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Nedarim, 73

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 husband departs.

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?

ANSWERS:

(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 repeal.

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 here.)

(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!

ANSWERS:

(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.)

73b