I do not see any indication that the Ran (section b below) disagrees with Tosfos. He brings two opinions, one of which is Tosfos, and does not appear to take sides.

>>2) PROOF THAT DIVORCE IS NOT LIKE "HAKAMAH"

QUESTION: The Gemara attempts to prove from the Mishnah (71a) that Gerushin does not constitute Hakamah. The Mishnah states that when an Arus divorces his wife after she made her Neder, and she becomes betrothed to a second Arus on the same day, the second Arus -- together with her father -- may annul her Neder. The Mishnah's addition of the condition that the second Arus may annul her Neder only if she became betrothed to him on the same day that the first Arus divorced her shows that either the father or the first Arus indeed heard her Neder before the divorce.

The Gemara infers that since the Mishnah means that the Arus heard the Neder before he divorced her and nevertheless the second Arus may annul the Neder, it must be that Gerushin is not considered Hakamah, because otherwise the second Arus would not be able to annul the Neder.

The Gemara rejects this proof and says that the Mishnah does not mean that the Arus heard the Neder before he divorced her, but it means that the father heard the Neder. Since the Arus did not hear the Neder, his Gerushin cannot constitute Hakamah in this case. The Mishnah means that if the father heard the Neder before the Arus divorced her and then she became betrothed the same day to someone else, the father and the second Arus may annul the Neder together. When, however, the first Arus heard the Neder before the divorce, perhaps indeed the Gerushin is considered like Hakamah.

According to the Gemara's explanation of the Mishnah, what is the Mishnah's intention when it says that the second Arus may annul the Neder only when he marries her on the same day ? The Mishnah cannot be teaching that Hafarah may be done only on "Yom Sham'o," and thus if the father heard the Neder on that day he must annul it on that day, because it is obvious that the father's Hafarah with the second Arus is valid only on the day he (the father) heard the Neder! Why would one have thought that the second betrothal changes the father's requirement of "Yom Sham'o"?

The Mishnah should have discussed a case in which neither the father nor the first Arus heard the Neder, in which case the second Arus may annul the Neder with the father even when the second betrothal takes place on another day.

Even if the Mishnah chooses to discuss a case in which the father heard the Neder, it should teach that the second Arus may annul the Neder after a number of days as long as the father not only heard the Neder while the first Arus was still married but also annulled the Neder at that time. Since he already annulled his share of the Neder, whether his daughter marries the second Arus on "Yom Sham'o" or on another day is immaterial; the second Arus may still annul his portion of the Neder.

On the other hand, according to the Gemara's original assumption that the first Arus heard the Neder, the Mishnah teaches a Chidush that Gerushin does not constitute Hakamah. What, though, is the Mishnah teaching according to the Gemara's rejection of its initial way of understanding the Mishnah?

ANSWERS:

(a) According to TOSFOS (cited by the Ran, 71b), Beis Hillel maintains that the second Arus cannot annul the Neder when the father annulled the Neder before the first Arus died (because the Neder is now too weak to pass on to the second Arus). This is the intention of the Mishnah. When the father heard the Neder (but did not do Hafarah), the second Arus cannot do Hafarah unless he became betrothed to the Na'arah on that day. When the father did Hafarah before the first Arus divorced her, the second Arus cannot do Hafarah at all (and if the father heard the Neder before the divorce but did not do Hafarah before the divorce, the father cannot do Hafarah when the second Arus marries her unless he marries her on the same day). The Mishnah teaches the Chidush expressed by Tosfos, that the second Arus cannot do Hafarah if the father did Hafarah before the first Arus divorced her. The father's Hafarah weakens the Neder such that it cannot be passed from the first Arus to the second Arus.

(b) The RAN, however, does not agree with the assertion of Tosfos. According to the Ran, what is the Mishnah teaching?

The answer is that the Ran follows his own view as expressed elsewhere (69a), where he writes that the Hafarah of one of the partners becomes void if the other partner was unable to do Hafarah for any period of time (see Insights to 71:1). The Mishnah teaches that when the father heard the Neder, he must do Hafarah a second time with the second Arus even if he already did Hafarah before the first Arus divorced her, because there was a moment (i.e. after the divorce) during which he could not do Hafarah (according to Beis Hillel). This is what the Mishnah intends to teach when it says that the father and second Arus are able to annul her Neder only when she becomes betrothed again on the same day.<<

Moshie Cohen