1) WHEN IS THE FATHER ENTITLED TO ANNUL HIS DAUGHTER'S NEDER THROUGH "NISROKNAH"
QUESTION: The Gemara teaches that if a betrothed woman (Arusah) made a Neder while her Arus was alive and then he died, her father may annul her Neder because of "Nisroknah." The Gemara derives this from the verse, "v'Im Hayo Siheyeh l'Ish" (Bamidbar 30:7). The Gemara asks that perhaps the verse teaches only that the father may annul a Neder which the Arus did not hear, but he may not annul a Neder which the Arus heard (or knew about) before he died. The Gemara answers that if the verse refers only to a Neder which the Arus never knew about, the verse would not be necessary; it is obvious that the father may annul such Nedarim for the Torah teaches that a Na'arah is in the domain of her father with regard to Hafaras Nedarim, as it says, "bi'Ne'ureha Beis Aviha" (Bamidbar 30:17).
What is the logical basis for the Gemara's distinction between a Neder which the Arus heard and one which he did not hear?
The Gemara understands that if the Arus never heard the Neder, he was not "Zocheh" in its Hafarah -- he never gained control over the right of Hafarah of that Neder. Accordingly, the time at which the Neder was made does not matter as much as the time at which the Neder was heard by the Arus or by the father; it is only when each man hears the Neder that it becomes "his" Neder and he gains control, so to speak, over that Neder to annul or uphold it. This is why the Gemara asserts that if the Arus dies without having heard the Neder, it is obvious that the father may annul it since it is exactly the same as a Neder a woman made after her Arus died -- it never entered the domain of the Arus. (One would assume that when a woman makes a Neder as an Arusah which her husband hears about only after Nisu'in, her husband may annul it himself when he hears about it, since the Neder "enters his domain" after Nisu'in, a time when he may annul his wife's Nedarim by himself. A Gezeiras ha'Kasuv, however, teaches otherwise, that such a Neder is not considered to be in his control and he may not annul it (67b).)
However, this logic is correct only if it is true that a husband may not annul a Neder before he hears it. However, the Gemara later (73a) concludes that the Arus may annul a Neder even though he has not yet heard it and does not know about it (see RAN there, DH Mishum). The Neder, therefore, should be considered to be in the domain of the Arus even when he has not yet heard it!
ANSWER: Perhaps when the Gemara there (73a) says that an Arus may annul his wife's Neder before he hears it, it refers only to an Arus who was able to hear the Neder. An Arus who is a Cheresh (deaf), however, cannot annul the Neder he is not able to hear it. Similarly, an Arus who dies before he hears the Neder is considered unable to hear the Neder, like a Cheresh.
However, if this suggestion is correct, according to the opinion that rules "Ein Bereirah" no Arus should be able to annul his Arusah's Neder, because at the time the Neder was made, it was not known whether the Arus would die before he hears the Neder. It must be that since the Torah teaches that the Arus may annul the Neder, the Torah is not concerned with the fact that he might die before he hears it. Therefore, even if he does die before he hears it the Neder is considered to have been in his domain!
Perhaps "Ein Bereirah" applies only to a Kinyan or to a change in status which a person effects. "Ein Bereirah" dictates that a person cannot make the outcome of his act dependent on a future occurrence. In contrast, the Torah certainly may take into account future events when it determines the present status of a Kinyan; although a person does not know what the future will bring, Hash-m certainly knows. The issue of the Gemara here is whether or not the Torah gives the Arus control over the Neder of his Arusah. The Torah teaches that the Arus' Hafarah of a Neder which he died without hearing is like that of a Cheresh and is not valid.
The Gemara cites a verse to prove that even if the Arus heard the Neder, the father still may annul the Neder after the death of the Arus because of "Nisroknah." This teaching may be understood in two ways. The Gemara might intend to say that even if the Arus did hear the Neder, a Gezeiras ha'Kasuv teaches that he loses control of the Neder when he dies and it is as if he never heard it.
Alternatively, the Gemara might mean that the Torah teaches that even though the Arus did have control of the Neder, the father "inherits" or takes over the rights which the Arus had in the Neder, and the father is then able to act on behalf of the deceased Arus. (Support for this way of understanding the Gemara may be found in the words of the Ran on 71b. The Ran writes in the name of Tosfos that if the woman gets remarried on the same day that her first husband died, according to Beis Shamai the second Arus may annul only her Nedarim which she made after the first Arus died and before the second marriage, but not Nedarim which she made while the first Arus was alive and which, upon his death, entered the father's domain through "Nisroknah.")
2) WHEN DOES "NISROKNAH" NOT APPLY
QUESTION: The Gemara assumes the logical stance that it is easier for "Nisroknah" to apply when the Arus died and did not hear the Neder. This position, however, contradicts the words of the RAMBAM. The Rambam writes that when the Arus did not hear the Neder, the father loses the ability to annul it through "Nisroknah". The Rambam (according to the VILNA GA'ON in Shulchan Aruch YD 228:40, as explained by the Chazon Ish #1) writes that when a father annuls his daughter's Neder while she is betrothed and then her Arus dies before he hears of the Neder, the father does not receive the rights of Hafarah through "Nisroknah" (as the Gemara earlier (69a) says according to Beis Hillel) and the Neder remains in force. However, if the Arus hears the Neder before he dies, the father is able to annul the Neder through "Nisroknah" even though he already annulled his half of the Neder before the Arus died (and thereby weakened the Neder such that it cannot be "transferred" to another domain).
How can the Rambam's words be reconciled with the Gemara?
(a) The Rambam's logic may be explained based on the words of the RAN (68b, DH Shama Ba'alah). The Ran suggests that the father's Hafarah is stronger when the Arus did not hear the Neder (and thus the Neder is entirely in the father's control). The father's Hafarah is weaker when the Arus did hear the Neder (and thus the Neder is only partially in the father's control).
A stronger Hafarah weakens the Neder more such that it cannot be inherited by the father when the Arus dies. This is why the earlier Hafarah of the father prevents "Nisroknah" only when the Arus did not hear the Neder.
(b) RAV HILLEL RUVEL shlit'a suggests that the reason why "Nisroknah" does not apply when the father did Hafarah before the death of the Arus is as follows. A Neder cannot alternate between being subject to a joint Hafarah and being subject to a single-person Hafarah (two different types of Hafarah). If the father began to annul his portion of the Neder while the Arus was alive, the Hafarah of the Neder became designated as a joint-Hafarah and it cannot be concluded by a single Hafarah (that of the father) after the Arus dies. The Hafarah of the father precludes "Nisroknah" from taking effect only when the Arus never heard the Neder and it never came under the Arus' control. Since the Arus did not hear the Neder, the father gains control of the Neder by virtue of the verse, "bi'Ne'ureha Beis Aviha" (Bamidbar 30:17), and it is as if she made the Neder while she was in the father's domain (see previous Insight).
In contrast, when the Arus heard the Neder and it thus came under his control, upon his death the father gains control of the Neder by inheriting the part which was in the domain of the Arus (see previous Insight). Consequently, even if the father annuls the Neder after the Arus dies, he only needs to annul the portion of the Neder which he inherited from the Arus in order to join it to the portion which he annulled while the Arus was alive. Although the Arus is now dead, the Hafarah is still a joint-Hafarah, but instead of half of the Hafarah being done by the Arus and half by the father, both halves of the joint-Hafarah are done by the father. Hence, since the Hafarah remains a joint-Hafarah even after the death of the Arus, "Nisroknah" applies and the father may annul the Neder.