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DAF DISCUSSIONS - KESUVOS 72

Yossi Klein asks:

Question #3

>>3. If ____ vowed that she may not borrow nor lend a sifter, mill or oven he must divorce her.

a) he

b) she

c) Either

d) Neither.

e) Machlokes C&D.

Correct Answer- c<<

Is that correct that he must divorce her? If he's mochel her neder or she's mochel his aren't they allowed to stay married?

The Kollel replies:

1) a) I want to try to give an answer which is specially relevant to the days of Teshuvah that we are now in. This is based on the Mordechai in Maseches Yoma (end of #723) who cites the Talmud Yerushalmi (this is to be found in Yerushalmi Bava Kama, chapter 8, Mishnah 7), which states that somebody who gives his friend a bad name can never be forgiven.

b) Since the Gemara states here (72a, just before the Mishnah) that the reason he must divorce if he makes a vow that she cannot lend out or borrow a sifter, mill, or oven is because he gives her a bad name among her neighbors, it follows that Mechilah (even before Yom Kippur) does not work since a bad name is at stake.

c) This is recorded as the Halachah in Shulchan Aruch OC 606:1, in the Rema, that if somebody gave his friend a bad name, he is not obligated to forgive him. The Mishnah Berurah (#11) writes that this is because some people heard about the bad name that he gave him, but did not hear that he was Mochel, so the bad name remains.

2) a) I spoke about this question with a couple of Talmidei Chachamim and they both agreed emphatically with you, Yossi, that he or she can be Mochel. In fact, I do agree that if the husband and wife make an agreement between themselves that they are never going to lend out or borrow sifters etc., then there is nothing we can do about this and they will clearly remain as a married couple.

b) However, I think we should look at the very last Rashi in Maseches Sukah (56b, DH Oy). Abaye there says, "Woe to a Rasha and woe to his neighbor!" Rashi explains that the Nega only appeared in the house of the neighbor who had a stingy eye and would not lend out his utensils. Even so, the other neighbor also has to remove stones from his house. From here we learn, "Woe to a Rasha and woe to his neighbor."

We see from Rashi that somebody who does not lend out his utensils is called a Rasha.

c) The Rema (606:1), that I cited above, writes that a person is not obligated to forgive somebody who gives him a bad name, but the Rema does not write that he is not allowed to forgive. In fact, the Mishnah Berurah (#11) writes that it is an attribute of modesty to forgive. But my argument (for which I have not yet received agreement) is that in our scenario it is not advisable for the wife to be Mochel the vow, because she and her husband are going to be called Resha'im.

This is not a simple question and requires further thought.

3) Here are additional sources for why it is not advisable that a wife should live with such restrictions:

a) The source for Rashi's words in Sukah 56b is the Gemara in Erchin 16a where Rebbi Shmuel bar Nachmani says in the name of Rebbi Yochanan that there are seven reasons why Nega'im are inflicted on a person. One of the reasons is "Tzarut ha'Ayin" -- miserliness. Rashi explains that the homeowner does not want to lend out his utensils to his neighbors.

So this is a valid reason why a wife should not tolerate such a Neder from her husband -- she does not want her family to suffer from a Nega!

b) The Rambam (Hilchos Ishus 13:10 writes that if a husband made a Neder that his wife may not lend out Kelim, he should either find a Heter for the Neder or divorce his wife and pay up her Kesubah. The Magid Mishneh writes, "ha'Neder Kasheh Lah" -- the vow is difficult for the wife. We learn that the Rambam gives two possibilities: either annul the vow or divorce the wife. The possibility of her being Mochel the Neder does not seem to be considered a good option. I suggest that the reason is that this is simply too difficult to live with.

4) a) I spoke again, bs'd, with the Talmidei Chachamim who originally argued that she can be Mochel the Neder, and they seem to agree with me that this is not what the Torah wants her to do. I agree with them that if she is Mochel the Neder there is nothing we can do to prevent this, but this is far from what the ideal of the Torah is.

b) I argue that this is why there is no mention in our Sugya (71b-72a), or in the Rambam or the Shulchan Aruch, of the husband or wife being Mochel the Neder and allowing the continuation of the situation of refusal to lend out Kelim. And this is why we made no mention of this possibility in our quiz!

c) I want to compare this with something I saw in the Shiah Mekubetzes (71a, DH v'Lo Tiskashes) in the name of the Rivash. This refers to what the Gemara asks there (71a), "Let her not wear perfume!" The Gemara answers that if so, people will say she is repulsive. The Rivash writes that she cannot bear going without perfume. I learn that this is similar to the Neder that she should not go to her parents' house. This is unbearable. And also if she cannot lend out utensils this will create an unbearable situation for her. Even though she may not appreciate what a bad reputation this will give her in the neighborhood, Chazal know that it will destroy all good local feeling. In the same way that it is unbearable for her not to wear perfume or not to visit her parents, Chazal also find it unbearable that a family is so stingy that they never lend or borrow items from the neighbors. Therefore, the Rambam wrote that he must either get a Heter for the Neder or divorce her immediately and pay her Kesubah.

5) Here is another difference between the Gemara here in Kesuvos and the Mishnah Berurah in Hilchos Erev Yom Kippur:

The Mishneh Berurah (cited above) writes that it is a praiseworthy attribute of modesty to forgive even someone who gave you a bad name. However, this does not mean that the wife should be Mochel her husband who made a Neder that she may not lend utensils to her neighbors. This is because the Mishnah Berurah refers to someone who in the past gave his friend a bad name and is now doing Teshuvah (probably just before Yom Kippur) and has agreed not to do this again. The husband who made the Neder has not done Teshuvah on his miserliness. On the contrary, the Neder that he placed on his wife will mean that they will continue to be misers, and the Mishnah Berurah did not intend to say that under such circumstances one should also be Mochel.

Chag Same'each!

Dovid Bloom