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Nedarim, 69

1) RETRACTING ONE'S "HAKAMAH"

OPINIONS: Rabah asks whether a husband or a father may retract (with "She'eilah") his Hakamah of his wife's or daughter's Neder. The Gemara concludes that he may be Sho'el on his Hakamah.

To what extent may a person be Sho'el on his Hakamah? Must he be Sho'el on the same day on which he heard the Neder, or may he even be Sho'el after the day has passed?

(a) The RAN writes that the She'eilah must be on the same day on which he heard the Neder. After the day passes, even if he was Sho'el on the Hakamah he can no longer annul the Neder since the Torah requires him to annul it on the day that he hears it.

QUESTION: The RASHASH asks why should he not be able to annul the Neder on a later day, after rescinding his Hakamah? The Ran himself (68a, DH Ta Shema, and more clearly on 79a, DH Hafer b'Libo) says that when a person does not annul the Neder of his wife or daughter by the time the sun sets that day, since he chose willingly not to be Mefer he reveals that he wants the Neder to remain, and therefore it is as if he was Mekayem the Neder. That is why -- when the day comes to an end -- it is as if he was Mekayem the Neder. Accordingly, he should be limited to making a Hafarah on that day only when he was *able* to make a Hafarah the *entire* day and yet knowingly refrained from doing so. However, when he was Mekayem the Neder after half the day had passed, then the reason he was not Mefer during the rest of the day is simply because he did not think that he could! If, on a later day, he then is Sho'el on his Hakamah, he should again be able to be Mefer the Neder (until the end of the day of the She'eilah of the Hakamah). In addition, if the only reason he cannot be Mefer when the day passes is because his silence serves as a Hakamah, then why can he not be Sho'el on his *silence* as well?

The Rashash asks a similar question on the Ran later (71b). The Gemara there asks whether Gerushin is like silence or like Hakamah. That is, if a man divorces his wife on the day that she makes a Neder, is the Gerushin considered to be an act of Hakamah of the Neder or is it considered merely silence on the part of the husband. The practical ramification is where he remarries her the same day. If Gerushin is not like Hakamah but merely like silence, then since the day has not passed yet, he may still annul her Neder. The Ran explains that only if he remarries her the same day may he annul the Neder if Gerushin is like silence, because if he marries her the following day, then even if Gerushin does not constitute Hakamah, he can no longer be Mefer, because the day has passed.

The Rashash asks that after the man divorced his wife and remarried her, he should be able to be Mefer her Neder even if he married her on a later day! His silence on the day of the Neder cannot be judged to be like Hakamah, because the reason he was silent was because he was not married to her and he could not make a Hafarah even if he wanted to! In addition, since he is not married to her when the end of the day arrives, then just like he cannot be Mefer the Neder, he cannot be Mekayem the Neder! Hence, his silence should not be a Hakamah.

ANSWER: The answer seems to be that the Ran does not mean that the only reason the husband cannot be Mekayem the Neder after the day passes is because he was silent until the end of the day and his silence thus is considered Hakamah. The reason he cannot be Mefer after the day passes is simply because the day passed; the Torah gives the husband or father until the end of the day to be Mefer the Neder. However, in addition to the fact that he can no longer be Mefer once the day passes, since he realizes that if he lets the day pass he can no longer be Mefer and he nonetheless remains silent, therefore he is also Mekayem the Neder! (ACHARONIM)

This is more logical than the way the Rashash understands the Ran, because according to the Rashash, why should we assume that the husband consents to the Neder when the end of the day arrives? Having his silence indicate his consent should depend on a standard, set amount of time. If she makes a Neder one minute before the end of the day, why should we assume that if he was not Mefer before the end of the day that he must want to be Mekayem it? Why should silence for one minute be considered Hakamah in one case (when he heard the Neder at the end of the day) while only if he was silent for several hours is it considered Hakamah in another case (when he heard the Neder in the middle of the day)? According to the way we explained it, it is logical: if he hears the Neder a minute before the end of the day, he realizes that he only has one minute more to be Mefer, and therefore his silence is his consent to uphold the Neder.

