Niddah 46b (מו:) — the Talmud in English

As it is taught:

Since we find that the verse equated a minor

[a twelve-year-old and one day who knows how to articulate the distinction between different vows, but who is still a minor]

with an adult, with regard to

regarding

intentional violation of an oath,

for if he took an oath and violated it, he is liable,

and

regarding

a prohibition,

for if he prohibited something to himself through a vow and violated his vow, he is liable,

and

regarding

“he shall not profane”

his word, as he is obligated to fulfill what he vowed, and if he does not fulfill it, he transgresses,

one might have thought that he would be liable

also

with regard to his consecrated property,

so that if he consecrated an item and misused it, he would be liable for a

sacrifice

for misuse of consecrated property?

The verse states: “This is the matter.” Specifically with regard to this matter stated in the passage concerning vows and oaths was the minor of discernment adjacent to adulthood included, but not with regard to liability for a sacrifice for misuse of consecrated property that a minor consecrated.

[No corresponding source segment: translation continues from .]

And Rav Huna bar Yehuda proves:

In any event, it teaches

in the baraita that a minor is considered like an adult

with

regard to

a prohibition and

regard to

“he shall not profane,”

as

he is liable,

and is lashed if he violates them, and this is in accordance with the opinion of Rav Huna.

The Gemara rejects this:

Say: with regard to the prohibition of “he shall not profane.” It is indeed proven from the baraita that he is subject to a prohibition, but there is no proof for Rav Huna’s statement that he is lashed for the prohibition.

The Gemara asks: How can it be said that the baraita refers only to

the prohibition of

“he shall not profane,”

and not to lashes? After all,

in either case!?

If the minor of discernment adjacent to adulthood

his vows take effect

by Torah law,

and therefore there is a prohibition,

he should also be lashed.

And if the minor of discernment adjacent to adulthood is not subject to Torah law,

and the matter exists only by rabbinic ordinance,

there is not even a prohibition.

After all, the Sages did not institute an ordinance imposing liability upon a minor, since a minor is not obligated to observe a rabbinic ordinance; rather, they prohibited the object that the minor vowed or consecrated to other people, or to the minor himself after he grows up.

The Gemara answers:

For those who are warned concerning it.

Indeed, the minor himself does not commit a transgression of the prohibition if he does not fulfill the vow. But the adults responsible for him are subject to a prohibition, as they are obligated to prevent him from violating the prohibition.

The Gemara expresses astonishment at this answer: If so,

infer from this: When a minor eats unslaughtered animal carcasses,

the court is commanded to prevent him

[and the same applies to other prohibitions]! But this is the subject of a dispute in the Gemara [Yevamot 114a]!?

The Gemara answers: In truth, there is both a prohibition and lashes. The baraita is not speaking of the minor violating the vow. Rather,

Here, with what are we dealing? With a case in which he himself consecrated,

the minor,

and others ate

what the minor consecrated. The others who ate it are lashed.

But the Gemara rejects this:

This works according to the one who says: He himself consecrated,

the minor,

and others ate it, they are lashed.

But according to the one who says that they are not lashed,

as the vows of a minor, even if he is a minor of discernment adjacent to adulthood, do not have the power to make an adult who violates the prohibition of his vow liable to lashes,

what can be said?

How shall we explain the baraita?

For it was stated: If he himself consecrated an item and others ate it, Rav Kahana said: They are not lashed; Rabbi Yoḥanan and Reish Lakish both said: They are lashed.

The Gemara answers: Rav Kahana, who says that they are not lashed, holds that the vows of a minor take effect only

by rabbinic law, and the verse

cited by the baraita [which equated a minor with an adult] is

merely an allusion.

The essential subject: If he consecrated an item and others ate it, Rav Kahana said: They are not lashed; Rabbi Yoḥanan and Reish Lakish both said: They are lashed.

With regard to what do they disagree? One Sage holds that the minor of discernment adjacent to adulthood

—

is subject to Torah law, while the other Sage holds that the minor of discernment adjacent to adulthood

—

is subject only to rabbinic law.

Rav Yirmeya raised an objection

from what we learned in a baraita:

An orphan girl

whom her mother and brothers married off [by rabbinic law],

who vowed

a vow,

her husband may annul it

[as is the law concerning any husband who can annul his wife’s vows].

And Rav Yirmeya proves:

Granted, if you say that the vows of a

the vows of

minor of discernment adjacent to adulthood

take effect only by

rabbinic law, the rabbinic marriage comes

[so that the husband is considered a husband by rabbinic law],

and annuls a rabbinic vow.

For the Sages declared both that the vow takes effect and that it becomes permitted if a husband of this status annuls it.

But if you say that the vows of a minor of discernment adjacent to adulthood are

that the vows of a youth close to adulthood are

by Torah law,

then can

a rabbinic marriage come and annul a Torah-law vow?

After all, by Torah law this man is not her husband and has no power whatsoever to annul the vow; the vow is a fully valid vow, so how could the Sages permit her to violate it?

The Gemara answers:

Rav Yehuda said that Shmuel said: Her husband may annul it, in either case: If

this minor’s vow took effect

by

rabbinic law,

the annulment of one who is considered her husband by rabbinic law is effective.

