1) RETRACTING ONE'S "HAKAMAH"

OPINIONS: Rabah asks whether a husband or a father may retract (with "She'eilah") his Hakamah of his wife's or daughter's Neder. The Gemara concludes that he may be Sho'el on his Hakamah.

To what extent may a person be Sho'el on his Hakamah? Must he be Sho'el on the same day on which he heard the Neder, or may he be Sho'el even after the day has passed?

(a) The RAN writes that the She'eilah must be done on the same day on which the father or husband heard the Neder. After the day passes, even if he was Sho'el on the Hakamah he may no longer annul the Neder since the Torah requires him to annul it on the day on which he hears it.

Why, though, should he not be able to annul the Neder on a later day, after he rescinds his Hakamah? As the RASHASH points out, the Ran himself (68a, DH Ta Shema, and more clearly on 79a, DH Hafer b'Libo) writes that when a person does not annul the Neder of his wife or daughter by sunset of the day he heard it, since he willingly chooses not to annul it he reveals that he wants the Neder to remain; his silence is considered a Hakamah of the Neder. Accordingly, the only situation in which his right of Hafarah should be limited to that day is where he was able to make a Hafarah the entire day and yet knowingly refrained from doing so. However, when he was Mekayem the Neder after half the day had passed, the reason why he did not annul the Neder during the rest of the day is simply that he did not think that he could! If, on a later day, he is Sho'el on his Hakamah, he should again be able to annul the Neder (until the end of the day of the She'eilah of the Hakamah)! Moreover, if the only reason why he cannot do Hafarah when the day has passed is that his silence serves as Hakamah, why can he not be Sho'el on his silence as well?

The Rashash asks a similar question on the Ran later (71b). The Gemara there asks whether an act of Gerushin is like silence or like Hakamah. That is, if a man divorces his wife on the day she makes a Neder, is the act of divorce considered an act of Hakamah of the Neder or is it considered merely silence on the part of the husband? This question has practical ramifications in the case of a man who divorces his wife and remarries her on the same day. If Gerushin is not like Hakamah but merely like silence, the husband may still annul her Neder since the day has not yet passed. The Ran explains that only if he remarries her on the same day may he annul the Neder if Gerushin is like silence. If he remarries her the following day, he may no longer annul her Neder because the day has passed (even if Gerushin does not constitute Hakamah).

The Rashash asks that after the man divorces his wife and remarries her, he should be able to annul her Neder even if he married her on a later day. The man's silence on the day of the Neder cannot be considered Hakamah; he is silent not because he does not want to annul the Neder, but because he is not married to her and he cannot annul the Neder even if he wants to! Moreover, since he is not married to her when the end of the day arrives, just as he cannot annul the Neder he cannot uphold the Neder! Hence, his silence should not be considered a Hakamah.

A similar question may be asked from the Gemara later (79a) which concludes that even if the husband is silent on the day he hears the Neder simply "in order to provoke his wife's anger" (he informs Beis Din that he merely wants her to think that he is not annulling her Neder, but in truth he intends to annul it later), he still may not annul the Neder after the day passes. Although this form of silence clearly does not constitute "Hakamah," nevertheless the husband forfeit's his opportunity to annul her Neder with such a silence.

ANSWER: Apparently, the Ran does not mean that the only reason why the husband may not uphold the Neder after the day passes is that he was silent until the end of the day and his silence is considered Hakamah. The reason he may not annul the Neder after the day passes is simply because the day has passed; the Torah gives the husband or father until the end of the day to annul the Neder. However, in addition to the fact that he may no longer annul the Neder once the day passes, since he knows that if he lets the day pass he may no longer annul the Neder and he nevertheless remains silent, his silence serves to uphold the Neder. (AFIKEI YAM 1:17 and Acharonim; see KEHILOS YAKOV for an alternate approach.)

This explanation seems more logical than the way the Rashash understands the Ran. According to the Rashash, who explains that when the end of the day arrives it is assumed that the husband consents to the Neder, his silence should not indicate his consent except after a standard, set amount of time. If his wife makes a Neder one minute before the end of the day, what grounds are there to assume that if he does not annul the Neder before the end of the day that he consents to the Neder? Why should silence for one minute be considered Hakamah in one case (when he heard the Neder at the end of the day) while in another case silence is considered Hakamah only after several hours (when he heard the Neder in the middle of the day)?

According to the explanation of the other Acharonim, when the husband hears the Neder one minute before the end of the day, he knows that he has only one minute to annul it. Consequently, his silence indicates his consent to uphold the Neder.

