1) MAKING A NEDER TO EVADE A BANDIT
QUESTION: The Mishnah (27b-28a) states, "Nodrim l'Haragin..." -- a person is permitted to evade a bandit or tax collector by making a Neder and stating that he prohibits upon himself all fruit in the world if a certain object (that the bandit wants to take) is not the king's property. Although the object is not really the king's property, the Neder does not take effect and the fruit is permitted because it is assumed that he made the Neder only to evade the bandit.
Beis Shamai says that one may make such a Neder only when the bandit himself initiates it and says, "Vow to me that all fruit will be Asur to you if the object is not the king's." Beis Hillel argues and says that one may initiate the Neder himself. Moreover, when the bandit initiates it one may even prohibit objects in his Neder which the bandit did not mention in order to convince the bandit of his sincerity. Hence, if the bandit says to him, "Vow to me that your wife will be Asur to you if that object is not the king's," and he says, "My wife and children should be Asur to me...," Beis Shamai rules that only his wife remains Mutar to him; his children are Asur to him because he added them to the Neder on his own accord. Beis Hillel rules that they are all Mutar to him because he included them all in the Neder only because of the bandit.
However, in the Mishnah earlier (25b) Beis Hillel maintains that "Neder she'Hutar Miktzaso Hutar Kulo" -- once part of a Neder is annulled the entire Neder is annulled as well. Why, then, in the case of the Mishnah here does Beis Hillel need to teach that the Noder's children are permitted to him because he made the Neder only to evade the bandit? Even if one is not allowed to add objects to his Neder to evade a bandit, the Neder should not take effect on the children because the Neder does not take effect with regard to his wife, and "Neder she'Hutar Miktzaso Hutar Kulo." (KEREN ORAH)
(a) The SHALMEI NEDARIM answers that the Mishnah does not mean that the children are Mutar. Indeed, that the children are Mutar is known already because of "Neder she'Hutar Miktzaso Hutar Kulo." Rather, the Mishnah is teaching that a person is permitted l'Chatchilah to add other objects to his Neder.
However, the wording of the Mishnah does not imply that its objective is to teach that one is permitted l'Chatchilah to add to the Neder. The Mishnah says, "Keitzad" -- "In what way [does Beis Hillel permit one to add items to the Neder]," and it explains that according to Beis Hillel, when a person adds items to the Neder, the Neder does not take effect on anyone -- neither on the wife nor on the children. Moreover, why logically should one be permitted l'Chatchilah to add other objects to the Neder if doing so is not necessary?
(b) The KEREN ORAH answers that the rule of "Neder she'Hutar Miktzaso Hutar Kulo" applies only when the Neder originally included a large group of people or objects, and then the person who made the Neder discovered that one (or part) of those people or objects was included in the Neder by mistake. Since all of the objects were part of the same Neder, and the part of the Neder that was made by mistake is annulled, the entire Neder is annulled. In contrast, in the case of the Mishnah it may be assumed that the person never wanted to prohibit himself from the object that the bandit told him to prohibit. Hence, that object (in this case, his wife) was never part of the Neder in the first place. It was not even a Neder made by mistake; it was not a Neder at all. Hence, if he is Mutar to his wife because no real Neder was made to prohibit her, that Heter will not annul the rest of the Neder because his wife was never an actual part of the Neder.
2) "DINA D'MALCHUSA DINA" IN ERETZ YISRAEL
QUESTION: Shmuel asks why the Mishnah permits a person to evade a tax collector if the law of "Dina d'Malchusa Dina" obligates him to abide by the law of the land. The Gemara answers that the tax collector mentioned in the Mishnah is one who operates illegally, not in accordance with the law of the land. (He either he levies unlimited taxes or took the position by force and was not appointed by the king.)
The RAN writes in the name of TOSFOS that the principle of "Dina d'Malchusa Dina" applies only to laws made by non-Jewish kings in their kingdoms. "Dina d'Malchusa Dina" does not apply to laws made by a Jewish king who rules over Eretz Yisrael and follows the Torah. The logic of Tosfos, as the Ran quotes, is that one must follow the laws made by the sovereign of a foreign country because that sovereign is entitled to demand any payment that he wants as compensation for allowing people to live in the land under his jurisdiction (as he has the legal right to expel anyone from his land). In contrast, no Jewish king has that right in Eretz Yisrael because every Jew is entitled by the Torah to live in Eretz Yisrael, and the king cannot legally deny any Jew that right. Consequently, a Jewish king may not demand payment from the people for permission to live in Eretz Yisrael because he does not have the prerogative to grant or deny them permission to live there.
The Gemara's assertion that a Jewish king does not have the right to demand tax from his constituents is problematic. In the "Parshas ha'Melech" in Shmuel I (ch. 8), the prophet tells the Jewish people that the king they will appoint will take away their property for himself and he will take away their children for the army. If the king may take away property and people, certainly he also has the right to demand a tax. In fact, the RAMBAM (Hilchos Melachim 4:1) writes that a Jewish king has the right to levy any tax he wants for this reason; his right of eminent domain permits him to levy a tax. Why does the Ran say that a Jewish king does not have the right to levy a tax?
(a) The Gemara in Sanhedrin (20b) records a Machlokes Tana'im about whether or not the prophet meant literally that the king may take away the property of the Jews. Rebbi Yosi maintains that the king indeed is permitted to confiscate property. Rebbi Yehudah says that the prophet did not mean his words literally; he said that the king has limitless power in order to arouse fear of the king among the people.
It is possible that the Ran writes that "Dina d'Malchusa Dina" does not apply to Jewish kings only according to the view of Rebbi Yehudah, who says that the king is not permitted to take whatever he wants from the people.
