Hafarat Nedarim

From Halachipedia

How to Revoke (Meifer) or Uphold (Meikim) a Neder

  1. Even if the one upholds the Neder, if the woman goes to a Beit Din for Hatarat Nedarim and gets it annulled, the Hatarah works,[1] though some are stringent and only allow such when he remained silent, not when he upheld the Neder.[2]

Yom Shomo

  1. A Neder may only be revoked on the day it was heard of (Yom Shomo) until Shekiah.[3]
  2. If the one in position of revoking the Neder remains silent (Shetikah) until the day is over, then the Neder is considered upheld and can no longer be revoked. Therefore, if he decides to tease her by being silent until Shekiah, the opportunity is lost. However, if he didn't realize that he is in the position to revoke the Neder or he thought that the Neder at hand is not of the type that can be revoked by him, then it can still be revoked for the entire day that he gains full clarity of the situation.[4] At the same time, if he knew he could revoke it but didn't know it had to be on the same day, then once the day passes, he's lost his chance.[5]
  3. If he's silent with intention to uphold it right away, then the mental upholding of the Neder takes effect, and he cannot revoke it any longer.[6]
  4. One who responded to his wife's informing him that she took a Neder with a language that he was unaware meant he's upholding it cannot effectively revoke it later that day, even if he did already, unless he requests to annul the upholding. Then, retroactively, his revoking will be effective.[7]

Stages of Marriage

Prior to Kiddushin/Erusin

  1. The Torah gives license to a man to revoke the Nedarim of his young daughter and those of his wife. This action is known as "Hafarah." A father can only revoke his daughter's Nedarim while she is a Ketana (below the age of twelve) or Na'arah (between twelve with Simanim and twelve and a half). Once she becomes a Bogeret (twelve and a half with Simanim) or reaches Nissuin, he may no longer revoke her Nedarim.[8]
  2. The practice of Talmidei Chachamim is to tell their daughters prior to Kiddushin that all Nedarim they have taken are hereby revoked.[9]

During Erusin

  1. As an Arusah, a Ketana or Na'arah partially enters her husband's domain, so he can revoke her Nedarim she takes during Erusin or even beforehand in tandem with her father, until she enters the Chuppah and does Nissuin. Only when she fully enters his domain with Chuppah and Nissuin can the husband alone revoke her Nedarim, even if in the meantime he becomes obligated to feed her during Erusin.[10]
  2. If either the father or the husband revokes her Neder but the other does not, the Neder is weakened but not revoked, so she would not receive Malkot if she violates it from then on.[11]
  3. According to the Rambam, both father and husband have to hear of and revoke the Neder on the same day, while the Ramban argues each one can hear and revoke on separate days.[12]
  4. Though it's effective by a Nessuah, taking back one's upholding of an Arusah's Neder does not allow him to then revoke it.[13]
  5. Prior to Nissuin, the practice of Talmidei Chachamim is to inform their wives that all Nedarim taken previously are hereby revoked, because a husband cannot revoke any Nedarim taken prior to Nissuin, even if the father heard and revoked it during Erusin.[14]

Messengers of the Father and Husband

  1. If the Arus sends messengers to retrieve his wife from the father and they return with her alone, then she has left her father's domain and, according to some, is now in her husband's domain with respect to Hafarat Nedarim of any Nedarim she takes going forward,[15] as Mesirah is like Nissuin.[16]
  2. If, however, the father or the father's messengers escort her with the husbands's messengers, then she remains in the father's domain until they pass her over to the husband or his messengers.[17]

Bagrah \ Bogeret

  1. The husband of a Bogeret cannot revoke her Nedarim during Erusin.[18]
  2. If neither the husband nor father of a Naarah HaMeorasah hears of her Nedarim before she becomes a Bogeret during Erusin, neither can revoke her Nedarim any longer, even if the father already revoked the Nedar, because the father cannot revoke the Nedarim of a Bogeret and the husband can only revoke Nedarim during Erusin in tandem with the father.[19]

Divorced

  1. If an Arusah is divorced and enters Erusin again to the same suitor or a different one, the father and final Arus can jointly revoke her Nedarim,[20] unless the first Arus already heard her Neder before he divorced her. If he did, then we assume stringently that divorce is considered upholding the Neder and there is no way to revoke it. Only if he didn't hear it before divorcing does the opportunity to revoke remain latent.[21]
  2. Unlike a widow, a divorcee's Nedarim are only available to the future Arus and father to revoke together if the previous Arus did not hear of the Neder. If he does, then we're stringent to assume divorce to be like upholding the Neder. Of course, in any case, she must still be a Na'arah and have not reached Nissuin from any marriage, in which case, if the father and later Arus hear of the Neder on the same day, they can together revoke it. Once the father hears it, then the Neder must be revoked by him and the Arus on that day for it to be effective. Therefore, even if she is divorced and reenters Kiddushin a hundred times on that day, the Neder can still be revoked by the father and and final Arus, since the first one did not hear it.[22]

