Mishnah Arakhin 1:3-4

Sugya Map

• Issue: The nature and scope of Arakhin (valuation vows) and Neder (vows of monetary commitment) for various categories of individuals, specifically focusing on those with diminished legal capacity or unique existential states.
• Nafka Mina: Determining the validity and enforceability of Arakhin and Neder vows for individuals like tumtum, androginos, deaf-mutes, minors, gentiles, the dying (goses), and those condemned to death. This impacts who can make such vows, who can be the subject of such vows, and the ultimate financial obligation to the Beit HaMikdash.
• Primary Sources: Mishnah Arakhin 1:3-4; Leviticus 27:3–7; Bavli Arakhin 17b-23b; Bavli Gittin 29a; Bavli Sanhedrin 63a; Bavli Kiddushin 13a; Bavli Bekhorot 58b; Bavli Sotah 16b.

Text Snapshot

Mishnah Arakhin 1:3-4:

"A tumtum, whose sexual organs are concealed, and a hermaphrodite [androginos], vow, and are the object of a vow, and take vows of valuation, but they are not valuated. Consequently, if one says, with regard to a tumtum: The valuation of so-and-so is incumbent upon me to donate to the Temple treasury, he is not obligated to pay anything, as only a definite male or a definite female are valuated. A deaf-mute, an imbecile, and a minor are the object of a vow and are valuated, but neither vow to donate the assessment of a person nor take a vow of valuation, because they lack the presumed mental competence to make a commitment. A child less than one month old is the object of a vow if others vowed to donate his assessment, but is not valuated if one vowed to donate his fixed value, as the Torah did not establish a value for anyone less than a month old. With regard to a gentile, Rabbi Meir says: He is valuated in a case where a Jew says: It is incumbent upon me to donate the fixed value of this gentile. But a gentile does not take a vow of valuation to donate his fixed value or the value of others. Rabbi Yehuda says: He takes a vow of valuation, but is not valuated. And both this tanna, Rabbi Meir, and that tanna, Rabbi Yehuda, agree that gentiles vow to donate the assessment of another and are the object of vows, whereby one donates the assessment of a gentile. One who is moribund and one who is taken to be executed after being sentenced by the court is neither the object of a vow nor valuated. Rabbi Ḥanina ben Akavya says: He is not the object of a vow, because he has no market value; but he is valuated, due to the fact that one’s value is fixed by the Torah based on age and sex. Rabbi Yosei says: One with that status vows to donate the assessment of another person to the Temple treasury, and takes vows of valuation, and consecrates his property; and if he damages the property of others, he is liable to pay compensation. In the case of a pregnant woman who is taken by the court to be executed, the court does not wait to execute her until she gives birth. Rather, she is killed immediately. But with regard to a woman taken to be executed who sat on the travailing chair [hamashber] in the throes of labor, the court waits to execute her until she gives birth. In the case of a woman who was killed through court-imposed capital punishment, one may derive benefit from her hair. But in the case of an animal that was killed through court-imposed execution, e.g., for goring a person, deriving benefit from the animal is prohibited."

Leshon Nuance: The Mishnah uses the verb "נדר" (vows) and "נערך" (is valuated). The phrase "לא נידר ולא נערך" (is neither the object of a vow nor valuated) is a crucial exclusion. The distinction between tumtum/androginos and deaf-mutes/imbeciles/minors is telling: the former can take vows and be vowed upon, but aren't valuated themselves, while the latter are valuated but lack the capacity to initiate vows. The moribund and condemned are exceptional, being wholly excluded from both categories. The debate between R' Meir and R' Yehuda regarding gentiles centers on their ability to initiate a valuation vow versus being the subject of one.