However, the source for the Ran's words is the RASHBA. The Rashba cites proof that "Dina d'Malchusa Dina" does not apply to Jewish kings from the opinion that says that the "Parshas ha'Melech" in Sefer Shmuel was said only to arouse fear among the people. He says that if "Dina d'Malchusa Dina" applies to a Jewish king, why should the king not be able to take whatever land he wants? The Rashba implies that the statement of Tosfos quoted by the Ran that "Dina d'Malchusa Dina" does not apply to a Jewish king was made according to both opinions in the Gemara in Sanhedrin, and the Rashba merely cites proof from one of the opinions.
(b) Perhaps Tosfos maintains that a king is allowed only to take things from the people, but he cannot obligate them to give things to him willingly (that is, they may choose to hide it from him and they have no obligation to give it to him because of "Parshas ha'Melech"). The Rambam, however, does not agree with this approach, as mentioned above, as he rules that the Jewish king is permitted to levy a tax because of "Parshas ha'Melech."
(c) Perhaps what is written in the "Parshas ha'Melech" poses no question at all, but is actually the source and logic behind the opinion of Tosfos. Tosfos was bothered by a question: why does the prophet need to give explicit permission, through a special Divine grant ("Parshas ha'Melech"), to a Jewish king to take whatever he wants? The same law applies to all kings because of "Dina d'Malchusa Dina." ("Dina d'Malchusa Dina" is a Halachah based on logic which has the power of a Din d'Oraisa.) One answer may be that "Parshas ha'Melech" allows a king to take objects even when he has no valid reason to take them, while "Dina d'Malchusa Dina" does not allow a king to take objects without a valid reason. (See the Girsa of Tosfos as recorded in Chesronos ha'Shas, and included in the margins of some printings of the Gemara.)
However, perhaps Tosfos did not accept this answer because even "Parshas ha'Melech" permits a king to confiscate the property of his subjects only when it is beneficial to the country or to the kingship. For this reason, Achav was punished for taking the orchard of Navos (Melachim I 21). (See Tosfos to Sanhedrin 20b.) This is also implied by the Rambam.
Why, according to Tosfos, was it necessary for the prophet to give the king the right to take his subjects' property through "Parshas ha'Melech," when "Dina d'Malchusa Dina" already grants him that right?
Tosfos answers that it must be that the Jewish king does not have the right of "Dina d'Malchusa Dina" in Eretz Yisrael because "Dina d'Malchusa Dina" gives the king rights only when the king is empowered to expel people from his land.
It seems that a practical difference between whether the Jewish king's rights come from "Dina d'Malchusa Dina" or from "Parshas ha'Melech" exists in the case of a ruler of Eretz Yisrael who is not a king, but rather a type of governor who has rights over the land. If the rights of a Jewish king come only from "Parshas ha'Melech," then those rights should not apply to a governor or to anyone who is not an absolute monarch (see Tosfos to Sanhedrin 20b). If the rights of a Jewish king come from "Dina d'Malchusa Dina," then those rights should apply to a governor as well.
3) IS THERE "SHE'EILAH" FOR A SHEVU'AH?
QUESTION: The Gemara cites the opinion of Beis Shamai who says, "Lo Yiftach Lo b'Shevu'ah" -- "he should not find an opening for him for his Shevu'ah." The Gemara explains that this means that a person may not have his Shevu'ah annulled through She'eilah, by asking a Chacham to find a Pesach (opening) to serve as grounds for annulling the Shevu'ah.
Beis Shamai's opinion is problematic. The verse says, "Lo Yachel Devaro" (Bamidbar 30:3), from which the Gemara derives that "he may not desecrate his word, but others may desecrate (i.e. annul) it for him" (Chagigah 10a). The verse, however, mentions both Neder and Shevu'ah, and thus a Chacham's annulment of a person's word should apply both to Nedarim and to Shevu'os!
Moreover, if Beis Shamai means that one may not be "Sho'el" on and repeal his Shevu'ah, why does Beis Shamai say, "Lo Yiftach Lo b'She'eilah"? Beis Shamai should say simply, "Ein Sho'alin b'Shevu'ah"!
(a) The RAN (22b) and the ROSH here explain that Beis Shamai maintains that mid'Oraisa one may be Sho'el on a Shevu'ah and annul it, and it is only the Rabanan who prohibited the annulment of a Shevu'ah. This also explains why Beis Shamai says, "Lo Yiftach Lo b'She'eilah" -- Beis Shamai wants to emphasize that it is the Rabanan who instituted that a Shevu'ah not be annulled. Had Beis Shamai said, "Ein She'eilah b'Shevu'ah," one might have mistakenly thought that there is no such thing as She'eilah for a Shevu'ah, when indeed mid'Oraisa there is She'eilah for a Shevu'ah.
(b) The RAMBAM has an original approach to all of the Gemaras which use the term "Pose'ach" or "Poschin." The Rambam (Hilchos Shevu'os 6:10-12) understands that "Pose'ach" means that when the person himself does not want to remove his Neder, the Chacham may look for a way to convince the person that he indeed regrets having made the Neder so that the Chacham can annul it. "Pose'ach" always refers to the initiative of the Chacham in annulling someone's Neder, even when the Noder was not interested in annulling it.
According to the Rambam, the intention of the Gemara is clear. Beis Shamai does not say "Ein She'eilah..." because one may be Sho'el. Rather, he says "Ein Poschin...," which means that when it comes to a Shevu'ah a Chacham should never try to convince the person who made the Shevu'ah that he regrets it. This is because of the severity of Shevu'os. Accordingly, Beis Shamai's opinion certainly does not contradict the Derashah of "Lo Yachel Devaro," since a Shevu'ah could be annulled but only with the initiative of the person who made the Shevu'ah and not with the initiative of the Chacham.