Orphaned

  1. The joint revoking of an Arusah's Nedarim must be completed while both father and Arus are still alive; hence, if the father dies during Erusin, regardless of both father and husband hearing the Neder and either of the two revoking it, the Hafarah is incomplete and the Neder can never be revoked.[23]

Widowed

  1. If the Arus dies while she's a Naarah, the Yavam cannot revoke her Nedarim, even if he does Maamar.[24]. Rather, she returns to her father's domain ("Nitroknah Reshut LaAv"), and her father can revoke any and all Nedarim she has taken, even those taken during Erusin that the husband heard, if the husband died or revoked them himself the same day, regardless of there being a Yavam and Ma'amar. However, if the husband upheld the Neder or only died a day after hearing it, the father cannot revoke it. Although, according to the Rambam, if the husband did revoke it before dying and then the father heard, the father cannot revoke it.[25]
  2. If the father revokes his daughter's Neder during Erusin, he weakens the Neder enough that if the husband then dies without revoking it on the day he hears of it, it doesn't revert to his purview. However, if the husband died on that day, then the father can again revoke the Neder completely. Moreover, if she is Mekudeshet again on that day, even if the original Arus died the day after the father heard of the Neder, the father and final Arus can revoke her Nedarim jointly, even though the first Arus heard the Neder; although, some disagree.[26]
  3. If a woman took Nedarim as an Arusah and then her husband died, whether he heard of the Nedarim or not, her father heard of them, and she was Mekudeshet again, even a hundred times on that day, the father and final Arus can jointly revoke her Nedarim. If the father didn't hear yet, then they can revoke the Nedarim on the day they both hear.[27]

After Nissuin

  1. The husband can revoke her Nedarim exclusively from Nissuin and on.[28] Even if his wife is shrieking in disapproval, she cannot prevent her husband from revoking her Nedarim.[29]

Divorced

  1. Even if the husband did not hear her Nedarim during Nissuin, divorce closes the door on revoking them, even if he returns and enters Erusin with her again, since he needs the father's partnership to revoke Nedarim during Erusin.[30] Certainly Nedarim she takes during this Erusin after divorce from Nissuin are out of his range, as well.[31]
  2. If they get divorced, the husband cannot revoke her Nedarim from the moment the divorce has taken effect and the Get has arrived in her hands. Thus, if the status of the divorce is unclear, he should not revoke any of her Nedarim.[32] Similarly, if the divorce was made on condition or if the Get was handed to her courier (Shliach leHolacha)[33], he should not revoke any of her Nedarim if the Get arrived in her hands.[34] Post-facto, it would not be a valid Hafarah[35], unless it was a Get on condition and the condition was not fulfilled.[36]

Widowed

  1. Once she enters her husband's domain either by Nissuin or transfer to the husband's messengers exclusive escort,[37] if she is widowed, she can no longer return to her father's domain and her Nedarim remain intact.[38]
  2. If she heard that her husband passed away, remarried, and then found out that he's still alive, neither husband can revoke her Nedarim. The same is true regarding any marriage that violates a Karet level prohibition.[39]

Types of Marriages

  1. As above, these Halachot assume the marriage is a Halachically valid one. If the marriage entails an Issur Karet, these Halachot do not apply, because Kiddushin does not work in such cases.[40] However, if the marriage is to a Niddah, Issur Aseh, or Issur Lav, in which case, Kiddushin do take hold, and the husband revokes her Neder, the revocation is successful,[41] though he should not do so, ideally.[42]

Types of Nedarim

  1. The husband and father can only revoke Nedarim that are self afflicting to the woman or strain the bond between him and her. A Chacham, however, can annul any Neder.[43]
  2. Even if it was a Nedar Al Da'at Rabbim, the father and husband can still revoke it.[44]
  3. These Halachot apply equally to Shevuot, as well.[45]

