OPINIONS: The Mishnah states that when a person makes a Neder with the term "k'Nidrei Resha'im" ("like the Nedarim made by wicked people"), his statement creates a binding oath of Nezirus, Korban, or Shevu'ah. This is because it is the normal manner for Resha'im to make Nedarim, and thus "k'Nidrei Resha'im" is a truthful statement. If, on the other hand, he makes a Neder with the term "k'Nidrei Kesherim" ("like the Nedarim made by good people"), his statement is meaningless because Kesherim do not make Nedarim. If he says "k'Nidvos Kesherim," though, his statement does create an obligation of Nezirus and Korban, but not an Isur Shevu'ah.

The Mishnah mentions only whether the terms "k'Nidrei Resha'im" and "k'Nidvos Kesherim" create obligations of Nezirus, Korban, or Shevu'ah. It does not say whether such a statement creates an obligation of Neder. What is the Halachah in the case of a person who attempts to create a Neder by saying "k'Nidrei Resha'im"?

(a) TOSFOS, the ROSH, and the ME'IRI write that the Halachos of Neder and Shevu'ah are the same. The reason why the phrase "k'Nidvos Kesherim" does not create a Shevu'ah is that "Kesherim" people do not forbid themselves from things which the Torah permits. The same reason should apply to a Neder which one attempts to make by saying "k'Nidvos Kesherim."

The reason why the Mishnah does not mention Neder explicitly is that it includes Neder in the Halachah of Shevu'ah.

(b) RABEINU ELIEZER MI'MITZ (cited by Tosfos to 9a and 9b) explains that the word "Korban" in the Mishnah refers either to an actual Korban, or to a Neder made by comparing the object to a Korban. Hence, the Mishnah means that when one makes a Neder by saying "k'Nidvos Kesherim," it indeed takes effect. Why, though, is a Neder different from a Shevu'ah? When one vows to bring a Korban, it is clear why his vow takes effect when he says "k'Nidvos Kesherim": Kesherim sanctify Korbanos in the manner of Hillel, whereby they first bring the animal to the Azarah and then they sanctify it there. This is the Korban of Kesherim. A Neder, however, like a Shevu'ah, is made by creating an Isur on something which is Mutar. Why, then, should it take effect when it is made "k'Nidvos Kesherim"?

Rabeinu Eliezer mi'Mitz answers that since one could bring an actual Korban in the way that Kesherim bring it (by sanctifying the animal in the Azarah, in the manner of Hillel), there exists such a thing as a Korban Nedavah of Kesherim. Accordingly, even if a person sanctifies an animal as a Korban by saying "k'Nidvos Kesherim" when he is far away from the Azarah, the animal becomes a Korban since there exists such a thing as a Korban Nedavah of Kesherim. Similarly, if a person makes a Neder by comparing an object to a Korban Nedavah of Kesherim, the Neder takes effect and creates an Isur because there exists such a thing as a Korban Nedavah of Kesherim, even though Kesherim refrain from creating Isurim.

(c) The RITVA writes that Kesherim do not make Shevu'os because it is necessary to use the Name of Hash-m to do so. Out of respect for Hash-m, Kesherim do not make Shevu'os. Moreover, they refrain from making Shevu'os because every Shevu'ah poses the risk of being a Shevu'as Sheker, which constitutes a very severe transgression (see Shevu'os 39a). This implies that a Neder -- which does not involve the use of the Name of Hash-m and is not as severe as a Shevu'ah -- indeed is made by Kesherim. Why, though, would Kesherim want to prohibit something which is permitted to them? The reason why Kesherim make Nedarim is to weaken their Yetzer ha'Ra when they have a strong temptation for something, or to exercise abstinence (Perishus) and to separate themselves from the material pleasures of this world (see Tosfos to Kesuvos 104a).

When Kesherim make such a Neder it is called a "Nedavah" and not a "Neder" because "Nedavah" denotes a pledge which is acceptable to Hash-m (as the Ran writes with regard to a Nezirus of Nedavah), and such a Neder of Kesherim indeed is acceptable to Hash-m.

