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
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
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
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.