Readings

Rambam on Mishnah Arakhin 1:3 (Moribund/Condemned)

The Rambam, in his commentary on the Mishnah, clarifies the status of the goses (moribund) and one yotzeh l'hargei (being led to execution). He states that a goses is one whose throat is rattling (kol groono nishma b'sha'at hamita), indicating the imminent end. For one being executed by a Beit Din (court), the Rambam explains it's an act of divine justice (inyan she'eino talui b'ratzonanu ela haTorah mamita oto), not subject to human will. However, if one is to be executed by royal decree (b'mitzvat hamalech), then they are subject to valuation (ma'arich v'ne'erach l'dei kol), because the king might change his mind (she'afam yaḥzor hamalech mi'd'varo).

The Rambam then addresses the dispute between R' Yosei and the Tanna Kamma (first authority) regarding liability for damages. R' Yosei holds that their property can be seized to cover damages (notlin mimonam k'neged ma she'hizik) because one who damages is liable to pay, akin to a debt documented in a writ which is collected from heirs (k'malo'ah haktuva b'shatar v'goveh min hayorshin). The Tanna Kamma, however, argues that a debt established by Torah law is not like a debt in a writ and cannot be collected from heirs (malo'ah haktuva baTorah lo k'ktuva b'shatar damiya v'eino goveh min hayorshin). The Rambam states the halakha follows the Tanna Kamma in this regard. He then adds a crucial meta-commentary: this ruling is based on the assumption that a verbal debt cannot be collected from heirs (k'dei omer malo'ah al peh eino goveh min hayorshin). However, he notes that the established halakha today is that verbal debts can be collected from heirs (v'lo'o veyada'ata she'p'sak halacha hu she'al peh hama'aseh b'yadeinu hayom shemalo'ah al peh goveh min hayorshin). Therefore, if someone in this state caused damage, their estate would be liable (v'lo'o zeh im hizik notlin k'neged hanezek me'izbono).

Tosafot Yom Tov on Mishnah Arakhin 1:3 (Tumtum/Androgynous)

The Tosafot Yom Tov (TYT) grapples with the phrase "ולא נערך" (and they are not valuated) concerning the tumtum and androginos. He quotes the Rambam who explains this by referencing the verb "העמידו" (to set up/value) in the Torah (Leviticus 27:7). The TYT seeks to understand why this exclusion applies, questioning if it's based on a lack of definite sex, which might also exclude someone lame (ḥager), as seen in Sukkah 27a concerning Sotah. He brings a Tosafot explanation from Arakhin 27a: R' Ḥanina ben Akavya himself derives from the verse "And He will set him" (Leviticus 27:7) that the Torah is not strict about "setting" (ah'amada), as evidenced by the inclusion of a child less than a month old for valuation. The Tosafot there also question the basis for excluding the goses from "setting" (ha'amada), given that the verse "according to what the vower can fix" (al pi she'tasi'g yad hanoder) seems to allow for the goses to both vow and be valued, as mentioned in Massekhet Simḥot. The TYT notes that the Rambam doesn't explicitly state in his commentary that the goses can vow and be valued, and that Massekhet Simḥot doesn't clearly state this either, suggesting the goses is treated as alive for all purposes. He proposes that the phrase "לְעוֹלָם" (always/forever) in Simḥot might imply they can vow and be valued.

Tosafot Yom Tov on Mishnah Arakhin 1:3 (Moribund/Condemned)

The TYT elaborates on the exclusion of the goses and the one yotzeh l'hargei (condemned). He reiterates the Rambam's point that the latter refers to a death sentence by a human court (mitat Beit Din), contrasting it with execution by royal decree. He cites Gittin 29a, where the court announces the death sentence of individuals, allowing their wives to remarry, noting this was not common. The TYT then addresses the Rambam's distinction: execution by Beit Din is a matter of divine judgment (inyan she'eino talui b'ratzonanu ela haTorah mamita oto), while royal execution is subject to human whim. He quotes Rashi on Leviticus 27:29 ("Every devoted thing...") explaining that one liable to ḥerem (devotion, leading to execution) is not subject to redemption (lo yipodeh), implying those destined for capital punishment are outside the scope of valuation.

