72b----------------------------------------72b

1)

CAN A SHALI'ACH ANNUL VOWS? [Nedarim: Hafarah: Shali'ach]

(a)

Gemara

1.

Question (Rami bar Chama): Can a husband annul his wife's vows without hearing them?

2.

Answer (Beraisa - R. Yoshiyah): If a man told an overseer 'annul all vows that my wife will make from now until I return from Ploni'; the overseer's annulment is invalid;

i.

R. Yonason says, the rule is, Shelucho Shel Adam Kamoso (if Reuven's Shali'ach did an act, it is as if Reuven did it)!

ii.

Even R. Yoshiyah disqualifies the annulment only because it says "her husband will affirm it (her vow) and her husband will annul it". He agrees that normally, Shelucho Shel Adam Kamoso.

iii.

The annulment works (or would work, if not for the verse), even though her husband did not hear the vow!

3.

Rejection: The case is, he said that the vow will be annulled when he hears it.

4.

Question: If so, why does he say this now? He can annul the vows when he hears them!

5.

Answer: He is concerned lest he be distracted when he hears them, and will forget to annul them.

6.

Bava Metzi'a 96a - Question (Rav Ilish): If Reuven told his slave 'go work in place of me with my cow', is he considered like his master to make this She'elah b'Ba'alim (an employer is exempt for damage or loss of what he borrows from his workers)?

i.

We can ask according to R. Yonason and according to R. Yoshiyah.

ii.

Perhaps R. Yonason says that Shelucho Shel Adam Kamoso only when the Shali'ach himself is commanded about the matter, but a slave cannot be a lender or borrower (whatever he gets belongs to his master)!

iii.

Perhaps R. Yoshiyah agrees that a man's slave is like himself, because the slave's Yad (power of acquisition) is like his master's hand!

7.

Answer (Rava): Presumably, a man's slave is like himself.

8.

Nazir 12b: A person can appoint a Shali'ach only to do something that he could do now.

9.

Question: R. Yoshiyah learns from "her husband will affirm her vows and her husband will annul them" to teach that a Shali'ach cannot annul future vows;

i.

(Beraisa - R. Eliezer): If Reuven told his wife 'I now annul any vows you will make from now until I return', they are annulled;

ii.

Chachamim say, they are not annulled.

iii.

Assumption: R. Yoshiyah holds like Chachamim. Even though the husband cannot annul the vows now, his Shali'ach would be able to annul them later, if not for the verse!

10.

Answer: R. Yoshiyah holds like R. Eliezer, that the husband could annul the vows now. He would annul the vows himself, just he fears lest he not annul them, out of forgetfulness, anger or distraction.

(b)

Rishonim

1.

Rif (Bava Metzi'a 55a): R. Yoshiyah and R. Yonason argue about whether or not a Shali'ach can annul vows. The Gemara did not explicitly resolve this. However, Rav Ilish asked about whether a slave is considered like his master regarding She'elah b'Ba'alim. Rava answered that it is She'elah b'Ba'alim because a slave's Yad is like his master's. This implies that regarding any other Shali'ach, about whom we do not say Yad Shali'ach k'Yad Meshale'ach, it is not She'elah b'Ba'alim. Likewise, a Shali'ach cannot annul.

2.

Rebuttal (Rosh Bava Metzi'a 8:2): Rava did not come to exclude other Sheluchim. Rather, he answered that even R. Yoshiyah, who does not say (elsewhere) that Shelucho Shel Adam Kamoso, admits about a slave; it does not matter that a slave is exempt from Mitzvos.

i.

Nimukei Yosef (DH Divrei): R. Yoshiyah agrees that normally, Shelucho Shel Adam Kamoso. Vows are different, for it says "Ishah" twice, to require the husband even b'Di'eved. R. Chananel rules like R. Yoshiyah, for the verses support him. The Acharonim disagree. If the Gemara did not say so, how can we rely on our reasoning to say so?!

3.

Rosh (Nedarim 10:7): The Halachah follows R. Yoshiyah, for we are stringent about mid'Oraisa laws.

i.

Question (R. Akiva Eiger YD 234:9): Regarding Kiyum, R. Yonason is stringent to say that Kiyum of a Shali'ach is valid! Regarding She'elah b'Ba'alim, the Rema cites the Rosh's opinion, but he does not say that we are stringent about Kiyum of a Shali'ach! The Tur explicitly says that Kiyum through a Shali'ach is invalid!

ii.

Yad Eliyahu (51): It is difficult to say that the Rema relies on what he wrote regarding She'elah b'Ba'alim.

iii.

Answer (Be'er Yitzchak YD 28, cited in Shalmei Nedarim 72b DH b'Shulchan Aruch): Shelichus does not help for Nedarim (Beis Yosef OC 434). The Rosh (69a DH Yesh She'elah b'Hefer) says that Kiyum is a Neder. This is why R. Yonason and R. Yoshiyah did not argue about Kiyum.

iv.

Shalmei Nedarim (ibid.): The last point is no support. R. Yonason and R. Yoshiyah argue according to R. Eliezer, who says that one can annul future Nedarim (to teach the extremity of the lenient opinion). R. Eliezer agrees that one cannot affirm future Nedarim.

v.

R. Akiva Eiger (Teshuvah 1:48 DH v'Achar): A Mishnah (Kesuvos 71b) connotes that Hafarah on Tanai takes effect only if the Tanai was fulfilled. The Tur and Shulchan Aruch rule like this. If a Shali'ach cannot annul, the Tanai is Batel! However, since it is a Safek whether or not a Shali'ach can annul, perhaps the Tanai works, therefore she must fulfill the vow until fulfilling the Tanai. We cannot bring a proof from the Mishnah, for perhaps it is like R. Yonason.

4.

Rosh (ibid.): The Gemara in Nazir could have said that R. Yoshiyah holds like Chachamim, and the Beraisa discusses vows that she already took. Rather, it establishes the Beraisa to discuss a typical case. Alternatively, it prefers to teach the extremity of the lenient opinion; R. Yonason allows even regarding future vows.

5.

Rambam (Hilchos Nedarim 13:9): If a husband made a Shali'ach to annul or affirm, it is invalid, for it says "her husband will affirm it and her husband will annul it." Similarly, a father himself can annul; his Shali'ach cannot.

i.

Kesef Mishneh: We learn from a husband to a father.

ii.

Question (Lechem Mishneh): Normally, Shelucho Shel Adam Kamoso. The Torah taught that a husband cannot make a Shali'ach to annul. What is the source that a father cannot? He has more power to annul than a father does!

iii.

Answer (Lechem Mishneh): "Bein Ish l'Ishto Bein Av l'Vito" equates a father and a husband, unless a verse explicitly distinguishes them.

(c)

Poskim

1.

Shulchan Aruch (Yosef 234:30): A father or husband cannot make a Shali'ach to affirm or annul.

i.

Taz (30): The Tur says that this applies even to vows that she already took. This is obvious! Surely, a Shali'ach is no stronger than the Meshale'ach, who cannot annul before she vows! We must say that one might have thought that R. Yoshiyah says only that a Shali'ach cannot do two things, i.e. hear the Neder and annul it. The Tur teaches that he cannot annul even what the husband already heard. The Beraisa teaches the extremity of the lenient opinion; R. Yonason holds that the Shali'ach can do both.

ii.

Gra (71): The Shulchan Aruch did not bring the Gemara's case (a Shali'ach to annul future vows) because that is according to R. Eliezer, and we hold like Chachamim.

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