Hafarah Beino Le'viena

Nedarim (11:4) | Yisrael Bankier | 3 years ago

During the week we began learning about hafarat nedarim. To explain, the Torah allows a husband to meifer his wife's nedarim and a father his daughter's. Doing so effectively puts an end to the neder. Previously we discussed the difference between hafarat nedarim and the Chachamim's ability to matir nedarim (Volume 3, Issue 23). Similarly, we have also discussed the limited scope of hafarat nedarim (Volume 9, Issue 23).

The Mishnah (11:4) discusses a case where the necessity of hafarah is debated. The case is where a wife makes a neder preventing the husband from deriving benefit from her maaseh yadeha (handy work). The first opinion is that the neder does not require hafarah, since she is obligated to do these types work as part of the marriage contract. R' Akiva however argues that the hafarah is still necessary to permit any excess work, over and above that which she is required. R' Yochanan ben Nuri however maintains that it is necessary to meifer the neder in case he divorces her. The concern is that once divorced, the neder would the affect him. He would not be allowed to derive any benefit from her and it would prevent them from remarrying out of concern that he will violate the neder. We shall try to understand R' Yochanan ben Nuri position.

In this context, the husband can only meifer the neder if it impacts their relationship – beino le'veina. Why then can the husband meifer this neder. As long as they are married, the neder does not impact their relationship. It is only if they divorce, when he is no longer considered her husband, that it affects him. Why then can the husband meifer the neder?

The Ritva (Ketubot 59a) explains that the wife can opt to forgo being supported by her husband which would mean that he would no longer have a lien on maaseh yadeha (according to Rav Huna). Alternatively, the husband could forgo the right to maaseh yadeha from the outset. In that case the neder would have an effect on maaseh yadeha. Consequently it is already consider as beino le'veina.

The Ritva however continues with an answer also found in the Ran. The Ran (Ketubot 23b, Rif) cites one answer that in truth the neder should be binding even during the marriage. It is only due to the strength the Chachamim afforded to the husband's right to maase yadeha that the neder does not take hold. When the Chachamim bolstered the husband's right however, they did not take away the ability for him to meifer the neder. The Ritva adds that when the husband is meifer the neder it is as if he has forgone his lien on maaseh yadeha.

The Rosh (79b) however answers that while married he has the ability to meifer nedarim. If he divorces her the neder begins to apply to him and if he remarries her it will certainly be defined as beino le'veina as the neder would impact their (future) relationship. Consequently, he can meifer the neder. We find that according to the Rosh even though the neder does not impact their relationship now, since it can a later point in their marriage (albeit when they remarry) it is defined as beino le'veina and he can meifer the neder.

The Ran (ad loc) however provides a different answer going one step further than the Rosh. We will learn (11:9) that if the wife made a neder to be a nazir in thirty days time, and the husband was meifer then neder, even if she was divorced before the thirty days completed, the neder would still be stopped. That type of neder is termed as inui nefesh – a neder that would cause her suffering. Yet we find that even if the suffering is only experience after they are divorced, the neder is still stopped. The Ran argues that the same is true for nedarim that are defined as beino le'veina. The critical point is the time is when the neder is made and if they are married at that time, even if the basis of the hafarah is only realised when they are no longer married.1


1 See also the Raavad who explains in a similar manner and the difficulty raised by the Rashba.

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