Tosafot Yom Tov on Mishnah Arakhin 1:3 (R' Ḥanina ben Akavya)

The TYT discusses R' Ḥanina ben Akavya's opinion that the goses is valuated. He explains the Rambam interprets the verse "כל חרם אשר יחרם מן האדם לא יפדה" (Leviticus 27:29) differently. He brings a Baraita from R' Yishmael the son of R' Yishmael ben B'roka, which states that those who die by heavenly hand (mumataim b'yedei shamayim) can offer money for atonement, as indicated by "If a ransom is laid upon him" (Exodus 21:30). However, for those destined for execution by human hand, the verse "Every devoted thing shall be irredeemable" (Leviticus 27:29) applies. The Rambam, according to TYT, applies this verse to "severe deaths" (mitot ḥamurot). The TYT notes the Rambam doesn't explicitly apply this to the goses in his commentary, but Rashi does.

Tosafot Rabbi Akiva Eiger on Mishnah Arakhin 1:3 (R' Yosei)

R' Akiva Eiger expresses difficulty understanding the Tosafot's statement regarding R' Yosei's opinion. He argues that R' Yosei's position on vows and valuation is only relevant for a creditor (ba'al ḥov). If the person dies, and it's held that a verbal debt is not collected from heirs (l'ma'd mil'ma'd) then the valuation wouldn't be collected from the heirs either, unless the debt was legally established in court (a'mad b'din), as explicitly stated in the Gemara (Arakhin 20a) and brought in TYT. He finds this point confusing and requires further clarification.

Friction

The Kushya: The Paradox of the Goses and Yotzeh l'Hargei

The central friction lies in the Mishnah's stark pronouncement: "One who is moribund and one who is taken to be executed after being sentenced by the court is neither the object of a vow nor valuated." This seems absolute. However, R' Ḥanina ben Akavya counters that the goses is valuated. Furthermore, the Rambam introduces a crucial distinction: execution by royal decree versus execution by Beit Din. The latter is treated as an act of divine justice, exempting the individual from valuation. But if execution is by royal decree, they are valuated. This raises a significant question: What is the fundamental principle that differentiates these states? Is it merely the source of the impending death, or something deeper about the individual's connection to the communal legal and spiritual framework? If the goses is dying, and the condemned is soon to be executed, what defines their capacity or incapacitation regarding vows and valuations?

The Terutz: Capacity as Defined by Communal Obligation

The most compelling resolution to this friction lies in understanding "capacity" not solely as a matter of physical or mental state, but as a reflection of one's standing within the framework of mitzvot and communal obligation, particularly concerning financial liabilities to the Beit HaMikdash.

1. The Goses and Yotzeh l'Hargei (Beit Din Execution): These individuals are effectively removed from the sphere of active communal participation and responsibility for mitzvot Bein Adam LaMakom (between man and God) related to financial obligations. The goses is beyond earthly concerns, their life force ebbing away. The individual condemned by Beit Din is subject to a judgment that, as the Rambam notes, transcends human agency, aligning with divine will. In this state, they are neither capable of making a commitment (neder) nor are they considered a valuable asset to be valued for the Temple treasury. Their impending death, particularly when divinely ordained or a consequence of it, severs their connection to these financial obligations. R' Ḥanina ben Akavya's view on the goses being valuated might stem from a different perspective on the Torah's valuation, which is based on age and sex, a fixed biological attribute, irrespective of immediate life status. However, the Mishnah's primary ruling seems to prioritize the cessation of active obligation.

2. Royal Execution: The distinction made by the Rambam for royal execution is key. Here, the individual is still subject to human whim and decree, not necessarily divine justice. The possibility of reprieve exists ("the king might change his mind"). This means they are still, in a practical sense, part of the temporal, human legal system and its potential fluctuations. Their status is not yet irrevocably defined by divine justice. Therefore, they retain a connection to the potential for financial obligations, including valuation.