How, though, does the Ran know that silence -- aside from causing him to forfeit the right to annul the Neder -- also constitutes a Hakamah of the Neder? The answer is that the Ran derives this from the words of the verse which discusses the silence of the husband: "If the husband is silent... then he has upheld all of her Nedarim... he has upheld them because he was silent on the day that he heard them" (Bamidbar 30:15). The verse clearly implies that the silence is like an acceptance and confirmation of the Neder.

Why does the Torah itself state that silence is Hakamah, if the husband anyway cannot annul the Neder once the day has passed and he was silent? What difference does it make whether the Neder is upheld because his silence is like Hakamah or because he no longer has the ability to annul the Neder?

There are a number of possible practical differences.

1. The REMA (YD 234:23) writes that even according to the opinion that a Neder which a husband upheld cannot be annulled through the Heter of a Chacham, if the husband did not uphold the Neder but simply could not annul it because he was silent for the entire day, the Neder may be annulled through the Heter of a Chacham (MAHARIK, RADVAZ). According to the Ran, who maintains that silence on the day of the Neder is considered Hakamah, perhaps the Neder cannot be annulled by a Chacham (unless the husband lost his right of Hafarah as a result of divorce or death on the day of the Neder, in which case there was never a Hakamah via silence for the entire day).

2. Even according to the opinion that a Chacham may annul the Neder which the husband upheld, the Chacham may annul it only with the permission of the husband (since he upheld the Neder). If, however, the husband's silence does not constitute Hakamah (but merely the lack of ability to annul the Neder), the Chacham does not need the permission of the husband to annul it.

3. Another practical outcome of the Hakamah is in a case in which the Arus heard the Neder and was silent for the whole day, and the father heard about the Neder only after the Arus died. In an ordinary case in which the Arus heard the Neder and then died, the principle of "Nisroknah" would apply and the father should be able to annul the Neder (unless the Arus upheld the Neder before he died). The Torah teaches that if the Arus was silent on the day he heard the Neder, the father may not annul the Neder through "Nisroknah" because the silence of the Arus constitutes a Hakamah of the Neder. This is the point that the Ran makes earlier (end of 68a, DH Ta Shema).

4. It may be suggested that when the husband upholds the Neder with Hakamah and then he helps his wife violate the Neder (for example, he feeds her dates when she made a Neder not to eat dates), he is punished for the violation of the Neder just as she is punished. Normally, a woman's Neder cannot prohibit someone else from feeding her dates, but if the husband was Mekayem the Neder, perhaps her Neder obligates him to help her observe her Neder (and not merely the principle of "Lifnei Iver"). (M. KORNFELD)

However, there is no source in the Rishonim or Acharonim for the notion that the husband shares liability for his wife's transgression of her Neder which he was Mekayem.

(b) TOSFOS in Kesuvos (71b, DH Aval Hacha) mentions the possibility that the husband may retract (be Sho'el) his Hakamah of the Neder only on the same day the Neder was made, as the Ran asserts, but he is in doubt whether this indeed is the Halachah. The ROSH later (72a, DH v'Shama Ba'al) cites the Yerushalmi here which rules that if the husband divorces her on the day he heard the Neder, he may annul the Neder on the day he remarries her, even if he remarries her many days later. The Yerushalmi compares this case to the case of a person who lost his ability to talk and regained it a few days later, in which case he may annul the Neder when he regains his ability to talk.

(The Yerushalmi continues and explains that this Halachah depends on the Machlokes Tana'im (see Nedarim 76b) with regard to whether a husband must do Hafarah before sunset ("b'Yom Sham'o") or whether he has a full day (24 hours) to annul it ("me'Yom El Yom"). The verse of "Yom Sham'o" implies that if he must annul it on "Yom Sham'o" -- "his day of hearing," the time during which he may annul the Neder includes only the time during which he actually is able to annul it (i.e. when he is not mute). If, however, he is given exactly 24 hours to annul the day, he loses the right of Hafarah after that amount of time passes regardless of whether or not he was able to use the time for Hafarah. See Insights to 76:4.)

The Acharonim (see SHACH YD 234) find a basis for the Yerushalmi's ruling in the Beraisa cited by Gemara later (79a) which states that if a person says that he did not know that it was possible to annul his wife's Neder, he may annul it on the day that he learns that he is able to annul it. The Ran, however, apparently differentiates between that case and the cases here. In that case, the day on which he heard the Neder was not considered at any point to be the Halachic "Yom Sham'o" ("day of his hearing [the Neder]"), since he did not know that he had the right to annul the Neder at the moment he heard it. However, in the cases of the Gemara here, he was able to annul the Neder at the beginning of the day; once he had the opportunity to annul it on that day, even if he was not able to annul it for the rest of the day it counts as his "Yom Sham'o," and once the day passes he loses his right of Hafarah. (See Insights to 77:1.)

