QUESTION: Rami bar Chama asks (11b) whether one's Neder takes effect when he compares (with Hatfasah) the object to the meat of a Korban Shelamim which rests in front of him after the blood of the Korban has been sprinkled on the Mizbe'ach (l'Achar Zerikas Damim) so that the meat itself is Mutar. What is the person's intention? Does he intend to compare the object to the Korban in its original state ("b'Ikro Ka Matfis"), before the sprinkling of its blood, when it was Asur, in which case the Neder does not take effect because he compares the object to a Davar ha'Asur? Alternatively, does he intend to compare the object to the Korban in its present state, "b'Hetera Ka Matfis," after the sprinkling of its blood, when it is Mutar, in which case the Neder takes effect because he compares the object to a Davar ha'Nadur?

The Gemara does not resolve the question of whether one is Matfis "b'Ikro" or "b'Hetera." The RAN, in the name of the RAMBAN, rules that "b'Hetera Ka Matfis."

The Gemara concludes that whether or not a Neder made through Hatfasah to a Bechor takes effect is the subject of a Machlokes Tana'im. Rebbi Yosi maintains that a Bechor is sanctified from birth (Kadosh m'Rechem) and does not need to be sanctified by the owner. Accordingly, it is a Davar ha'Asur and the Neder does not take effect. Rebbi Yakov maintains that although it is Kadosh m'Rechem, the owner still has a Mitzvah to consecrate it, and thus it is considered a Davar ha'Nadur and the Neder takes effect.

The RAMBAM (Hilchos Nedarim 1:13) rules that a Neder in which one is Matfis to a Bechor does not take effect, because a Bechor is Kadosh m'Rechem.

With regard to whether one is Matfis "b'Ikro" or "b'Hetera," the Rambam (1:15) rules that when one is Matfis to the meat of a Korban Shelamim which rests in front of him after the blood of the Korban has been sprinkled on the Mizbe'ach, the Neder takes effect and the object becomes Asur, because a person is Matfis "b'Ikro." This is contrary to the ruling of the Ran in the name of the Ramban.

The Rambam adds, however, that when one is Matfis to the meat of a Bechor which rests in front of him, the status of the Neder depends on whether Zerikas Damim has been done has been done or not. If Zerikas Damim has not been done yet, the Neder takes effect and the object becomes Asur. If Zerikas Damim has been done, the Neder does not take effect and the object is Mutar.

This ruling of the Rambam is puzzling, as the RA'AVAD points out. Why should one's Neder take effect when he is Matfis to the meat of a Bechor before Zerikas Damim? The Rambam himself rules that one cannot be Matfis to a Bechor because it is Kadosh m'Rechem and is not a Davar ha'Nadur!

Moreover, if the Neder takes effect when one is Matfis to the meat before Zerikas Damim, why should the Neder not take effect when one is Matfis to the meat after Zerikas Damim? The Rambam himself rules that "b'Ikro Ka Matfis," and thus one intends to be Matfis to the meat of the Bechor in its original state, before Zerikas Damim, and thus the Neder should take effect!

Finally, what is the Rambam's source for differentiating between Hatfasah to the meat of a Bechor before Zerikas Damim and Hatfasah to the meat of a Bechor after Zerikas Damim (for which it is not assumed that "b'Ikro Ka Matfis")? The Gemara here makes no mention of this difference.

(a) The SHA'AR HA'MELECH explains, like the Ra'avad, that the Rambam understands the Gemara earlier (end of 12b) as saying that when one makes a Neder by comparing the object to the meat of a Bechor before Zerikas Damim, the Neder takes effect, but when one makes a Neder by comparing the object to the meat after Zerikas Damim, the Neder does not take effect (contrary to the way the RAN learns the Gemara, DH Heichi Dami).

The Gemara concludes that the Beraisa refers to the meat of a Bechor before Zerikas Damim, and the reason why Rebbi Yakov rules that the Neder takes effect is that there is a Mitzvah for the owner to consecrate the Bechor even though it is already Kadosh m'Rechem, and thus the Bechor has the status of a Davar ha'Nadur.

