Jerusalem Talmud Nedarim 5:5:1-6:1:2

Beit Midrash Analysis: Jerusalem Talmud Nedarim 5:5:1-6:1:2

## Sugya Map

• Issue 1: The nature of "institutions of the returnees from Babylonia" versus "institutions of that town," and how vows of hana'ah (benefit) apply to them.
  • Nafka Mina: Whether kinyan (acquisition/transfer) is necessary for releasing oneself from such vows.
  • Primary Sources: J. Nedarim 5:5 (Mishnah & Halakha), Tosefta Nedarim 2:10.
• Issue 2: The validity of a kinyan using a Torah scroll as a marriage gift.
  • Nafka Mina: Whether a Torah scroll possesses sufficient monetary value for a valid kinyan.
  • Primary Sources: J. Nedarim 5:5 (Halakha), J. Bikkurim 3:6, J. Pe'ah 2:1, J. Demai 4:1, J. Yevamot 1:1.
• Issue 3: The validity of a gift conditional on the recipient not dedicating it to Heaven (a "Beth Ḥoron gift").
  • Nafka Mina: The definition of a valid gift and the permissibility of conditional donations.
  • Primary Sources: J. Nedarim 5:6 (Mishnah & Halakha), J. Nedarim 4:10, B. Sukkah 28a, B. Baba Batra 133b, J. Nedarim 48a.
• Issue 4: The precise definition of "cooked food" (mevushal) in the context of vows.
  • Nafka Mina: Differentiating between various cooking methods (scalding, roasting, thick vs. soft preparations) and their applicability to vows.
  • Primary Sources: J. Nedarim 6:1 (Mishnah & Halakha), J. Erubin 3:1, J. Nazir 6:9, B. Nedarim 49a, 50b, J. Terumot 10:6, II Chron. 35:13, Gen. 45:23.

## Text Snapshot

J. Nedarim 5:5:1: "What are the institutions of the returnees from Babylonia? For example, the Temple Mount, the courtyards, and the cistern in the middle of the road. What are the institutions of that town? For example, the town square, the bathhouse, the synagogue with the ark and the scrolls. And he writes his part to the Patriarch."

• Nuance: The distinction between "institutions of the returnees from Babylonia" (takanot shuv Yisrael mi-Bavel) and "institutions of that town" (takanot ha-ir) is crucial. The former are presented as having a different legal status, seemingly more communal or even public domain in a broader sense, while the latter are more localized. The Penei Moshe clarifies that the cistern was for pilgrims and thus considered hefker (ownerless) or communal, not privately owned by the townspeople. The Temple Mount and courtyards are clearly of a higher public order. The Penei Moshe also interprets "writes his part to the Patriarch" (ve-ha-kotev chelko le-nasi) as a mechanism to resolve vows of hana'ah by transferring one's share in these public institutions.

J. Nedarim 5:5:1: "Rebbi Jehudah says, one of them writes to the Patriarch and the other to a private person. What is the difference between him who writes to the Patriarch and him who writes to a private person? The one who writes to the Patriarch does not have to perform an act of delivery, the one who writes to a private person has to perform an act of delivery. But the Sages say, in either case one has to perform an act of delivery."

• Nuance: This section directly addresses the legal requirements for transferring rights in these public institutions to circumvent vows. R. Yehudah posits a distinction: transferring to the nasi (Patriarch) is a simpler, perhaps symbolic act, not requiring kinyan. Transferring to a private individual (hediot) requires a formal kinyan. The Sages reject this distinction, demanding kinyan in both cases. The Penei Moshe explains R. Yehudah's view by attributing to the nasi's stature a power of acquisition even without a formal kinyan. The Sages, however, hold that for any transfer, kinyan is essential.

J. Nedarim 6:1:1: "One who makes a vow to abstain from cooked food is permitted roasted and scalded food. If one said, a qônām that I will not taste a cooked dish, he is forbidden fine dishes and permitted thick ones."

