QUESTION: The Gemara records a dispute between Rebbi Yochanan and Reish Lakish with regard to whether one's oath of Nezirus takes effect when he declares an oath of Nezirus as he stands in a cemetery. The Gemara quotes Mar bar Rav Ashi who concludes that Rebbi Yochanan and Reish Lakish maintain that the Nezirus takes effect, and they disagree only about whether or not the person receives Malkus for becoming Tamei.

Why should a person who becomes a Nazir while he stands in a cemetery be punished with Malkus for becoming Tamei? Although he transgresses the Lo Ta'aseh which prohibits a Nazir from becoming Tamei, he transgresses only passively, with no action. Accordingly, his transgression constitutes a "Lav she'Ein Bo Ma'aseh." One who transgresses a "Lav she'Ein Bo Ma'aseh" does not receive Malkus.

(a) The RAN (DH Chaila) explains that Rebbi Yochanan and Reish Lakish do not disagree about whether the person receives Malkus for becoming Tamei. They both maintain that he does not receive Malkus for becoming Tamei, because his transgression is a "Lav she'Ein Bo Ma'aseh." Rather, they disagree about whether he receives Malkus for transgressing the other prohibitions of Nezirus, such as consuming grape products and cutting his hair.

The RASHASH questions this explanation. If, according to Reish Lakish, the person does not receive Malkus for consuming grape products and for cutting his hair even though he transgresses those prohibitions actively, it must be that the Nezirus has not yet taken effect. Consequently, he should be guilty of transgressing the prohibition of Bal Te'acher if he delays his exit from the cemetery, since by staying in the cemetery he prevents the Nezirus from taking effect, and yet Reish Lakish makes no mention of such a transgression. Moreover, the Gemara says that according to Mar bar Rav Ashi the Nezirus does take effect when he accepts it upon himself as he stands in the cemetery. The Gemara in Nazir (17a) clearly states that he needs no further acceptance of Nezirus when he leaves the cemetery.

The Ran apparently understands that according to Reish Lakish, a person cannot become obligated to observe Nezirus of Taharah while he is in a cemetery (since he is presently Tamei). Reish Lakish maintains that one cannot effect a "partial Nezirus," and thus he is not obligated to observe Nezirus at all, even the laws unrelated to Tum'ah (such as refraining from grape products and haircuts). However, this does not mean that the Nezirus does not take effect. Rather, the Nezirus does take effect, but in a suspended mode, waiting for the moment at which the person will become obligated to refrain from Tum'ah. At the moment the Nezirus is able to take effect with regard to Tum'ah, all of the other laws of Nezirus take effect as well. Hence, no new acceptance of Nezirus is necessary when he exits the cemetery. Since no new acceptance is necessary, the Gemara assumes at this point that there is no transgression of Bal Te'acher if he delays (because as long as the Nezirus has taken effect, even in a suspended mode, the person is considered to have fulfilled his oath of Nezirus). The Gemara concludes that even this form of delaying Nezirus is considered Bal Te'acher because the person delays practicing the Nezirus of Taharah.

Prior to Mar bar Rav Ashi's teaching that the Nezirus remains in a suspended mode, the Gemara assumed that Nezirus does not take effect at all according to Reish Lakish and that a new acceptance of Nezirus is required when he leaves the cemetery, and thus he should be guilty of Bal Te'acher if he delays that second acceptance of Nezirus.

(b) The ROSH here and TOSFOS in Nazir (17a) explain that when the Gemara says that Rebbi Yochanan and Reish Lakish argue about Malkus, it indeed refers to Malkus for becoming Tamei. Both Rebbi Yochanan and Reish Lakish agree that he receives Malkus for consuming wine and cutting his hair, because there is no reason why the Nezirus should not take effect with regard to those laws. They disagree only with regard to Malkus for becoming Tamei.

Why, though, does Rebbi Yochanan maintain that he receives Malkus for becoming Tamei if his transgression is a "Lav she'Ein Bo Ma'aseh"? The Rosh and Tosfos explain that Rebbi Yochanan and Reish Lakish are addressing only the opinion that one does receive Malkus for a "Lav she'Ein Bo Ma'aseh." Alternatively, Rebbi Yochanan does not mean literally that Malkus is administered, but rather that there exists an Isur of Malkus. (That is, the Isur against becoming Tamei takes effect, and he would have been punished with Malkus had a Ma'aseh been involved in his transgression.)

