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Nazir (4:2) | Yisrael Bankier | 2 years ago

The Mishnah (4:2) discusses a case where a husband declares that he wants to be nazir and then asks his wife if she want to be one also. The Mishnah teaches that if she agrees, the husband can still meifer the neder. Recall we learnt previously that a husband can meifer (terminate) a neder his wife makes on the day he hears about the neder. If however he confirms the neder he can no longer meifer it. The Mishnah is teaching us that this case is not to be understood as the husband confirming his wife's neder. The Mishnah however continues, that if the wife declares that she wants to be a nazir and asks her husband if he also wants to be one, and he agrees, it would be considered as if has confirmed his wife's neder and he would not be able to meifer her neder.

Concerning the first case the Bartenura explains that the ruling of the Mishnah only holds true when the husband asks his wife if she wants to be a nazir. If however he says, "I am a nazir and so are you" and she accepts, then he would not be able to meifer the neder. The Bartenura explains that his declaration would be understood as confirming her neder.

The Tosfot R' Akiva Eiger notes that the Bartenura's ruling, is consistent with Abaye's resolution of the apparent contradiction between our Mishnah and a Beraita cited in the Gemara. The Tosfot R' Akiva Eiger however argues with the Bartenura's explanation. He argues that we learnt previously (Nedarim 10:7) that confirmation prior to a neder is not significant.

Instead the Tosfot R' Akiva Eiger cites the Tosfot who explains that the Beraita is according to the opinion that when the husband is meifer the neder it uproots the neder from its core – it is as if it was never made. According to the Beraita if the husband said, "I am a nazir and so are you", it is as if he is hinging his own nezirut on his wife's acceptance. Consequently, if he were able to meifer her neder it would also effectively "meifer" his own, which he cannot do.

The Tosfot R' Akiva Eiger continues noting that the Abaye's distinction assumes that hafarah uproots the neder. He asserts that we however rule, that hafarah terminates or stops the neder from that point onward. Based on that understanding there would be no problem with the husband being meifer her nezirut as it would no longer impact his own. Consequently, whether the husband followed his own declaration with asking his wife or asserting that his wife join him in being a nazir, we would rule that he would still be able to meifer his wife's nezirut.

The Lechem Mishneh (Nedarim 13:13) however notes that the Rambam maintains Abaye's distinction yet also rules that hafarah terminates the neder at that point. This appears to go against the Tosfot R' Akiva Eiger's thesis. The Lechem Mishneh explains that the Rambam understands that when the husband says "I am a nazir and so are you" he is hinging his own nezirot on his wife's. Consequently, if hafarah was allowed, even if it was only effective from that point onward, it was still cancel his nezirut since it would break the condition of his own nezirut.

The Tifferet Yisrael however defends the Bartenura's position explaining that since all the components are in immediate succession (toch ke'dei dibur) it is considered as if the confirmation and neder are simultaneous. The Rashash (22b) cites this answer, however adds that the issue with the kiyum preceding the neder is only when the future neder is unknown. This case however is different as the husband is fully aware of the neder he is confirming (once accepted by his wife).

The Tifferet Yisrael however provides another answer in defence of the Bartenura. He explains that the manner of the husband's declaration indicates that his subsequent silence after his wife accepts the neder is to be understood as confirmation. This then ensures that the confirmation (his silence) occurs after the neder has been accepted.

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