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Nazir, 21

NAZIR 21 & 22 - sponsored by Harav Ari Bergmann of Lawrence, N.Y., out of love for Torah and those who study it.


QUESTION: The Gemara discusses whether the husband's Hafarah (annulment) of his wife's Neder annuls the Neder retroactively ("Meikar Akar") or merely repeals it for the future, from now on ("Meigiz Gayiz"). The Gemara attempts to prove that Hafarah is "Meigiz Gayiz" from the Mishnah later (24a). The Mishnah states that if a husband annuls his wife's Nezirus after she designated animals to bring for her Korbanos of Nazir Taharah, then the Chatas that she designated must be left to die (because of the Halachah l'Moshe mi'Sinai that a "Chatas she'Mesah Ba'alehah," a Chatas whose owner died, must be left to die). The Gemara proves from here that the husband's Hafarah is "Meigiz Gayiz;" since she is no longer a Nazir, it is as if the owner of the Korban "died," and thus her Chatas must be left to die. If the husband's Hafarah is "Meikar Akar," though, then the Chatas should revert back to Chulin retroactively.

The Gemara answers that this Mishnah is not clear enough proof that Hafarah is "Meigiz Gayiz." Even if the Hafarah is "Meikar Akar" and uproots the Neder retroactively, the Korban Chatas remains Kadosh (and must be left to die). Why should the animal remain Kadosh if the woman, retroactively, was never a Nazir?

The Gemara continues and explains its answer. There are, however, two different Girsa'os in the Gemara's subsequent explanation of its answer (see TOSFOS, DH v'Hainu , and 22a, DH Ha Mani). According to one Girsa, the Chatas is Kadosh because the woman *needs atonement* (Kaparah) for accepting to be a Nazir and refraining from wine (until the time of the husband's Hafarah), because of the principle of Rebbi Elazar ha'Kafar who says that one who abstains from wine is a sinner. Therefore, the Chatas remains Kadosh even after the husband uproots her Neder of Nezirus. According to the other Girsa, even though the woman does *not need* atonement, nevertheless since she was Makdish the animal as a Chatas it does not become Chulin.

What is the logic behind the Gemara's conclusion, according to either Girsa? The second Girsa obviously needs further elucidation. If a person who is not a Nazir is Makdish an animal as a Chatas Nazir, the animal certainly does not become Kadosh. Why, then, should this woman's act of sanctifying the animal as a Chatas Nazir be effective if, retroactively, she is not a Nazir?

According to the first Girsa, too, the Gemara's answer is difficult to understand. Why should Rebbi Elazar ha'Kafar's principle obligate the woman to bring a Chatas Nazir? If a person who is not a Nazir refrains from wine for a month, he does not become obligated to bring a Chatas! Since retroactively the woman is not a Nazir, why should Rebbi Elazar ha'Kafar's principle apply to require her to bring a Chatas?

We might answer this question by saying that the woman's *acceptance* of Nezirus is the sin according to Rebbi Elazar ha'Kafar, even if the husband retroactively removes from her the obligation to observe the Nezirus. She sinned because she *attempted* to make herself a Nazir (see the Gemara on 23a, that says that one who attempts to sin "needs Selichah v'Kaparah"). However, this assertion, too, seems to be contradicted by a Gemara later (31b). If a woman made herself a Nazir, designated Korbanos, and then was Matir her Nezirus with a Chacham, the Gemara (31b) says that her Korban is a Hekdesh Ta'us (a Hekdesh made my mistake) and the animal reverts to Chulin! Apparently, neither Rebbi Elazar ha'Kafar's principle, nor the logic of the other Girsa in our Gemara, applies there in the case of Hataras Chacham, so why should it apply to Hafarah if Hafarah, too, uproots the Neder like the Hatarah of a Chacham?

