Hafarat and Hatarat Nedarim

Nedarim (10) | Yisrael Bankier | 17 years ago

The beginning of the tenth perek sees the transition from learning about hatarat nedarim to hafarat nedarim. Hatarat nedarim refers to the process through which a person’s neder (vow) can be “undone” by a beit din or chacham, provided that a regrettable and foreseeable factor was not considered at the time of the neder (see the previous article). Hafarat nedarim on the other hand refers to a father’s or husband’s ability to suspend a neder made by his young daughter (na’arah) or wife respectively.

Through learning the laws of hafarat nedarim many differences between hatarat nedarim and hafarat nedarim have become apparent. At the end of the eighth perek, the Bartenura records one such difference:

The concept of hafarah only works if [the husband] says “mufar lach” like the language used in the Torah, because hafarah employed by the husband implies from this point onward [and] without reason as it says “he has broken (hefer) my covenant” (Bereshit 17:14). The Chacham however says “mutar lach, there is no neder, there is no shvuah” as he uproots the entire neder.

This distinction, that hatarat nedarim work retroactively to uproot the neder while hafarat nedarim is only effective from the point of hafarah and onwards, seems to be supported by a Gemara in Nazir (21b-22a). There the Gemara asks how exactly hafarah works – “miaker aker” (uproots) or “migaz ga’yiz” (cuts)? The Tosfot understand that the Gemara is asking whether or not it works retroactively like hatarat nedarim. The Gemara’s conclusion is that hafarah is “migaz ga’yiz” (cuts), which Rashi understand to mean that it is effective from the point of hafarah and onwards.³⁹ As the terminology mutar and mufar have very different implications, they are thus not interchangeable, and “mutar lach” is only used by the chacham while “mufar lach” is only used by the husband.

With the above said, the opinion of the Rambam is then surprising. Firstly he writes the hafarah completely uproots the neder “from its root” (Nedarim 13:2). Furthermore the Kesef Mishneh points out that when the Rambam writes: “For the father and husband do not matir like a chacham but rather uproots the neder from its outset”, it implies that hatarat nedarim performed by the chacham does not work retroactively. Aside from the problem already stated, the Kesef Mishnah points out that this implication flatly contradicts another statement of the Rambam (Nezirut 3) that suggests that the Rambam does agree that hatarat nedarim works retroactively.

The Kesef Mishneh explains the chacham and husband operate in two very distinct manners. As has been explained, in hatarat nedarim the chacham works with the person to determine a foreseeable factor that had it been considered at the time of the neder, the neder would never have been formulated. When the chacham is matir he is simply delivering a halachic conclusion that the identified consideration was indeed foreseeable and regrettable and thus the neder never got off the ground – it was a mistaken neder. In hafarat nedarim however, the neder the wife makes is a neder, yet through hafarat nedarim the husband uproots the neder. This explains how the husband is not “matir like the chacham but rather uproots the neder”, while leaving the understanding that hatarat nedarim works retroactively intact, since the statement of the Rambam here is referring the difference in function and not timing.

The Kesef Mishneh also explains that the Gemara’s question of whether that hafarat nedarim uproots the neder or is “migaz ga’yiz” is precisely this point. Unlike the explanation above, the Gemara is asking that after hafarat nedarim is it as if the neder never existed (like hatarat nedarim) or it did exist but was absolved by the husband – “migaz ga’yiz”⁴⁰.

Therefore we have seen two understandings of a difference between hatarat nedarim and hafarat nedarim. Most Rishonim understand that hatarat nedarim is effective retroactively while hafarat nedarim is not. The Rambam on the other hand understand that both are effective retroactively, the difference is in the mechanism through which they take effect.

³⁹ This also appears to be the opinion of the Rosh.

⁴⁰ The Lechem Mishneh adds to the Kesef Mishneh explaining that the term migaz ga’yiz means that the husband completely uproots only the elements of the neder that are between him and his wife hence the term migaz (cut or trim). For a full understanding see the Lechem Mishneh inside.

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