Lubavitcher Rebbe z"tzl
Chapter eleven, halachah 1, of Hichos Nedarim states: “A boy, twelve years and one day old, and a girl, eleven years and one day old, who have sworn an oath or made a vow ... should be examined and questioned. If they understand in whose name they vowed, or consecrated, or swore, their vows are binding and their consecration is effective. If they do not understand, their vows and words are of no effect.” Rambam then explains in halachah four of this chapter that “this rule, that the vow or consecration of one who is nearly an adult is binding, is of Scriptural authority.”
This law is different from all others in the Torah. In all other laws, obligation devolves only on a male who is 13 years and one day old (and a female who is 12 years and one day old). In the case of vows, however, the obligation devolves even on a boy 12 years and one day old (and on a girl 11 years and one day old).
Rambam, in halachahs 1 & 2, then continues to amplify the law concerning a boy 12 years and 1 day old and a girl 11 years and 1 day old, who make a vow: “They must be examined throughout the whole of the year, i.e., the twelfth year in the case of a girl, and the thirteenth year in the case of a boy. For example, they made a vow or consecrated something at the beginning of this year, and were examined, and were found to understand, and their vow was declared binding. If they then utter another vow, even at the end of this year, they must be examined (again) before it is declared binding. It cannot be said that since they were found to understand at the beginning of the year, it is unnecessary to reexamine them; rather, they must be examined throughout this whole year (whenever they make a vow).”
This law, too, is different from all others. In all laws of the Torah, we rely upon a chazakah (i.e pre-established circumstance). If, for example, a person was examined and found to have developed marks of puberty, a further examination is unnecessary. In our case, however, “They must be examined [for understanding] throughout the whole of the year” — even if they had been examined several times before and been found to understand in whose name they vowed.
What is the source for Rambam’s ruling that even if they were examined at the beginning of the year they must be examined again if they made another vow? The Kessef Mishnah(a commentary on Rambam) writes: “I do not know whence he took this, for in the Gemara (Niddah 45b) it states thus: “Since it was stated [in the Mishnah] ‘The vows of a girl of the age of twelve years and one day are valid,’ what need was there for [the Mishnah to further] state, ‘and throughout the twelfth year they are to be examined’? But it might have been presumed that since a Master has said that ‘Thirty days of a year are counted as a full year,’ where we examined her vows during a period of thirty days [i.e., the first 30 days of her twelfth year] and she did not know how to express their significance [thus revealing her mental incapacity to make a vow], no further examinations should be held [on the assumption that the examinations during the thirty days have established for the rest of the year that her mental capacity was that of a minor unable to make a vow]. Hence we are informed [by the Mishnah] that her vows are to be examined all through the twelfth year.”
The Kessef Mishnah infers from this passage in the Gemara that the only reason for further examination during the year is if the initial examinations established that she did not know how to express the significance of a vow. But if the initial examination would establish that she did know, further examinations would be unnecessary — contradicting the Rambam’s ruling that if she did understand the significance of a vow taken at the beginning of a year, further examinations are still necessary for vows throughout the rest of the year.
The Kessef Mishnah attempts to defend Rambam’s ruling by positing that Rambam might have had a text of the Talmud different than the one we have, and that Rambam’s text read: “It might be presumed that ... where we examined her vows during a period of thirty days and she did know how to express their significance, no further examinations should be held. Hence we are informed that her vows are to be examined all through the twelfth year.”
The Radvaz (another commentator on Rambam) goes further and says, “This text [the Rambam’s] is the correct one, for according to the text we have, we could ask why there should be any reason in the first place to think that because she doesn’t know how to express the significance of a vow at the beginning of year, she automatically also doesn’t know how to at the end of the year?” It is obvious that this is not so, and therefore the Mishnah would not have to inform us that her vows should be examined all of the twelfth year. But according to Rambam’s text, the Mishnah does have to inform us of this.
Not all is clear, however. Why did Rambam choose to follow a text which is not widespread, when in doing so a ruling is established that is different from all other laws in the Torah — that in the case of a girl 11 years and 1 day old and a boy 12 years and 1 day old, we do not rely on the chazakah of an earlier examination?
The answer revolves around the meaning of “knowing (or not knowing) how to express the significance of a vow.” i.e., understanding in whose name the vow has been taken.
There are two general ways in understanding something: 1) Even after one understands a concept, a contradictory theory may still appeal. The person sees that there are two good opinions, but that one is better than the other; 2) A theory or opinion takes hold of a person so strongly, that there is no room for a contradictory one.
This, we can posit, expresses the difference between a vow taken by an adult (13 years and 1 day old for a male and 12 years and 1 day old for a female) and a vow taken by one who is nearly an adult (12 years and 1 day for a male and 11 years and 1 day for a female).
An adult has attained the age when his intellectual powers are complete, and thus when he decides to utter a vow, this decision is firm and complete, not leaving room for any contradictory thoughts. The intellectual powers of one who is not yet an adult, in contrast, are incomplete; his thought processes are more vague, less clear and uncompromising. Thus, even after an interrogation indicates that he understands the nature of a vow and in whose name he vowed, it is no proof concerning vows that he may make at a later date. For since his intellectual powers are still not completely formed, changes are possible. Thus such a person “needs examination throughout the whole of the year” — to ascertain that he understands the nature of an oath also now.
According to this, we do not have to say that Rambam had a text different from ours. As for the source of Rambam’s ruling — it comes from logic, since, as explained above, we see that a minor (under the age of 12 years for a girl, 13 for a boy) can have changes in understanding.
We find another instance where Rambam gives a ruling based on fact (and not on any specific Talmudic source). In the Laws of Shechitah (8:28) Rambam rules that “If the upper jaw is removed, the animal is treifa.” When asked by the Sages of Lunel for the source of this law he replied that it is a fact: Without the upper jaw an animal cannot live and therefore it is treifa.
[Sichos In English]