Why, though, does Reish Lakish rule that the person is not liable for Malkus for becoming Tamei even according to the opinion that one does receive Malkus for a "Lav she'Ein Bo Ma'aseh"? Reish Lakish maintains that the Isur of Tum'ah can take effect only when it prohibits the person from becoming Tamei, and not when the person is already Tamei. (In other words, the Isur of Tum'ah for a Nazir prohibits him from becoming Tamei, and not from being Tamei.)

(c) The MEFARESH in Nazir (17a) explains that Rebbi Yochanan and Reish Lakish argue about Malkus for becoming Tamei, as the Rosh and Tosfos explain. However, he explains that according to Reish Lakish, although the person becomes bound to refrain from wine and from cutting his hair immediately, he does not become prohibited from becoming Tamei until he re-accepts upon himself the Isur Tum'ah of Nezirus after he becomes Tahor from his present state of Tum'ah. When Rebbi Yochanan says that the Nazir is punished with Malkus for becoming Tamei, he does not mean that the Nazir is punished with Malkus for making himself a Nazir while in the cemetery. Rather, he is punished with Malkus for making himself Tamei after he leaves the cemetery and becomes Tahor (in which case he becomes Tamei actively and transgresses a "Lav she'Yesh Bo Ma'aseh"). Reish Lakish exempts him from Malkus even in such a case because the Nazir did not re-accept upon himself the Isur Tum'ah of Nezirus after he became Tahor.

According to the Mefaresh, why does the Gemara not say that according to Reish Lakish the person transgresses an Isur of Bal Te'acher if he does not accept the Nezirus of Taharah immediately after he leaves the cemetery and becomes Tahor? Apparently, the Mefaresh maintains that a declaration of Nezirus in a cemetery constitutes an acceptance of only two thirds of Nezirus (the prohibitions against consuming grape products and cutting hair). The person's acceptance of Nezirus does not include an oath to become a Nazir with regard to the Isur of Tum'ah of Nezirus, and thus he does not transgress Bal Te'acher if he delays the acceptance of such a Nezirus.

How, though, can a person accept Nezirus only for some parts of the Nezirus and not for others? The Gemara in Nazir (11a) teaches acceptance of a partial Nezirus is meaningless. If a person accepts Nezirus upon himself, all of the laws must take effect. The answer is that this rule applies only when the person accepts his oath of Nezirus at a time at which the Isur of Tum'ah can apply, but not when he is standing in a cemetery. If he is in a cemetery and the Isur of Tum'ah cannot take effect, he indeed is able to accept upon himself a partial Nezirus.

(d) The SHA'AGAS ARYEH suggests that when an action must be performed in order for a prohibition to be transgressed, then even when that action precedes the actual transgression -- and the actual transgression itself involves no action -- the act is considered a "Lav she'Yesh Bo Ma'aseh." The Sha'agas Aryeh proves this from examples of prohibitions which are transgressed without an action and yet are punishable with Malkus. He cites the Gemara in Nazir (43a) which discusses the case of a Nazir who was carried into a cemetery while he was enclosed in a box (according to the view that a box separates between him and the Tum'ah), and then another person came and removed the cover of the box. If the Nazir does not leave the cemetery immediately, he transgresses the Isur of becoming Tamei in a cemetery and receives Malkus because the action of entering the cemetery renders the Isur a "Lav she'Yesh Bo Ma'aseh," even though no transgression was committed at the moment the action was done. The Sha'agas Aryeh cites further support for this explanation from TOSFOS in Shevuos (17a, DH O).

The Sha'agas Aryeh reasons that the law that a Nazir may not enter a cemetery prohibits a Nazir from being in a cemetery (as that is how the Torah describes the prohibition); it does not require that a Nazir be outside of a cemetery. For this reason, the prohibition against entering a cemetery is considered a "Kum v'Aseh" since it is transgressed only when preceded by an action (entering the cemetery), and therefore Malkus may be administered.

