Wednesday, September 24, 2008

Is Hatarat Nedarim A Sham? pt ii (an answer)

In the previous post, I contrasted two statements in the Artscroll. In introducing hataras nedarim, they state
"It is meritorious to annul vows on the day before Rosh Hashanah (see commentary)."

but then in discussing it in the commentary, they give several reasons it should not work, ending with the declaration that

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

I put forth several objections to this in the previous post. For example, if it is a sham, then they should warn people more clearly, or else the general public will come to accidentally violate their vows, which have not been annulled. If it does not work, how is it meritorious? Judaism does not have rituals, but rather mitzvos, so why promote something that does not actually have halachic effect? Either fix the institution, or do not do it! And if you want to cast it as repentance, Judaism already has existing forms for repentance. Finally, it is clear that Aruch HaShulchan regards it as actual hataras nedarim, and derives a law about hatarah in general from the hatarah customarily done on erev rosh hashanah.

In this post, I propose an answer. I believe that even though Rif, Rosh, and Shulchan Aruch all state that even bedieved if there is no pirut of the neder or the sibba it is invalid, they would all maintain hatart nedarim in the form it appears for erev rosh hashanah is valid, at least bedieved.

How can this be so?

We will have to go back to the gemara, and see how this develops. The Aruch haShulchan states that this requirement for pirut haneder is an institution of the Sages, rather than something Biblically mandated. And this seems fairly clear from the Yerushalmi Nedarim where Rabbi Yudan bar Shalom praises Hashem that the Chachamim saw fit to require pirut haneder. {ברוך שבחר בדברי חכמים שאמרו צריך לפרט את הנדר.} And it is clear from the dispute from the specifics of the dispute in Bavli Gittin 35b between Rav Nachman and Rav Pappa about this requirement.

That gemara reads:

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
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 Rif says we hold like Rav Papa.

This clearly reads like a dispute as to the proper procedure. Rav Pappa gives as a reason a logical argument why it is a good idea to require it. And so Rav Pappa says we should require it for perhaps he swore about something that was forbidden. And Rav Nachman says we should not institute it, and gives a reason not to implement this restriction -- it could lead to an error where the Sage will annul only what he hears.

Even Rav Nachman thus agrees that once we require this as standard hatarat nedarim procedure, that bedieved if one does not fully specify, it could not be valid. That is, Rav Nachman's concern -- that "there are times that he will cut off his words, and the sage will only annul that which he hears" -- is equal to the statement that if this is required, lack of pirut haneder would invalidate the hatarat nedarim.

A bit earlier on the same amud is part of the basis of saying that bedieved it would not be valid. The gemara there records a dispute between Rav Huna and Rav Nachman:

התקין רבן גמליאל הזקן שתהא נודרת כו': אמר רב הונא לא שנו אלא בשלא ניסת אבל ניסת אין מדירין אותה ניסת מאי טעמא דמיפר לה בעל כי לא ניסת נמי לכי מנסבא מיפר לה בעל אין הבעל מיפר בקודמין וניחוש דלמא אזלה לגבי חכם ושרי לה קסבר צריך לפרט את הנדר רב נחמן אמר אפי' ניסת ניסת ודאי מיפר לה בעל דמדרינן לה ברבים
So Rav Huna says the neder is only imposed on the woman where she is not married. The setama de-gemara offers an explanation, that it is because the husband could just annul it for her anyway. This is an extremely plausible explanation, but not necessarily the required one. (Bli neder, I will offer an alternative in the next post.) Then, the setama de-gemara asks why a married woman is any different from a woman in general, for such a woman can go to a chacham to get him to be mattir the neder. The setama de-gemara answers that Rav Huna must hold against Rav Nachman, his disputant here, and like Rav Pappa, that we require pirut haneder. And, as Rosh explains, if she explains the neder and the reason for the neder, the chacham will certainly not be mattir her neder. And if she does not explain the neder and the reason for it, the hatarah will not be effective.

Thus, we see that even bedieved, without pirut haneder, the hatarah is invalid. We see this explicitly in the words of the Rosh. And the Tur requires pirut haneder but does not mention that bedieved it is invalid, which is strange given that the Rosh was his father, so he should presumably agree. But we see this made explicit in Shulchan Aruch, from Rav Yosef Karo.

But how could a derabbanan requirement uproot the hatarah working on a deorayta level? The answer, once again, to my mind is that it is like Rav Nachman's explanation. If this widow does not elaborate to the chacham, then his hatarah is obviously based on false information, so it is not valid. But if she did elaborate, then he would not grant it.

And this, I think, is why the Tur does not bother to say that bedieved the hatarah is invalid. The Tur already said this earlier, when he said that it is obvious that if one lies to the chacham, the hatarah is invalid. This is just another application of this obvious rule.

Compare this to the text in the hataras nedarim on erev Yom Kippur. The second page is pictured to the right. Click on it to see it larger. And the last paragraph there reads:
"Now behold, according to the law, one who regrets and seeks annulment must specify the vow, but please be informed, my masters, that it is impossible to specify them because they are many. Nor do I seek annulment of those vows that cannot be annulled; therefore may you consider them as if I had specified them."
Clearly, the author of this language believes that with such an excuse, one can get around the requirement of pirut haneder at least on a bedieved level. Now, this may just be amaratzus. Who knows who composed this language? I don't know. (Though it is quite possibly knowable.) Similarly, on the previous page, annulment was requested for vows even impacting other people. This might again be ignorance, though at there I believe I can show this might be subject to dispute.

But assuming it is not amaratzus, then the author of this formula believes this will satisfactorily dismiss any requirement of pirut haneder. How is this possible? I would suggest that this is simply that by telling the "dayanim" that you are not listing the nedarim, they will not be basing themselves on any partial description of the neder. Though this is a violation of the protocols set up by Chazal for hatarah, since the dayanim know, Rav Nachman's concern does not apply, and so bedieved it would be a valid hatarah.

At this point, I think this is pashut peshat in the gemara and the various Rishonim and Acharonim, such that Rif, Rosh, Tur, and Shulchan Aruch would all agree. But then, I may be wrong about this.

In the next post, I intend to address the question of whether the halacha really should be in accordance with Rav Pappa against Rav Nachman.

Note: Not to be taken halacha lemaaseh.

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