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Nedarim, 25


QUESTION: The Mishnah records a Machlokes between Beis Shamai and Beis Hillel regarding a case in which a person sees people eating from his figs and he makes a Neder prohibiting the figs to them. He then realizes that among those people were his father and brothers, to whom he never would have prohibited his figs. Beis Shamai says that the Neder remains in force for the other people, and does not take effect with regard to his father and brothers. Beis Hillel argues and says that once part of the Neder is annulled, the entire Neder is annulled as well.

The Gemara cites a Mishnah later (66a) which discusses a case of a person who made a Neder prohibiting himself from eating meat and now realizes that he wants to eat meat on Shabbos and Yom Tov. The Chacham may use this as a Pesach to be Matir his Neder, for had he realized when he made his Neder that it was including Shabbos and Yom Tov when he would want to eat meat, he would not have made the Neder. The Rabanan say that the Pesach only permits him to eat meat on Shabbos and Yom Tov, but the Neder remains in force with regard to eating meat during the rest of the year. Rebbi Akiva says that the entire Neder is annulled, because "Neder she'Hutar Miktzaso Hutar Kulo."

It seems that the Machlokes between the Rabanan and Rebbi Akiva is the same Machlokes in our Mishnah between Beis Shamai and Beis Hillel. This is problematic, though, because the Rabanan are ruling like Beis Shamai! How could the Rabanan rule like Beis Shamai, when we know that the Halachah always follows Beis Hillel (like the Bas Kol announced, Eruvin 13a)?


(a) TOSFOS, ROSH, and most Rishonim answer that although the Rabanan are expressing the same view as Beis Shamai in our Mishnah, they hold that Beis Shamai and Beis Hillel never argued about this Halachah and that everyone holds that the Neder takes effect in part.

(b) The TESHUVOS HA'RA'AVAD implies that the Rabanan sided with Beis Shamai because they did not understand the reasoning of Beis Hillel. Since the opinion of Beis Shamai was more logically sound, they ruled like Beis Shamai.

However, when Rebbi Akiva explained that the reason of Beis Hillel is because the Torah says, "*Kol* ha'Yotzei mi'Piv Ya'aseh" (Bamidbar 30:3), implying that a Neder is only binding when *all* parts of it take effect (Ran, beginning of 66a and 3b, quoting the Yerushalmi). Therefore, Rebbi Akiva ruled like Beis Hillel. When the Rabanan heard this, they probably accepted it and ruled like Beis Hillel (this seems to be the meaning of the words, "Ad she'Ba Rebbi Akiva...," which imply that the Rabanan maintained their view only until Rebbi Akiva came and explained the reasoning of Beis Hillel).

(c) The RAN does not seem to be bothered by this question. The Ran later (26b, DH l'Inyan Halachah) implies that both the Rabanan and Rebbi Akiva are ruling like Beis Hillel.

Perhaps the Ran learns that both the Rabanan and Rebbi Akiva agree that in the case of a Neder made in error, where the part of the Neder made in error does not need a formal Hatarah based on a Peseach, when part of the Neder is annulled the entire Neder is annulled. Hence, in the case of our Mishnah, where one erringly included his father in the Neder, the entire Neder is annulled because "Hutar Miktzaso, Hutar Kulo." In contrast, in the case where the part of the Neder that he wants to annul needs a proper Hatarah (because it was not made by mistake), the Rabanan hold that we do not apply the principle of "Hutar Miktzaso, Hutar Kulo."

What is the logic behind this difference? On the contrary, the Ran himself (end of 26b) proposes the opposite logic -- we only say "Hutar Miktzaso, Hutar Kulo" when part of the Neder was annulled with Hatarah, but not in a case of a Neder made in error! What is the logic to say that "Hutar Miktzaso, Hutar Kulo" applies only for a Neder made in error? The logic might be, like the ROSH (62a) explains, that Hataras Nedarim does not entirely uproot a Neder retroactively, the way a Neder made in error is uprooted retroactively. Rather, Hataras Nedarim uproots the Neder "mi'Kan u'l'Ha'ba l'Mafrei'a" -- at the time that the Chacham is Matir the Neder, the Neder becomes annulled, and it is viewed as if there never was a Neder. At the time that the Neder was made, though, the Neder took effect on everything. Accordingly, the Rabanan and Rebbi Akiva might be arguing about the reason why a Neder that was partially annulled becomes entirely annulled. Is it because of the intention of the person -- he only wanted to make the Neder if it would take effect on everything, and if it only takes effect partially then he does not want the Neder altogether? Or is the reason because all of the objects that became Asur as a result of the Neder are all part of one single Neder, and they are viewed as parts of one whole, single Neder, and not a number of individual Nedarim? Consequently, once the Neder is not binding for part of it, it is not binding for any of it.

The Rabanan hold that it is a matter of the person's intention. Therefore, if the Neder was a mistake and thus never took effect for part of the people included in the Neder, the person does not want it to take effect at all, upon anyone. When Hatarah, and not an error, is used to remove one person from the Neder, since Hatarah does not uproot the Neder in an absolutely retroactive sense, until the point at which the Neder is annulled with Hatarah, the Neder was in effect exactly the way he said it and his full intention was fulfilled. When the Chacham uproots the Neder by finding a Pesach for part of the Neder, it does not affect the rest of the Neder, since the Neder took effect until the time of the Hatarah and his intention was fulfilled.

According to Rebbi Akiva, though, the Neder cannot remain in effect if part of it is removed. Therefore, even if the Chacham removes part of it from now on, the entire Neder becauses annulled from now on.

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