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Nedarim, 78


QUESTION: The Beraisa teaches that a Chacham can only remove a Neder through Hatarah, by saying "Mutar Lach" -- "It is permitted to you." A husband can only remove a Neder through Hafarah, by saying "Mufar Lach" -- "It is annulled for you." If a Chacham or a husband uses the wrong term, then the Neder will not be removed.

The RAN and Rishonim explain that the key to this difference is the fact that a Chacham, when he removes a Neder, uproots it retroactively, such that if the person transgresses his Neder and then is Matir it, he is exempted from Malkus (Shevuos 28a), because the Neder was uprooted retroactively and was never there. The word "Hatarah" means that he is removing the Neder as if it never existed by making it a Neder Ta'us (a Neder made in error).

Hafarah, in contrast, only removes the Neder from now on, and it will not exempt the woman from Malkus if she transgressed the Neder before it was annulled (Nazir 22a, see also RAN, bottom of 75a, DH d'Atfis). This is the meaning of Hafarah, which means "stopping it from now on."

However, the RAMBAM (Hilchos Nedarim 13:2; see Insights to Nedarim 21:1:c) writes exactly the opposite! The Rambam writes that a husband or father must be Mefer and not Matir because when he does Hafarah he uproots the Neder from its time of origin, as opposed to a Chacham who only annuls a Neder from now on. The Rambam is even clearer about this in Perush ha'Mishnayos, where he adds that Hafarah makes the Neder as if it never existed, while Hatarah means "undoing the knot" of the Neder for the future, and that is why the Chacham and the husband have to use the appropriate terms.

How can the Rambam write this? The Rambam himself (Hilchos Nedarim 12:19, 13:15) rules that if the father or husband is Mefer the Neder after she transgressed it, it does *not* remove the Neder retroactively and exempt her from Malkus, implying that Hafarah removes the Neder only from now on! In addition, regarding Hatarah the Rambam (Hilchos Shevuos 6:18) writes that Hatarah exempts a person from Malkus retroactively!

ANSWERS: Many Acharonim discuss these words of the Rambam. A few of the approaches that they offer for understand the Rambam follow.

(a) The KIRYAT SEFER writes that the Rambam means that when a husband or father removes the Neder, the Neder is completely removed, but when a Chacham is Matir, some of the Isur still remains. In that sense, the husband uproots the Neder entirely, whereas the Chacham simply removes it, partially, from now on. (He himself writes that this is somewhat forced.)

(b) The CHAZON YECHEZKEL (Hilchos Nedarim 6:1) explains that according to the Rambam, the husband's words act against the *expression* of Neder that his wife made, and in this sense he uproots it entirely. But the Chacham only removes the Isur of the Neder that was caused by the expression. In this sense, it is only a Hatarah for the future.

(c) Others explain that the Rambam is not referring to the *effect* of the Hatarah or Hafarah, but merely to the *wording* of the Hatarah or Hafarah. The husband must express that he *wants* to uproot the Neder entirely and that he does not want the Neder to ever have existed. This is necessary for Hafarah, because the logic of Hafarah is that the wife makes her Neder "Al Da'as Ba'alah," only if her husband consents. This means that she wants her husband to consent to the original Neder in order for the Neder to take effect (in contrast to his lack of consent later on, which will not annul the Neder). Once he shows that he does not consent, though, she has in mind that from that time on the Neder should be Batel (because it does not bother him what happened already until that time).

The Chacham, on the other hand, although he uproots the Neder entirely, has no right to say that the Neder never existed. The Chacham just says that from now on the Neder should no longer be effective. However, the only way for the Neder to no longer be effective is if the Neder never caused an Isur in the first place because it was a Neder Ta'us (a Neder made in error). Therefore, in order to cancel the Neder from now on, the Neder must be uprooted entirely (from its origin). The person who made the Neder, though, who now has Charatah about it, admits that he wanted his Neder at the time that he made it but now he does not want it, and therefore the Chacham must use the wording that the Neder is removed from now on, according to the Rambam, in order for it to be removed retroactively from its inception. (See also the ROSH on 52a, who explains that the Hatarah of the Chacham works "from now on, retroactively" -- "mi'Kan u'l'ha'Ba l'Mafrei'a." This means that at the time that the Chacham is Matir the Neder, the Neder becomes annulled from now on, and although until that point it was indeed Asur, it is viewed from now on as if there never was a Neder. Until the time of the Hatarah, the object certainly was prohibited. The Chacham, by being Matir, removes the Isur from now on *as if* it was never there before. See Insights to 52:3.)


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