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Nedarim, 83

1) THE VIEW OF THE GEMARA CONCERNING THE NATURE OF THE HUSBAND'S "HAFARAH"

QUESTION: The Gemara quotes a Mishnah from Nazir (23a) that says that a woman who accepted upon herself Nezirus and then drank wine and defiled herself to a corpse receives Malkus. The Gemara in Nazir (21b) attempts to answer from that Mishnah its question regarding the nature of the husband's Hafarah. Does the Hafarah of the husband annul the Neder retroactively ("Meikar Akar") or does it merely repeal it for the future, from now on ("Meigiz Gayiz")? If the Mishnah is discussing in a case where the husband did not annul the woman's Neder of Nezirus, then it is obvious that she receives Malkus, and the Mishnah would be unnecessary. It must be that the Mishnah is discussing a case where the husband indeed annulled her Neder of Nezirus, but the Nezirus is not annulled retroactively because the husband's Hafarah works only from now on, "Meigiz Gayiz." That is why the woman receives Malkus even though the husband later annulled the Nezirus. The Gemara there proceeds to dismiss this proof, explaining that actually the Mishnah is discussing a case where the husband did *not* annul the Nezirus, and indeed the Mishnah is not teaching anything new, but it mentions that case only as a preamble to ("Agav") the Seifa.

The RAN (beginning of 83a), when explaining the Reisha of the Mishnah in Nazir, cites the explanation of the Gemara that the Reisha is merely "Agav" the Seifa. Accordingly, it seems that the Ran is explaining our Gemara according to the opinion that the husband's Hafarah uproots the Neder retroactively, "Meikar Akar," because that is what the in Nazir concludes when it says that the Reisha is "Agav" the Seifa.

Moreover, our Gemara, in proving the principle that one does not bring a Korban for a half-Nezirus, cites a case where a woman accepted Nezirus upon herself and had already designated an animal for her Korban. Subsequently, her husband annulled her Nezirus. The woman is no longer obligated to bring the Korbanos for her Nezirus, except for the Chatas ha'Of. The RAN and ROSH explain that this case is discussing a situation where she had already become Tamei *before* the husband's Hafarah, because only a Nazir Tamei brings a Chatas ha'Of. This is further proof that our Gemara is following the opinion of "Meikar Akar," that the husband's Hafarah works retroactively, because, like the Gemara in Nazir states clearly, according to the opinion of "Meigiz Gayiz," the woman must bring all of the Korbanos Tum'ah if she became Tamei before the Hafarah, since the Hafarah only annuls the Neder from the time of the Hafarah and onward.

However, closer examination reveals that our Gemara does *not* hold that the husband's Hafarah is "Meikar Akar." The Gemara compares the case where the husband annulled the Nezirus after the woman became Tamei to a case where the husband annulled the Nezirus only with regard to the wine, and it calls both cases "Chatzi-Nezirus" (half-Nezirus). According to the opinion that the husband's Hafarah is "Meikar Akar," the Nezirus is uprooted retroactively and there is no Nezirus at all, not even a "half-Nezirus!" (See Ran, DH Amar Lei Abaye.).

ANSWER: It must be that our Sugya disagrees with the Sugya in Nazir and is of the opinion that even if the husband's Hafarah is only "Meigiz Gayiz," the woman does *not* bring Korbanos Tum'ah even if she became Tamei before the Hafarah. (D. Zupnik; see following Insight.)

QUESTION: There are several cases of a Neder which the husband can annul *in part*, due to the fact that one part involves Inuy Nefesh and the other does not. The Rishonim ask why do we not invoke the rule of "Neder she'Hutar Miktzaso Hutar Kulo" -- when a Chacham is Matir part of a Neder, the whole Neder becomes annulled (66a).

ANSWERS:

(a) The ROSH (82b) explains that there is a fundamental difference between the Hatarah of a Chacham and the Hafarah of a husband. The Hatarah of the Chacham is empowered to retroactively render the Neder null and void; the entire Neder is completely uprooted from its beginning, and thus it is not possible for only part of the Neder to be annulled by a Chacham. In contrast, the Hafarah of the husband is empowered to repeal an existing Neder from now on; it does not work retroactively. Hence, the husband is able to annul part of the Neder from now on without affecting the rest of the Neder. This answer clearly seems consistent only with the opinion that the husband's Hafarah is "Meigiz Gayiz," that the husband's Hafarah works from now on and not retroactively.

(b) The RAMBAM (Hilchos Nedarim 13:10) rules that the principle of "Neder she'Hutar Miktzaso Hutar Kulo" does not apply to the Hafarah of the husband and thus the husband can annul part of a Neder. However, he also writes (13:2) that the husband "uproots the Neder from its source." This implies that the Hafarah of the husband *is* retroactive. But if it is retroactive, uprooting the Neder from its inception, then why can the husband annul only *part* of the Neder? The husband should have the same restriction as the Chacham!

The KESEF MISHNAH points out another problem with the Rambam's ruling. The Rambam seems to be ruling that the husband's Hafarah is "Meikar Akar," uprooting the Neder retroactively. But the conclusion of the Gemara in Nazir is that Hafarah is "Meigiz Gayiz!"

The Kesef Mishnah answers (as explained by the LECHEM MISHNAH) that although the Rambam says that the husband "uproots the Neder from its source," he still differentiates between Hatarah and Hafarah. Hatarah is a device to render the Neder as if it was an error; it is as if the person never made the Neder. Hafarah, on the other hand, accepts the validity of the Neder, and then uproots it. The Lechem Mishnah explains that this is indeed the Rambam's definition of "Meigiz Gayiz;" although the Hafarah works retroactively, it nullifies an existing Neder (such that after the Neder has been nullified, we still view the Neder as having existed), in contrast to "Meikar Akar," which -- like the Hatarah of a Chacham -- renders the Neder null and void as if it had never been made.

The Kesef Mishnah's explanation of the Rambam offers us another way of understanding why the principle of "Neder she'Hutar Miktzaso Hutar Kulo" does not apply to Hafarah of the husband. The Hatarah of a Chacham works by rendering the Neder as if it was erroneously made, and therefore can only work on the entire Neder. Hafarah, on the other hand, although also working retroactively, is based on the right of the husband to nullify the Neder without uprooting it as an error, and therefore it can work even on a part of a Neder.

83b