Shabbat

See Nedarim on Shabbat

Sources

  1. ↑ Shulchan Aruch Yoreh Deah 234:23
  2. ↑ Rama ibid admits the former opinion is correct but opts to be stringent for the latter opinion. Taz Yoreh Deah 234:26 explains that this is based on כל אשה על דעת בעלה היא נודרת, and the Shach Yoreh Deah 234:37 adds that certainly if the husband didn't hear of the Neder one can be lenient. If it's past the day he heard of it, then the Shach (Yoreh Deah 234:38-39) recommends he should first annul his upholding of the Neder, then revoke her Neder, and then she should go to Beit Din unless he's not available, in which case, one can rely on the first opinion and just let her get it annulled.
  3. ↑ Shulchan Aruch Yoreh Deah 234:21
  4. ↑ Shulchan Aruch Yoreh Deah 234:21
  5. ↑ Taz Yoreh Dea 234:25
  6. ↑ Shach Yoreh Deah 234:35, see Shulchan Aruch Yoreh Deah 234:41
  7. ↑ Shulchan Aruch Yoreh Deah 234:22
  8. ↑ Shulchan Aruch Yoreh Deah 234:1
  9. ↑ Shulchan Aruch Yoreh Deah 234:10
  10. ↑ Shulchan Aruch Yoreh Deah 234:5, see Shulchan Aruch Even HaEzer 56:1 regarding when he would be obligated to feed her.
  11. ↑ Shulchan Aruch Yoreh Deah 234:5
  12. ↑ Shulchan Aruch Yoreh Deah 234:5 presents these two as a Stam vaYesh. The Tur thinks the Ramban is logical, so the Taz (Yoreh Deah 234:6) writes the Shulchan Aruch paskened Safek De'Oraita leChumra. Bach quoted by Shach Yoreh Deah 234:13 points out that one should be Machmir, especially since it's a Stam vaYesh.
  13. ↑ Shulchan Aruch Yoreh Deah 234:6, who omits the Rashba's position that this is only true if the father does it. The Shach Yoreh Deah 234:16 posits this is true even if he takes it back on the same day.
  14. ↑ Shulchan Aruch Yoreh Deah 234:10
  15. ↑ And neither father nor husband can revoke Nedarim taken between leaving the father's domain and entering the husband's. Beit Yosef Yoreh Deah 238:8, Shach Yoreh Deah 234:18. Taz Yoreh Deah 234:9 takes issue with this position.
  16. ↑ Shulchan Aruch Yoreh Deah 234:8. who presents it as a Stam vaYesh, based on a Machaloket Rashi and the Tur against Tosafot with the Rambam seemingly siding with the former group.
  17. ↑ Shulchan Aruch Yoreh Deah 234:8
  18. ↑ Taz Yoreh Deah 234:4
  19. ↑ Shulchan Aruch Yoreh Deah 234:9, Shach Yoreh Deah 234:19
  20. ↑ Shulchan Aruch Yoreh Deah 234:13
  21. ↑ Shulchan Aruch Yoreh Deah 234:20
  22. ↑ Shulchan Aruch Yoreh Deah 234:18-19
  23. ↑ Shulchan Aruch Yoreh Deah 234:15
  24. ↑ Shulchan Aruch Yoreh Deah 234:7
  25. ↑ Shulchan Aruch Yoreh Deah 234:11. See Bedek HaBayit. The Taz Yoreh Deah 234:13 does not like this explanation of the Rambam.
  26. ↑ Shulchan Aruch Yoreh Deah 234:16. See Shach Yoreh Deah 234:33 regarding how to harmonize this with the Rambam's position that both father and Arus must hear the Neder on the same day. The Tur took issue with the language of the Rambam that says that if the Arus heard the Neder before dying, then the final one cannot revoke the Neder. See Beit Yosef and Bach for reconciliation of the Rambam with the Halacha and other Poskim and Taz (Yoreh Deah 234:24) for an upholding of this version of the Rambam's position leHalacha.
  27. ↑ Shulchan Aruch Yoreh Deah 234:17
  28. ↑ Shulchan Aruch Yoreh De'ah 234:2
  29. ↑ Shu"t HaRivash Siman 407, Beit Yosef Yoreh Deah 234:2-3
  30. ↑ Shulchan Aruch Yoreh Deah 234:14
  31. ↑ Shach Yoreh Deah 234:28, Taz Yoreh Deah 234:17
  32. ↑ Shulchan Aruch Yoreh De'ah 234:2
  33. ↑ Taz Yoreh Deah 234:1. Shach Yoreh Deah 234:6 who quotes the Bach who argues that a Shaliach cannot be considered her hand with respect to this.
  34. ↑ Shulchan Aruch Yoreh De'ah 234:3
  35. ↑ Bach Yoreh Deah 234:4, Shach Yoreh Deah 234:7
  36. ↑ Shach Yoreh Deah 234:8
  37. ↑ The Tur disagrees with this point and maintains that Mesirah to Sheluchei HaBaal and then Mitat HaBaal does not completely eject her from her father's Reshut - i.e. she's still in his domain with respect to Nedarim. The Beit Yosef thinks that there is no such distinction. The Bach sides with the Tur, but the Taz (Yoreh Deah 234:14) and Shach (Yoreh Deah 234:25) have numerous proofs that the Beit Yosef is right. In fact, the Taz argues there is a printing error in the Tur that resolves the whole difficulty and brings the Tur's position in line with everyone else's.
  38. ↑ Shulchan Aruch Yoreh Deah 234:12
  39. ↑ Shulchan Aruch Yoreh De'ah 234:4
  40. ↑ Shulchan Aruch Yoreh De'ah 234:4
  41. ↑ Shulchan Aruch Yoreh De'ah 234:5, Taz Yoreh Deah 234:2
  42. ↑ Shach Yoreh De'ah 234:10
  43. ↑ Shulchan Aruch Yoreh De'ah 234:55,58, Shach Yoreh Deah 234:1
  44. ↑ Shulchan Aruch Yoreh Deah 228:24, Shulchan Aruch Yoreh Deah 234:1, Shach Yoreh Deah 234:4
  45. ↑ Shulchan Aruch Yoreh De'ah 234:3, Shach Yoreh Deah 234:2
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