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Nedarim, 21


OPINIONS: The Gemara discusses the Halachah of "Poschin b'Charatah" -- whether or not a Chacham or Beis Din annul a person's Neder on the basis of the person's Charatah, regret, about making the Neder. What exactly is the difference between Charatah and a normal Pesach?

There are a number of different opinions in the Rishonim how to understand Charatah. The first two opinions are expressed in the Machlokes Rishonim regarding the explanation of the Mishnah earlier (20a). The Mishnah states that when a person makes a Neder that prohibiting his wife from having Hana'ah from him, and then he says that he meant that his *previous* wife may not have Hana'ah from him, the Chachamim rule that "we make a Pesach for him *from another place* (mi'Makom Acher)." What does it mean to make a Pesach "from another place?"

The RAN explains that "mi'Makom Acher" means that we may even be Matir the Neder with Charatah, even though that type of Pesach does not involve any intrinsic element of the Neder itself.

TOSFOS, citing RABEINU TAM, says the opposite. We may be Matir his Neder only through a Pesach, but not with Charatah. A Pesach is called "mi'Makom Acher."

The Ran defines Charatah as being "mi'Makom Acher," external to the Neder. Tosfos defines Charatah as being a part of the Neder itself. Why do they give different definitions for Charatah?

To understand the Machlokes, we must first ask a basic question. How does Charatah work to annul a Neder? In the case of a normal Pesach, the person asserts that he never would have made his Neder had he been aware of a certain factor at the time of his Neder. Hence, the Rishonim explain, he shows that his Neder was made in error, and when the Chacham is Matir the Neder it is deemed to be a Neder that was said in error by a misinformed person and it is not binding. How, though, does Charatah work? Does Charatah work with a completely different mechanism than a Pesach, or does it work in the same way as a Pesach, in that the person says that he never would have made his Neder had he felt then the way he feels now, and since he regrets having made the Neder, the Neder is deemed to have been made in error?

The alternative mechanism for Charatah is that it does not turn the Neder into a mistake like a Pesach does. Rather, the Torah says that when a person makes a Neder, he is not allowed to desecrate his word -- "Lo Yachel Devaro" -- implying that "others can 'desecrate' it for him (by removing the Neder)." This is the source that a Chacham may be Matir one's Neder. Perhaps when one says that he regrets that he made the Neder and he wishes he never made the Neder, then the Chacham has the right to annul a person's Neder so that it is no longer binding, *even without deeming the Neder to be a mistake*. Since the Chacham is the one who annuls the Neder and gives the Heter (and not the Noder himself), the Torah permits it.

This question, how Charatah works to annul a Neder, seems to be a Machlokes Rishonim:

(a) From the RAN (DH Ein Chacham) and the ROSH (3:2) it seems that Charatah does not turn the Neder into a mistake retroactively. Rather, the Torah gives the Chacham the right to uproot the Neder as if it never existed without making it into a mistake. That is why there is a Machlokes in the Gemara whether Charatah can be used at all to annul a Neder -- since it is not making the Neder into a mistake retroactively, perhaps it cannot serve as a basis for annulling the Neder.

(b) However, TOSFOS (DH ka'Savar) and the RITVA imply that Charatah, like a Pesach, also makes a Neder into a mistaken Neder. However, it does not make it into as big of a mistake as a Neder that is annulled through a Pesach. Since it is normal for a person to eventually calm down and for his rage to subside, the fact that he became calm and now regrets his Neder is not considered to be a mistake in the fullest sense.

The Ran learns that Charatah does not make a Neder into a mistake. Accordingly, Charatah is certainly called "mi'Makom Acher," since it does not involve the removal of the Neder in its own right. It does not weaken the Neder itself by making the Neder into a mistake. Therefore, Charatah is an annullment of the Neder "mi'Makom Acher."

Tosfos, on the other hand, learns that Charatah also makes the Neder into a mistake. Hence, Charatah causes there to be an inherent fault in the Neder itself, even more than a Pesach. That is why it is called an internal cause for annulment of the Neder and is not "mi'Makom Acher" like a Pesach is, for a Pesach involves a factor or circumstance that was not part of the Neder itself, while Charatah, regret, causes the Neder to be removed in its own right.

