Is Hatarat Nedarim a Sham? pt i (the question)

Is hataras nedarim a sham?

I saw something curious the other day when looking through my Artscroll Rosh haShanah Machzor. (Click on the image to see a full page, readable picture.) It begins with the order of hatarat nedarim. And they say at the beginning (page 2, circled in red) that

"It is meritorious to annul vows on the day before Rosh Hashanah (see commentary)."

But then, in that commentary, on page 2 (also circled in red), we are given three "problems" with the hatarat nedarim, as formulated. The third problem is critical, and invalidates the entire hatarat nedarim.

They write:
1)

However, as the declaration makes clear, this annulment applies only to vows for which the halacha permits annulments and for which there is a halachically acceptable reason for doing so.

That is fine. Yes, hatarat nedarim only works for certain types of vows. This is true in general, not just for the one on erev Rosh haShanah.

They continue:
2)

Likewise, annulment is valid only if the vows involve only oneself. If, however, the vows were adopted for the sake of, or involve, someone else, they cannot be annulled without the consent of the other party.

This is based on specific gemaras and the readings by various Rishonim, but we are not going to go into this at this juncture. Let us accept that. That is true for any vow, for any hatarat nedarim. But there still must be some other vows one can do hatara on, just as hatarat nedarim performed on other days is valid.

They continue:
3)

Also, for an annulment to be effective halachically, the regret must be complete and preferably be accompanied with a valid reason for regret.

Yet it seems we are not finding a regular petach here for the neder, but rather releasing of potchin via charata, regret, with all sorts of interesting ramifications such as that the "dayanim" do not even have to bother sitting, despite the instructions found in your Artscroll machzor. And if they are expressing regret and the regret is complete, the vow is released. So there are vows for which this hatara should work. Fine.

But then they note:

4)

And, as the declaration itself makes clear, the halacha requires that the vow be specified.

And they are listing this as a reason the annulment won't work. Though they do not say it explicitly, this seems to be a major impediment, which would turn the entire hatarat nedarim into a sham.

This is based on a recent gemara in Gittin 35b, which was brought down lehalacha by the Rif on Nedarim, page 21b in pages of the Rif (link goes to my Rif Yomi blog).

גרסינן בפרק השולח
צריך לפרט הנדר או לא
רב פפא אמר צריך
רב נחמן בר יצחק אמר אין צריך
דאי אמרת צריך זמנין דגייז וחכם מה דשמע מיפר
ורב פפא אמר צריך דלמא אמילתא דאיסורא משתבע
והלכתא כרב פפא:

We learn in perek haSholeach {=the 4th perek of Gittin, daf 35b}:
Does one need to spell out the vow {when asking absolution} or not?
Rav Pappa said: He needs to.
Rav Nachman bar Yitzchak said: He does not need to.
For if you say that he needs, there are times that he will cut off his words, and the sage will only annul that which he hears.
And Rav Pappa said: He needs to, for perhaps he swore about something which was forbidden.
And the halacha is like Rav Pappa.

Indeed, if you look at the Rosh, he says that if you do not specify the neder {pirut haneder}, then even bedieved the hatarah of the chacham is not valid. (He says this a bit earlier in the gemara, on the words of Rav Huna.) His son, Tur, does not explicitly say that bedieved it does not work, though he lists the requirement of pirut haneder. And Rav Yosef Karo, in Shulchan Aruch, requiers pirut haneder and states that bedieved, if you do not do it, the hatarah is not valid.

If so, since we are not listing the specific nedarim or (according to certain Rishonim explaining that gemara) the sibba, the events leading up to the neder being taken, the hatara should not work at all, for this reason. It is all a sham!

And this is what they conclude in the Artscroll machzor:

Consequently, the present declaration must not be understood as a halachic annulment, but as a means of repentance for the sin of having abused vows.

Thus, it is indeed a sham, and your vows are not annulled.

