THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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NEDARIM 73 (Rosh Hashanah) - dedicated by Mrs. G. Turkel (Rabbi Kornfeld's
grandmother), an exceptional woman who accepted all of Hashem's Gezeiros
with love and who loved and respected the study of Torah. Tehei Nafshah
Tzerurah bi'Tzror ha'Chaim.
1) MAKING A PREEMPTIVE "HAFARAH" AND THEN CHANGING ONE'S MIND
QUESTIONS: The RAN discusses a case where a husband says, before he departs
on a trip, that he is appointing someone to be his Shali'ach to be Mefer all
of his wife's Nedarim that she might make while he is away. He says, though,
that the Shali'ach should be Mefer the Nedarim that she makes only after the
The Ran asks why does the husband not say simply, without appointing a
Shalia'ach, that "I hereby annul all of your Nedarim that you will make, and
this annullment shall take effect only fromt he day I depart."
The Ran answers that if he annuls the Nedarim in this manner without a
Shali'ach, he will not have the option of changing his mind; all of her
Nedarim will become annulled, and he will not be able to change his mind if
she makes a Neder that he would have wanted to uphold. In order to leave
himself the option to back out, he appoints a Shali'ach, since he can annul
the Shelichus at any time.
(a) Why is the husband unable to change his mind when he says that all of
the Nedarim that his wife will make will be annulled, without making a
Shali'ach? He only made the Hafarah through speech, so he should be able to
repeal it through speech (Kidushin 59a)! (REBBI AKIVA EIGER, RASHASH)
(b) Even if he cannot repeal his Hafarah through speech, he should be able
to make a Tenai. He should be able to make his Hafarah conditional on his
will, by saying, "I hereby annul all of your Nedarim *if* I do not change my
mind by the time that I depart." (We know that it is possible to make
Hafarah with a Tenai, as the Shulchan Aruch (YD 234) rules.) Why, then, can
he not be Mefer her Nedarim himself, without a Shali'ach, with a Tenai?
(a) The RASHASH answers that the Ran is following his opinion earler (72b,
DH Ta Shema). The Ran says that when the husband hears his wife's Neder, the
Hafarah that he made earlier takes effect retroactively, and not from the
time that he hears the Neder. (Perhaps even the Gemara in Nazir that the Ran
here quotes agrees to this point.) Since the Hafarah takes effect from the
time that he said the Hafarah, he will not be able to take back his Hafarah,
just like a Kinyan that is made "me'Achshav u'l'Achar Sheloshim Yom" (to
take effect *from now* after thirty days have passed), which one cannot
The SHALMEI NEDARIM suggests a similar answer, pointing out that Hafarah is
comprised merely of intangible words, and there is nothing left of the words
after they are spoken. An act of Kinyan that is completely gone after it is
performed cannot take effect at a later time if it did not take effect at
the time it was performed. How, then, could the Ran discuss a Hafarah that
is made only to take effect at a later date? The Shalmei Nedarim concludes
that it must be that since everyone knows that Dibur, speech, is finished
and gone the moment it is spoken, and the only way for it to take effect at
a later date is for the person to specify that it should take effect
"me'Achshav u'l'Achar Zman" (from this moment, after a certain time has
passed), that even if one does not specify that it should take effect from
this moment after a certain time has passed, we assume that he wants it to
take effect in this manner (retroactively), and thus he cannot repeal it.
(See, however, REBBI AKIVA EIGER, who also suggests that the Ran is
discussing a case of "me'Achshav," but he questions whether it is applicable
(b) It could be that if the husband makes his Hafarah dependent on his will
(that is, on condition that he does not change his mind), this will not be a
valid Tenai. Since it is clear from his Tenai that he has not really decided
whether or not he wants the Hafarah, there is a problem of "Bereirah"
(determining a present outcome based on a future event (in this case, his
desire for the Hafarah to work). This is certainly true according to the
RAMBAM in Gitin (25b) who writes that whenever a Tenai depends on a person's
will or on what he will decide in the future, even when it depends on
another person's will or decision, it is a problem of "Bereirah" and the
Tenai does not work.
