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Nedarim, 70


QUESTION: The Gemara says that if a betrothed woman 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 we may learn from that verse only that the father can annul Nedarim which the Arus was unaware of, but the father cannot annul Nedarim which the Arus knew about. The Gemara answers that if the verse was referring only to Nedarim which the Arus never knew about, then the verse would not be necessary because it is obvious that the father may annul such Nedarim, for the Torah teaches that a Na'arah is in the Reshus of her father with regard to Hafaras Nedarim, as it says, "bi'Ne'ureha Beis Aviha" (Bamidbar 30:17).

What is the logical basic in the Gemara's question for differentiating 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, then he was not "Zocheh" in its Hafarah -- he never gained control over the right of Hafarah of that Neder. Accordingly, the time that the Neder was made does not matter as much as the time that the Neder was heard by the Arus or by the father, because it is when each one hears it that it becomes "his" Neder, and he gains control, so to speak, over that Neder to annul it or to uphold it. That is why the Gemara asserts that if the Arus died without having heard the Neder, it is obvious that the father may annul it, since it is exactly the same as a Neder that a woman makes *after* her Arus died -- it never entered the domain of the Arus. (Even though we know that if a woman made a Neder when she was betrothed and nobody heard it before the Nesu'in, the husband still cannot annul the Neder after Nesu'in and it is not considered to be in his control -- this, however, is learned from a Gezeiras ha'Kasuv (67b). Logically, though, we would have thought that he could be Mefer such a Neder, since it only entered his domain after Nesu'in, a time when he could be Mefer it by himself.)

However, this logic is correct only if it is true that the husband cannot annul a Neder before he hears it. However, the Gemara later (73a) concludes that the Arus *can* 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 if he has not yet heard it!

ANSWER: Perhaps we can suggest that the Gemara there (73a) says that even if an Arus can be Mefer his wife's Neder before he hears it, a *Cheresh* cannot be Mefer because he is not *able* to hear it. Similarly, an Arus who was destined to die before hearing the Neder is considered not able to hear the Neder, like a Cheresh.

However, if this is true, then according to the opinon that holds "Ein Bereirah," *no* Arus should be able to be Mefer, because at the time that the Neder was made, we cannot know whether he will die before he hears it!

It must be that since the Torah says that he may be Mefer the Neder, the Torah is not concerned with the fact that he might die before hearing it. Therefore, even if he did die before hearing it, the Neder should be considered to have been in his domain!

Perhaps "Ein Bereirah" applies only to a Kinyan or to a change in status that a *person* is effecting. A person cannot make his act dependent on a future occurence. The question here, on the other hand, is whether the Torah gives the Arus control over this Neder. The Torah may certainly take into account future events, because even though people do not know what the future will bring, Hashem certainly knows. Hence, the Torah teaches that the Arus' Hafarah of a Neder that he did not hear, and died without hearing, is like that of a Cheresh and is not valid.

The Gemara cites a verse to show that even if the Arus heard the Neder, the father still could be Mefer after the death of the Arus, because of "Nisroknah."

We can understand this teaching in two ways. First, the Gemara might be teaching that even if the Arus did hear the Neder, there is a Gezeiras ha'Kasuv that teaches that he loses control of the Neder when he dies and it is as if he never heard it.

Alternatively, the Torah is teaching that even though the Arus did have control of the Neder, the father "inherits" or takes over the right that the Arus had, and the father is then able to act on behalf of the deceased Arus. (Support can be found for this way of understanding the Gemara from what the Ran writes on 71b in the name of TOSFOS, that if the woman gets remarried on the same day that her first husband died, then according to Beis Shamai the second Arus may only annul her Nedarim that she made *after* the first Arus died and before the second marriage, but not Nedarim that she made while the first Arus was alive, which upon his death came under the father's domain through "Nisroknah.")

QUESTION: The RAMBAM, according to the VILNA GA'ON (in Shulchan Aruch YD 228:40, as explained by the Chazon Ish (#1)), says that if the father annuls his daughter's Neder while she is betrothed, and then her Arus dies, then if the Arus did *not* hear the Neder, the father does *not* receive the rights of Hafarah through "Nisroknah" (like the Gemara earlier (69a) said according to Beis Hillel). However, if the Arus did hear the Neder before he died, then the father *is* able to be Mefer through "Nisroknah," even though he was already Mefer his half of the Neder before the Arus died and he thereby weakened the Neder so that it cannot be passed down.

This seems to be the opposite of the logic of our Gemara, which says that it is *easier* for "Nisroknah" to apply when the Arus did *not* hear the Neder. The Rambam seems to contradict our Gemara when he writes that when the Arus did not hear the Neder, the father *loses* the ability to be Mefer through "Nisroknah!" How can the Rambam's logic be reconciled with our Gemara?


(a) The Rambam's logic could be explained based on what the RAN suggests earlier (68b, DH Shama Ba'alah). The Ran writes 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) than when the Arus did hear the Neder (and the Neder is only partially in the father's control).

A stronger Hafarah weakens the Neder more, such that it cannot be inheritted by the father when the Arus dies. That is why the 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 is Mefer the Neder before the death of the Arus is as follows. A Neder cannot alternate between being subject to two different types of Hafarah, a joint Hafarah and a single-person Hafarah. If the father began to be Mefer his portion of the Neder while the Arus was alive, then 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 occurring only when the Arus never heard the Neder and it never came under his control. Since the Arus did not hear the Neder, the father gains control of the Neder by virtue of "bi'Ne'ureha Beis Aviha" (Bamidbar 30:17)" -- and it is as if she made the Neder while in the father's Reshus (see previous Insight).

In contrast, when the Arus heard the Neder and it came under his control, then upon his death the father gains control of the Neder by way of inheritting the control of the Arus (see previous Insight). Consequently, even if the father annuls the Neder after the Arus dies, he only needs to annul that portion of the Neder that he inheritted from the Arus in order to join it with the portion that he annulled while the Arus was alive. Even though the Arus is now dead, the Hafarah is still a joint-Hafarah; it is just that both sides of the dual-Hafarah was done by the father! Hence, the Hafarah remains a joint-Hafarah even after the death of the Arus, and "Nisroknah" applies and the father may annul the Neder.

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