Releasing an Unreleasable Vow

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by R. Gidon Rothstein

10 Shevat: R. Yitzchak Elchanan Spektor on Releasing an Unreleasable Vow

It’s hard to react to people who break bounds of propriety, whether those codified in rules and laws or “just” as part of norms accepted in society. It’s hard to know what to do because to mete out the consequences such people deserve often brings collateral damage, but to refrain or lighten those consequences makes it more likely this will happen again in the future.

Shu”t Ein Yitzchak 1; Yoreh Deah 2, dated 10 Shevat 5628 (1868) takes up just such a situation. An important (unnamed) rabbi has to discipline the local shochetim, ritual slaughterers, who had violated their oath to slaughter animals only with his permission. When he called them on it, they refused to listen, and responded brazenly (this is not further defined in the responsum). The rabbi apparently now has the wherewithal to bring them in line, and wants to know what he should do.

Listing Their Wrongs

The oath they transgressed is the first serious issue; as per a passage in Yerushalmi, it requires teshuvah chamurah, a serious repentance (more than the usual admission of sin along with regret and commitment to act differently in the future). Chavvat Da’at made it more severe. He held that an oath not to perform a certain halachic act makes it that that person cannot produce an effective halachic act of that sort (this is based on a concept we cannot explain fully here, i avid lo mehanei, that sometimes when a Jew acts against what the Torah says, that act might not have halachic validity). In our case, since they swore not to slaughter without permission, Chavvat Da’at’s view would be that their ritual slaughter is ineffective, and all the animals they slaughtered were non-kosher.

That means they’ve been passing off non-kosher meat as kosher (unwittingly, unless they knew that Chavvat Da’at, but their customers still ate non-kosher, still might have tokasher or throw away their pots, pans, dishes, etc.). Which in turn heightens the kind of repentance they need.

Added to all that, their impudence to this rabbi is unheard of in all the scattered settlements of the Jewish people (says R. Spektor, although this is almost certainly hyperbole in 1868, when Reform Judaism was already a powerful and spreading force).

To Save Them From Themselves

Really, they should lose their right to serve as ritual slaughterers permanently, says R. Spektor, but his correspondent had mentioned that they have small children dependent on them for their livelihood and he, the affronted rabbi, hopes R. Spektor can find a way to save them from the full consequences of their actions [two points: first, the rabbi is turning to R. Spektor because he worries that the slaughterers must be removed from their position. Had he been confident that he had the right to ignore the slight to his honor, he would have done so without asking R. Spektor. He clearly thought he might be obligated to react in certain ways, and/or that the slaughterers have rendered themselves irrevocably unfit.

Second, notice how almost reflectively this rabbi is ready to forego what happened to him on behalf of these men’s children, when they should have been the ones to worry about that before they got themselves in trouble like this. It’s part of being a rabbi, but a part we would do well to remember as we meet the rabbis in our lives].

Nullify the Oath

A first good step would be if we could be matir their neder, find an halachically accurate way to say that the slaughterers misunderstood the oath as they took, to the extent that it never took effect. Once we can say they did not halachically violate an oath (for all that they thought they were), we no longer have to see their meat as non-kosher, and that means their path to repentance, while still significant, would not require us to remove them from their positions.

Unfortunately, they took the oath al da’at rabim, which means that they announced that they wanted the public at large to be part of the human will behind this oath. That formula was adopted to avoid a person taking an oath and then finding a Torah scholar to nullify it; since it was made a matter of the whole public’s intent, the Torah scholar cannot decide they all were in error or they all would not have wanted it to take effect, so it’s generally considered irrevocable.

Mishneh le-Melech quoted Rashba to help. Rashba said that if the oath-taker(s) already violated it, we can be mattir that oath, retroactively uproot it (because we assume the public never wanted someone to take an oath they would then violate). That’s a safe assumption because it’s well established be-makom mitzvah, that where there’s a mitzvah need that requires us to uproot even an oath taken al da’at rabim, according to the public’s view, we may. To avoid transgression seems an equally valid reason for the public to universally agree to uproot the oath.

