Nedarim affecting others – who is liable?

Nedarim (7:9) | Yisrael Bankier | 18 years ago

During nedarim we have learnt that through a neder one can make his own property forbidden to another person. This requires further analysis.

The Sefer HaChinnuch explains as follows:

…We have the power to make forbidden what is originally permitted. For the Torah taught us… “to tie a bond about himself, he shall not profane his word (lo yachel d’varo)” (Bamidbar 30:3). Thus the matter is similar to hekdesh, consecration, about which we find in the Torah that a man has the power to consecrate what belongs to him by the words of his mouth, and then it becomes forbidden at once to both him and to all the world…

At first glance, it would appear that the source cited by the Sefer HaChinnuch would bind an individual who makes a neder applying to himself. However, if one makes a neder forbidding another person, what is that person violating if he indeed proceeds to get benefit from that object?

Matters are clarified when analysing a Mishnah (7:9). The Mishnah describes a case where the husband made assur any benefit derived from him (till Pesach) if his wife visited her father’s house (till the later date, Sukkot). The Mishnah describes the scenario of her visiting her father’s house after deriving benefit from her husband, thereby retroactively causing her to breach the neder. The conclusion is that the prohibition of lo yachel d’varo has been violated. Yet who has violated this prohibition?

The Ran (Nedarim 15a) explains that clearly the husband (who formulated the neder) has not violated the prohibition for he did not do anything that was prohibited. Rather, in this case, the wife would be liable because she breached the neder, even though she did not make the neder. “Lo yachel d’varo”, explains the Ran, is understood as meaning “the word” should not be breached, regardless of who formulated it. He further supports this idea by explaining that we find by hekdesh, that if someone consecrates something to the Beit Ha’Mikdash, and another person comes and eats it, that second person has transgressed lo yachel d’varo and is punished (Niddah 47a).

The Rambam (Nedarim 10:12), when discussing this case writes: “if she goes [to her father’s house] prior to pesach and he [actively] benefits her prior to pesach, he [is punishable] by lashes”. It is understood that in this case the husband is punished because he actively breached his own neder³⁵. The question is, is the wife also punished? The absence of any mention of it led the Ran to believe that the Rambam maintained that she is not punished for she did not formulate the neder; thereby understanding lo yachel d’varo in its simplest sense.

The Kesef Mishnah argues that the Rambam maintains, like the Ran’s own position, that the wife is clearly also punished and that this point is obvious and did not need mentioning. The Rambam was focusing on the more novel point that the husband can transgress this prohibition by actively benefiting her, when ordinarily one is not liable if he feeds another a prohibited item.

The Lechem Mishnah however argues that what the Rambam ruled earlier (Nedarim 5:1) appears to confirm the Ran’s understanding: If Reuven makes a neder prohibiting benefit from Shimon it is indeed prohibited to Shimon. If however Shimon goes and gets benefit from Reuven his is not punishable by lashes “because he did not say anything”.³⁶

How can we explain the opinion of the Kesef Mishnah? Perhaps one could suggest that the difference in this case to the classic case cited by the Lechem Mishnah is that this case involved a condition. Elsewhere the Rambam (Nedarim 2:1) writes that one can accept a neder if another person makes it for him and he responds “amen” or anything equivalent to it. Perhaps, in this case, the Kesef Mishnah understood that by the wife fulfilling the condition (visiting her father’s house) she affectively accepts the neder herself (like responding amen). Therefore if she then breaches the neder, in this case, it is as if she breached her own neder and is punishable with lashes.

³⁵ Even though it appears that the Ran argues that there is no transgression in his involvement.

³⁶ One understanding of the exemption of lashes, while nevertheless being assur, is because the Rambam maintains that only issurim that are explicitly stated and not learnt out from a drash are punishable by lashes. As the prohibition applying to another is not explicitly stated, rather learnt from a drash, it is not punishable.

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