• Nuance: This Mishnah delves into the semantics of vows, specifically concerning "cooked food" (mevushal). It implies a hierarchy of preparation methods. Roasted (tzali) and scalded (shaluk) are presented as distinct from and less encompassing than "cooked." The distinction between "fine dishes" (dakin) and "thick ones" (abeh) further refines the definition of "cooked," suggesting that dishes with discernible moisture are "fine," while those that are drier, perhaps requiring bread, are "thick." The Penei Moshe notes the interpretation of shaluk as scalding, not prolonged cooking, based on its use in the context of the nazar offering.

## Readings

### The Nature of Public Institutions and Vows: R. Yehudah and the Sages

The core of the initial dispute in 5:5 revolves around the legal status of public institutions and how one might divest oneself of them to be permitted the hana'ah thereof when under a vow. R. Yehudah asserts a crucial distinction:

"Rebbi Jehudah says, one of them writes to the Patriarch and the other to a private person? The one who writes to the Patriarch does not have to perform an act of delivery, the one who writes to a private person has to perform an act of delivery."¹

The Penei Moshe elaborates on R. Yehudah's rationale:

"If they wrote to the Patriarch, there is no need to effect acquisition for him through another, because due to the Patriarch's importance, he acquires even without effecting acquisition for him. But with a private person, he does not acquire until it is effected for him through another."²

This suggests that the nasi's elevated status grants him a unique legal standing, allowing for a more informal transfer of rights. The Penei Moshe further clarifies this by stating:

"They only spoke of the Patriarch by way of example, because it is not customary for a person to be apprehensive that he might forbid his benefit to others. But it is not the way of the Patriarch to forbid his benefit to people."³

This implies that the nasi is seen as a neutral, benevolent entity, unlike a private individual who might harbor ill will and thus impose restrictions even after receiving a transfer. The Sages, however, reject this leniency:

"But the Sages say, in either case one has to perform an act of delivery."⁴

The Sages, as per the Penei Moshe, maintain a strict adherence to the principles of kinyan for any valid transfer of property or rights, regardless of the recipient's status. This insistence on kinyan underscores the principle that actual transfer of ownership is paramount in legal transactions, even when dealing with communal assets.

### Defining "Cooked" in Vows: R. Yochanan and R. Josiah

The discussion in 6:1 regarding vows against "cooked food" (mevushal) highlights a fundamental debate in defining terms for nedarim (vows). The Mishnah initially states:

"One who makes a vow to abstain from cooked food is permitted roasted and scalded food."⁵

This establishes a baseline: mevushal is a specific category, distinct from roasting and scalding. The Penei Moshe notes that shaluk is understood as scalding, not prolonged cooking, citing its usage in the context of the nazar offering. The Gemara then introduces a tension:

"A Mishnah states that scalding is called cooking, as we have stated: 'If he cooked the well-being offering or scalded it.' A verse [states] that 'roasted' is called 'cooked': 'They cooked the pesaḥ in the fire as is the rule.'"⁶

If scalding and roasting are indeed considered forms of cooking according to certain authorities or scriptural usage, why does the Mishnah permit them when one vows against "cooked food"? This leads to the central debate:

"Rebbi Joḥanan said, in matters of vows one follows common usage. Rebbi Joshia said, in matters of vows one follows biblical usage."⁷

R. Yochanan anchors the interpretation of vows in the vernacular – how people commonly understand and use the terms in everyday language. If people distinguish between "cooked" and "roasted/scalded" in their daily speech, then a vow against "cooked" would not encompass the latter. R. Josiah, conversely, relies on the scriptural usage of these terms. If the Torah uses "cooked" to describe roasting or scalding (as in the examples provided), then a vow against "cooked" should include them. The Penei Moshe highlights that R. Josiah's view is a minority one in the Babylonian Talmud, which generally follows R. Yochanan's principle of ke-verirot ha-adam (as people commonly understand them).⁸

The subsequent discussion illustrates this:

"What is the difference between them? ‘A qônām that I shall not taste wine on Tabernacles.’ In the opinion of Rebbi Joḥanan he is forbidden on the last day of the holiday. In the opinion of Rebbi Joshia, is he permitted? Also Rebbi Joshia agrees that he is prohibited."⁹