3. R' Yosei and Liability: R' Yosei's inclusion of the goses and condemned in making vows, taking valuations, consecrating property, and being liable for damages, as noted by the Rambam and TYT, suggests a view that even in these states, they retain some residual legal personality and capacity for interaction within the earthly realm, especially concerning damages (bizik). The debate then shifts to whether this residual capacity extends to initiating financial commitments to the Beit HaMikdash. The halakha generally follows the stricter view, limiting these capacities when the individual is in such an extreme state. The Rambam's meta-commentary on the modern practice of collecting verbal debts from heirs further illustrates how societal and legal norms can evolve, impacting the application of these principles.

In essence, the terutz hinges on a functional definition of capacity tied to one's active role and obligation within the Jewish legal and religious system, particularly concerning financial contributions to the Temple. When that role is effectively suspended by imminent death (especially divinely ordained) or extreme incapacitation, they are removed from the sphere of Arakhin and Neder.

Intertext

Leviticus 27:2, 27:29

The entire discussion of Arakhin is predicated on the verses in Parashat Behar-BeḤukotai. Leviticus 27:2 states, "Speak to the children of Israel and say to them: When a man makes a special vow, the valuation of persons shall be according to the valuation of the LORD." This establishes the concept of personal valuation. However, Leviticus 27:29 is crucial for the exclusion: "No person who is devoted to destruction can be ransomed; he is to be put to death." This verse is the basis for Rashi's explanation (cited by TYT) that those destined for execution (ḥerem) are not subject to redemption or valuation. The Mishnah's application of this to the yotzeh l'hargei is a direct homiletical extension of this biblical prohibition.

Bavli Bekhorot 58b

The debate regarding the valuation of gentiles, specifically R' Meir and R' Yehuda's differing views, finds resonance in Bavli Bekhorot 58b. There, the sugya discusses whether a gentile can be a shomer chinam (gratuitous bailee) for consecrated property. The Gemara questions this, as a gentile is not obligated in mitzvot. The principle emerging is that while gentiles are not obligated in mitzvot Bein Adam LaMakom, they are subject to civil laws (mitzvot Bein Adam LaḤavero). The disagreement in Arakhin regarding their capacity to vow or be vowed upon reflects this broader tension: to what extent are gentiles integrated into the framework of Beit HaMikdash obligations? R' Meir's view that they can be valuated (when a Jew vows) suggests their value is recognized, while R' Yehuda's view that they can vow implies a greater capacity for initiating such acts, even if not fully bound by them.

Psak/Practice

The Mishnah's distinctions primarily inform the theoretical understanding of who is subject to Arakhin and Neder. In practice, since the destruction of the Temple, the laws of Arakhin regarding monetary vows to the Temple treasury are largely suspended (asham b'Beit HaMikdash). However, the underlying principles regarding capacity, mental competence, and legal status remain relevant for other areas of halakha.

1. Capacity for Vows: The rules delineating capacity for vows (nedarim) based on mental competence (deaf-mute, imbecile, minor) are foundational for understanding general vow law (e.g., Shulchan Aruch, Yoreh De'ah 203-204).
2. Status of Tumtum and Androgynous: These categories continue to be relevant in various halakhic discussions, particularly concerning marriage, inheritance, and ritual purity, where their indeterminate sex presents challenges.
3. Liability for Damages: The debate between R' Yosei and the Tanna Kamma regarding the liability of the goses and condemned, and the Rambam's meta-commentary on the modern practice of collecting verbal debts from heirs, illustrates the dynamic nature of psak. While the Mishnah's specific application to Arakhin is moot, the principle of evolving legal norms influencing halakhic outcomes is a meta-heuristic for understanding halakhic development. The Rambam's explicit statement that today verbal debts are collected from heirs is a direct application of this principle.

Takeaway

The Mishnah meticulously carves out exceptions to the laws of valuation, demonstrating that capacity is intrinsically linked to one's active participation and standing within the framework of communal financial obligations to the Beit HaMikdash. The evolving understanding of debt collection from heirs underscores how practical realities can shape and even override seemingly fixed halakhic interpretations.