The Ran later (27a) cites a Machlokes Rishonim whether the principle of "Neder she'Hutar Miktzaso Hutar Kulo" applies only to a Neder which was anulled with a Pesach (RAMBAN), or even to a Neder that was annulled with Charatah (TOSFOS). Tosfos there seems to be following his opinion here that Charatah makes one's Neder into a mistake, just like a Pesach does. The Ramban might be learning like the Ran that Charatah does not make the Neder into a mistake, but rather the Neder was a good, proper Neder, but the Chacham is endowed by the Torah with the authority to remove it. That is why the Ramban rules that when a Pesach is used to annul part of a Neder -- since part of the Neder is shown to have been a mistake and therefore it never took effect, so the entire Neder cannot take effect. In contrast, when Charatah is used to be Matir the Neder, the Neder was made with full awareness and intent and all parts of the Neder should have taken effect, but right now the Chacham uproots the Neder retroactively, because the Torah gives him the right to do so. Since there is nothing lacking in the way that the person made the Neder on all the items that the Neder included, there is no reason to say that if the Chacham is Matir and removes the Isur from part of it that the Neder should not take effect with regard to the rest (since the person's intent was fulfilled and there is nothing wrong with the expression of the Neder).

RASHI in Eruvin (64b) seems to learn like the Ran learns here. According to Rashi, when the Gemara says "Poschin b'Charatah," it means simply that in order to be Matir a Neder, the Chacham must find a Pesach with which to uproot the Neder retroactively. "Poschin b'Charatah" means "Poschin *b'Pesach*." Rashi explains the word "Charatah" to mean what we refer to as a Pesach. Conversely, "Ein Poschin b'Charatah" means that the Chacham *may* be Matir a Neder even without a Pesach, but simply on the basis of the Noder's request and assertion that he regrets ever having made the Neder. This is what the other Rishonim explain is meant by "Poschin b'Charatah." (According to Rashi, the Gemara's conclusion is that "Ein Poschin b'Charatah," meaning that one does not need a formal Pesach to annul his Neder, but it suffices to have Charatah, regret. See TOSFOS in Eruvin 64b, DH Poschin, and Insights to Nedarim 22b.)

(c) The RAMBAM (Hilchos Shevu'os 6:5, Hilchos Nedarim 13:2, and in Perush ha'Mishnayos, end of Perek 10 of Nedarim and beginning of Perek 4 of Nazir) writes that when a Chacham is Matir a Neder or a Shevu'ah, he may not say, "Your Neder/Shevu'ah is *uprooted* (Ne'ekrah')," because that word describes the way a husband or father annuls the Neder of his wife or daughter, for it implies retroactive abolishment of the Neder. Rather, a Chacham must use the wording of "Hatarah" or "Mechilah," saying that the "Neder/Shevu'ah is "Hutar" or "Machul." These terms mean that he is removing the Neder from now onward.

How, though, can the Rambam write that the Chacham is Matir a Neder only from that time onward, and not retroactively? The Gemara says the exact opposite -- when a Chacham annuls a Neder, he uproots it retroactively so that it never existed, and when a husband or father uproots a Neder, it is only annulled from the mment of the Hatarah onward! (Nazir 21b)

The Rambam's description of the Chacham's annulment of a Neder seems to be based on what he writes in Hilchos Shevu'os (6:2). The Rambam writes that when the Gemara says that the Chacham's Hatarah is derived from the verse "Lo Yachel Devaro," it means that this verse teaches that a person should not treat his Neder lightly. Rather, if a person regrets making his Neder, he should go to a Chacham and have him annul the Neder, and that way he is not treating his Neder lightly and the Torah permits him to get it annulled. The Rambam learns that not only does Charatah work by removing the Neder without making it a mistake, but even a *Pesach* works without making the Neder a mistake! It is a Gezeiras ha'Kasuv in the Torah that a Chacham can grant permission to the Noder to no longer abide by his Neder. Since the Chacham does not make it a mistaken Neder and thus uproot it retroactively from its inception, it is called "Hatarah" or "Mechilah" that applies from now onward. In contrast, when a husband or a father does Hafarah, it uproots the Neder retroactively because, as the Gemara explains, when a wife makes a Neder she does so on condition that her husband agrees to it, and if he does not agree to it then from the time of his Hafarah it is annulled. Since this stipulation existed at the time that she made the Neder, the Hafarah uproots the Neder by removing its original cause.

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