In our study of the mishnayos in Maseches Nazir we encountered a fundamental dispute between Beis Shammai and Beis Hillel concerning "mistaken consecration" (hekdesh ta'us). Beis Shammai hold that a mistaken consecration takes effect: if a person made a statement that did not match his intention, the statement is binding even though it was said in error - both with regard to designating something as a sacrifice and with regard to consecrating an object's value, meaning property that now belongs to the Temple treasurers. Beis Hillel, by contrast, hold that a mistaken consecration is not a consecration: just as a vow uttered in error, where the words do not match the intention, is not a vow, so too a declaration of consecration made in error is not a consecration.
The next two mishnayos, mishnah 3 and mishnah 4 of chapter 5, apply this dispute to cases of nezirus, including some rather complex situations, as we shall now see.
Mishnah 3 - One who vowed to be a nazir and came before a sage:
"Mi shenadar b'nazir v'nish'al l'chacham va'asaro - moneh mishaah shenadar" - a person made a vow that obligated him in nezirus, but he used wording that in his own opinion did not create such an obligation. He therefore assumed he was not a nazir, and for several days he drank wine and the like. Afterwards he decided to clarify the matter and came before a sage, and the sage ruled him bound: the statement you made was a binding declaration of nezirus, and all those days on which you drank wine, you were not permitted to drink.
What is this man's status? The mishnah says "moneh mishaah shenadar" - he counts from the moment he vowed - and taken at face value this would mean that the days on which he drank wine are included in the count of his nezirus. The Gemara explains that this is not how it should be read; rather, it is as though it said "moneh k'mishaah shenadar": he must begin counting from the moment the sage determined that he is a nazir, as though that were the moment of the vow. The preceding days, during which he drank wine, do not count, and from here onward a fresh count of thirty days begins. There are, of course, further discussions and opinions on this matter in the Gemara and among the Rishonim, but we will keep to the simple understanding.
"Nish'al l'chacham v'hitiro" - he came before a sage and the sage released him. This is a second scenario. A person made a vow using ambiguous wording, and on the assumption that no vow had been made, he drank wine. Afterwards he came before a sage, and the sage released him: this statement does not constitute a real vow and you are not a nazir. In the meantime, however, believing himself to be a nazir, he had set aside an animal for his sacrifice (and as is known, a nazir brings three sacrifices at the conclusion of his nezirus). What is the status of that animal?
The mishnah says: "Haysah lo behemah mufreshes - tetzei v'sireh ba'eder" - if he had an animal set aside, it goes out and grazes with the flock. The animal rejoins the other animals in the pasture and there is no problem with this at all, since it possesses no sanctity. The reason: the act of setting aside, designating the animal as a sacrifice, was done in error - based on this man's mistaken assumption that he was a nazir, when in truth he was not a nazir - and therefore the consecration does not take effect.
Beis Hillel's argument:
Continuing their argument from mishnah 1 and mishnah 2, Beis Hillel said to Beis Shammai: do you not agree that in this case the animal has no sanctity whatsoever, and that it goes out and grazes with the flock like any other animal? If so, you clearly accept the principle that a mistaken consecration is not a consecration. Why, then, did you insist in the previous mishnah, in all those scenarios of the wine, the gold dinar and the sacrificial animal, that a mistaken consecration is a consecration?
It is worth noting that Beis Shammai do not give a direct answer to this question. Had they wished, they could have said: indeed, this animal reverts to unconsecrated status and has no sanctity, but not because the consecration was made in error; rather, because it was made by someone who is not a nazir. This animal can become a sacrifice only through a nazir, and since it turns out that this man was never a nazir, how could it become a nezirus offering? That would have put an end to the argument Beis Hillel raised against them. But Beis Shammai chose a different approach.
Beis Shammai's response - the animal tithe:
Beis Shammai said to Beis Hillel: how can you say that a mistaken consecration is not a consecration, when you yourselves agree in the case of the animal tithe? The law of the animal tithe is that the owner of a flock of sheep brings them all into a pen with a narrow opening, stands beside the opening, lets them out one by one and counts: one, two, three, up to ten. The tenth he marks with a rod whose tip is painted, and that is the animal tithe, which is offered as a peace offering. And so on: eleven, twelve, up to twenty, and the twentieth he marks with the rod, and that is the animal tithe.
Here Beis Shammai argue: "Kara lateshi'i asiri, vela'asiri teshi'i, vela'achad asar asiri - mekudashin" - if he called the ninth animal the tenth, and the tenth the ninth, and the eleventh the tenth, all three are sanctified. Picture it: the boy is counting and makes a mistake. The ninth he calls the tenth, the tenth he calls the ninth, and the eleventh he calls the tenth. If there was ever a mistake, this is one - nine is not ten, eleven is not ten, and the true tenth was not even called the tenth but the ninth. Nevertheless, the halachah is that all three are sanctified, as the verse states: "And all the tithe of the herd and the flock, all that passes under the rod, the tenth shall be holy" - "all that passes under the rod." So you see that all three are consecrated, even though two of them certainly, and perhaps all three, are consecrations made in error. If so, do you not concede that a mistaken consecration is a valid consecration?
The response of Beis Hillel:
Beis Hillel said to them: "Lo hashevet kidsho" - it is not the placing of the rod on the animal and the mistaken calling of it "tenth" that turns the ninth and the eleventh into a tenth. "Umah ilu ta'ah vehiniach es hashevet al hashemini ve'al hashneim asar - shema asa'am?" - if he had placed the rod on the eighth or on the twelfth and called it the tenth, would the mere placing of the rod and the declaration make it a tenth? Certainly not, for a mistaken consecration is not a consecration.
Rather, "hakasuv shekideish es ha'asiri - hu kideish es hateshi'i ve'es achad asar" - the very verse that sanctified the tenth is what sanctified the ninth and the eleventh. The sanctity of the ninth and the eleventh that were called "tenth" does not come from the power of the declaration, but from a special decree of the verse in the laws of the tithe of animals, and one cannot derive from it to other cases. Therefore, a mistaken consecration is not a consecration.
In summary: This Mishnah continues the dispute between Beis Shammai and Beis Hillel and applies it to the laws of nezirus: one who asked a sage and the sage upheld the vow counts from the time he made the vow; one who asked a sage and the sage released him has his animal go out and graze with the flock. From here Beis Hillel argued that even Beis Shammai concede that a mistaken consecration is not a consecration, and Beis Shammai responded from the tithe of animals, where even the ninth and the eleventh that were mistakenly called "tenth" become sanctified. Beis Hillel rejected this and established that this is nothing but a decree of the verse unique to the tithe of animals. The dispute itself was not resolved: Beis Shammai hold that a mistaken consecration is a consecration, and Beis Hillel insist that a mistaken consecration is not a consecration.