- Jewish Laws and Thoughts
- Swears and Oaths
Question #1: Can performing a mitzvah be a liability?
Question #2: What is hataras nedarim?
Question #3: How does Kol Nidrei work?
Yankel asked me the following question: “When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”
This week we will continue last week’s article on the topic of vows, oaths, and pledges. As we mentioned there, someone who recites a vow, an oath or a pledge is required to fulfill it (see Bamidbar 30:3). By virtue of the vow, oath or pledge, he now has a Torah obligation to observe something that he is otherwise not required to do. We also discovered that, for reasons discussed in last week’s article, one should be careful not to make vows or pledges. Here is a review of the six main ways to create an obligation upon oneself, either to fulfill something or to abstain from doing something:
(1) Nedarim – vows
(2) Shevuos – oaths
(3) Kabbalas mitzvah, declaring that one will perform a good deed
(4) Pledges to tzedakah, intending to donate charity
(5) Stringencies – performing a halachic chumra
(6) Doing something three times
The details of how these various activities become halachic responsibilities vary from category to category, and the outline of these rules was discussed in last week’s article. There we were taught that to avoid creating these commitments, someone expressing intent to perform a good deed should be careful to say that he/she is acting bli neder, without accepting it as an obligation. Similarly, someone who begins practicing a halachic hiddur should say, or at least think, that he is not accepting it as an obligation.
In addition, we presented last week how to release ourselves from vows and pledges via aprocess called hataras nedarim, which removes the continuing obligation to fulfill the vow. We noted that someone who violated his vow prior to performing hataras nedarim has sinned and is required to perform teshuvah for his or her infraction. In the case of a pledge to tzedakah¸ there is an additional requirement to pay it as soon as possible; otherwise, someone might violate the prohibition of bal te'acheir leshalmo – “Do not delay paying it” (Devarim 23:22).
If one contemplates making a vow or an oath, at what point has an oath been created? In most instances, thinking about making an oath or vow, or even deciding to do so without expressing it, does not create an oath. The vow or oath is created only by enunciating it.
If someone states the words of an oath or vow, but has no intention to accept an obligation upon himself, no oath or vow has been created. This is referred to by the Gemara as piv velibo shavim – his mouth and his heart are equal. In other words, his intent and his statement are both required in order to create an oath or vow. If he did not intend to create an oath or vow, the words alone do not create one because libo, his heart, meaning, his intention, was not to make an oath or vow.
What is the halacha if he wanted to make an oath or vow and began expressing it, but said something that is not a correct formula for either an oath or a vow? The halacha is that there are times when this is not a valid oath or vow, because what he said is insufficient to qualify, and there are other times when it is valid. Although the details are more complex than we will deal with in this article, we will discuss two instances in which the oath or vow is valid and must be kept.
- Yad nedarim – when the statement is incomplete. The word yad means a hand, but also can mean a handle. In this instance, it means that, although the vow was not fully expressed, enough of it was said to understand the person’s intent. He provided a “handle” with which the verbalization of the vow can be “held.” For example, if someone declared muderani mimcha, “I vow from you,” the person who states this is prohibited to talk to the other person until he has hataras nedarim performed (see Shulchan Aruch, Yoreh Deah 206:1).
- Nickname nedarim – when the neder is expressed in a colloquial fashion. The words themselves are not meaningful, but colloquially this is understood to be a neder. The halachic term used in the Mishnah for these nedarim is kinuyim, which means a nickname (Nedarim 2a). An example of this is someone declaring, “This loaf of bread is konam to me,” who is now prohibited to eat the loaf of bread.
The Gemara quotes a dispute between early amora’im why kinuyim are valid. According to one amora, this was an attempt by non-Jews to imitate Hebrew, but because of their native accents, the words ended up sounding very strange. Nevertheless, once these words became accepted to mean what was intended, they will now create an oath or vow. In other words, language in general is what people mean and is conventionally accepted. Every spoken language is constantly in flux, and, as people use the language, dialects and colloquialisms develop. These are all acceptable uses of the language. For our halachic purposes, these peculiar usages for expressions, such as “oath,” “vow” and the like, are considered part of the language – and, therefore, the oath or vow was stated. According to this approach, the word konam was originally a slang word of non-Jews meaning korban.
