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Nedarim, 72

1) PROVING THAT "GERUSHIN" IS LIKE "HAKAMAH"

QUESTION: The Gemara attempts to proof that Gerushin is considered like Hakamah from a Beraisa. The Beraisa lists the cases when "Nisroknah" applies, and yet it does not list a case of "Shama ha'Aarus v'Giresh Bo ba'Yom" -- "the Arus heard the Neder and divorced her on the same day" as one of the cases. It must be that Gerushin is considered like Hakamah and therefore "Nisroknah" would not work.

The Gemara rejects this proof, because the end of the same Beraisa lists the cases when "Nisroknah" does *not* apply (because the Arus was Mekayem the Neder in some way), and yet it does not list "Giresh ha'Arus" -- "the husband divorced her" -- as one of the exmaples of Hakamah. It must be that we cannot make any inference from the Beraisa with regard to Gerushin. Rather, the Beraisa leaves out Gerushin in order to have the wording of the Reisha conform to the wording of the Seifa.

The RAN explains that this means that even if Gerushin is not like Hakamah, the Beraisa did not list Gerushin in the cases of the Reisha, because it could not list a diametrically contrasting case in the Seifa, since there is nothing parallel to Gerushin which constitutes a Hakamah.

REBBI AKIVA EIGER (in Gilyon ha'Shas) asks that he does not understand what the Ran means. The Reisha gives examples of where there is no Hakamah. One of those examples is when the Arus heard the Neder and he died on that day. The case in the Seifa that diametrically contrasts this case is when the Arus was silent and died the next day -- his silence was a Hakamah of the Neder. The Beraisa could have used the same type of contrast with regard to Gerushin! The Reisha could have given the case of an Arus who heard the Neder and then divorced her on the *same* day (in which case the Gerushin would not constitute Hakamah), and the Seifa could have contrasted that case with a case of an Arus who heard the Neder and divorced her on the *next* day (in which case the Gerushin *would* constitute Hakamah)! (See RASHASH.)

ANSWER: When each case in the Seifa contrasts the corresponding case in the Reisha, it must contrast the element of the case in the Reisha which prevents there being any Hakamah. In the case of the Arus who died on that day, the reason his silence on the day that he heard the Neder is not Hakamah is because he was silent for only part of the day and not until the end of the day (because he died before the end of the day came). The Seifa therefore says that if he was silent the entire day, it is a Hakamah. This is a direct contrast to the case in the Seifa, where his silence is *not* considered a Hakamah.

If the Reisha would have mentioned the case of an Arus who *divorced* his wife on the same day he heard the Neder, it would be trying to teach that it is the *Gerushin* itself that does not constitute Hakamah. The case in the Seifa that would contrast it would have to be something similar to Gerushin that *does* constitute Hakamah even when it is done on the same day. That is why the Seifa cannot list the case of an Arus who heard the Neder and divorced his wife the *next* day -- because that case would not contrast the element of Gerushin that precludes Hakamah in the case in the Reisha (for the reason it would be a Hakamah is not because the *Gerushin* is a Hakamah, but because the silence on the day he heard the Neder is a Hakamah!).

Perhaps Rebbi Akiva Eiger did not accept this approach because the Reisha mentions a case of "Shama v'Hefer" (the Arus heard the Neder and annulled it) and the Seifa contrasts it with a case of "Shama v'Hekem" (the Arus heard the Neder and upheld it). How is Hakamah a similar act to Hafarah such that it contrasts the element in Hafarah which precludes the Hakamah? They are two completely different acts! If so, the Beraisa could also have contrasted the two different acts of Gerushin on the day of the Neder with Gerushin the day after!

To defend our answer, it could be that the Ran is consistent with his own view that silence on the day he hears the Neder constitutes Hakamah, since the day passed with no Hafarah from the husband (see Insights to 69a); the Hafarah would have prevented the Hakamah that silence constitutes by creating a protest to the Neder before the day passed. Therefore, it is appropriate to call Hakamah the opposite of Hafarah, in the sense that he did let the day pass without saying anything or he was Mekayem the Neder explicitly.

The Gemara attempts to prove that Gerushin is not considered Hakamah from our Mishnah (71a). The Mishnah says that when an Arus divorced his wife after she made her Neder, and she became betrothed to a second Arus on the same day, the second Arus -- together with her father -- may annul her Neder. From the fact that the Mishnah adds the condition that the second Arus may annul her Neder only if she became betrothed to him on the same day that the first Arus divorced her, it is clear that either the father or the first Arus indeed heard her Neder before the divorce.

The Gemara says that since the Mishnah means that the Arus heard the Neder before he divorced her, and nevertheless the second Arus may annul the Neder, it must be that Gerushin is *not* considered Hakamah, because otherwise the second Arus would not be able to annul the Neder.

The Gemara rejects this proof, saying that the Mishnah does not mean that the *Arus* heard the Neder before he divorced her, but it means that the *father* heard the Neder. Since the Arus did not hear the Neder, his Gerushin cannot be considered Hakamah in this case. The Mishnah is saying that if the *father* heard the Neder before the Arus divorced her and then she became betrothed the same day to someone else, the father and the second Arus may be Mefer together. In a case where the *Arus* heard the Neder before the divorce, then perhaps indeed the Gerushin is considered like Hakamah.

According to the Gemara's explanation of the Mishnah, what is the Mishnah teaching when it says that the second Arus may annul the Neder only when he married her on the *same day*? We know already that Hafarah can be done only on "Yom Sham'o," and therefore if the father heard the Neder on that day, he must be Mefer it on that day! Why would we think that the second betrothal changes the father's requirement of "Yom Sham'o?" It is obvious that the father's Hafarah with the second Arus is only valid on the day he (the father) heard the Neder!

