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Shevuos 003: Shevuah not Chal on a Shevuah
ben-zion <[EMAIL PROTECTED]> asked:
rashi says that if one makes a shevuah i will not eat followed by another
shevuah i will not eat, and then he eats, he only gets one mackos because
the second shevuah was on a devar mitzvoh so therefor it is not enacted.
why do we not say the reason is because one issur can not be enacted on
another issus since as soon as he makes the first shevuah he is not
permitted to eat?
ben-zion, brooklyn,ny
----------------------------------------------
The Kollel replies:
Your question is on just on Rashi, but on the Gemara itself (Shevuos 22b,
Makos 22a) which gives a reason other than Isur Chal Al Isur for this
Halachah in a number of places.
We addressed your question in our Insights to Nedarim 18:2 . I attach it
below, for your benefit.
Best wishes,
M. Kornfeld
Kollel Iyun Hadaf
===============
2) A SHEVU'AH CANNOT TAKE EFFECT ON A PRE-EXISTING SHEVU'AH
QUESTION: The RAN writes that although a Shevu'ah cannot take effect on a
Shevu'ah, and, similarly, a Shevu'ah cannot take effect on an Isur in the
Torah to prohibit what is already prohibited by the Torah, a *Neder* can
prohibit something that is already prohibited by the Torah. The reason is
because the Isur of the Torah is an Isur on the person (an Isur Gavra),
while the Isur of a Neder is an Isur on the object (an Isur Cheftza),
besides being an Isur Gavra of "Bal Tachel."
The Gemara in a number of places (Shevuos 22b, Makos 22a) explains that a
Shevu'ah cannot take effect on something that is already Asur by the Torah,
and it says that the Shevu'ah does not take effect because the person is
"Mushba v'Omed m'Har Sinai Hu, v'Ein Shevu'ah Chal Al Shevu'ah" -- the
person is already bound by the Shevu'ah that he took at Har Sinai to
observe the Torah, and a Shevu'ah cannot take effect on another Shevu'ah.
Why does the Gemara give this new reason of "Ein Shevu'ah Chal Al Shevu'ah"
and not give the simple and common principle that "Ein Isur Chal Al Isur"
(an Isur cannot take effect on another Isur)? (NODA B'YEHUDAH OC 36)
ANSWERS:
(a) The AVNEI MILU'IM (#12) answers that even though "Ein Isur Chal Al
Isur," an Isur does not take effect on a pre-existing Isur, that applies
only with regard to the punishment of Malkus for the second Isur. The
Gemara in Yevamos (33b) says that a second Isur cannot take effect with
regard to Malkus, but it does make the Isur on the item stronger and more
severe. Accordingly, it could be that a second Shevu'ah does not take
effect *at all* on a pre-existing Shevu'ah, and the second Shevu'ah has no
effect even with regard to making a stronger Isur. That is why the Gemara
says that "Ein Shevu'ah Chal Al Shevu'ah" -- because it wants to emphasize
that a second Shevu'ah is even less effective that a second Isur.
Why, then, does Rava say that if a person makes two Shevu'os and then he
annuls the first one that the second one takes effect? If the second
Shevu'ah does not even create an Isur, it should be ignored completely even
after he has annulled the first Shevu'ah (like the Ran indeed suggests at
the beginning of the Daf)!
The answer is that She'eilah, the annulment of a Shevu'ah, removes the
Shevu'ah *retroactively* ("l'Mafrei'a"), so that retroactively the second
Shevu'ah was pronounced on an item that had no Shevu'ah on it and was
permitted. Therefore, that second Shevu'ah can take effect immediately from
that time. In contrast, if a woman makes two Shevu'os and her husband
annuls the first one with Hafarah, then the second Shevu'ah does *not* take
effect, because the Hafarah of a husband works only from now on ("mi'Kan
u'l'ha'Ba") and not retroactively. Consequently, since at the time that the
second Shevu'ah was pronounced it did not create any Isur, it cannot take
effect later when the first Shevu'ah is removed. (See HAGAHOS REBBI AKIVA
EIGER to YD 238 who cites the MAHARAM MINTZ who reaches a similar
conclusion based on Rashi in Shevuos 27a. However, Rebbi Akiva Eiger argues
that even after the Hafarah of the husband, the second Shevu'ah *will* take
effect with regard to Malkus for "Bal Yachel," but not with regard to
obligating her to bring a Korban for violating the Shevu'ah.)
