1) ONE WHO PERFORMS A PREEMPTIVE "HAFARAH" AND THEN CHANGES HIS MIND

QUESTIONS: The RAN discusses a case in which a husband declares, before he departs on a trip, that he appoints a person as his Shali'ach to annul all of his wife's Nedarim that she might make while he is away. He adds that the Shali'ach should annul only the Nedarim which she makes after he has departed.

The Ran asks why the husband needs to appoint a Shali'ach in the first place. Why does he not say simply, "I hereby annul all of your Nedarim that you will make, and this annulment shall take effect only from the day I depart"?

The Ran answers that if he annuls the Nedarim in this manner without a Shali'ach, he will not have the option to change his mind. All of her Nedarim will become annulled, and he will not be able to change his mind if she makes a Neder that he would have wanted to uphold. In order to leave himself the option to back out, he appoints a Shali'ach, since he may annul the Shelichus at any time.

(a) Why is the husband unable to change his mind when he says (without appointing a Shali'ach) that all of the Nedarim that his wife will make will be annulled? Since he makes the Hafarah only through speech, he should be able to repeal it through speech (Kidushin 59a). (REBBI AKIVA EIGER, RASHASH)

(b) Even if he cannot repeal his Hafarah through speech, he should be able to stipulate that the Hafarah will be conditional on his will by saying, "I hereby annul all of your Nedarim if I do not change my mind by the time I depart." (One may make Hafarah with a Tenai, as the Shulchan Aruch (YD 234) rules.) Why can he not annul her Nedarim himself, without a Shali'ach, with a Tenai?

ANSWERS:

(a) The RASHASH answers that the Ran follows his opinion as expressed earlier (72b, DH Ta Shema). The Ran says that when the husband hears his wife's Neder, the Hafarah he made earlier takes effect retroactively and not from the moment he hears the Neder. (Perhaps even the Gemara in Nazir which the Ran here quotes agrees with this point.) Since the Hafarah takes effect from the time he declares the Hafarah, he cannot retract his Hafarah, just as one cannot retract a Kinyan which is made "me'Achshav ul'Achar Sheloshim Yom" (which takes effect from now after thirty days have passed).

The SHALMEI NEDARIM suggests a similar answer. He writes that Hafarah is comprised merely of words, of which nothing tangible remains after the words are spoken. An act of Kinyan must take effect at the moment it is performed, because later nothing remains from the act to take effect. What, then, does the Ran mean when he refers to a Hafarah made only to take effect at a later date? The Shalmei Nedarim concludes that since everyone knows that Dibur, speech, is no longer extant the moment after it has been spoken, and that it can take effect at a later date only when the person specifies that it should take effect "me'Achshav ul'Achar Zeman" (from this moment, after a certain time has passed), it is assumed that the person intends for it to take effect in this manner (retroactively) even if one does not specify these words, and thus he cannot repeal it. (See, however, REBBI AKIVA EIGER, who also suggests that the Ran refers to a case of "me'Achshav," but he questions whether it is applicable here.)

(b) Perhaps if the husband makes his Hafarah dependent on his will (by stating that the Hafarah will take effect on condition that he does not change his mind), this condition is not a valid Tenai. Since it is clear from his Tenai that he is undecided whether or not he wants the Hafarah, there is a problem of "Bereirah" (determining a present outcome based on a future event, which, in this case, is his desire for the Hafarah to work). This certainly is the case according to the RAMBAN in Gitin (25b) who writes that whenever a Tenai depends on a person's will or on what he will decide in the future, even when it depends on another person's will or decision, it poses a problem of "Bereirah" and the Tenai does not take effect.

2) IS WRITING CONSIDERED SPEECH?

QUESTION: The Gemara cites a Beraisa which states that a "Cheresh" cannot annul a Neder because the verse says, "v'Shama Ishah" -- "and her husband hears it" (Bamidbar 30:8), excluding a Cheresh who cannot hear.

The RAN explains that the Beraisa refers to a Cheresh who cannot hear but is able to speak. Although, generally, the word "Cheresh" refers to a deaf mute, here the Beraisa clearly refers to a Cheresh who is able to speak, who utters the Hafarah for his wife's Neder.

The Acharonim discuss in various contexts whether Kesivah (writing) is considered like Dibur (speech). Does writing have the status of speech with regard to Halachos which require that words spoken (such as Keri'as Shema, Parshas Zachor, and Sefiras ha'Omer)? (See REBBI AKIVA EIGER, Teshuvos 29-32, who discusses the case of a person who makes a Shevu'ah in writing, and many other aspects of Kesivah k'Dibur. He cites the URIM V'TUMIM #96 who also discusses this issue at length, and the CHAVOS YA'IR who rules that Kesivah is like Dibur.)

If Kesivah is like Dibur, why does the Ran write that this Cheresh is able to speak? Perhaps he is not able to speak, and he annuls his wife's Neder through writing.

ANSWERS:

(a) The ROSH writes that perhaps the Cheresh performs Hafarah through "Remizah," by motioning with his fingers. However, the Rosh concludes that there is no reason to assume that such an act would be effective, because a Cheresh who cannot speak is like a Shoteh, and a Shoteh cannot annul his wife's Neder (as the RAMBAM rules).

The Rosh, however, suggests another reason for why the Cheresh cannot do Hafarah through Remizah. He proposes that perhaps a Shoteh may do Hafarah, since Hafarah is not a Kinyan or a Mitzvah which needs Da'as. Hence, perhaps a Cheresh may do Hafarah with Kesivah or Remizah. Perhaps the Ran here writes that the Cheresh is able to speak in this case because he maintains that Hafarah through Remizah does not work.

(b) RAV YAKOV EMDEN explains that even if a Shoteh may do Hafarah (since Hafarah does not need Da'as, as mentioned above), a Shoteh's marriage does not have the status of a marriage mid'Oraisa. Since he is not considered married mid'Oraisa, he certainly does not have the right to annul his wife's Nedarim. This is why the Ran says that the Cheresh in this case is able to speak and does not have the status of a Shoteh.

This explanation is problematic, however, because the Ran could have written that the Cheresh in this case is one who can neither hear nor speak, but he only lost his ability to speak after he was married. Since he was able to speak when he married his wife and was not considered a Shoteh, his marriage is mid'Oraisa and he is able to annul her Nedarim!

Perhaps Rav Yakov Emden means that a Cheresh who cannot speak or hear is considered a Shoteh not merely because he cannot speak or hear, but because his intellectual development has been hindered as a result of having been born without the ability to hear and thus without the means to learn how to speak (BARTENURA, Terumos 1:2). A Cheresh who was not born as a Cheresh, but lost his hearing later in life, was able to hear and thus did learn how to speak. Therefore, he is not considered a Shoteh. (Even if he loses his ability to speak later because of damage to his vocal chords, he will not be considered a Shoteh since he knows how to speak. It is only a physical impediment and not a mental one which prevents him from speaking.) This is why the Ran writes that the Cheresh in the case of the Gemara here is one who is able to speak; if he would not be able to hear or speak, that would indicate that he was deaf from the time he was born and his marriage does not have the status of a marriage mid'Oraisa.

(c) The SHA'AGAS ARYEH (#6) cites an opinion recorded by the SHIBOLEI HA'LEKET that even if the law is that "Hirhur k'Dibur" -- thought is like speech, thought is a substitute for speech only when the person is able to speak. In the case of a Cheresh, who is not able to speak, thought is not like Dibur. According to this opinion, Kesivah is also not a valid substitute for Dibur in the case of a Cheresh. (The Sha'agas Aryeh asks numerous questions on this opinion.)

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