(The Me'iri considers such an explanation -- that a Neder is desirable and acceptable under such circumstances -- but he rejects it on the basis that the main form of Perishus from the pleasures of this world is separation from wine. A person who wants to abstain from wine makes himself a Nazir and does not resort to a Neder. The Me'iri therefore concludes that a Neder is not something that Kesherim make.)

QUESTION: The Gemara explains that an example of a Neder which Kesherim (righteous people) make is the Neder of Hillel, who would first bring his animal to the Azarah and then sanctify it there.

Why was Hillel permitted to bring an animal of Chulin into the Azarah, an act which the Torah prohibits (see Pesachim 22a)?

(a) The RAN writes that he did not actually bring the animal into the Azarah. Rather, he brought it near to the Azarah and sanctified it there.

(b) TOSFOS in a number of places (Pesachim 66b, DH Mevi'ah; Chulin 130b, DH Iy; Bava Basra 81b, DH v'Dilma) explains that the prohibition against bringing Chulin into the Azarah applies only to objects with which some form of Avodah is performed (such as Tenufah or Hagashah). Hence, bringing an animal of Chulin into the Azarah is not prohibited unless one performs Shechitah, a form of Avodah, with the animal in its state of Chulin. As long as he sanctifies the animal before he performs Shechitah, he transgresses no prohibition when he brings the animal of Chulin into the Azarah.

Tosfos cites proof for his explanation from the Gemara in Menachos (21b) which says that the Kohanim would bring spices and condiments into the Azarah with which to eat their Menachos. Tosfos cites further proof from the Gemara in Yoma (30a) which mentions that the Kohanim would enter the Azarah with Bigdei Chol, clothing of Chulin?

The Ran clearly disagrees with Tosfos and does not permit an animal of Chulin to be brought into the Azarah at all, even when no form of Avodah is done with it. (See also TOSFOS to Beitzah 20b, v'Hevi, and RASHI to Temurah 23a, DH Yochlu.) This also appears to be the opinion of the RAMBAM (Hilchos Shechitah 2:3), who writes that one is not permitted to bring any form of Chulin into the Azarah, whether it is a live animal or whether it is merely meat, fruit, or bread.

How do the Ran and Rambam understand the Gemara in Menachos which clearly permits spices of Chulin to be brought into the Azarah?

The RASHBA (Chulin 130b) suggests that perhaps the Rambam actually follows the view of Tosfos. When the Rambam refers to "fruit and bread" of Chulin he means specifically bread such as the Lechem ha'Panim and fruit such as Bikurim, with which Tenufah and Hagashah may be performed.

However, the Ran here clearly does not follow that view. How does the Ran understand the proof of Tosfos?

1. The RITVA suggests that the Mitzvah d'Oraisa not to bring Chulin into the Azarah is transgressed only when some form of Avodah is done with the Chulin, as Tosfos explains. However, even if no Avodah is done with the Chulin, an Isur d'Rabanan still prohibits its entry into the Azarah unless it is needed for the performance of a Mitzvah (such as spices for Korbanos) or it is necessary for some other reason.

2. The MISHNEH L'MELECH (Hilchos Shechitah 2:3, DH v'Im Tomar) explains that spices are added only to Kodshim Kalim, which may then be eaten outside of the Azarah. Similarly, Rashi in Temurah says that the spices are eaten outside of the Azarah, and then immediately afterwards the Kohanim enter the Azarah to eat the Minchah.

3. Perhaps the Ran and Rambam understand that the prohibition applies only to objects which could be brought upon the Mizbe'ach as offerings, such as animals, fruit (which are placed on the Mizbe'ach as Bikurim), and bread (such as the Minchah offering). Objects which cannot be offered upon the Mizbe'ach are not subject to the prohibition against bringing Chulin into the Azarah. (This approach also explains why Bigdei Chol may be brought into the Azarah.) (M. KORNFELD)