The Moral Hazard

Gittin 35 gives us reason to worry that’s not true. If a kohen marries a woman prohibited to him, Chazal denied him the right to serve in the Beit HaMikdash for as long as he is married to her. The Gemara says he can return to service as soon as he takes an oath al da’at rabim to divorce this wife, but the logic we just offered gives him a way out: he can serve, refuse to divorce the wife, and we’ll then nullify the oath since it’s already been violated.

R. Spektor clarifies that we would never nullify an oath for a Jew still involved in the sin in question. It’s only when the oath has been broken, and the sinner is now in the process of sincere repentance (which obviously includes rejection of and refraining from that sin) that we seek ways to help him/her out of the burden of a violated oath. Where the Jew’s still sinning, we have no reason to think the public wants to help protect him/her from him/herself.

Another limitation (I’m skipping the case that shows this limitation) is where nullifying the vow will hurt others (or hekdesh, the coffers of the Beit HaMikdash), financially or in some other way. Since letting this person off the hook will have adverse effect on others, we cannot decide “the public” wants to protect the oath-taker. More, if we stand firm, the oath-taker might be brought around to realizing how s/he hurt these others, and might make amends. At which point, we’ll be able to then nullify the oath and everyone will benefit [a reminder that sometimes you have to be cruel to be kind, in the right measure].

The Public’s Stake in Helping Vow-Violators

Added to the logic in this case is that these ritual slaughterers took a shevu’ah, a vow, not a neder, an oath. The difference matters here because Shevu’ot 39 says that the whole world bears some punishment for false vows, even if they could not have done anything to prevent them.

That means that the public now has a stake in nullifying this violated vow, since they will suffer for it as well. It also makes this logic workable for Rabbenu Tam, who limited the right to release oaths taken al da’at rabim for a devar mitzvah, so that a mitzvah can be fulfilled, to where that mitzvah affects the public itself. Once we remember that the whole world is punished for violated vows, we can assume he would have been on board with nullifying this vow as well.

According to the Chavvat Da’at mentioned earlier, unless we release this vow, many members of the public will have themselves eaten non-kosher, and the general public certainly wants to help that large subset of people out of having committed these sins, however unwittingly.

True, not everyone accepts that viewbut Chavvat Da’at assumes there’s a Biblical prohibition here, and halachah works hard to avoid Biblical violations, so that even a possibility of such a violation leaves room to say that the public would want this vow released.

The Repentance They Need

I skipped other ideas, such as the possibility that the passing of one of the slaughterers in the interim released the others from that vow, because a group vow is in effect only as long as all the members of the group are alive. The questioner had also suggested that if releasing the vow will promote greater public peace, that’s a value we can assume the general public would support.  

The key next point is that with all the justifications, they need a repentance stringent enough that no one will decide it’s worth it to violate a vow, and trust that rabbis will find a way out of it for them.  At the same time, we’re trying to help the children.

R. Spektor’s compromise is that they be suspended from ritual slaughter for no less than thirty days, and then must make a public declaration of divrei chaverut, which says that they commit to keeping all the regulations and norms of halachah, including especially those connected to their role as ritual slaughterers (with significant warnings of the consequences should they again violate this commitment).

Thirty days is the minimum, and R. Spektor leaves it up to the rabbi and his court to decide the specifics, based on how sincere their repentance seems. More, he reminds the rabbi that if the period of their rebellion (where they slaughtered without permission) was longer than thirty days, Shach held (and R. Spektor thinks this is the set law) that the suspension must be at least as long. And if it was less, thirty days is still the minimum, because that’s what’s needed to take on divrei chaverut, the status of one who strives to keep all of halachah.

A reminder that part of building a society is guarding the hierarchy, making sure all members of society know to follow the rules, and are dealt with appropriately—if compassionately—when they go astray.

About Gidon Rothstein

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