The other approach of the Gemara explains that the terms called kiyunim by the Mishnah were deliberate creations of Chazal. Chazal realized that since the posuk refers to a korban laShem, the most common way someone will refer to a vow not to use an item will be to say, “this item is a korban for G-d,” meaning that the item may not be used just as a korban may not be used. When doing so, the person may use Hashem’s name as we express it in Hebrew. Although halachically doing this it is not considered taking Hashem’s name in vain, it can easily lead to someone using Hashem’s name inappropriately and violating the Torah prohibition of lo sisa es sheim Hashem Elokecha lashav (Shemos 20:7). In order to avoid and discourage this, Chazal instituted a different nomenclature, specifically for the purpose of oaths and vows, whose purpose is to discourage people from using Hashem’s name without purpose.
According to both approaches that I have presented, the statement, “This loaf of bread is konam to me” means that he has made a vow that the loaf of bread is prohibited for him to eat, just as he is prohibited from eating a korban.
May I appoint an agent to perform hataras nedarim for me?
No, one must ask the beis din directly to release himself from vows (Shulchan Aruch, Yoreh Deah 228:16). If the members of the beis din do not understand the language that the nodeir speaks, they may use an interpreter to facilitate communication (Rema ad loc.).
There is one instance in which someone may make another person an agent to release nedarim. Sometimes, a husband may act as an agent for his wife to annul her nedarim. If a husband finds three people already gathered together – for example, they were performing hataras nedarim for him or for someone else – he may act as his wife's agent to ask them to release her neder at the same time, if she appointed him to do so (Shulchan Aruch, Yoreh Deah 234:56). However, he may not gather three people together to become a beis din for the purpose of hataras nedarim.
How does a woman perform hataras nedarim?
A woman who has a specific oath, vow, or practice from which she wishes release should arrange to perform hataras nedarim with a talmid chacham or beis din. As mentioned above, if she is married, she may ask her husband to be her agent to perform hataras nedarim, according to the instructions I wrote above (Shulchan Aruch, Yoreh Deah 234:56).
Hataras nedarim on erev Rosh Hashanah
At this point, we can address Yankel's question:
“When I attended a Gemara shiur on Nedarim, I got the impression that performing hataras nedarim requires having a talmid chacham deliberate over the specific neder, until he concludes that there are grounds to release the neder. This seems to have no relationship to what we do on Erev Rosh Hashanah.”
Indeed, Yankel's question is valid: hataras nedarim requires mentioning specifically the vow that one desires to release, and the beis din must deliberate whether this particular neder can be revoked. Thus, it is unclear whether the generic hataras nedarim recited on Erev Rosh Hashanah, indeed, releases one from any commitments. The proper thing to do is to mention to an appropriate beis din every specific neder or practice for which one seeks annulment. What, then, is the purpose of hataras nedarim on Erev Rosh Hashanah.
The Gemara mentions that a declaration at the beginning of the year that all vows one will make in the course of the year are invalid has some value. This declaration is called a mesiras moda’ah. The Gemara concludes that this statement has only limited value, and one should not intentionally rely upon it. In point of fact, the standard hataras nedarim procedure performed on Erev Rosh Hashanah includes a mesiras moda’ah.
The rishonim dispute whether the purpose of Kol Nidrei that we recite at the beginning of our Yom Kippur service is also meant to be a form of hataras nedarim, performed at a time when virtually everyone is in shul to include the maximum number of people, or whether it is a mesiras modaah. It is for this reason that there are three different versions of the text: one that has Kol Nidrei refer to the past year's declarations, which means that it is hataras nedarim; one that refers to the coming year's declarations, which means that it is a mesiras modaah; and one that mentions both the past and the future years, which means that it is meant to accomplish both. From my experience, most congregations today follow the third approach.
There is another interesting difference in halachic practice that results from this last dispute: Should the congregation recite Kol Nidrei together with the chazzan? If it is a mesiras modaah, then one must declare it oneself, and each individual should read the Kol Nidrei together with the chazzan. On the other hand, if it is a form of hataras nedarim, then it should be declared by the chazzan, alone, accompanied by the two honored men alongside him who hold the sifrei Torah, so that they form a beis din that is annulling everyone's nedarim. The Mishnah Berurah (619: 2) rules that we should consider it a mesiras modaah, and therefore concludes that each individual should recite Kol Nidrei softly along with the chazzan.
Now that we realize how serious our speech can be, we should reflect not only on the ideas of nedarim, but also on all the ramifications of our speech. As the pasuk (Mishlei 18:21) states, Ma’vess ve’chayim be’yad lashon – Life and death are controlled by our tongues!
This Shiur is published also at Rabbi Kaganof's site