Nullifying Oaths

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by R. Gidon Rothstein

The early books of Nevi’im give examples of how unyielding Jews thought oaths. When the people of Giv’on trick Yehoshu’a into making a covenant with them, rather than disregard it as obtained under false pretenses, the Jews honor the oath. The haftarah of Hukkat has Yiftach vow to offer to God whoever greets him first upon his return, only to [after the haftarah is over] grapple with his daughter having raced out first.

I do not intend to resolve those questions; I point them out to add a note of surprise, because tradition does provide a way out of such oaths, some of it discussed in this week’s parsha.

Father and Husband Negating the Vow

Obligation 95 in Rambam’s list codifies the requirement la-dun be-hafarat nedarim, to judge the nullification of vows. Rambam takes care to point out the mitzvah is to apply the relevant rules, not necessarily to take action. He detects no obligation to nullify vows, the commandment is to follow the appropriate laws when nullification is on the table.

Two of the parties with the right to nullify some vows are named, the father of a na’arah (a young woman who is between the ages of twelve and twelve and a half, no longer a child whose oaths can be ignored nor a fully independent adult) and/or a woman’s husband. They must decide to abort the vow the day they hear it [Minhat Hinuch helped me avoid embarrassing myself, because Sefer Ha-Hinuch says they have twenty-four hours, apparently a copyist’s error, when in fact they only have the rest of the day they heard of the oath.] Their negation of the oath is hafarah, and they must use that verb.

Minhat Hinuch also reminds us of marriages where hafarah cannot be effective. We do not usually think of minors as having da’at, the needed mental capacity for legal actions, so Minhat Hinuch was unsure whether a boy-husband could nullify his wife’s vows. The Torah also prohibits certain relationships, but if the prohibition is an aseh, an obligation to refrain from such a marriage, or a plain prohibition, the marriage is still effective, and the husband can nullify her vows. Where the relationship is prohibited at a karet or death penalty level, the marriage never starts and no right of vow nullification exists.

[A couple who marries wrongly “only” in violation of an obligation the Torah set up, or a plain prohibition, are married. They’re violating the Torah their whole marriage and halachah addresses them as a married couple.]

Torah Scholars’ Uprooting

The third, more common, locus of vow nullification is the hacham, the Torah scholar, an idea inferred from the second verse of our parshaBamidbar 30;3. A man who takes an oath may not treat it lightly, lo yahel devaro, he may not break his word, a phrasee Berachot 32a and other places took to imply there is someone with the ability to lead to this word being broken, by releasing the vow. Rambam knows the verse itself does not say what is being read into it, that this is a tradition of the laws of vows [more like an halachah le-Moshe mi-Sinai than an inference using the rules of inference; I note the difference because the former are ironclad elements of Jewish life, where the latter might be revisited by a later Sanhedrin].

Aruch HaShulhan Yoreh De’ah 228;1 gives contradictory indications on this question. He first says the idea of a Torah scholar uprooting the vow was a tradition of the Oral Law, sounding like Rambam, then says we derive it from lo yahel, more like a textual inference. I suspect he means the idea was known as a datum of the Oral Law, and the Sages later found this textual inference. If so, later courts might read the verse differently, as is their right, but could not change the underlying law, since that was a set tradition.

The Torah scholar releases the vow by finding an error in its original acceptance, and must use the verb of hatarah. If the father, husband, or hacham use the wrong verb, the vow stays in effect, because they are attempting to use a legal right not theirs.

Ramban says our mitzvah should be a prohibition of violating one’s oaths other than if released. Sefer Ha-Hinuch Mitzvah 406 notes Ramban’s demurral, and writes ve-divrei pi hacham hen, a phrase from Kohelet 10;12, the words of a wise man’s mouth are attractive (sit well with their hearers, says Rashi). I believe it his way of implying he prefers Ramban’s view, although he structures his book according to Rambam’s count [I think because Rambam has a whole count, Ramban only has glosses.]

Judging the Topic

Lo yahel only implies the possibility of releasing; the idea one expert could do it on his own comes from Moshe addressing himself to roshei ha-matot, the heads of the tribes, in the first verse of our parsha. The unnecessary detail here—Moshe always spoke to the heads of the tribes first, in all of Torah—implies they have special status in this area of law, Aruch HaShulhan lets us know, that they can nullify oaths.

A Torah scholar must qualify as an expert in the release of vows, which we take to mean he has a kind of ordination. Sefer Ha-Hinuch knew of a roundly rejected view that any great Torah scholar counts as a mumheh (I believe the general practice today is for no one to assume that about themselves, to always take two others with them to release the vow; many years ago, I was one of those other two). If no such scholar is around, three ordinary Jews may constitute a court to release the vow, on the condition one of them knows the laws despite not qualifying as a mumheh, a scholar of enough stature to release it on his own. The other two must understand the halachic issues when presented to them.

