י״ט באב ה׳תשע״ה (August 4, 2015)

Nedarim 72a-b: Divorce and Vows

On yesterday’s daf we learned that the Gemara is unsure as to whether divorce effectively expresses the husband’s desire to ratify the neder made by his wife. The Gemara on our daf brings a series of statements in an attempt to clarify this issue. For example, the Gemara points out that there is a straightforward Mishna later on in Massekhet Nedarim (89a) that teaches that when a woman takes a vow, gets divorced and then remarries all on the same day, her husband cannot nullify the vow any longer. This would seem to indicate that the act of divorce is considered to be an expression of approval on the part of the husband. The Gemara rejects this conclusion by pointing out that the case on daf 89a is dealing with a case of a woman who was divorced following nisu’in – a full, complete marriage – while the case under discussion in our Gemara is a marriage that has only reached a stage of eirusinbetrothal that begins a marital relationship. In the case of a full marriage, the husband cannot nullify vows that were taken prior to the completion of the marriage, while a husband can do so when the couple is still in a relationship of eirusin.

In conclusion, the Gemara does not successfully find a source text to answer its original question about the effect of divorce in our case. Because of this, most of the rishonim perceived the issue as being left as a safek – questionable – and following the dictum safek de’oraita le-humra, that questionable issues on a Torah level must be treated stringently, rule that the husband will not be able to nullify the vow should they remarry later in the day.

The Rashba disagrees and argues that a statement made by Shmuel earlier in the Gemara clearly shows that he believes that divorce should be treated like silence, and that it does not affect the neder at all. Thus, should the couple remarry, the husband would be able to nullify his wife’s vow. The Rashba explains that the Gemara knew throughout that this was Shmuel’s opinion, and was simply searching for support from a Mishna or a baraita. Even though such support was not found, still we can accept Shmuel’s ruling on this issue.

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