This explains why the Gemara does not say "Ein *Isur* Chal Al Isur" but
rather "Ein *Shevu'ah*." However, it does not explain why the Gemara refers
to the pre-existing Isur as a "Shevu'ah" and not as an "Isur." If the
Gemara is emphasizing that a second Shevu'ah's inability to take effect on
a pre-existing Isur is weaker than a second Isur's ability, it should have
sufficed to say "Ein Shevu'ah Chal Al Isur." Why does the Gemara say "Ein
Shevu'ah Chal Al *Shevu'ah*?" The Avnei Milu'im is only explaining why the
second "Isur" is called a "Shevu'ah" and not an Isur.
Also, the Acharonim point out that the RAMBAM (Hilchos Shevu'os 4:10) seems
to hold that the second Shevu'ah *does* take effect to make a more severe Isur.
(b) The Avnei Milu'im suggests further that the Gemara says "Ein Shevu'ah
Chal Al Shevu'ah" to show that even if the Isur of the Torah and the
person's Shevu'ah come into effect at the same time ("b'Bas Achas"), the
Shevu'ah still does not take effect, even though, normally, when two Isurim
come into effect at the same time they do take effect. For example, if a
person makes a Shevu'ah prohibiting himself from eating Neveilah, and after
he makes the Shevu'ah his animal dies, then even though the animal becomes
Asur to him because of the Isur Torah of Neveilah and because of his
Shevu'ah at the same time, the Shevu'ah does not take effect. That is why
the Gemara changes the wording of the principle of "Ein Isur Chal Al Isur"
and says instead, "Ein Shevu'ah Chal Al Shevu'ah."
The Acharonim point out, based on the Gemara in Makos (22a), that even
before the animal dies and becomes Neveilah, it seems that the Isur Torah
was already in effect and therefore the Isur of Shevu'ah will not take
effect at the same time as the Isur Torah even if the animal died after the
Shevu'ah was made (MISHNAS REBBI AHARON, Yevamos 19; SHI'UREI REBBI SHMUEL,
Yevamos 32:270).
(c) There are two types of Mitzvos -- a Mitzvah which prohibits a person
from doing something (Mitzvas Lo Ta'aseh), and a Mitzvah which obligates a
person to do something (Mitzvas Aseh). A Shevu'ah can take effect on
neither. Perhaps in the case of a Mitzvas Lo Ta'aseh, the Gemara indeed
could have said "Ein Isur Chal Al Isur" (indeed, the Rishonim use this
wording here). However, in case of a Mitzvas Aseh, where a person attempts
to make a Shevu'ah to obligate himself to do something which a Mitzvah
already obligates him to do, the principle of "Ein Isur Chal Al Isur" does
not apply, since there is no Isur to be discussed. Therefore, in cases
where a person makes a Shevu'ah to fulfill a Mitzvas Aseh, the Gemara has
to say "Mushba v'Omed... v'Ein Shevu'ah Chal Al Shevu'ah." Indeed, the
Gemara in Shevuos (25a) and Nedarim (8a) is referring to making a Shevu'ah
to fulfill a Mitzvas Aseh, and therefore it has to say "Ein Shevu'ah Chal
Al Shevu'ah" and not "Ein Isur Chal Al Isur." Since the Gemara has to use
that phrase in reference to a Shevu'ah made to fulfill a positive Mitzvah,
it also uses that phrase in reference to a Shevu'ah made to fulfill a
negative Mitzvah.
Alternatively, it could be that a Neder can take effect to reinforce a
negative Mitzvah because -- like the Ran says -- a Mitzvas Lo Ta'aseh is an
Isur on the person, an Isur Gavra, while a Neder is an Isur Cheftza. One
might think, though, that a Shevu'ah could be made to reinforce an Isur
Torah that is an Isur Cheftza the same way a Neder can be made to reinforce
an Isur Gavra. This is not true, because every Mitzvah in the Torah -- even
an Isur Cheftza (such as Neveilah) -- also includes an Isur Gavra, like the
Ran tells us. Perhaps that is what the Gemara means when it says that all
of the Isurim of the Torah are "Mushba v'Omed m'Har Sinai" -- it means that
even an Isur like Neveilah, which is an Isur on the Cheftza, is also an
Isur on the Gavra like a Shevu'ah and therefore a Shevu'ah cannot take
effect on it. (See a similar answer to this in MALBUSHEI YOM TOV, volume
II, Kuntrus Kal v'Chomer #7.)
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