QUESTION: The Beraisa teaches that a Chacham can only remove a Neder through
Hatarah, by saying "Mutar Lach" -- "It is permitted to you." A husband can
only remove a Neder through Hafarah, by saying "Mufar Lach" -- "It is
annulled for you." If a Chacham or a husband uses the wrong term, then the
Neder will not be removed.
The RAN and Rishonim explain that the key to this difference is the fact
that a Chacham, when he removes a Neder, uproots it retroactively, such that
if the person transgresses his Neder and then is Matir it, he is exempted
from Malkus (Shevuos 28a), because the Neder was uprooted retroactively and
was never there. The word "Hatarah" means that he is removing the Neder as
if it never existed by making it a Neder Ta'us (a Neder made in error).
Hafarah, in contrast, only removes the Neder from now on, and it will not
exempt the woman from Malkus if she transgressed the Neder before it was
annulled (Nazir 22a, see also RAN, bottom of 75a, DH d'Atfis). This is the
meaning of Hafarah, which means "stopping it from now on."
However, the RAMBAM (Hilchos Nedarim 13:2; see Insights to Nedarim 21:1:c)
writes exactly the opposite! The Rambam writes that a husband or father must
be Mefer and not Matir because when he does Hafarah he uproots the Neder
from its time of origin, as opposed to a Chacham who only annuls a Neder
from now on. The Rambam is even clearer about this in Perush ha'Mishnayos,
where he adds that Hafarah makes the Neder as if it never existed, while
Hatarah means "undoing the knot" of the Neder for the future, and that is
why the Chacham and the husband have to use the appropriate terms.
How can the Rambam write this? The Rambam himself (Hilchos Nedarim 12:19,
13:15) rules that if the father or husband is Mefer the Neder after she
transgressed it, it does *not* remove the Neder retroactively and exempt her
from Malkus, implying that Hafarah removes the Neder only from now on! In
addition, regarding Hatarah the Rambam (Hilchos Shevuos 6:18) writes that
Hatarah exempts a person from Malkus retroactively!
ANSWERS: Many Acharonim discuss these words of the Rambam. A few of the
approaches that they offer for understand the Rambam follow.
(a) The KIRYAT SEFER writes that the Rambam means that when a husband or
father removes the Neder, the Neder is completely removed, but when a
Chacham is Matir, some of the Isur still remains. In that sense, the husband
uproots the Neder entirely, whereas the Chacham simply removes it,
partially, from now on. (He himself writes that this is somewhat forced.)
(b) The CHAZON YECHEZKEL (Hilchos Nedarim 6:1) explains that according to
the Rambam, the husband's words act against the *expression* of Neder that
his wife made, and in this sense he uproots it entirely. But the Chacham
only removes the Isur of the Neder that was caused by the expression. In
this sense, it is only a Hatarah for the future.
(c) Others explain that the Rambam is not referring to the *effect* of the
Hatarah or Hafarah, but merely to the *wording* of the Hatarah or Hafarah.
The husband must express that he *wants* to uproot the Neder entirely and
that he does not want the Neder to ever have existed. This is necessary for
Hafarah, because the logic of Hafarah is that the wife makes her Neder "Al
Da'as Ba'alah," only if her husband consents. This means that she wants her
husband to consent to the original Neder in order for the Neder to take
effect (in contrast to his lack of consent later on, which will not annul
the Neder). Once he shows that he does not consent, though, she has in mind
that from that time on the Neder should be Batel (because it does not bother
him what happened already until that time).
The Chacham, on the other hand, although he uproots the Neder entirely, has
no right to say that the Neder never existed. The Chacham just says that
from now on the Neder should no longer be effective. However, the only way
for the Neder to no longer be effective is if the Neder never caused an Isur
in the first place because it was a Neder Ta'us (a Neder made in error).
Therefore, in order to cancel the Neder from now on, the Neder must be
uprooted entirely (from its origin). The person who made the Neder, though,
who now has Charatah about it, admits that he wanted his Neder at the time
that he made it but now he does not want it, and therefore the Chacham must
use the wording that the Neder is removed from now on, according to the
Rambam, in order for it to be removed retroactively from its inception. (See
also the ROSH on 52a, who explains that the Hatarah of the Chacham works
"from now on, retroactively" -- "mi'Kan u'l'ha'Ba l'Mafrei'a." This means
that at the time that the Chacham is Matir the Neder, the Neder becomes
annulled from now on, and although until that point it was indeed Asur, it
is viewed from now on as if there never was a Neder. Until the time of the
Hatarah, the object certainly was prohibited. The Chacham, by being Matir,
removes the Isur from now on *as if* it was never there before. See
Insights to 52:3.)