Why, though, does the Gemara not say the same thing about the meat of a Bechor after Zerikas Damim? Such meat was also sanctified by the owner and should be considered a Davar ha'Nadur! It must be that after Zerikas Damim, everyone agrees that a Neder made with Hatfasah to the Bechor does not take effect (the reason why will be explained below). This way of learning the Gemara is the source for the Rambam's ruling that the Neder does not take effect when one is Matfis to the Bechor after Zerikas Damim, while the Neder does take effect when one is Matfis to the Bechor before Zerikas Damim. The Rambam rules in accordance with the view of Rebbi Yakov in the Beraisa.

What, though, is the logic for Rebbi Yakov's distinction between the meat of a Bechor after Zerikas Damim and before Zerikas Damim?

Rebbi Yakov maintains that before the owner consecrates the Bechor, the Bechor certainly is a Davar ha'Asur, and Hatfasah to it will not make a valid Neder. Only after the owner consecrates it does it become a Davar ha'Nadur. This is the intent of the Rambam when he writes (1:13) that when one says, "This object is like a Bechor," the object is Mutar. When one says only that the object is "like a Bechor," he refers to the Bechor before anything was done to it -- even before the owner consecrated it. If one is Matfis to a Bechor after the owner consecrated it, the Neder would take effect.

Therefore, if one is Matfis to the meat of a Bechor after Zerikas Damim when it is no longer Asur to Kohanim, the Neder does not take effect. Even though the Rambam rules that "b'Ikro Ka Matfis," in this case "b'Ikro" refers to the Bechor as it was originally, before the owner consecrated it, and that is why the Neder does not take effect. Hence, whether the Halachah is "b'Ikro Ka Matfis" or "b'Hetera Ka Matfis," the Neder does not take effect because his intention can be only one of two possibilities: he is being Matfis to the Bechor the way it is now (and now it is Asur to Kohanim and is a Davar ha'Asur), or he is being Matfis to the Bechor the way it was originally, before he consecrated it, when it first became a Bechor (by being born as a Bechor). He is not assumed to be Matfis to a Bechor in its interim stage (after the owner consecrated it and before Zerikas Damim was performed).

However, when he is Matfis to the Bechor and says explicitly that he is being Matfis to the meat before Zerikas Damim and after the owner consecrated it, the Neder takes effect, since at the present moment the meat is Kadosh. The Halachah does not assume that "b'Ikro Ka Matfis" to be lenient and that the Neder does not take effect, but rather the Neder does take effect. This is because the concept of "b'Ikro Ka Matfis" is based on the principle of "Stam Nedarim l'Hachmir," which states that the Neder takes effect in a case of doubt.

(b) The BRISKER RAV, cited by the AYELES HA'SHACHAR and CHIDUSHEI REBBI SHMUEL, explains that when the Bechor is slaughtered as a Korban, the fact that it is offered as a Korban puts it in the category of a Davar ha'Nadur. This is because once it is slaughtered it becomes like every other Korban Shelamim (and a Korban Shelamim is a Davar ha'Nadur), even though this particular Shelamim did not require that the owner sanctify it since it was Kadosh m'Rechem. Hence, even though a Bechor is not a Davar ha'Nadur (as Rebbi Yosi says), the Rambam still rules that once it is slaughtered it becomes a Davar ha'Nadur, until the Zerikas Damim is performed.

When one is Matfis to a Bechor after Zerikas Damim, the rule "b'Ikro Ka Matfis" cannot be applied, such that we assume that he is Matfis to the original state of the Bechor, before the Zerikas Damim (when it was a Davar ha'Nadur). This is because, as the Sha'ar ha'Melech writes, a person is either Matfis to the Bechor's original state or to its present state, but not to its interim state (i.e. after Shechitah but before Zerikas ha'Dam).