How, though, does the Ran know that silence -- aside from causing him to forfeit the right to be Mefer -- also constitutes a Hakamah of the Neder? The answer is that the Ran learns this from the words of the verse that discusses the silence of the husband, "If the husband is silent... then he has upheld all of her Nedarim... *he has upheld them because he was silent on the day that he heard them*" (Bamidbar 30:15). This clearly implies that the silence is like an acceptance and confirmation of the Neder.

Why, though, does the Torah itself point out that silence is Hakamah, if, anyway, the husband cannot be Mefer since the day has passed and he was silent? What difference does it make whether the Neder is upheld because his silence is like Hakamah, or because he no longer has the ability to be Mefer?

There are a number of possible practical differences.

1. The REMA (YD 234:23) writes that even according to those who maintain that a Neder which a husband was Mekayem cannot be annulled through the Heter of a Chacham, nevertheless if the husband was not Mekayem the Neder but simply could no longer be Mefer it because he was silent for the entire day, the Neder can still be annulled by a Heter of a Chacham (MAHARIK, RADVAZ). According to the Ran, who holds that silence on the day of the Neder is considered Hakamah, perhaps the Neder would *not* be able to be annulled by a Chacham (unless the husband lost his right to be Mefer through divorce, or death, on the day of the Neder, in which case there was never a Hakamah via silence for the entire day).

2. Perhaps if the husband is Mekayem the Neder then even according to those who say that the Chacham could permit the Neder, he could only do so with the permission of the husband since he upheld the Neder.

3. Another practical outcome of the Hakamah is in a case where the Arus heard the Neder and was silent for the whole day, and the father only heard about the Neder after the Arus died. Normally, we apply the principle of "Nisroknah" and the father is able to be Mefer, unless the Arus was Mekayem the Neder before he died. The Torah is saying that if the Arus was silent on the day he heard the Neder, the father can no longer annul the Neder through "Nisroknah" because the silence of the Arus constitutes a Hakamah of the Neder. This is the point that the Ran makes earlier (end of 68a, DH Ta Shema).

4. It might be suggested that if the husband upholds the Neder with Hakamah, then he also is punished if she transgresses the Neder and he assists her (for example, by feeding her dates when she made a Neder not to eat dates). Normally, a woman cannot prohibit someone else from feeding her dates through her Neder, but if the husband was Mekayem the Neder, then he, too, perhaps becomes obligated to help her observe her Neder (and not merely because of "Lifnei Iver"). (M. Kornfeld)

However, we do not find support in the Rishonim or Acharonim for this notion that the husband is also liable if his wife transgresses her Neder that he was Mekayem.

(b) TOSFOS in Kesuvos (71b, DH Aval Hacha) mentions the possibility that the husband can only be Sho'el on the Hakamah on the same day as the Neder and Hafarah were made, like the Ran asserts, but he is in doubt whether this is indeed true. The ROSH later (72a, DH v'Shama Ba'al) cites the Yerushalmi here that rules that if the husband divorces her on the day that he heard the Neder, he *may* annul the Neder on the day that he remarries her, even if he remarries her many days later. The Yerushalmi compares this to a person who lost his ability to talk and only regained it a few days later, in which case he may be Mefer the Neder when he regains his ability to talk.

The Acharonim find a basis for the Yerushalmi's ruling in the Gemara later (79a), where the Gemara cites a Beraisa that states that if a person says that he did not know that it was possible to be Mefer his wife's Neder, he may be Mefer the Neder on the day that he learns that he is able to annul it. However, the Ran differentiates between that case and the cases that we are discussing. In that case, the day that he heard the Neder was not considered at any point to be the Halachic "Yom Sham'o" ("day of hearing [the Neder]"), since he did not know that he could be Mefer at the moment that he heard the Neder. However, in the cases that we are discussing, he was able to be Mefer at the beginning of the day, and once he had the opportunity to be Mefer on that day, then even if he was not able to be Mefer for the rest of the day, it counts as his "Yom Sham'o" and once the day passes he loses his right to be Mefer.

