Thursday, September 25, 2008

Is Hatarat Nedarim A Sham? pt iv (paskening like Rav Pappa because Rav Huna concurs)

In the first post of this series, a question: how could hatarat nedarim on erev Rosh haShanah work, if it specifically avoided pirut haneder, and halachah requires this even bedieved? And other questions.

In the second post of this series, a proposed answer: that when the gemara and Rishonim say that bedieved it does not work without pirut haneder, they were not speaking of the case where the judges know that the neder is not being specified.

In the third post in this series, I explained Rosh's reasoning for paskening like Rav Pappa, and questioned the first of those reasons, by showing that Rav Pappa was not actually batrai.

Now, in this fourth post, I tackle the second of Rosh's reasons.

As a reminder, Click on the picture to see it very large. You want the first column, d"h kasavar.

Rosh gives three reasons we should hold like Rav Pappa over Rav Nachman:

1) Rav Pappa is later than Rav Nachman, so he is batrai, and hilcheta kebatrai.

2) Rav Huna holds like him.

3) The Yerushalmi seems to conclude like Rav Pappa that there is such an obligation.

To now address the second point:

We have the fact that Rav Huna rules like Rav Pappa and against Rav Nachman. Each of these people was the heads of an academy:

Rav Huna: Head of Sura.
Rav Nachman bar Yaakov (plain Rav Nachman): Nehardeah
Rav Nachman bar Yitzchak: Pumbedita
Rav Pappa: Nehardeah

But Rav Huna does not explicitly rule like Rav Pappa. Rather, the setama de-gemara proposes a reason for Rav Huna's statement, asks on it, and proposes its own explanation. Thus, we see:

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

But all Rav Huna said was that אמר רב הונא לא שנו אלא בשלא ניסת אבל ניסת אין מדירין אותה. Why should only a non-married woman take the vow, but not a married woman? The setama de-gemara proposes that this is because the husband can simply annul her vow. But this need not be so. If we say like Amemar, as the setama de-gemara proposes for Rav Nachman, that דמדרינן לה ברבים, and such a vow, the husband is not able to annul. This is such a ready solution that it is perhaps questionable why Rav Huna would say not to impose the vow.

I would suggest an alternative. We see in the parallel Yerushalmi on the Mishna, on Yerushalmi Gittin 21b, the reason for imposing this vow:

בראשונה היו נשבעות לשקר וקוברות את בניהם שנאמר
ירמיהו ב) לשוא הכיתי את בניכם. ועוד שאימת נדרים עליהן יותר מן השבועות.

Thus, they would swear falsely and as Divine penalty, their children, who they were stealing from, would die.

What would compel a widow to steal from the orphans and swear falsely? Profit motive, though even that is hard to understand. But the situation is not so dire if she is married and thus being supported, or if she does not have to worry about being a good catch with money coming into the marriage. Therefore, the extremity of the vow is not called for, according to Rav Huna. But Rav Nachman says that the impose the vow even if she is married.

I am not arguing forcefully that this need be so, but rather that this seems to be a valid alternative to the setama de-gemara's suggestion. If so, Rav Huna was never talking about the new husband's hafarah, and would then not be compelled to channel Rav Pappa in explaining why a chacham's hatarah would not work.

A second possibility is that Rav Huna actually intended it just as the setama de-gemara proposed. But that does not mean that hatarah from a chacham was something he considered. And even if he considered it, it does not mean that he dismissed it for the reason the gemara gave -- that there is a requirement for pirut haneder. I would propose the following alternatives.

a) Rav Huna holds that a neder which involves other people cannot be annulled, even bedieved, as deduced by various Rishonim as halacha in general, and this is a neder which was entered into because of other people.

b) Even if we say that potchin bacharata, the regret needs to be real. And it is not real here, because the widow had the option not to enter into the neder in the first place. If she enters into the vow with intent to have it annulled, then she is not really regretting taking the vow.

c) And then the chacham can only operate by finding a petach, which requires knowing the whole circumstances of the vow. And then the chacham would decide not to annul it.

So we do not need to say that Rav Huna is saying that we require pirut haneder, and that absent such specification, the annulment is invalid even bedieved. This is then no support for Rav Pappa over Rav Nachman.

A third possibility is that Rav Huna even agrees with the conclusion the setama de-gemara proposes, and so requires pirut haneder even bedieved. But should we care? As we will see when addressing the Yerushalmi, the dispute between Rav Nachman and Rav Pappa about whether pirut haneder is required is actually a Tannaitic dispute, with one brayta like Rav Nachman and one brayta like Rav Pappa. So it stands to reason that different Amoraim would hold like different braytot. And if Rav Huna indeed holds one way, there may well be other Amoraim who hold the other way. Just because the setama de-gemara was able to attribute Rav Pappa's position to one named Amora, via logic, does not mean that many other Amoraim did not stand in line with Rav Nachman.

Indeed, as mentioned earlier, based on the Rif's girsa, Rav Pappa's disputant is Rav Nachman bar Yitzchak, his contemporary. But Rav Huna's disputant may well be plain Rav Nachman, who is Rav Nachman bar Yaakov, and that Rav Nachman need not subscribe to Rav Pappa's view. (On the other hand, we cannot pin him down to any position.) Is this really a way of determining halacha, based on a majority of Amoraim we can manage to pin down, without getting a representative sample of Amoraim? For all we know, many others may hold like the other brayta and thus with Rav Nachman bar Yitzchak.

Furthermore, if Rav Pappa's disputant is indeed Rav Nachman bar Yitzchak, his contemporary, then both of them are batrai compared with Rav Huna. Such that they knew the competing braytas, they knew that in an earlier generation of Amoraim there was Rav Huna who held one way, and yet, they divided, with Rav Nachman bar Yitzchak willing to state the halacha was not in accordance with Rav Huna. Shouldn't the batrai aspect compel us to ignore the earlier staked position of Amoraim, and just treat it as a straight machlokes? I don't know, and I am no master in kelalei horaah, but I believe a valid argument can be made here. And that Rosh did not make that argument firstly because he would not argue with the setama de-gemara, but secondly because his assumption, based on his girsa, is that Rav Nachman is Rav Nachman bar Yaakov, such that only Rav Pappa is batrai.

Note: Not intended halacha lemaaseh. Consult your local Orthodox rabbi.

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