A Condition Contrary to the Torah
Ravina says, “He is making a condition that is contrary to what is written in the Torah, and any such condition that contradicts the Torah is null and void.”
With this principle the Sage Ravina explains why Rabbi Shimon in the mishna would agree with the first Tana that a person who states that he is nazir on condition that he may drink wine and become ritually impure is indeed bound by the laws of being a nazir. His statement that he is a nazir is effective, but the condition is invalid since it contradicts what the Torah states about the laws of a nazir.
Tosefot asks why even address this condition’s validity here, since it does not conform to a basic law of “conditions,” in that it cannot be fulfilled by a shaliach, as taught in Tractate Ketuvot (74a) and explained by Tosefot on our daf. The nezirut cannot be fulfilled by a shaliach, and therefore the condition cannot be considered a “kosher” condition, contends Tosefot.
While Tosefot offers answers that the sacrifices of a nazir can indeed be brought by a shaliach, other answers are offered by the Rishonim and Achronim. One such answer is that a condition needs to follow a “special set of rules” (such as being able to be fulfilled by a shaliach) only regarding an action, such as marriage. But when it comes to the realm of “speech,” such as saying that one is a nazir, the “speech” of the condition would be sufficient to nullify the “speech” of the declaration to be a nazir if it would not be contradictory to the laws written in the Torah.
A Risky Way to Marry
Rabbi Yochanan said, “If one says to his shaliach to go out and marry a woman for him without specifying which woman, and the shaliach dies before returning, he is forbidden to marry all of the women in the world.”
The gemara offers the following explanation: Since we assume with certainty that the shaliach carried out his mission, but we don’t know the wife’s identity, any woman he now approaches may be the forbidden relative of his real wife.
Based on this reasoning, wonders Tosefot, every man should be forbidden to marry all women, since he may be approaching the woman whom the shaliach actually married in his role as an agent! However, another important factor comes into play here, explains Tosefot, which teaches us to rule leniently in all these cases of doubt, and not forbid any of these marriages. The principle of “majority”, that the majority of women in the world are not really forbidden to him, only a very small minority. Therefore, only the man who appointed the shaliach without specifying the woman’s identity is penalized for acting negligently and is forbidden to all women according to rabbinical law. Other men, however, are not forbidden in this way and are permitted to marry due to the law of “majority.”