This example is somewhat complex, but the underlying principle is that R. Yochanan's approach considers the common understanding of "Tabernacles" as encompassing the entire festival period, including the eighth day. R. Josiah's agreement on prohibition suggests that while he prioritizes biblical usage, he doesn't necessarily expand the prohibition beyond its explicit biblical scope unless common usage dictates otherwise. The Penei Moshe clarifies R. Josiah's position:

"Rebbi Joshia said it only for restrictions, meaning he requires that both in biblical Hebrew and in the vernacular the terms should denote different things."¹⁰

This means R. Josiah is not simply saying biblical usage always overrides vernacular; rather, he insists that if the vernacular and biblical terms diverge, then one must be careful to adhere to the specific meaning. If they are used interchangeably in the Torah, then that broader definition applies.

## Friction

The most significant point of friction in this sugya lies in the divergent approaches to interpreting vows, particularly between R. Yochanan and R. Josiah, regarding the definition of "cooked food." The Mishnah states that one vowing against mevushal is permitted tzali and shaluk. This directly implies that, in the context of the Mishnah, these are distinct categories.

However, the Gemara then brings proofs that shaluk can be called mevushal (from the Nazir Mishnah) and tzali can be called mevushal (from the Pesach verse in Chronicles). This creates a tension: if these are indeed forms of mevushal in certain contexts, why does the Mishnah permit them?

R. Yochanan resolves this by invoking the principle of ke-verirot ha-adam – that vows are interpreted according to common usage. In everyday parlance, "cooked" is a distinct category from "roasted" or "scalded." Therefore, a vow against "cooked" does not encompass these other methods. The Penei Moshe supports this, stating:

"Rebbi Joḥanan said, in matters of vows one follows common usage."⁷

R. Josiah, however, insists on biblical usage:

"Rebbi Joshia said, in matters of vows one follows biblical usage."⁷

This presents a direct contradiction. If R. Josiah were to strictly follow the biblical definitions that equate roasting and scalding with cooking, then the Mishnah's permission would be a contradiction. The Penei Moshe clarifies R. Josiah's position as being more nuanced:

"Rebbi Joshia said it only for restrictions, meaning he requires that both in biblical Hebrew and in the vernacular the terms should denote different things."¹⁰

This implies that R. Josiah is not necessarily saying that biblical usage always dictates a broader prohibition. Rather, he insists on a clear distinction. If the Torah itself uses these terms interchangeably, then the broader definition applies. But if the vernacular clearly separates them, and the Torah also uses them in ways that suggest a distinction (even if it also uses them broadly), then one must be cautious.

The friction point is R. Yochanan's reliance on the common person's understanding versus R. Josiah's reliance on scriptural terminology, which can sometimes be broader or more specific than vernacular. The latter is often seen as a stricter interpretation, as it can encompass actions that the common person might not consider forbidden under a specific vow. The Penei Moshe's interpretation of R. Josiah's position, that he requires distinct meanings, is a way to reconcile his adherence to biblical terms with the Mishnah's apparent leniency. If the biblical usage itself, when examined closely, reveals distinct concepts even when the same word is used, then R. Josiah's principle supports the Mishnah. However, if the biblical usage is unequivocally broad, then R. Josiah's position would indeed clash with the Mishnah. The Penei Moshe seems to lean towards R. Yochanan's view as the accepted one in Yerushalmi, aligning with the principle of interpreting vows based on common understanding.

## Intertext

### Kinuy and the Transfer of Public Domain Rights

The discussion in J. Nedarim 5:5 regarding the transfer of rights in public institutions to circumvent vows resonates with the broader concept of kinuy (dispossession) and the transferability of rights in communal spaces. The Mishnah itself states that "the cistern in the middle of the road" is like hefker (ownerless).¹¹ This notion of communal or ownerless property has parallels in other areas of Halakha.

