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Nedarim, 79


QUESTION: The Gemara cites a Beraisa that states that a husband or father can be Mekayem a Neder in his heart (Hakamah b'Lev; doing Hakamah silently, without pronouncing the Hakamah), but he cannot be Mefer a Neder in his heart. The Beraisa does not give a source for its ruling that Hakamah in one's heart works.

The RAN explains that the source is from the fact that silence on the day that he hears the Neder (Shetikah b'Yom Sham'o) is considered a Hakamah (see Insights to 69:1). The reason silence is considered Hakamah is that since the husband intentionally did not take advantage of the opportunity to be Mefer, he is acknowledging that he wants the Neder to be upheld. Although that acknowledgment was not articulated, it nevertheless suffices. Says the Ran, from the fact that silence on "Yom Sham'o" serves as Hakamah, it seems that Hakamah can be done in one's heart without being articulated verbally.

REBBI AKIVA EIGER (in Gilyon ha'Shas) asks a strong question on the Ran. How can the Ran adduce a source for Hakamah b'Lev from the Halachah that silence on the day that one hears the Neder is considered Hakamah? When a person is silent, it is clear to all that he intends to be Mekayem the Neder, because, like the Ran says, his silence reveals what is in his heart (that he wants the Neder to be upheld). This is what the Gemara commonly calls an "Umdena," evidence based on circumstance which makes his thoughts understood to all. The Gemara considers an Umdena to be much stronger than a thought that is in a person's mind which nobody else knows about. For example, we know that the general rule is that "Devarim she'b'Lev Einam Devarim" (thoughts in one's heart are not considered binding): if a person thinks a condition in his heart while making a Kinyan, the condition is not binding, since he did not speak it out. Nevertheless, if there is an Umdena that he had that condition in mind when he made the Kinyan, then it *is* binding (Kesuvos 79a).

How, then, can the Ran prove that Hakamah in one's heart -- where there is no Umdena -- is effective, from silence on the day of the Neder, where there *is* an Umdena?

ANSWER: The ACHI'EZER (2:19) explains that when different matters of Halachah have different reasons why Dibur, speech, is required. When a person makes a Kinyan, or gives a Get, we would assume that he must verbalize the conditions upon which the Kinyan or Get is contingent, because otherwise the conditions will be "Devarim she'b'Lev" and ineffective because of the principle that "Devarim she'b'Lev Einam Devarim." However, the RASHBA (Kidushin 50a) explains that "Devarim she'b'Lev Einam Devarim" applies only when the words that a person says *contradict* what a person thinks in his mind. For example, when a person expresses his consent to a Kinyan without specifying any condition, his words imply that his Kinyan is unconditional, and therefore what he thinks in his mind is not strong enough to override what he said. (It is not that thoughts in one's mind are meaningless, but rather that thoughts in one's mind do not express one's intention as clearly and as strongly as spoken words do. The logic behind this is that had he been conclusively decisive about the condition that he thought, he would have expressed it openly; the fact that he did not speak it out shows that he was not sure that he wanted it.) In such a situation, where his thoughts contradict what he said, we are taught that a thought that is understood to all *through an Umdena* is *stronger* than the words that a person says, since everyone is aware of his intentions, and therefore the thought (together with the Umdena) is able to override the words that he spoke out explicitly.

In contrast, when something takes effect entirely through thought (Machshavah) and there is no speech involved (because the matter does not involve an interaction or agreement between people), what he thinks in his mind *is* effective and the principle "Devarim she'b'Lev Einam Devarim" does *not* apply. For example, when a person designates certain fruits as Terumah in his mind but he says nothing, the principle of "Devarim she'b'Lev Einam Devarim" does not apply and does not prevent the Terumah from taking effect, since his thoughts are not contradicted by anything he said. The same applies to making something Hekdesh in one's mind.

Therefore, in the case of Hakamah (or, more generally, in the case of all Nedarim), "Devarim she'b'Lev Einam Devarim" is not a reason to necessitate speech, because there is no other speech contradicting his thoughts.

Why, then, would we have thought that Hakamah needs to be articulated verbally if the Torah had not taught otherwise? The answer is because we would have learned the Halachos of Hakamah from the Halachos of Nedarim, and when it comes to making a Neder, the Gemara in Shevuos (26b) derives from a verse that Nedarim and Shevu'os must be articulated verbally.

However, if this is the reason why we would have thought that Hakamah must be spoken and not just thought, then thoughts that are understood through an Umdena are no stronger than thoughts that are not understood through an Umdena. The reason he must speak it out is not in order to reveal his intentions, but rather in order to fit the proper format of a Neder, and even if there is an Umdena, it does not suffice to fit the proper format of a Neder! Therefore, once we see that thought does work to make a Hakamah (whether the thought is an Umdena or not an Umdena), then we see that the format of a Neder is not necessary for Hakamah, and there should be no reason to require an Umdena! A simple thought in the person's mind should suffice, because we have no reason for thought *not* to be effective (since "Devarim she'b'Lev Einam Devarim" does not apply, like the Rashba holds, and because the requirement of "Bituy Sefasayim" does not apply, because we see that the format of a Neder is not necessary for Hakamah)!

