2) A HUSBAND WHO MAKES HIS NEZIRUS DEPENDENT UPON HIS WIFE'S NEZIRUS
QUESTIONS: The Mishnah (20b) teaches that when a husband says, "I am a Nazir," turns to his wife and says, "And you," and she says, "Amen," he may annul her Nezirus and his Nezirus remains. The Gemara questions this from the Tosefta which discusses the same case and rules that both the husband and wife remain bound by the oath of Nezirus, and the husband cannot annul her Nezirus. The Tosefta adds that if she does not say, "Amen," neither one becomes a Nazir because he made his oath of Nezirus dependent on hers.

Abaye answers that the Tosefta refers to a case in which the husband's statement contains a directive: "I am a Nazir, and you should be one also." In such a case, he makes his own Nezirus contingent upon hers, and thus he cannot annul her Nezirus because doing so would uproot his Nezirus as well. The Mishnah refers to a case in which the husband makes an inquisitive statement, wherein he asks his wife if she, too, is willing to become a Nazir. He wants to make himself a Nazir regardless of whether or not his wife wants to make herself a Nazir, and thus his Nezirus is independent of hers and he may annul her Nezirus.

This is the way all of the Rishonim explain Abaye's answer. However, as the KEREN ORAH points out, according to this interpretation Abaye maintains that the husband's Hafarah is "Meikar Akar" (see Insights to 21:1), but the Halachah follows the view that Hafarah is "Meigiz Gayiz."

The RAMBAM (in Perush ha'Mishnayos and Hilchos Nedarim 13:13-14), however, has an entirely different explanation (and Girsa) in both the Mishnah and the Gemara. In the Mishnah (and in the Gemara which quotes the Mishnah), the Rambam's text reads, "Mefer Shelah v'Shelo Batel" ("he may annul hers and his is annulled"), instead of, "Mefer Shelah v'Shelo Kayam" ("he may annul hers and his remains in force"). The Rambam explains that in the case of the Mishnah, the husband makes his Nezirus dependent on hers, and when he annuls her Nezirus he uproots his as well.

This is also the text of the Mishnah in the Yerushalmi (see footnotes to Perush ha'Mishnayos, Kapach edition; the classic commentators on the Rambam apparently were not aware of this Girsa of the Yerushalmi). The Rambam seems to have a different Girsa in the Gemara as well. His text includes the words, "deka'Tali Nidro b'Nidrah" ("he makes his Neder dependent upon her Neder") in the explanation of the Mishnah's opinion and not in the explanation of the Beraisa's opinion (see ORACH MISHOR).

According to the Rambam's Girsa, however, a number of points remain unclear.

(a) Why does the Mishnah rule that the husband is allowed to annul his wife's Neder even when he thereby removes his own Neder as well? He should not be able to annul his own Neder because of the prohibition of "Lo Yachel Devaro," as the Gemara say (21b, 22b). (ORACH MISHOR)

(b) Since the Halachah is that the husband's Hafarah is "Meigiz Gayiz," in practice the husband does not uproot his own Nezirus when he annuls his wife's Nezirus. At the time he made his own Nezirus dependent upon hers, she indeed was a Nazir; her status of Nazir was not removed retroactively by the Hafarah. Why, then, does the Rambam rule that the husband removes his own Nezirus when he annuls his wife's Nezirus?

(c) Why does the Beraisa rule that if the husband does not make his Nezirus dependent upon his wife's but instead says, "I am a Nazir, and you should be one also," and she says, "Amen," the husband cannot annul her Nezirus ("Sheneihem Asurim")? Why should he not be able to annul her Neder? The RAMBAM in Perush ha'Mishnayos and the BARTENURA explain that he cannot annul her Neder because by telling her that he wants her to be a Nazir he does Hakamah for her Nezirus, and he cannot do Hafarah after he has done Hakamah.

Why, though, is he able to do Hakamah of her Neder before she answers "Amen" and before her Neder takes effect? The Mishnah in Nedarim (75a; see Insights there) states that a man cannot uphold his wife's Nedarim before she makes them! (TOSFOS REBBI AKIVA EIGER)

ANSWERS:
(a) TOSFOS (21b, DH Ela), cites the opinion of RABEINU ELIYAHU who, like the Rambam, states that a husband may annul his wife's Neder even if he thereby uproots his own Neder. His annulment is not a violation of "Lo Yachel Devaro" because that prohibition applies only when one directly uproots his own Neder. When the husband uproots his wife's Neder, he indirectly uproots his own Neder, and thus he does not transgress the prohibition of "Lo Yachel." When the Gemara (21b) says that -- if Hafarah is "Meikar Akar" -- the husband cannot uproot his wife's Nezirus if he made his Nezirus dependent upon hers, it means that when he made his Nezirus dependent upon hers he effectively upheld her Neder of Nezirus. (This explanation also applies to the Gemara on 22b which discusses the case of a person who says, "Hareinu b'Ikvech." See MISHNEH L'MELECH, Hilchos Nedarim 13:14.)

(b) The LECHEM MISHNEH and MISHNEH L'MELECH explain that although a person who makes himself a Nazir by being "Matfis" to a woman's Nezirus before her husband does Hafarah remains a Nazir after the Hafarah, in the case in the Mishnah the husband intends to do more than just be "Matfis" to his wife's Nezirus. He intends to say, "Hareinu Kemosech" ("I am [exactly] like you"). The Gemara teaches that in such a case, when another person says "Hareinu Kemosech" after he hears a woman accept Nezirus upon herself, the husband's annulment of his wife's Neder also annuls the Neder of the person who said "Hareinu Kemosech" (because his Neder was like a conditional Neder; see Ran 22a, DH Ta Shema, and Insights to 25:1). Accordingly, the Rambam understands that the Gemara indeed follows the view that the husband's Hafarah is "Meigiz Gayiz."