Aruch HaShulhan hinges the right of the three to nullify on their status as a court, with the power to coercively summon litigants, a right the single Torah scholar does not have. He seems to be saying nullification has an element of a court proceeding, so three must be effective if one is. Yet in paragraph 10, he records the ability to release oaths for relatives, at night, and while standing, none allowed for court proceedings.

It’s not quite a court, he says, and then moots the question of whether a woman can be part of this court to release oaths, since we usually accept women where we accept relatives. He ends up assuming not, mostly because he expects to have evidence if it was possible [he has sources either way, none of which determine the answer, so there seems room for further discussion.]

Sefer Ha-Hinuch says when one of these authorized bodies, a Torah scholar or a court of three, nullifies an oath in the way halachah prescribes, they (and the Jew who took the oath, I assume) have fulfilled this obligation. Should an unqualified individual, or two ordinary Jews, nullify an oath, they will have been mevatel this obligation, neglected to do what the Torah said (and the oath will still be in force).

The release itself comes when he/they say mutar lach, it is permitted to you; we customarily say it three times, although just once works. Rambam does not include the three times idea, Aruch HaShulhan taught, adding we say it three times to publicize it, like in the Mishnayot for the procedure of cutting the barley for the Omer, or with Kol Nidrei, says Aruch HaShulhan.

What Counts as an Oath to Fulfill

Sefer Ha-Hinuch points us back to his presentation of the prohibition of taking Gd’s Name in vain as background to the issue of oaths and use/misuse of speech, topics I leave for philosophical presentations. As a matter of law, Sefer Ha-Hinuch starts with the idea oaths can be enacted with kinuyim, words that came about as references to oaths, although they are not themselves oaths. Konam, konah, konas are each close enough to korban, sacrifice, to show us the person wishes this item to be as prohibited as a sacrifice.

Minhat Hinuch adds two wrinkles. While kinuyim create valid oaths, kinuyyei kinuyyim, words that remind us of the kinuy words, do not. On the other hand, yadayim mochichot, a reference to an oath clear enough to be sure an oath was intended, despite not using any specific words we see as an oath itself, can also obligate the person.

Oaths can also address other people. A person can put food in a common refrigerator and declare it prohibited on the other users of that refrigerator with the force of an oath. More extreme, one Jew can be madir hana’ah, can prohibit another Jew from gaining any benefit from him/her, with the force of an oath. Sefer Ha-Hinuch points out the oath would not preclude repaying a loan, nor teaching the banned person Oral Law, since neither of those are a monetary benefit (because people are allowed to pay to be taught Written Torah, there is a monetary value and the mudar hana’ah may not accept such a benefit).

Aruch HaShulhan points out the target of such an oath has no ability to nullify it, since s/he did not take the oath; if the government takes an oath, Jews have to fulfill it, since they cannot nullify it, to me a clear nod to the Russian government, a way of telling at least his censors that Jews intended to fulfill what the government imposed.

The Release by the Torah Scholar

The father may nullify any vow his daughter made, according to Rambam. Many rishonim disagreed, we learn from Minhat Hinuch, thought the father was similar to the husband in only being able to nullify nidrei inuy nefesh, oaths the young woman takes on that will cause her suffering. The husband can in addition nullify vows affecting the marital relationship.

The Torah scholar needs to find grounds to release a vow, a petach, a piece of information the person taking the vow had not realized at the time, but that would have led him/her to refrain had it been known. Nor does the new information have to have been true at the time, because pothin be-nolad, we are allowed to use a new circumstance as reason to retroactively regret a vow, as long as it is matzui, found frequently enough to be considered part of what the person taking the vow might have expected and neglected to take to mind.

Haratah, regretting ever having taken the oath, also justifies hatarahNedarim 22b tells us, codified in Yoreh De’ah 228;1. Sefer Ha-Hinuch cautions us this kind of regret must be regret over ever having sworn; should a person dislike the current ramifications of the oath but have enjoyed the oath until now, haratah will not be a serviceable path to release (because anyone seeking release obviously regrets it now; we need the person to regret it ever happened).

[Those who recite hatarat nedarim around Rosh HaShanah or Yom Kippur are relying on the idea their regret qualifies as fully retroactive, they regret ever having taken the vow. While earlier, we said the release can be done standing, Aruch HaShulhan says that’s only for haratah, because there is not much investigation that has to be done; for finding a petah, the judges have to sit, because more thought has to be invested in finding an accurate petah.]

Sefer Ha-Hinuch is sure the release of vows only becomes a possibility if there is some mitzvah need in its release, such as making peace in a marriage or a friendship.

Leniencies and Limits in Oath-Taking

Closing his list of laws, Sefer Ha-Hinuch points out some paths to avoid the dangers of oaths. An oath can be retracted toch kedei dibbur, in a very brief window after saying it; a Jew can issue a caveat ahead of time (probably the source of our Kol Nidrei declaration at the outset of Yom Kippur); and in interpreting oaths, we take the least stringent interpretation possible.

And our time is up; thanks for joining us for some but not all of the laws of abrogating/releasing vows, an obligation or prohibition of the Torah.

About Gidon Rothstein

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