The Mishnah should have discussed a case where neither the father nor the first Arus heard the Neder, in which case the second Arus may annul the Neder with the father even when the second betrothal takes place on any other day!

Even if the Mishnah chose to discuss a case where the father heard the Neder, it could also have taught that the second Arus may annul the Neder after a number of days, as long as the father not only heard the Neder while the first Arus was still married but also was Mefer the Neder at that time. Since he already was Mefer the Neder, it does not make a difference whether his daughter marries the second Arus on "Yom Sham'o" or after that day -- the second Arus may still be Mefer his portion of the Neder!

On the other hand, according to the Gemara's original assumption that the first Arus heard the Neder, the Mishnah is teaching a Chidush that Gerushin is not like Hakamah. But according to the Gemara's rejection of that way of learning the Mishnah, the Mishnah is not teaching us anything!

ANSWERS:

(a) According to TOSFOS cited by the Ran (71b), Beis Hillel holds that the second Arus cannot be Mefer the Neder if the father was Mefer the Neder before the first Arus died (because the Neder is now too weak to pass on to the second Arus). This, then, is what our Mishnah is teaching: when the father *heard the Neder* (but did not do Hafarah), it is impossible for the second Arus to be Mefer unless he became betrothed to the Na'arah on that day; when the father *did Hafarah* before the first Arus divorced her, the second Arus cannot do Hafarah *at all* (and if the father heard the Neder before the divorce but he did not do Hafarah before the divorce, then the father *cannot* do Hafarah when the second Arus marries her *unless* he marries her on the same day). The Mishnah is teaching the Chidush of Tosfos, that the second Arus cannot be Mefer if the father was Mefer before the first Arus divorced her. The father's Hafarah weakens the Neder such that it cannot be passed on from the first Arus to the second Arus.

(b) According to the RAN, who does not explain like Tosfos, what is the Mishnah teaching? The Ran is following his own view elsewhere (69a), where he writes that the Hafarah of one of the partners becomes voided if the other partner was unable to be Mefer for any period of time (see Insights to 71a). The Mishnah is teaching that when the father heard the Neder, he must be Mefer a second time with the second Arus even if he was already Mefer before the first Arus divorced her, because there was a moment (i.e. after the divorce) at which he could not be Mefer (according to Beis Hillel). This is what the Mishnah is teaching by saying that she must become re-betrothed on the same day in order for the father and second Arus to be able to be Mefer her Neder.

(c) The RAMBAM (Hilchos Nedarim 12:17) infers from the verses regarding Hafarah that the Arus and the father must both be Mefer the Neder *on the same day*. (Most Rishonim dispute this ruling and instead rule that each one may be Mefer on the day on which each one hears the Neder. See RAMBAN and RITVA on 69a. The SHULCHAN ARUCH (YD 234:5) cites both opinions.)

According to the Rambam, this might be the Halachah that our Mishnah is teaching, according to the Gemara's conclusion. The Mishnah is teaching that if the father already heard the Neder before the divorce, then even if he was Mefer *before* the Arus divorced her, the second Arus cannot be Mefer his portion on the next day, because the second Arus must be Mefer on the same day on which the father was Mefer. (This might be the intention of the SMAG cited by the Lechem Mishnah, who brings support for the Rambam's ruling from this Gemara. The Lechem Mishnah challenges the Smag's proof, but according to our explanation, the Smag's proof is justified.)

72b

QUESTION: The Gemara tries to prove that the husband may do Hafarah *before* he hears his wife's Neder from the fact that he can appoint a Shali'ach to annul his wife's Nedarim even before hearing them. The RAN asks how this proves anything. If he appoints a Shali'ach, then perhaps the Shali'ach is Mefer the Neder only when *he* hears it, and thus it is still necessary to hear the Neder before doing Hafarah!

The Ran answers in the name of TOSFOS that the husband cannot appoint the Shali'ach to be Mefer at a future date when the husband still has not heard the Neder, since *he* (the husband) did not yet hear the Neder at that point and thus he cannot be Mefer. Anytime he cannot be Mefer, he cannot appoint a Shali'ach to be Mefer.

How does this answer the question? It only explains why the husband cannot appoint the Shali'ach to be Mefer the Neder when the husband did not appoint the Shali'ach to *hear* the Neder on his behalf as well. But perhaps if he appoints the Shali'ach to *hear* the Neder for him, then the Shali'ach can hear the Neder and annul it for him!

ANSWER: The answer to this question can be found in the ROSH. The Rosh writes that the Shemi'ah, hearing, of a Shali'ach cannot constitute a Shemi'ah for the husband, because a person cannot appoint someone else to be his emissary for something passive (such as hearing). Shelichus must constitute an act. Hearing is not an act, and therefore one cannot make a Shali'ach to do it.

The KETZOS HA'CHOSHEN (CM 182) equates this to what the TOSFOS RID writes in Kidushin (41a). The Tosfos Rid writes that the reason why one cannot make a Shali'ach to put on Tefilin for him, or to hold the Lulav for him, is because these are acts that must be done with one's body. When the Shali'ach does the Mitzvah with his own body, it is not sufficient to qualify as the sender's Mitzvah. Why, though, can one not make a Shali'ach to be like his own body? It must be that he holds like the Rosh that one cannot appoint a person to be a passive Shali'ach.