Tuesday, July 21, 2009

hasra'ah and ain onshin min hadin

The gemara (Shavuos 20b) classifies vows into three categories:

1) An oath on something which occurred in the past, e.g. I swear I ate that piece of bread. Swearing this type of oath falsely is a violation of shavu'as shav.

2) An oath to do something in the future, e.g. I swear I will eat that piece of bread for lunch. Swearing this type of oath falsely is a shavua's sheker.

3) Taking a neder and violating it, e.g. This piece of bread is forbidden to me like a korban. Violating a neder is an issur of bal yacheil. (Tosfos adds that bal yacheil applies to the previous cases as well in addition to the particular issurim of shavu'ah.)

Rashi writes a chiddush that gives the gemara more meaning than just creating categories. A person must receive hasra'ah, a warning not to do what he is doing, before receiving punishment for violating an issur. It's not enough (says Rashi) to tell a person in general that what he is doing in wrong, but rather hasra'ah must mention the specific prohibition being violated. If a person is violating shavu'as shav, it does not good to warn him that he is violating a shavua'as sheker, or vica versa.

The Rambam makes no mention of the requirement to mention the specific lav being violated as part of the warning of hasra'ah. I asked my son what he thought the logic behind Rashi's opinion is, but the truth is I don't fully grasp it myself. Clearly hasra'ah must be more than a warning that something wrong is being done, or a simple "That is prohibited" would suffice. But why require mentioning the specific issur being violated?

On the same topic, my son quoted what sounds to me like a very strange sevara that his Rebbe heard from R' Zelig Epstein. Why is it that ain mazhirin min hadin, that the Torah warning not to do an issur must be spelled out in a pasuk and not derived from a kal v'chomer? R' Z.E. explained that were the issur derived from a kal v'chomer, there would be no way to formulate a proper hasra'ah on a specific lav. It sounds to me like R' Z.E. understood b'pashtus that hasra'ah is not a general statement, but must point to a specific lav -- I don't know why you would take that as a given when it is a chiddush of Rashi that needs explanation. Secondly, I think a simpler reason why ain mazhirin min hadin (assuming you even need to say a sevara instead of just accepting it as a gezeiras hakasuv, see Yevamos 24) is because there is always the chance that the kal v'chomer you use to derive a new issur is incorrect. I'm a bit baffled by the question and answer.


  1. Mike S.9:55 PM

    Because we do not give out corporal punishment unless the defendant deliberately allows (hitir atzmo l'mita) by acknowledging the htra'a. Were the witness to offer an incorrect warning, the defendant could claim that he did not deliberately violate an issur, but only acknowledged the warning to shut up the fellow who insisted on warning him about an issur he wasn't about to commit. Thus someone who is about to violate a neder, if warned about a shevuah, could justly assume the witness was ignorant, since the defendant knows that he did not utter a shevuah and not take the warning seriously.

  2. Tos. debates in a few places whether someone would be chayav if you tell him to stop doing work on Shabbos but mis-identify the av melacha being violated. But that's not what I'm talking about. What if you just say "Stop violating Shabbos", or if the person took a shevua not to eat bread and you simply say "Don't eat that bread -- it's asur." You haven't mis-identified the lav in this case, so why would the person ignore you?

  3. Mike S.11:14 AM

    I can perhaps best answer your question with an incident that happened to me a few decades ago when a (somewhat controversial) eruv was erected around the part of Los Angeles where I was then living. I was walking to shul one Shabbos morning and saw a frum fellow watering his garden. I pointed out that this was assur on Shabbos, and he answered me that his shul Rabbi had told him he could use the eruv and "you crazy frummies should leave the rest of us alone." Although he was doing an issur, even after a general warning, he lacked the spirit of rebellion that would be capitally liable.

  4. Doesn't the machlokes Rashi/Rambam have to do with accepting a hasraas safek? To Rambam, hasraas safek is a hasraah, and so is a general hasraah without mentioning the lav. But to Rashi, that hasraas safek is not a haasraah, a hasraah must be on the exact isur. (It's been a while since I learned about hasraah in Makos perek 1 (even longer since Shvuas hapikadon) but this is how I think I understood this.)