TOSFOS (31b, DH Amru Lahem) asks this question. He writes, first, that the Gemara (31b) might be following the opinion of the Rabanan and not the opinion of Rebbi Elazar ha'Kafar. (This still does not answer the question on the second Girsa in our Gemara.) Tosfos then adds that even if the Gemara does follow the opinion of Rebbi Elazar ha'Kafar, we can distinguish between Hafarah and Hatarah, because when Hatarah is used to annul the Neder, it makes it that the Neder never took effect even for one moment. In contrast, when Hafarah is used to annul the Neder, "the Neder took effect for one moment, since we find that he can be Mefer without resorting to Charatah and making the Neder a Neder Ta'us." What does Tosfos mean by this? How did the Neder take effect for one moment if the husband's Hafarah, like Hatarah, annuls the Neder retroactively?

A similar question may be asked on what the Gemara says later (22a) regarding a Nazir Tamei. The Gemara cites a Beraisa which says that if a woman accepts Nezirus, becomes Tamei, and then her husband is Mefer her Nezirus, she must bring a Chatas ha'Of but not an Olas ha'Of. The Gemara explains that the Beraisa holds that the husband's Hafarah is "Meikar Akar," and that is why she does not bring an Olas ha'Of. The reason she brings a Chatas ha'Of, says the Gemara, is because of Rebbi Elazar ha'Kafar's principle. Again, we see that when Nezirus is removed retroactively, Rebbi Elazar ha'Kafar's principle applies! Why should it apply if the person, retroactively, was never a Nazir?

Furthermore, the Gemara (beginning of 22a) cites Rami bar Chama who is in doubt about a case where a person makes a statement in which he is Matfis to an item which was originally Asur but which is now Mutar now: is he being Matfis to the present state of the item, or is he Matfis to the original state of an item (and his Neder takes effect)? Mar Zutra explains that if a person is Matfis to the original state of an item, then when someone is Matfis to the woman's Nezirus and afterwards her husband is Mefer her Nezirus, even if the Hafarah uproots the Nezirus retroactively, the second person remains a Nazir since he was Matfis in the original state of Nezirus of the woman, prior to the Hafarah. This is according to the "Yesh Mefarshim" in TOSFOS (DH Mar Zutra). Again, we see that even if the husband uproots the Nezirus retroactively with his Hafarah, the woman is still considered to have originally been a Nazir (and that is why the second person remains a Nazir)! Why do we not say that after the Nezirus is uprooted retroactively, she never had a status of a Nazir, just like we find in the Mishnah (20b) that if a Chacham was Matir her Nezirus, then anyone who was Matfis to her Nezirus also becomes Mutar?

TOSFOS asks this question on the "Yesh Mefarshim" and answers ("v'Dochek") that since the Chacham is Matir with a Pesach, he makes the Neder into a Neder Ta'us, and therefore nothing remains of it. The husband, in contrast, is Mefer without a Pesach, but rather because of the Gezeiras ha'Kasuv that gives him the right of Hafarah, and therefore even if his Hafarah uproots the Neder, for certain matters it is considered as though some element of the Neder remains.

Here, too, we may ask what does Tosfos mean by this? How can Hafarah be, at the same time, both retroactive, and not completely retroactive so that some element of the Neder remains?


(a) The BEIS HA'LEVI (1:45) explains that when the Gemara suggests that the husband's Hafarah is "Meikar Akar," it does not mean that he uproots it retroactively from the inception of the Nezirus. Rather, it means that a moment *after* the Nezirus takes effect, the husband is able to uproot it. The husband cannot uproot it entirely retroactively from before it even took effect. This is why Mar Zutra says that when one is Matfis to the first moment of the woman's Nezirus, then even after the husband does Hafarah, the Nezirus of the second person remains. This might be what Tosfos means (31b) -- the Nezirus literally took effect for one moment, and therefore Rebbi Elazar ha'Kafar's principle could obligate her to bring a Korban.

However, this does not explain the Gemara according to the other Girsa, which says that even without the principle of Rebbi Elazar ha'Kafar, once she sanctified the animal, the Hekdesh cannot be removed because the animal is already Kadosh. Why should the Hekdesh not be removed if the Hekdesh was made long after the first moment of Nezirus?