HALACHAH: The SHULCHAN ARUCH (YD 234:49) cites two opinions regarding whether the husband may be Sho'el on the Hakamah and be Mefer *after* the day on which he first heard the Neder. The REMA writes that one should be Machmir like the Ran *not* to be Mefer such a Neder on a later day.

QUESTION: The Gemara asks whether a Hakamah could take effect where there is already a Hakamah. If a person hears his wife make a Neder and he says, "Kiyem Lechi, Kiyem Lechi" ("it is upheld for you, it is upheld for you"), and then he rescinds (through "She'eilah") the first Hakamah, does the second one take effect? The Gemara proves that it does take effect from a Beraisa that discusses a similar situation with regard to Shevu'ah. If a person makes two Shevu'os prohibiting the same object to himself, and then he has the first Shevu'ah annulled, the second one takes effect. The Gemara assumes that the same applies to two Hakamos.

How can the Gemara compare Shevu'ah to Hakamah? When a person makes a second Shevu'ah not to eat a certain food, the reason the second Shevu'ah does not take effect is because he is already prohibited to eat that object by the Torah due to his first Shevu'ah, and we know that "an Isur cannot take effect on a [pre-existing] Isur" -- "Ein Isur Chal Al Isur." One cannot prohibit what is already prohibited to him. However, the Gemara in Yevamos (33b) tells us that even though "an Isur cannot take effect on a [pre-existing] Isur," the second Isur *does* take effect with regard to making it a stronger prohibition (even though he will not receive Malkus for the second Isur if he transgresses, he will be liable "l'Kovro Bein Resha'im Gemurim," for the sake of burying him among Resha'im Gemurim). A second *Hakamah*, in contrast, is meaningless, since the Neder has already been upheld. There is nothing more to uphold! Hence, even after the husband rescinds the first Hakamah, perhaps the second one will *not* take effect since it *never* took effect with regard to any matter! (YADOS NEDARIM, cited by the SHALMEI NEDARIM)

ANSWERS:

(a) The RAMBAN (Milchamos, Shevuos 27a) writes that if a person makes a Shevu'ah to fulfill a Mitzvah, the Shevu'ah does not take effect at all, since it is not "b'Lav v'Hen" -- the Shevu'ah cannot take effect both positively and negatively (it can only take effect to fulfill the Mitzvah but not to transgress the Mitzvah). If so, the reason why the second Shevu'ah does not take effect is because it is not considered a Shevu'ah, and not because of "Ein Isur Chal Al Isur," and hence the comparison between the second Hakamah and the second Shevu'ah is indeed accurate (see Chart #3, footnotes 7 and 8).

However, the BA'AL HA'ME'OR there argues and says that the second Shevu'ah does not take effect only because of "Ein Isur Chal Al Isur."

(b) The AVNEI MILU'IM (Teshuvos #12) suggests that when the Gemara teaches that in a normal case, where there is a pre-existing Isur and another Isur comes about and takes effect with regard to creating an additional prohibition (but not a Chiyuv Malkus), the second Isur takes effect only because it is the Torah that made that Isur, and thus it cannot be ignored, even though there is a pre-existing Isur. However, when a *person* tries to add a second prohibition by making a *Shevu'ah*, then the second Isur is being created only at the moment of his statement, and if his statement cannot create a Chiyuv Malkus, then it will not take effect at all, not even to create an additional prohibition, because it is not something that comes about by itself by virtue of the Torah having stated that it is prohibited.

Accordingly, our Gemara might be a strong proof to the assertion of the Avnei Milu'im (see Chart #3, footnote 7).

(c) Perhaps even if a second Shevu'ah does take effect with regard to Isur, the Gemara is justified in comparing a second Hakamah to a second Shevu'ah, because Hakamah not only upholds a Neder (like we originally thought), but it makes the Neder stronger as well. A second Hakamah, therefore, could strengthen the Neder even more. (This might indicate another practical difference between losing the right to be Mefer by being silent on "Yom Sham'o," and Hakamah: Hakamah not only causes the Neder to remain, but it strengthens it as well). (See EINI SHEMU'AH on TOSFOS RABEINU PERETZ.)

69b