This is mystifying. Firstly, if this is really so, they should not hide it in plain sight in the commentary, and only say

"It is meritorious to annul vows on the day before Rosh Hashanah (see commentary)."

at the start. The hatarat nedarim does not work!!!! And hundreds of thousands of religious Jews are thinking it works, and will go on to violate their nedarim, thinking incorrectly that they are annulled! They should put a warning! And it would not be meritorious, because it would lead to many Jews committing sins.

It reminds me of the Monty Python skit about the crunchy frog:

Praline: Am I right in thinking there's a real frog in here?

Milton: Yes. A little one.

Praline: What sort of frog?

Milton: A dead frog.

Praline: Is it cooked?

Milton: No.

Praline: What, a raw frog?

(Superintendent Parrot looks increasingly queasy.)

Milton: We use only the finest baby frogs, dew picked and flown from Iraq, cleansed in finest quality spring water, lightly killed, and then sealed in a succulent Swiss quintuple smooth treble cream milk chocolate envelope and lovingly frosted with glucose.

Praline: That's as maybe, it's still a frog.

Milton: What else?

Praline: Well don't you even take the bones out?

Milton: If we took the bones out it wouldn't be crunchy would it?

Praline: Superintendent Parrot ate one of those.

Parrot: Excuse me a moment. (exits hurriedly)

Milton: It says 'crunchy frog' quite clearly.

Praline: Well, the superintendent thought it was an almond whirl. People won't expect there to be a frog in there. They're bound to think it's some form of mock frog.

Milton: (insulted) Mock frog? We use no artificial preservatives or additives of any kind!

Praline: Nevertheless, I must warn you that in future you should delete the words 'crunchy frog', and replace them with the legend 'crunchy raw unboned real dead frog', if you want to avoid prosecution.

Milton: What about our sales?

Praline: I'm not interested in your sales, I have to protect the general public.

By putting a sham procedure in the beginning of their machzor, they are causing the general public to sin.

Furthermore, if it is a sham, how is it that it is meritorious to do it? Why should it be a good, positive thing, to engage on erev Rosh Hashanah in a procedure which does not work, halachically speaking?

As I believe the Rav said: Judaism does not have rituals. A Catholic has rituals. A Jew has mitzvot.

If this is ineffective, it is not a mitzvah. Why should an empty ritual be meritorious?

The answer might be, as they say, that we should view it as just a fancy way of as a means of repentance for the sin of having abused vows.

However, if this is so, why do it in the form of an ineffective hatarat nedarim? Surely this is not the original intent of the ritual. And why should we convene a bet din to say muttar lach? If you want to ask forgiveness, or repent, speak to Hashem and say you are sorry, and actually repent. We have appropriate existing forms for this. We do not need to make use of a sham ceremony, which will work as a stumbling block to the public.

Furthermore, I do not believe that in generations past it was regarded entirely as a sham ceremony. For example, when discussing the laws of hatarat nedarim in general, the Aruch haShulchan mentions that while there might be an injunction against being mattir neder in the same location as your rebbe, this is not the case, for we see on erev Rosh haShanah that people are not makpid on that. One could have said that that is because the hatarat nedarim on erev Rosh haShanah is a sham. But clearly, Aruch haShulchan thought that it was real.

Of course, perhaps that hatarat nedarim in his day did not have the present form, shown in the Artscroll machzor. Or perhaps it did. If it did, then we have to find some explanation for why this hatarat nedarim is not a sham, despite these apparent halachic problems, and particularly despite this last halachic problem.

If, however, the form was different in the days of the Aruch haShulchan, that it is specifically that which it is meritorious to do. Namely, a real, functioning, hataras nedarim. And if you find halachic problems with the present form, you fix it. Put a place for people to list out the specific neder, and so on and so forth. Make it work. Then it will be what people in generations past did on erev Rosh Hashanah. And then it will be meritorious. Until then, it is not meritorious, but just silliness.

In part ii, why lack of pirut haneder on erev Rosh Hashanah does not impede the hatarat nedarim from working, even according to all the Rishonim and Acharonim. Tune in, probably tomorrow.

Note: Don't rely on this series practically. Consult your local Orthodox rabbi.