(b) The BRISKER RAV (Chidushei ha'Griz, end of Hilchos Nezirus) explains that even if the Hafarah uproots the Neder retroactively, it only uproots it retroactively for what pertains to the woman herself, but not for tangential consequences of the Nezirus that are not related to her. (See Perush ha'Mishnayos of the RAMBAM, beginning of third Perek.)

Therefore, with regard to Malkus -- if the woman drinks wine before the husband does Hafarah, then the Hafarah will remove the Neder retroactively and she will not receive Malkus. Similarly, the person who was Matfis to her Nezirus will no longer be a Nazir if he is not Matfis to her original state (not like Mar Zutra, but like the Gemara thought before Mar Zutra), since the second person's Nezirus stems directly from her Nezirus. However, the Korban that she designated will remain Kadosh. (See RABEINU CHAIM HA'LEVI, Hilchos Ishus, who suggests a similar logic with regard to Mi'un.) It is not entirely clear, though, how to define what is considered an integral part of the Nezirus and what is considered an offshoot of the Nezirus, according to the Brisker Rav.

(c) Perhaps the reason for the difference between Hatarah and Hafarah may be explained as follows. In the case of Hatarah, when the Chacham is Matir the Neder, the factor that removes the Neder is inherent in the Neder itself. The Neder was a Ta'us, an error, and therefore it does not take effect. Since that factor of Ta'us existed at the time that the Neder was pronounced, the Hatarah works fully retroactively. In contrast, there is nothing inherent in the woman's Neder to remove it through Hafarah (even though the Gemara says that "Ishah Noderes Al Da'as Ba'alah," the Rishonim say that this is only a "Taima d'Kra;" see RAN, end of Nedarim 73b). The factor that removes the Neder retroactively is the Hafarah itself. Even though the Neder is removed retroactively, we can view it as though the Neder existed until a certain point in time, and only after that point was it retroactively removed. (This is the way RAV Y. Z. GUSTMAN, zt'l, defined the concept of "mi'Kan u'l'ha'Ba l'Mafrei'a.") This might be what Tosfos means (on 22a and 31b) when he differentiates between Hataras Chacham and Hafaras ha'Ba'al.

Now it is clear that after Hafarah, Rebbi Elazar ha'Kafar's principle can make the woman considered a sinner, since until the point of Hafarah she actually was observing a full-fledged Nezirus, and only later was it uprooted retroactively. Similarly, even without the principle of Rebbi Elazar ha'Kafar, it is possible that the Korban Chatas that the woman designates before Hafarah should be considered a "Chatas she'Mesah Ba'alehah," because the removal of its Kedushah did not come about through a Ta'us in the original statement, in which case it never was a Chatas. Rather, it actually was a Chatas until a certain point, and then the Kedushah was removed from it. This removal of Kedushah of a Chatas -- which invalidates the animal from being offered -- is similar to the death of the owner of a Chatas which invalidates the Chatas from being offered, and therefore it is included in the Halachah l'Moshe mi'Sinai of "Chata'os Meisos."

Similarly, when Mar Zutra says that when a person is Matfis to the woman's original state before the Hafarah, he does not mean that some element of her Nezirus remains after the Hafarah. Rather, he means that the person is Matfis to the *time period* before the Hafarah, during which she was a full-fledged Nazir. Hatarah, in contrast, retroactively removes the Nezirus completely, so that even before the Hatarah the Neder was a Ta'us and the Nezirus never took effect. The Chacham, through Hatarah, is just revealing the truth -- that the Neder was a Ta'us all along. (We find a similar definition of "mi'Kan u'l'ha'Ba" in the KESEF MISHNAH and LECHEM MISHNAH in Hilchos Nedarim 13:2, according to the opinion of "Meigiz Gayiz." See Insights to Nedarim 78a.)

It should be noted that the ROSH in Nedarim (52a) cites a Yerushalmi which says that even the Hatarah of a Chacham is "mi'Kan u'l'ha'Ba l'Mafrei'a." The Rosh might hold like the first answer of Tosfos (31b) in which Tosfos does not distinguish between Hatarah and Hafarah with regard to how they remove the Neder retroactively.

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