The Acharonim, however, question the Achi'ezer's answer, since the RAN in the beginning of Pesachim (DH Mahu) seems to disagree with the Rashba and learns that even when the thoughts in one's heart do not contradict what a person says, the thoughts are still not effective. The Ran writes that Bitul Chafetz b'Lev, nullifying one's Chametz in his heart, cannot work through the mechanism of making the Chametz into Hefker, because Hefker cannot be done in the person's mind, since "Devarim she'b'Lev Einam Devarim." When a person makes something Hefker in his mind, he is not contradicting any words that he said, and yet the thoughts in his mind are still not effective!

The answer to this might be that the Ran there maintains that Hefker is an interaction between a person and the other people in the world; the owner is putting his object into a state which allows all other people to take it. Therefore, if he does not tell other people that his object is Hefker, then even though he did not say that his object is his, it is understood from his actions and his lack of words that the object is still his. Therefore, his thoughts are still contradicting his actions and his silence.


QUESTION: The Mishnah (79a) states that the husband may annul the Nedarim of his wife when her Nedarim entail physical suffering (Inuy Nefesh). The Gemara understands from this statement of the Mishnah that this is the *only* type of Neder which the husband may annul, implying that he cannot annul Nedarim involving matters between him and his wife (Nedarim she'Beino l'Beinah). The Gemara asks that the Beraisa clearly states that the husband may annul this type of Neder as well.

The Gemara suggests that the Mishnah -- when it says that the husband may annul Nedarim of Inuy Nefesh -- is referring to the husband's right of absolute Hafarah -- he may revoke those Nedarim totally. In contrast, the Beraisa, which says that the husband may annul Nedarim she'Beino l'Beinah, is referring to *partial* Hafarah; such Nedarim are only revoked for as long as they are married. If he divorces her, the Neder returns.

The Gemara refutes this suggestion, because the Mishnah later (85a) states that when a woman who makes a Neder saying that whatever she earns should be forbidden to her husband, the husband does not need to annul the Neder, since she is obligated to give him her earnings. Rebbi Yochanan ben Nuri says that the husband should annul her Neder so that in case he later divorces her, the Neder will not take effect and prohibit them to remarry each other. We see from Rebbi Yochanan Ben Nuri's opinion that even when a husband annuls a Neder she'Beino l'Beinah, the Hafarah is valid even after divorce!

The Gemara instead answers that the Hafarah of Nedarim of Inuy Nefesh works both for himself and for others, while the Hafarah of Nedarim she'Beino l'Beinah works only for himself. However, even Hafarah of Nedarim she'Beino l'Beinah is effective for after he divorces her.

The Gemara implies that the Hafarah of Nedarim she'Beino l'Beinah is not effective only with regard to other people. With regard to the husband, though, the Hafarah is in effect even after he divorces her and has not yet remarried her. Why should the Hafarah be effective after he divorces her, if, at that point, the Neder is no longer something that is Beino l'Beinah? When he is no longer married to her, he is no different than other people!


(a) The RAN, ROSH, and TOSFOS explain that when the Gemara says that the Hafarah is effective for himself, it means that it is effective for as long as she is fit to be married to him *or to remarry him*. When the Gemara says that the Hafarah is not in effect for other people, it means that if she marries another person and thereby becomes unfit to remarry him, then the Hafarah stops being in effect both for him and for others. The reason why the Hafarah is effective even after he divorces her is because if the Hafarah would cease to work and the Neder would return, it would not be possible for the Hafarah to take effect again when he remarries her. In order for the Hafarah to be in effect when he remarries her, it does not cease to take effect when they are not married until it becomes clear that he will not remarry her (i.e. she marries someone else).

(b) The RAMBAM (Hilchos Nedarim 12:7) interprets "for himself" and "for others" differently. He says that even while they are married, the Neder is revoked only inasmuch as it relates to himself. For example, the Rambam writes that if a woman made a Neder not to eat locally-grown figs, her husband may bring her local figs but someone else may not bring them to her.

The KEREN ORAH explains that the Rambam, who does not explain "for himself" to mean after they are divorced and as long as she is fit to remarry him (i.e. she has not yet married someone else), actually holds that *as soon as he divorces her*, the Neder takes effect even with regard to *himself*. If he remarries her, the Neder once again becomes invalid because of the original Hafarah. (See Rambam, Hilchos Nedarim 12:3, and Lechem Mishnah there). According to the Rambam, Hafarah does not remove the Neder entirely but it just limits to whom the Neder applies. Hence, during the time that he divorced her and she did not remarry anyone else, the Hafarah was still present even if it did not apply to anyone in practice.

The Keren Orah goes on to explain that the Rambam holds that the Torah empowers the husband to annul the Neder only to the extent to which it interferes with their married life, and therefore the Neder remains valid with regard to everyone else. For that reason, it is also valid with regard to him for any time that they are not actually married.

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