1) THE DIFFERENCE BETWEEN "PESACH" AND "CHARATAH"
OPINIONS: The Gemara discusses the Halachah of "Poschin b'Charatah" -- a Beis Din or a Chacham may annul a person's Neder on the basis of the person's Charatah (regret) about having made the Neder. What is the difference between "Charatah" and an ordinary "Pesach" (basis) for annulment of a Neder?
The concept of Charatah is explained by the Rishonim in different ways. Two ways of understanding Charatah are expressed by the Rishonim in the case of the Mishnah earlier (20a). The Mishnah states that when a person makes a Neder to prohibit his wife from receiving any benefit from him, and then he corrects himself and says that he meant that his previous wife may not receive benefit from him, the Chachamim rule that Beis Din "makes a Pesach for him from another place (mi'Makom Acher)" and annuls his Neder. What is the meaning of making a Pesach "from another place"?
(a) The RAN explains that "mi'Makom Acher" means that Beis Din may annul the Neder based on Charatah, regret, even though that type of Pesach involves no intrinsic element of the Neder itself.
(b) TOSFOS cites RABEINU TAM who says the opposite. Beis Din may annul the Neder only through a Pesach, but not with Charatah. A Pesach is called "mi'Makom Acher."
The Ran defines Charatah as external to the Neder ("mi'Makom Acher"), while Tosfos defines Charatah as a part of the Neder itself. Why do they understand the definition of Charatah differently?
To understand their positions, a basic question must be addressed. How does Charatah work to annul a Neder? In the case of a normal Pesach, the person asserts that he would not have made his Neder had he been aware, at the time he made the Neder, of the presence of a certain factor. This Pesach demonstrates that he made his Neder in error. The Chacham or Beis Din annuls the Neder by deeming it a Neder said in error by a misinformed person, and it is not binding.
How, though, does Charatah work? Does Charatah work in the same way as a Pesach, whereby the person says that he would not have made his Neder had he felt then the way he feels now, and the Neder is deemed to have been made in error, or does it work with a completely different mechanism than a Pesach? Perhaps Charatah does not turn the Neder into a mistaken declaration as a Pesach does. Rather, the Torah teaches "Lo Yachel Devaro" -- a person who makes a Neder may not desecrate his word, which implies that "others may desecrate it for him" (by annulling the Neder)." This verse is the source for the law that a Chacham may annul one's Neder. Perhaps when one says that he regrets that he made the Neder and he wishes he never made the Neder, the Torah gives to the Chacham the right to annul the Neder even without deeming the Neder to be a mistake. Since the Chacham is the one who annuls the Neder and gives the Heter (and not the Noder himself), the Torah permits it.
The question of how Charatah works to annul a Neder apparently is the subject of dispute among the Rishonim:
1. The RAN (DH Ein Chacham) and the ROSH (3:2) imply that Charatah does not retroactively transform the Neder into a mistaken declaration. Rather, the Torah gives the Chacham the right to uproot the Neder and render it as though it never existed without making it into a mistake. Accordingly, the Gemara records a dispute about whether Charatah may be used at all to annul a Neder; since it does not make the Neder into a mistake retroactively, perhaps it cannot serve as a basis for annulment of the Neder.
2. TOSFOS (DH ka'Savar) and the RITVA imply that Charatah, like a Pesach, makes the person's Neder into a mistaken Neder. However, Charatah does not make it into as large of a mistake as a Neder annulled through a Pesach. Since it is normal for a person to calm down eventually and for his rage to subside, the fact that he became calm and now regrets his Neder is not considered a mistake in the fullest sense.
The Ran, who understands that Charatah does not make a Neder into a mistake, maintains that Charatah certainly is called "mi'Makom Acher" since it does not involve the removal of the Neder in its own right. It does not weaken the Neder itself by making the Neder into a mistake. In that respect, Charatah is an annulment of the Neder "mi'Makom Acher."
Tosfos, on the other hand, understands that Charatah makes the Neder into a mistake. Hence, Charatah creates an inherent fault in the Neder itself, even more so than a Pesach does. This is why it is called an internal cause for annulment of the Neder and is not "mi'Makom Acher" like a Pesach is, for a Pesach involves a factor or circumstance that was not part of the Neder itself, while Charatah, regret, causes the Neder to be annulled in its own right.