The Beraisa cited by the Gemara states that a "Cheresh" cannot be Mefer a
Neder because the verse says, "v'Shama Ishah" -- "and her husband hears it"
(Bamidbar 30:8), excluding a Cheresh who cannot hear.
The RAN explains that the Cheresh that the Gemara is discussing is one who
cannot hear but is able to speak. The Ran means that even though, generally,
when the word "Cheresh" is used in the Gemara it means a deaf mute, the
Cheresh that our Gemara is referring to is obviously able to speak, since he
spoke the Hafarah for his wife's Neder.
The Acharonim discuss, regarding various laws, whether Kesivah (writing) is
considered like Dibur (speech). Is writing something considered like
speaking it with regard to Halachos that require something to be spoken
(such as Keri'as Shema, Parshas Zachor, and Sefiras ha'Omer)? (See REBBI
AKIVA EIGER in Teshuvos 29-32, who discusses a person who makes a Shevu'ah
in writing, and many other aspects of Kesivah k'Dibur. He cites the URIM
V'TUMIM #96 who also discusses the issue at length, and the CHAVOS YA'IR who
rules that Kesivah *is* k'Dibur.)
If Kesivah is like Dibur, then why does the Ran have to say that this
Cheresh is able to speak? Perhaps he is not able to speak, but he was Mefer
the Neder through writing!
(a) The ROSH makes a similar point. He says that the Cheresh perhaps can be
Mefer the Neder through "Remizah," by motioning with his fingers. However,
the Rosh concludes that it will not help, because a Cheresh who cannot speak
is like a Shoteh, and a Shoteh cannot be Mefer his wife's Neder (the RAMBAM
also rules that a Shoteh cannot be Mefer).
However, the Rosh suggests another reason why the Cheresh cannot be Mefer
through Remizah, wherein he implies that he is in doubt whether or not a
Shoteh can be Mefer. Perhaps a Shoteh can be Mefer since Hafarah is not a
Kinyan or a Mitzvah that needs Da'as. Hence, perhaps a Cheresh could be
Mefer with Kesivah or Remizah. It could be that the Ran says that the
Cheresh here is able to speak, because he holds that Hafarah through Remizah
does not work.
(b) RAV YAKOV EMDEN says that even if a Shoteh could be Mefer (since Hafarah
does not need Da'as, as mentioned above), a Shoteh cannot become married
mid'Oraisa. Since he is not considered to be married mid'Oraisa, he
certainly does not have the right to be Mefer his wife's Nedarim. That is
why the Ran says that the Cheresh is able to speak.
This explanation is not clear, though, because the Ran could also have said
that the Cheresh in our Gemara is indeed one who cannot hear and cannot
speak, but he only lost his ability to speak *after* he was married. When he
married his wife he was able to speak and was not considered a Shoteh, and
thus his marriage is mid'Oraisa and he should be able to Mefer her Nedarim!
Rav Yakov Emden might mean that when we say that a Cheresh who cannot speak
or hear is considered a Shoteh, it is not because there is something
physiologically wrong with his vocal chords. Rather, it is because he was
born without the ability to hear, and because he never heard people
speaking, he never learned how to speak (BARTENURA in Terumos 1:2).
Therefore, a Cheresh who was not born as a Cheresh and was able to hear
*did* learn how to speak, and is not considered a Shoteh. He only lost his
hearing later and that is why he is still able to speak. (Even if he loses
his speech later because of something that happens to his vocal chords, it
will not make him a Shoteh since he knows how to speak; there is a physical
impediment, and not a mental one, that prevents him from speaking.) That is
why the Ran says that the Cheresh is one who is able to speak, because if he
cannot speak or hear, then that shows that he was deaf from the time he was
born and was not able to marry this woman mid'Oraisa.
(c) The SHA'AGAS ARYEH (#6) cites one opinion brought by the Shibolei
ha'Leket that even if "Hirhur k'Dibur" -- if *thought* is like speech -- it
is only a substitute for Dibur when the person is *able to speak. For a
Cheresh, though, who is not able to speak, thought is *not* like Dibur.
According to that opinion, clearly Kesivah will also not be a Dibur for a
Cheresh. (The Sha'agas Aryeh asks many quesitons on this opinion.)