This may be the reasoning of the RAMBAM (Hilchos Nezirus 5:21; see LECHEM MISHNEH there) who rules that, in practice, Malkus is given to a person who accepts Nezirus while he stands in a cemetery.

QUESTION: The Gemara says that a Nazir who intentionally makes himself Tamei transgresses the Isur of Bal Te'acher (for delaying his fulfillment of Nezirus of Taharah). This implies that he receives Malkus immediately for transgressing the Isur of Bal Te'acher.

However, the Gemara in Rosh Hashanah (6b) teaches that one transgresses Bal Te'acher for delaying the bringing of a Korban only when he delays bringing it for three festivals. Why, then, should the Isur of Bal Te'acher of Nezirus take effect immediately? It should take effect only after three festivals have passed, since the Isur of Bal Te'acher of Nezirus is derived from the Isur of Bal Te'acher of Nedarim.

(a) The RITVA in Rosh Hashanah explains that with regard to delaying the fulfillment of a pledge to Tzedakah and other Mitzvos, there is no grace period of three Regalim. Rather, one transgresses Bal Te'acher right away. The only reason why one does not transgress Bal Te'acher for delaying a Korban until after three Regalim have passed is that the Torah does not require a person to go out of his way and make a trip to the Beis ha'Mikdash in Yerushalayim as soon as he consecrates an animal as a Korban. Rather, the Torah allows him to wait until the time he normally goes to the Beis ha'Mikdash -- at the time of the festival. If he delays bringing the Korban three times (after three Regalim), he transgresses the Isur of Bal Te'acher. In contrast, in order to fulfill his pledge of Tzedakah and other Mitzvos, one does not need to go to Yerushalayim, and therefore if he delays the Mitzvah he transgresses Bal Te'acher right away.

Still, however, why does the Isur of Bal Te'acher of Nezirus apply immediately? Since the Bal Te'acher of Nezirus is derived from Bal Te'acher of Korbanos, one should at least have a leeway period of three time units of some nature before he transgresses Bal Te'acher. Why does the Isur apply immediately?

Perhaps the Torah gives three Regalim for Bal Te'acher of Korbanos because the Torah does not require a person to bring his Korban immediately. Since he is not required to bring his Korban immediately, there is a greater chance that he will forget to bring it at the first Regel, and therefore the Torah gives him three Regalim to remember to bring it. In contrast, something for which one transgresses Bal Te'acher immediately does not have three time periods because there is no excuse for forgetting to do it right away.

This seems to be the opinion of TOSFOS here (3b) as well.

(b) The RAN writes that the reason why the Torah gives three Regalim for Bal Te'acher of Korbanos is that when a person makes a Neder to bring a Korban, he has in mind not to bring it right away but to give himself up to three Regalim to bring it. If, however, a person explicitly obligates himself to bring the Korban immediately, he indeed would transgress Bal Te'acher immediately if he delays. Similarly, when a Nazir makes himself Tamei he transgresses Bal Te'acher right away, because he has shown through his declaration of acceptance of Nezirus that he wants the Nezirus to take effect immediately. Hence, if he makes himself Tamei he transgresses Bal Te'acher immediately.

However, if it is true that a person who pledges to bring a Korban intends to give himself time (up to three Regalim) to bring the Korban, then why does the Gemara in Rosh Hashanah (6b) teach that he transgress a Mitzvas Aseh when he does not bring the Korban during the first Regel that arrives? He did not intend or pledge to bring the Korban by that time!

The answer must be that when a person commits himself to bring a Korban, the Torah obligates him with a Mitzvas Aseh to hurry and bring it as soon as possible. (This Mitzvas Aseh also may apply to a person who accepts upon himself an oath of Nezirus by saying, "I will be a Nazir before two years pass"; see Ran at the beginning of the Daf.)

(c) The ROSH writes that the Isur of Bal Te'acher is always transgressed only after three Regalim. That is, the Isur of Bal Te'acher is not defined merely as a delay of the Korban or Neder, but rather as a delay of the Korban or Neder for three Regalim from the time he accepted it upon himself. The Mitzvas Aseh requires that the person bring the Korban at the first Regel. If he delays his obligation past three Regalim, he then transgresses the Isur of Bal Te'acher.

