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Nedarim, 81

81b

HALACHAH: In a Beraisa, Raban Gamliel rules that even Nedarim which do not actually take effect, such as a Neder a woman makes not to serve her husband in one of the ways of endearment, still requires annulment. Raban Gamliel derives this Halachah from the words, "Lo Yachel *Devaro*," which implies that even if a statement does not constitute a true Neder and is no more than a "spoken word," it requires Hafarah lest people become accustomed to taking Nedarim lightly (RAN, DH Mishum she'Ne'emar). He adds that this verse is merely an Asmachta, and the requirement of Hafarah in this case is only mid'Rabanan.

The Gemara then cites the Beraisa that states, "If people regard certain permitted practices as prohibited, one is not allowed to perform those practices [in that place] in order to reject the conduct of those who prohibit them." (The Gemara earlier (15a) cites the same Halachah with a slightly different wording: "If practices are permitted but some people regard them as prohibited, one is not allowed *to permit those practices* in front of them.")

The Gemara explains that this Halachah is in accordance with the view of Raban Gamliel, that even a statement -- or practice, in this case -- that is not a true Neder requires Heter or Hafarah.

The SHULCHAN ARUCH (YD 214:1) rules, based on this Gemara, that if a person is accustomed to fasting during the days of Selichos or between Rosh Hashanah and Yom Kipur and then he decides not to fast one year because he is weak, he must get a Heter to permit himself to eat on those days. Even if he only fasted one time but intended for it to be an accepted practice forever, he needs a Heter, unless he specified that he was not accepting the practice upon himself as a Neder and he did not intend to do it forever.

(a) Is the requirement to get Hatarah for conduct oneself stringently in a certain practice a requirement mid'Oraisa or mid'Rabanan?

(b) In addition, which types of practices are included in the requirement of Hatarah?

OPINIONS:

(a) From the fact that the Gemara compares Minhagei Isur with Nedarim that do not take effect, it seems that just like those Nedarim are Asur mid'Rabanan, so, too, Minhagei Isur are Asur only mid'Rabanan and require Hatarah only mid'Rabanan. (It is interesting to note, however, that although the rule of "practices that are permitted..." is the Halachah, the ruling of Raban Gamliel is *not* the Halachah, indicating that they are not totally comparable.)

The BIRKEI YOSEF (YD 214) indeed rules that it is mid'Rabanan, supporting his ruling with the fact that mid'Oraisa a Neder needs to be expressed verbally (Shevuos 26b). He infers this from the wording of the Shulchan Aruch as well, who writes that "it is *as if* he made a Neder," but not that it is considered to be an actual Neder.

It is not clear why the Birkei Yosef does not cite the Gemara earlier in Nedarim (15a) that says explicitly that this Isur of "Lo Yachel Devaro" in this case is only mid'Rabanan.

(b) This Halachah includes both personal customs (Minhagim which a person accepted upon himself privately, such as fasting on certain days), and public prohibitions or "Minhagei Isur" (stringencies which a community took upon themselves; for example, the Minhag not to work on Erev Pesach). In both of these cases, one needs a Heter Chacham to discontinue the Minhag.

Some maintain that one needs a Heter only if he was aware at the outset that this practice was merely an extra stringency and not Halachah. If one practiced an Isur because he mistakenly thought that it was really Asur, he does not need a Heter Chacham (SHULCHAN ARUCH YD 214:1, first opinion).

Others, however, maintain, on the contrary, that only if the practice was mistakenly accepted may the Chacham be Matir it. When one accepted the stringent practice knowing that it was permitted by Halachah, one may *not* be Matir it (TESHUVOS HA'RASHBA 1:98, and RAN in Pesachim, Perek 4, second opinion, based on the Yerushalmi).

The VILNA GA'ON (Shulchan Aruch, ibid.) cites the RAN in Pesachim who points out that the fact that our Gemara says that the source for this Halachah is from the verse "Lo Yachel Devaro" supports the first opinion that it is similar to a Neder, where a person knows that something is permitted and he consciously tries to prohibit it.

The Gemara in Pesachim (51a) cites the same Beraisa as our Gemara, ""If practices are permitted but some people regard them as prohibited, one is not allowed to permit those practices in front of them." Rav Chisda qualifies this rule and says that it is referring only to permitting the practice in front of "Kuta'i" (unlearned people who follow practices out of ignorance), because when they see us acting leniently, they will take Isurim lightly, since they see that what they think is prohibited is really permitted. Why, then, does the Shulchan Aruch cite this rule as applying to all people? The VILNA GA'ON (Shulchan Aruch, ibid.) answers that this single statement teaches two different Halachos (as the BEIS YOSEF points out). The first Halachah is that one is not allowed to permit the practice without a Hatarah; this Halachah applies to everyone. The second Halachah is that one should not *conduct himself* leniently in front of others who conduct themselves stringently, lest they come to deride his own Minhag. The latter Halachah is the subject of the Gemara in Pesachim which applies only in front of "Kuta'im."