(c) A number of answers are suggested for why the husband may perform Hakamah for his wife's Neder of Nezirus even before she makes the Neder.

1. REBBI AKIVA EIGER suggests that it may be assumed that the husband wants to uphold the Neder at the moment she says "Amen." The law is that an unspoken Hakamah ("Hakamah b'Lev") is effective (Nedarim 79a).

2. The SEFAS EMES and RASHASH suggest that since the Hakamah was expressed "Toch Kedei Dibur" of the Nezirus, it takes effect even before she accepts the Nezirus.

Rebbi Akiva Eiger apparently maintains that "Toch Kedei Dibur" cannot circumvent the problem that the Hakamah precedes the Neder. The RAN (87a, DH Hilchesa) and other Rishonim explain that the reason why a person may change his mind "Toch Kedei Dibur" is that he has not yet fully processed the action or statement which he did or said until the time period of "Toch Kedei Dibur" passes. Hence, he has that amount of time to react to the action or statement. RABEINU TAM writes that the reason is that the Rabanan permitted a Talmid to interrupt his transaction, before he reacts to a certain action or statement, in order to greet his Rebbi if he passes by. (This is how Rabeinu Tam understands the Gemara in Nazir 20b, as Tosfos in Bava Kama (73b, DH Ki) explains.) Accordingly, the principle of "Toch Kedei Dibur k'Dibur Dami" does not make two actions as though they occur at the same time. Rather, it merely allows the statement which follows another action or statement to be considered as though it occurs immediately following the first action or statement. Therefore, "Toch Kedei Dibur" cannot change the fact that Hakamah precedes the Neder.

The source for the view of the Acharonim who do apply "Toch Kedei Dibur" here may be the Gemara in Nedarim which says that if a person tears Keri'ah for a relative whom he thought had died but was actually alive, and "Toch Kedei Dibur" he finds out that his relative died only at that moment (after he performed Keri'ah), he does not have to perform another Keri'ah. The Gemara there implies that the Keri'ah done before the death is considered to have been done after the death because of "Toch Kedei Dibur." Similarly, the Hakamah done before the Neder is considered to have been done after the Neder. How, though, do the Ran and Rishonim, who explain "Toch Kedei Dibur" differently, explain the Gemara's case of Keri'ah?

The answer may be that "Toch Kedei Dibur" functions with two separate mechanisms (as the DIVREI YECHEZKEL 27:1 proposes). When a person seeks to retract his original statement, "Toch Kedei Dibur" works because he has not yet completely considered the ramifications of his statement until "Toch Kedei Dibur" passes, and therefore he may take back his word. "Toch Kedei Dibur," however, is also able to make two actions (or statements) occur at the same time, when the second one is not a retraction of the first. If the second is a retraction of the first, "Toch Kedei Dibur" does not work to make them occur at the same time because there is no reason why the second should have precedence over the first. (This may be how the Sefas Emes and Rashash understand "Toch Kedei Dibur.") However, Tosfos in Bava Kama (73b) asks why, according to Rabeinu Tam, "Toch Kedei Dibur" applies to Keri'ah (see Insights to Nedarim 87:1). He answers that it indeed does not apply to Keri'ah in the classical sense; the Rabanan simply were lenient with regard to the Halachos of Keri'ah. Accordingly, the words of Tosfos support the view of Rebbi Akiva Eiger.

One may also suggest (according to the Ran) that the Halachah of Keri'ah does not contradict Rebbi Akiva Eiger's understanding of "Toch Kedei Dibur" for another reason. The Halachah of Keri'ah requires that a person tear his clothes when he hears of the death of a close relative. The Keri'ah needs to be "Lishmah" for that relative, as the Gemara in Nedarim (ibid.) says. He may decide for which relative the Keri'ah was done up to "Toch Kedei Dibur" after the Keri'ah. However, there is no Halachah that Keri'ah must be done after the death. The Halachah requires that Keri'ah be done for the relative who died; if it was done while the relative was alive, it was not done Lishmah for the death of that relative. When his relative is alive at the time of the Keri'ah but dies within "Toch Kedei Dibur" he may decide that the Keri'ah was done for that relative because it is still "Toch Kedei Dibur," and thus he still fulfills the obligation of Keri'ah. Hakamah is not comparable to Keri'ah since a verse teaches that Hakamah is not valid when done before the Neder, but it must be done after the Neder.

3. The RASHASH suggests another answer based on the ROSH in Nedarim (72b, DH Harei Hen, and 75a, DH Harei Hen). The Rosh explains that the reason why the husband may not be Mekayem his wife's Neder before the Neder is made is logical. A man cannot be Mekayem "all Nedarim" which his wife will make before she makes them because he does not know what Nedarim she will make. She might make some Nedarim that will be so embarrassing and disgraceful to him that he would not want them to remain, and thus the Hakamah he performs before she makes the Nedarim will be a Hakamah b'Ta'us (in error). In contrast, in the case of the Gemara here in which the Hakamah is made for a specific Neder which his wife might make, he indeed may uphold it before she makes it because he knows exactly what he is upholding. (See Insights to Nedarim 75:1, in which we point out that the Ran gives a different reason for why Hakamah may not be done before the Neder is made.)