HALACHAH: The SHULCHAN ARUCH (YD 234:49) cites two opinions with regard to whether the husband may be Sho'el on the Hakamah and do Hafarah after the day on which he first hears the Neder. The REMA writes that one should be stringent (like the view of the Ran) and not annul such a Neder on a later day.

2) THE EFFECTIVENESS OF A SECOND "HAKAMAH"

QUESTION: The Gemara asks whether a Hakamah takes effect where there is already a Hakamah. If a man hears his wife make a Neder and he says, "Kiyem Lechi, Kiyem Lechi" ("it is upheld for you, it is upheld for you"), and then he annuls (through "She'eilah") the first Hakamah, does the second one take effect? The Gemara proves that it does take effect from a Beraisa which discusses a similar situation with regard to a Shevu'ah. When a person makes two Shevu'os to prohibit one object to himself and then he has the first Shevu'ah annulled, the second Shevu'ah takes effect. The Gemara assumes that the same law applies in the case of two Hakamos.

What is the Gemara's basis for comparing Shevu'ah to Hakamah? When a person makes a second Shevu'ah not to eat a certain food, the reason why the second Shevu'ah does not take effect is that he is already prohibited from eating that food by the Torah due to his first Shevu'ah, and the principle of "Ein Isur Chal Al Isur" teaches that an Isur cannot take effect on a pre-existing Isur; a person cannot add a prohibition to what is already prohibited to him. However, the Gemara in Yevamos (33b) teaches that although "an Isur cannot take effect on a pre-existing Isur," the second Isur does take effect with regard to making it a stronger prohibition. (Although he will not receive Malkus for the second Isur if he transgresses, he will be liable "l'Kovro Bein Resha'im Gemurim," to be buried among Resha'im Gemurim). A second Hakamah, in contrast, is meaningless since the Neder has already been upheld. Nothing remains to be upheld! Hence, even after the husband annuls his first Hakamah, perhaps the second one should not take effect since it never took effect with regard to any matter. (YADOS NEDARIM, cited by the SHALMEI NEDARIM)

ANSWERS:

(a) The RAMBAN (Milchamos, Shevuos 27a) writes that when a person makes a Shevu'ah to fulfill a Mitzvah, the Shevu'ah does not take effect at all since it is not "b'Lav v'Hen" -- the Shevu'ah cannot take effect both positively and negatively (it cannot take effect to obligate the person to transgress the Mitzvah). Accordingly, the reason why the second Shevu'ah does not take effect is that it is not considered a Shevu'ah; it is not because of "Ein Isur Chal Al Isur." Hence, the comparison between the second Hakamah and the second Shevu'ah is accurate. (see Chart #11, footnotes 7 and 8.)

However, the BA'AL HA'ME'OR there argues and says that the second Shevu'ah does not take effect only because of "Ein Isur Chal Al Isur."

(b) The AVNEI MILU'IM (#12; see Insights to 18:2) suggests as follows. The Gemara teaches that in an ordinary case, when a second Isur takes effect on a pre-existing Isur with regard to creating an additional prohibition (but not a second Chiyuv Malkus), the second Isur takes effect only because the Torah created that Isur. Since the Torah created that Isur it cannot be ignored, even though another Isur already prohibits the act. In contrast, when a person attempts to add a second Isur by making a Shevu'ah, the second Isur does not take effect at all because the second Isur is merely the invention of the person, which comes into existence only at the moment of his declaration. If his declaration cannot create an Isur with regard to a Chiyuv Malkus, it cannot create an Isur at all (not even to create an additional prohibition).

The Gemara here might be proof for the assertion of the Avnei Milu'im (see Chart #3, footnote 7).

(c) Perhaps even if a second Shevu'ah does take effect with regard to Isur, the Gemara's comparison of a second Hakamah to a second Shevu'ah is justified. Hakamah not only upholds a Neder but it makes the Neder stronger as well. A second Hakamah, therefore, may strengthen the Neder even more. (Accordingly, a second Hakamah might be another practical difference (see previous Insight) between a husband's Hakamah and a husband's loss of the right of Hafarah by being silent on "Yom Sham'o"; Hakamah not only causes the Neder to remain, but it strengthens it as well.) (See EINI SHEMU'AH on TOSFOS RABEINU PERETZ.)

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