. Although he wanted the Hekdesh to take effect, it is a Hekdesh Ta'us like the Hekdesh Ta'us of a Nazir who was Sho'el on his Nezirus.

Beis Shamai disagrees with this point and maintains that the case of the Mishnah is more similar to the case of the person who said, "This animal shall be an Olah," when he intended to say "Shelamim," since he at least wanted the Hekdesh to take effect. Accordingly, Rebbi Yirmeyah is justified in saying that Beis Hillel agrees with Beis Shamai that there are two different types of Ta'us with regard to Temurah as well. If a person accidentally says, "This is a Temurah for an Olah," instead of, "This is a Temurah for a Shelamim," the Temurah will take effect b'Ta'us. If, however, a person says, "This is a Temurah for an Olah," and then he is Sho'el on the Kedushah of the Olah, the Temurah will not take effect b'Ta'us. Beis Hillel and Beis Shamai disagree only in the case of a person says, "A black ox, which will be the first to come out of my house, will be a Temurah for an Olah," and a white ox exits first. Beis Hillel considers the person's statement of Hekdesh in that case an absolute Ta'us and rules that the animal is not Kadosh, while Beis Shamai maintains that the animal is Kadosh. (M. KORNFELD)

QUESTIONS: TOSFOS writes that when a person accepts Nezirus upon himself with the assumption that he will use a certain animal for his Korbenos Nezirus, and he later discovers that at the time he became a Nazir the animal had been stolen, his Nezirus does not take effect because it is a Neder Ta'us. Tosfos adds that even Beis Shamai, who rules that a Nazir Ta'us is a Nazir, agrees that in this case the person is not a Nazir.

(a) Why does Beis Shamai agree in this case? Tosfos writes earlier that this type of mistake is considered "Charatah" and the oath may be annulled only by a Chacham. Beis Shamai, however, maintains that "Ein She'eilah b'Nezirus" (9a), and thus a Chacham cannot annul the Nezirus! Why, then, may the Nazir annul (through She'eilah) his Nezirus in this case? (See KEREN ORAH)

(b) Moreover, the following Mishnah discusses the case of six people who were traveling on the road, and one of them said, "I am a Nazir if the person approaching us is Reuven," and the person approaching them is discovered to be someone else (not Reuven). Beis Shamai rules that the Nezirus nevertheless takes effect. However, since the approaching person was not the one he thought, the law in this case should be the same as the law in the case of a person who makes himself a Nazir with intent to offer a certain animal which he discovers was stolen, in which case he is not a Nazir! (KEREN ORAH)

(a) Beis Shamai's principle of "Ein She'eilah b'Nezirus" is not absolute, according to Tosfos (as described in the previous two Insights). When one consecrates an object or accepts Nezirus based on a total error, Beis Shamai agrees that the Hekdesh or Nezirus does not take effect. Even Temurah does not take effect under such circumstances (32a). Therefore, a She'eilah based on a total error indeed removes the Neder of Nezirus according to Beis Shamai.

RAV YITZCHAK HUTNER zt'l (in TORAS HA'NAZIR 2:2) explains why this type of She'eilah is different. His explanation is based on the words of the Rishonim in Nedarim (21b; see Insights there). The RAN and ROSH there imply that Charatah does not annul a Neder in the manner as a "Pesach" does. A Pesach renders a Neder a Neder Ta'us, a Neder made in error. In contrast, Charatah does not render a Neder one made in error; it functions solely due to the Gezeiras ha'Kasuv which states that through Charatah a Chacham can remove a Neder altogether without rendering it a Neder Ta'us. Consequently, through Charatah a Chacham should be able to rescind even Hekdesh, since Charatah works without making the Hekdesh into a Hekdesh Ta'us.

Rav Hutner suggests that every Neder which involves a mistake based on a lack of knowledge of past events can be removed through Charatah, through the Gezeiras ha'Kasuv, without making it a Ta'us. Only when the Chacham annuls a Neder because of later (and common) developments must he render it a Neder Ta'us. This is why Tosfos explains that in the case of the Mishnah here it is possible to remove the Neder through She'eilah, a reference to Charatah, and not through a Pesach.

(This explanation, however, needs further elucidation, because when the Rishonim write that Charatah does not annul a Neder by rendering it a Neder Ta'us, they write so only in the context of explaining why Charatah is a weaker form of annulment of a Neder than a Pesach. It applies when the person simply regrets having made his Neder and cannot identify any actual mistake that he made. See Insights to Nedarim 21b.)

(b) The case of six people traveling on the road is not a case of an absolute error, because the Mishnah is discussing a situation in which the person later says explicitly that even had he known that the person approaching was not the one he thought he was, he still would have made himself a Nazir (Tosfos, end of DH Shishah; see, however, Insights to Nazir 33a in the name of the RAMBAM). In the case of the Mishnah here, however, the person would not have wanted to become a Nazir had he known that his animal had been stolen.