2) REVOKING "CHARAMOS" MADE BY THE COMMUNITY
QUESTIONS: The Gemara (29a) cites a Beraisa that discusses the oath to observe the laws of the Torah, which Moshe Rabeinu made the Jewish people make. He said to them, "Know that I am making you swear not according to your own Da'as (understanding of the Torah), but rather according to the Da'as of Hash-m and according to my Da'as."

The Gemara explains that the reason why Moshe Rabeinu said both "Hashem's Da'as" and "my Da'as" was in order to prevent the possibility of annulling this Shevu'ah. RASHI (29b DH Ela) explains that since the oath was based on the Da'as of Hash-m and Moshe, it was considered an oath made according to the Da'as of the Rabim (public) which cannot be annulled (see Gitin 36a).

The Gemara implies that when a community decrees a Cherem (a public proclamation which all members of the community are obligated to follow) "according to the Da'as of Hash-m and the Da'as of the community," it is binding and cannot be annulled. (An example of such a proclamation is found in the SHULCHAN ARUCH YD 1:11, who mentions a community that decreed a Cherem that only a certain Shochet may slaughter meat. Another Shochet transgressed the Cherem, and some authorities ruled that the meat of the second Shochet is forbidden.) TOSFOS (DH Ki) asks that it is common practice to retract such public Charamos, but according to the Gemara here it should be impossible to retract such Charamos. Even if the Cherem is made only "according to the Da'as of the community," it is an oath made according to the Da'as of the Rabim which cannot annulled. Tosfos asks further that the annulment of an oath may be done only with Charatah, an expression of regret for having made the oath. What Charatah is the basis for the annulment of public Charamos?

ANSWERS:
(a) TOSFOS answers that a public Cherem is different in that the original Da'as of the community was that the Cherem will be annulled whenever the community desires to annul it, and that such annulment may be done without Charatah.

Tosfos adds that although the Cherem was made "according to the Da'as of Hash-m," this does not mean that it is an oath made according the Da'as of the Rabim. Rather, this is merely a term that the Ge'onim instituted in order for people to take the Cherem seriously.

Tosfos writes that this is not similar to the oath that Moshe Rabeinu made the Jewish people take. Hash-m told Moshe to make them take that oath. In contrast, the Charamos made by the community depend solely on the public's decision to institute such policies.

(b) The ROSH explains that the reason why the conditions necessary to annul an oath (such as Charatah, and an expert Chacham, or three ordinary people) are not required for the annulment of a public Cherem is that such a Cherem does not possess the status of a Neder. Rather, it is a type of decree or excommunication that anyone who transgresses the Cherem will be separated from the community. (For example, no one may speak or do business with the person who transgresses the Cherem.) It is a process of Niduy which the community may apply, and annul, at will.

The KEHILOS YAKOV in Moed Katan (#4) points out that, apparently, Tosfos maintains that a public Cherem does have the status of a Neder; the Neder, however, is made dependent on public opinion. In contrast, according to the Rosh, a Cherem does not have the status of a Neder at all. Even if is made with the "Da'as Rabim," it still may be annulled without Charatah.

An example of a Cherem which forbids an act which otherwise would be permitted is the Cherem of Rabeinu Gershom against marrying more than one wife.

The Kehilos Yakov writes that many Rishonim imply that when a person performs the act which is prohibited by the Cherem, he not only is punished and cursed, but his very act constitutes a transgression. This is the view of Tosfos here, who considers the Cherem to have the status of a Neder or Shevu'ah. One who transgresses the Cherem is considered as though he transgresses a Neder or Shevu'ah.

In contrast, the Rosh maintains that one who performs the act prohibited by the Cherem has transgressed no prohibition per se, because the Cherem does not have the status of a Neder but is merely a decree on the community. There is no actual prohibition on the act that the Cherem proscribes. Rather, the Cherem imposes a penalty on a person who disregards the Cherem.

The Kehilos Yakov adds that the Rosh apparently maintains that that it is not possible to place a prohibition of a Neder on someone else. Accordingly, the Cherem of the community is merely a decree of punishment upon anyone who does not conform with the ban. (D. Bloom)