The Rosh explains that this is why, in all of the cases of Bal Te'acher mentioned in the Gemara here, the Isur takes effect only after three Regalim have passed. Accordingly, if a Nazir becomes Tamei he transgresses Bal Te'acher only if he does not become Tahor for three Regalim.

Why, then, does the Gemara rule that a Nazir transgresses Bal Te'acher only if he makes himself Tamei intentionally (b'Mezid)? The Isur of Bal Te'acher does not depend on how he became Tamei. Rather, what matters is that he intentionally delayed making himself Tahor!

The Rosh answers that this indeed is the intention of the Gemara's statement, "she'Timei Atzmo b'Mezid" -- it means that he intentionally remained in his state of Tum'ah and did not make himself Tahor.

OPINIONS: The Beraisa earlier (3a) cites the verse, "Ish... Ki Yafli li'Ndor Neder, Nazir l'Hazir la'Shem..." (Bamidbar 6:2). This verse provides a Hekesh between Nedarim and Nezirus and teaches that certain laws of Nedarim are learned from Nezirus, and certain laws of Nezirus are learned from Nedarim. Among the laws of Nezirus learned from Nedarim is the law that a father may annul his daughter's oath of Nezirus, and the law that a husband may annul his wife's oath of Nezirus, just as a father or husband may annul his daughter's or wife's Nedarim.

The Gemara here asks why a Hekesh is needed to teach this law of Nezirus when it may be derived through a "Meh Matzinu." The Gemara answers that this law cannot be derived through a "Meh Matzinu" because there is a difference between an ordinary Neder and an oath of Nezirus. One might have thought that since an ordinary Neder has no "Kitzusa," a father or husband may annul the Neder of his daughter or wife. An oath of Nezirus, however, does have "Kitzusa," and thus one might have thought that a father or husband may not annul the oath of Nezirus of his daughter or wife.

What is the meaning of "Kitzusa," and in what way is it a difference between an ordinary Neder and an oath of Nezirus?

(a) The RAN and other Rishonim explain that "Kitzusa" means that a Neder has no time limit. Since the prohibition a woman creates with her Neder can apply indefinitely, the Torah gives the right of annulment to her husband or father so that she should not suffer from her Neder forever. In contrast, an oath of Nezirus creates a temporary prohibition (30 days). Since this is not an unreasonably long period of time to have to endure the laws of Nezirus, one might have thought that the Torah does not allow her father or husband to annul her Nezirus.

This explanation is problematic. A Neder also may be made for a short period of time (for example, "Bread is forbidden to me for thirty days"), and yet the father or husband may annul the woman's Neder. Consequently, the right of annulment of Nezirus should be derived from the right of annulment of a short-term Neder, and the Gemara's question remains: Why is a Hekesh necessary when the law of annulment may be derived through a "Meh Matzinu"?

Apparently, the Ran understands that before the Gemara introduces the Hekesh, it assumes that a husband indeed may not annul his wife's short-term Neder (and thus there is no basis for a "Meh Matzinu" to Nezirus). Only after the Gemara applies the Hekesh to Nazir does the Gemara know that a husband may annul a short-term Neder.

(b) The OR SAME'ACH (Hilchos Nedarim 12:19) suggests a novel explanation for the meaning of "Kitzusa." According to his explanation, the intent of the Gemara is the exact opposite of the way the Ran explains it.

"A Neder has no 'Kitzusa'" means that a Neder has no minimum time for which it must be in effect. A Neder for one day is a valid Neder. Hence, when a girl makes a Neder and her father annuls it, from now on it is no longer in effect, but until now it was a valid Neder. In contrast, Nezirus does have "Kitzusa," a minimum time for which it must be in effect. A Nezirus less than thirty days is not a valid Nezirus. Hence, one might have thought that a father may not annul the Nezirus of his daughter from now on, because a Nezirus cannot be in effect for a time period of less than thirty days.

(According to this approach, the "Meh Matzinu" indeed teaches that if a girl makes an oath of Nezirus to become a Nazir for 50 days, after the passage of 30 days her father may annul it since she has observed the minimum number of days of Nezirus. The Hekesh is not necessary in such a case. See AYELES HA'SHACHAR.)