And if

this minor’s vow is a vow

by Torah law,

and the annulment of a husband by rabbinic law is not effective, there is nevertheless no concern that she will stumble through it, and this husband may annul it. For this minor is,

“a minor who eats unslaughtered animal carcasses,” and the court is not commanded to prevent him

from eating unslaughtered animal carcasses or violating any other prohibition. Therefore, they were not concerned that her husband would annul her vow, even though his annulment is not effective by Torah law.

But the Gemara asks: If the vow takes effect by Torah law, although the court is not commanded to prevent her from violating it while she is a minor,

but when she grows up, she will eat it

[she will continue to eat and thereby violate the vow]

on the basis of the first annulment,

because of the husband’s earlier annulment, when she was a minor; and we must be concerned that she will then stumble through the sin of vows!

The Gemara answers:

Rabba bar Livai said: Her husband annuls it at every moment, provided that he has intercourse with her

every day. Therefore, on each day the vow is permitted in either case: If she is an adult, her husband acquired her that day through betrothal by intercourse, and her husband has thereby become her husband by Torah law, so he has the power to annul her vow. And if she is still a minor that day, we are not concerned that she will stumble through it, since in the case of a minor who eats unslaughtered animal carcasses, the court is not commanded to prevent him from violating a prohibition.

The Gemara rejects this:

But a husband does not annul

[the vows of his wife]

that preceded

[the vows that she took before he married her]! If so, how can he annul the vows that she took when she was a minor, when she was married to him only by rabbinic law, before he married her as an adult by Torah law?

The Gemara offers a new answer as to why a husband by rabbinic law can annul a vow by Torah law:

As in the statement of Rav Pineḥas in the name of Rava. For Rav Pineḥas said in the name of Rava: Every

married woman

who vows, vows with the understanding of her husband.

Therefore, this minor, when she vowed, made her vow conditional upon her husband’s consent to the vow; if her husband does not consent to the vow, the vow never takes effect at all. Since this is considered a condition that she vows on the understanding that “her husband” will consent to the vow, it does not matter that by Torah law he is not her husband but only so by rabbinic law.

Abaye said: Come and hear

a proof against Rav Kahana from what we learned:

A minor who has not yet produced two pubic hairs

and separated terumot and tithes—

Rabbi Yehuda says: His teruma

of the minor

is not teruma.

Rabbi Yosei says: Until he reaches the age of vows

[twelve years and one day, when he is examined and does not know how to articulate a vow],

his teruma is not teruma.

But

once he reaches the age of vows, his teruma is teruma.

And Abaye brings a proof from the words of Rabbi Yosei:

They assumed

that the members of the academy who wished to bring a proof from here against Rav Kahana assumed that

Rabbi Yosei holds that teruma nowadays

[after the destruction]

is by Torah law.

And if so,

granted, if you say that the minor of discernment adjacent to adulthood

his vow and his consecration are

by Torah law, a person comes

whose teruma is effective

by Torah law, and renders a Torah-law untithed produce fit,

since consecration, teruma, and a vow are one matter, as they all take effect through his speech.

But if you say that his vow and his consecration are effective only

that his vow and consecration are effective only

by rabbinic law,

it is difficult: How can he separate teruma from untithed produce? Can it be that

a person comes

whose acts take effect only

by rabbinic law, and renders a Torah-law untithed produce fit?

The Gemara rejects this:

No.

Rather,

Rabbi Yosei holds that teruma nowadays is by rabbinic law.

Therefore, one whose teruma is effective by rabbinic law can render fit untithed produce that is subject to rabbinic law.

The Gemara expresses astonishment:

And

does

Rabbi Yosei hold that

that

teruma nowadays

is subject only to

rabbinic law?

But it is taught in Seder Olam:

It is stated:

“That your fathers inherited, and you shall inherit it.”

And we derive that there are two inheritances:

the first inheritance and the second inheritance are theirs,

but

the third inheritance is not theirs.

That is, the sanctity of the Land of Israel that they sanctified when the Children of Israel conquered the land through the first inheritance [when they came up from Egypt] was nullified during the Babylonian exile. But what they conquered when they came up from Babylonia, and when the land was sanctified for the second time, that sanctity was not nullified with the destruction of the Second Temple. Rather, even when the Messiah comes there will be no third sanctity, because the sanctity continues eternally by virtue of what those who came up from Babylonia sanctified. And it is proven that even nowadays the sanctity of the Land is by Torah law.

And Rabbi Yoḥanan said: Who is the tanna of Seder Olam?

Rabbi Yosei!

And if so, it is difficult: How can it be said that Rabbi Yosei holds that the obligation of terumot and tithes nowadays is only by rabbinic law?

The Gemara answers:

Rabbi Yosei taught it

in Seder Olam in the name of another tanna,

but

he himself

did not accept it

as the halakha.

It is also reasonable

that Rabbi Yosei does not hold that the halakha follows the tanna who says that terumot and tithes nowadays are by Torah law,

As it is taught: Dough

of non-sacred produce

into which teruma fell

[and became mixed]

or that was leavened with teruma leaven,