1) THE DIFFERENCE BETWEEN A "NEDER" AND A "NEDAVAH"
QUESTION: The first Mishnah in Kinim states that one makes a Neder (vow) by saying, "Harei Alai Olah" -- "it is upon me to bring an Olah." In contrast, one makes a Nedavah (freewill offering) by saying, "Harei Zu Olah" -- "this [animal] is an Olah." The Mishnah explains that the difference between a Neder and a Nedavah is that one is responsible to replace an animal of a Neder if it is lost, stolen, or dies, while one has no such obligation for an animal of a Nedavah. This is because a Neder is a commitment to offer a certain type of Korban, but not a specific animal. In contrast, a Nedavah is a commitment to bring a specific animal, and thus if that animal becomes lost, one is not obligated to bring another one in its place.
There seems to be another basic difference between a Neder and a Nedavah. A Neder must be purchased only with money of Chulin, while a Nedavah may be purchased with money of Ma'aser Sheni. The Mishnah in Menachos (81a) says that one who says, "Harei Alai Todah" -- "it is upon me to bring a Todah," must purchase the Todah and its accompanying loaves from money of Chulin. RASHI there explains that since he said, "Alai," he created an obligation, and the rule is that an obligatory Korban must be purchased only with money of Chulin (see TOSFOS to Bava Kama 62b, DH Merubeh).
A Nedavah, on the other hand, may be purchased with money of Ma'aser. The verse says with regard to Ma'aser Sheni, "You shall slaughter Shelamim and eat them there" (Devarim 27:7). This teaches that Shelamim, which are Nedavos, may be purchased with money of Ma'aser. (See TOSFOS to Megilah 8a, DH Ein, and to Ta'anis 13b, DH Mai. See also RASHASH to Megilah 8a, who discusses Tosfos' source that this verse is stated with regard to Ma'aser.)
Why does the Mishnah here not mention this difference between a Neder and Nedavah?
(a) The ROSH answers in the name of RABEINU ELCHANAN that the Mishnah cannot say that a Nedavah may be purchased from money of Ma'aser, because the Mishnah is discussing Olah offerings. An Olah may not be purchased with Ma'aser Sheni money, even if it is a Nedavah. This is derived from the verse that says with regard to Ma'aser Sheni, "And you shall spend the money for whatever your soul will desire... and you shall eat it there before Hash-m your G-d, and you shall rejoice" (Devarim 14:26). The Sifri explains that the money must be spent for something that can be eaten, which leads to rejoicing. This excludes using the money for an Olah, because an Olah is burned entirely on the Mizbe'ach and is not eaten at all. (Rabeinu Elchanan points out that the reason why the Mishnah in Megilah (8a) does not mention that a Neder must be purchased with Chulin while a Nedavah may be purchased with Ma'aser -- even though the Mishnah there teaches the same law as the Mishnah here, and there it is not discussing exclusively Olah offerings -- is that the Mishnah there is taught incidentally, as part of its list of examples of similar laws that have only one difference between them. The primary place of this Mishnah is here in Kinim; since the Mishnah here does not mention this difference between Neder and Nedavah (since it is referring only to Olos), the Mishnah in Megilah also does not mention it.)
(b) TOSFOS in Bava Kama (62b, DH Merubeh) answers that the intention of the Mishnah here is not to list all of the differences between Neder and Nedavah. Rather, the Mishnah is discussing the differences in the obligation to offer the Korban when one has already purchased it. One is not obligated to fulfill his Nedavah-pledge when the animal died or was lost, but one is obligated to fulfill his Neder-pledge in such a case. The intention of the Mishnah is that for all other laws regarding the obligation to bring the Korban (that has already been purchased), Nedarim and Nedavos are the same. Accordingly, if one pledged to bring a Korban and he delayed bringing it for three Regalim, he transgresses Bal Te'acher for both a Neder and a Nedavah (see Rosh Hashanah 4b). (D. BLOOM)
2) A "CHATAS HA'OF" THAT MUST BE LEFT TO DIE
QUESTION: The Mishnah (1:2) teaches that when a Chatas ha'Of becomes mixed with any number of Olos ha'Of, the birds must be left to die.
This Mishnah seems to contradict the words of the MEFARESH in Nazir (21b, DH v'Hainu Ta'ama, and 22a, DH ha'Ishah she'Nadrah). The Mefaresh explains that the Halachah l'Moshe mi'Sinai which teaches that a Chatas which cannot be offered must be left to die applies only to animals (Chatas Behemah) and not to birds (Chatas ha'Of). Moreover, RAV YOSEF ENGEL in GILYONEI HA'SHAS in Nazir points out that a source for this ruling may be found in the Tosefta in Temurah (1:9). The Tosefta there lists a number of differences between the Korban of an animal and the Korban of a bird, and one of those differences is that an animal has a Halachah of Chatas Mesah (the animal is left to die), and a bird does not have such a Halachah.
Why, then, does the Mishnah here state that a Chatas ha'Of is left to die?
ANSWER: The law of the Mishnah here is not the Halachah l'Moshe mi'Sinai that teaches that five types of Chata'os must be left to die. Rather, the Mishnah here is teaching that the bird is put to death simply because we do not know what to do with it, and we cannot redeem it with Pidyon since there is no Pidyon for a bird (Yoma 41b). The same applies in the other places that discuss a Chatas ha'Of that is left to die (see Yoma 41b). (See Insights to Nazir 22:1.)
(b) However, the Mefaresh himself in Nazir (12a, DH Kan Setumah) writes that the Chata'os Mesos (the types of Chatas offerings that must be left to die) mentioned in Maseches Kinim indeed refer to a Chatas ha'Of that must die because of the Halachah l'Moshe mi'Sinai of the five types of Chata'os Mesos! (The SHA'AR HA'MELECH in Hilchos Pesulei ha'Mukdashin 4:1 discusses this contradiction in the Mefaresh, as Rav Betzalel Rensburg in his Hagahos to Nazir points out.)
This also seems to the opinion of RASHI in Menachos (4b, DH Lo Yavi'u). The Sha'ar ha'Melech adds that this is the opinion of the RAMBAM as well. How do these Rishonim explain the Tosefta that says that a Chatas ha'Of is not included in the Halachah l'Moshe mi'Sinai?
They might explain that the Halachah l'Moshe mi'Sinai teaches that only in the case of a Chatas Behemah is the animal left to die, since an animal normally has Pidyon, and the Halachah l'Moshe mi'Sinai teaches not to redeem something that was designated for Kaparah. In contrast, in the case of a Chatas ha'Of, even without the Halachah l'Moshe mi'Sinai that tells us not to redeem a Chatas ha'Of, we would know that "Ein Pidyon l'Of," a bird does not have Pidyon. That is why the Tosefta says that we find this law -- that one cannot redeem a Korban which is normally fit for Pidyon -- only with regard to an animal; with regard to a bird, in any case it is going to have to die and cannot be redeemed.