The Ran later (27a) cites a Machlokes Rishonim whether the principle of "Neder she'Hutar Miktzaso Hutar Kulo" applies only to a Neder annulled with a Pesach (RAMBAN), or even to a Neder annulled with Charatah (TOSFOS). Tosfos there seems to follow his opinion here that Charatah makes one's Neder into a mistake, as a Pesach does. The Ramban apparently understands (like the Ran) that Charatah does not make the Neder into a mistake, but rather the Torah endows the Chacham with the authority to annul a good, proper Neder. For this reason the Ramban rules that only when a Pesach is used to annul part of a Neder does the entire Neder not take effect, since part of the Neder is shown to have been a mistake due to the Pesach. In contrast, when Charatah is used to annul the Neder, the Neder was made with full awareness and intent, and all parts of the Neder should have taken effect, but the Torah gives the Chacham the authority to uproot the Neder retroactively. Since nothing is lacking in the way the person made the Neder on all the items the Neder included, if the Chacham annuls part of the Neder there is no reason to say that the rest of the Neder should not take effect (since the person's intent was fulfilled, and there is nothing wrong with the expression of the Neder).
RASHI in Eruvin (64b) apparently understands Charatah like the Ran here. Rashi explains that when the Gemara says "Poschin b'Charatah," it means simply that in order to annul a Neder, the Chacham must find a Pesach to serve as grounds for uprooting the Neder retroactively. According to Rashi, "Poschin b'Charatah" means "Poschin b'Pesach." Conversely, "Ein Poschin b'Charatah" means that the Chacham may annul a Neder even without a Pesach, merely on the basis of the Noder's request and assertion that he regrets ever having made the Neder. This is the other Rishonim's definition of "Poschin b'Charatah." (According to Rashi, the Gemara's conclusion is "Ein Poschin b'Charatah," which means that one does not need a formal Pesach to annul his Neder and that it suffices to have Charatah, regret. See TOSFOS to Eruvin 64b, DH Poschin, and Insights to Nedarim 22:3.)
(c) The RAMBAM (Hilchos Shevu'os 6:5, Hilchos Nedarim 13:2, and in Perush ha'Mishnayos, end of chapter 10 of Nedarim, and beginning of chapter 4 of Nazir) writes that when a Chacham annuls a Neder or a Shevu'ah, he may not say, "Your Neder/Shevu'ah is uprooted (Ne'ekrah')," because that word describes the way a husband or father annuls the Neder of his wife or daughter, which involves retroactive dissolution of the Neder. Rather, a Chacham must use the wording of "Hatarah" or "Mechilah" and say that the "Neder or Shevu'ah is Hutar" or "Machul." These terms mean that he annuls the Neder from now on.
Why does the Rambam write that the Chacham's annulment of a Neder applies only from that time onward and not retroactively? The Gemara (Nazir 21b) says the exact opposite: a Chacham's annulment of a Neder uproots it retroactively such that it never existed, while a husband's or father's annulment of a Neder cancels the Neder only from the moment of the annulment and onward!
The Rambam's description of the Chacham's annulment of a Neder is based on what he writes in Hilchos Shevu'os (6:2). According to the Rambam, the Gemara interprets the verse, "Lo Yachel Devaro," as a warning that a person who no longer wants his Neder should not violate it in a way which treats the Neder lightly. Rather, when a person wants to annul his Neder he must go to a Chacham and have the Neder annulled. By doing so he avoids treating his Neder lightly.
The Rambam clearly learns that not only does annulment with Charatah enable the Neder to be annulled from now on without making the Neder into a mistake ("Neder Ta'us") retroactively, but even annulment with a Pesach enables the Neder to be annulled from now on without making the Neder a mistake retroactively. This is based on the Torah's Gezeiras ha'Kasuv that a Chacham may establish permission for the Noder to violate his Neder. Since the Chacham does not make it into a mistaken Neder and thereby uproot it retroactively from its inception, it is called "Hatarah" or "Mechilah" which applies from now onward. (Nevertheless, the Chacham's permission removes all of the Noder's obligations towards his Neder, even his obligations that existed before the Chacham annulled the Neder. This is explained in more detail in Insights to Nedarim 78:1.)
In contrast, when a husband or a father annuls his wife's or daughter's Neder, he "uproots the Neder retroactively" because, as the Gemara explains, a woman makes her Neder on condition that her husband will agree to it. What enables the husband or father to repeal her Neder is her unspoken condition that existed at the time that she made the Neder that the Neder should be in force only until her husband or father objects to it. (See also Insights to Nedarim 78:1.)