For instance, the prohibition of bal tashḥit (wastefulness) often applies to public resources. When dealing with vows that would otherwise restrict access to or use of these resources, the mechanism described in the Mishnah – writing one's part to the nasi or a private person with kinyan – is a method of formally relinquishing one's claim or right to use that communal property. This is conceptually similar to how one might divest themselves of ownership in a shared courtyard in order to avoid violating a vow related to that space. The critical element, as highlighted by the Sages' insistence on kinyan even when dealing with the nasi, is the need for a clear and demonstrable act of transfer, ensuring that the vow is genuinely circumvented by a change in legal standing.

### Vows and the Nuances of Food Preparation

The debate in J. Nedarim 6:1 concerning "cooked food" (mevushal) and its relation to roasting (tzali) and scalding (shaluk) touches upon a recurring theme in Halakha: the precise definition of culinary terms and their impact on vows and prohibitions. The principle that "in matters of vows one follows common usage"¹² (R. Yochanan's view) is a cornerstone of interpreting such declarations.

This principle is echoed in discussions concerning vows of abstinence from specific foods. For example, a vow against eating "bread" might not include cakes or pastries if common usage distinguishes them. Similarly, a vow against "meat" might be interpreted differently depending on whether it refers to all animal flesh or specifically beef. The Yerushalmi's meticulous examination of terms like shaluk and tzali, and its engagement with biblical verses and Mishnah statements to discern their meaning, demonstrates a deep engagement with linguistic precision for the sake of upholding the integrity of vows. The contrast between R. Yochanan and R. Josiah highlights the tension between a practical, vernacular-based approach and a more literal, text-based interpretation, a tension present in many areas of Halakhic discourse.

## Psak/Practice

The primary practical implication of J. Nedarim 5:5 relates to the interpretation of vows. R. Yochanan's principle that "in matters of vows one follows common usage"¹² has become the dominant approach in determining the scope of vows. This means that when someone makes a vow using a particular term, the Halakha will generally look to how that term is understood in contemporary language, rather than a strictly literal or archaic interpretation. For example, if someone vows not to eat "sweets," it would likely be interpreted based on what people generally consider "sweets" today, not just a narrow, historical definition.

The debate regarding the transfer of rights in public institutions, while nuanced, underscores the importance of clear legal action when attempting to circumvent vows. The Sages' insistence on kinyan¹³ reinforces the idea that a mere declaration or intention is insufficient; there must be a tangible act of transfer. This principle remains relevant in modern contexts where individuals may wish to divest themselves of certain rights or responsibilities to avoid violating a vow, emphasizing the need for formal and legally recognized procedures.

## Takeaway

The interpretation of vows hinges on the common understanding of terms, not solely on biblical or linguistic nuances, a principle that ensures practical application of nedarim.

When dealing with communal property or rights, formal acts of divestment, like kinyan, are essential to alter one's legal standing and circumvent vows.

## Citations

1. J. Nedarim 5:5:1 (Mishnah) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.5.5.1
2. Penei Moshe on J. Nedarim 5:5:1:5 https://www.sefaria.org/Penei_Moshe_on_Jerusalem_Talmud_Nedarim.5.5.1.5
3. Penei Moshe on J. Nedarim 5:5:1:6 https://www.sefaria.org/Penei_Moshe_on_Jerusalem_Talmud_Nedarim.5.5.1.6
4. J. Nedarim 5:5:1 (Mishnah) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.5.5.1
5. J. Nedarim 6:1:1 (Mishnah) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.6.1.1
6. J. Nedarim 6:1:1 (Halakha) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.6.1.1
7. J. Nedarim 6:1:1 (Halakha) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.6.1.1
8. B. Nedarim 49a https://www.sefaria.org/Nedarim.49a
9. J. Nedarim 6:1:1 (Halakha) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.6.1.1
10. Penei Moshe on J. Nedarim 6:1:1:10 https://www.sefaria.org/Penei_Moshe_on_Jerusalem_Talmud_Nedarim.6.1.1.10
11. J. Nedarim 5:5:1 (Mishnah) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.5.5.1
12. J. Nedarim 6:1:1 (Halakha) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.6.1.1
13. J. Nedarim 5:5:1 (Halakha) https://www.sefaria.org/Jerusalem_Talmud_Nedarim.5.5.1