QUESTION: The Gemara discusses whether the husband's Hafarah (annulment) of his wife's Neder annuls her Neder retroactively ("Meikar Akar") or merely repeals it for the future, from now on ("Meigiz Gayiz"). The Gemara attempts to prove that his Hafarah is "Meigiz Gayiz" from the Mishnah later (24a). The Mishnah states that when a husband annuls his wife's Nezirus after she has designated animals to bring as her Korbanos of Nazir Taharah, the Nezirus is annulled and the animal which she designated to be offered as a Korban Chatas must be left to die (because of the Halachah l'Moshe mi'Sinai of "Chatas she'Mesah Ba'alehah," a Chatas whose owner died, must be left to die). The Gemara proves from here that the husband's Hafarah is "Meigiz Gayiz"; since she is no longer a Nazir, it is as if the owner of the Korban "died," and thus her Chatas must be left to die. If the husband's Hafarah would be "Meikar Akar," the Chatas should become Chulin retroactively.

The Gemara answers that this Mishnah's statement is not valid proof that Hafarah is "Meigiz Gayiz." Even if the Hafarah is "Meikar Akar" and uproots the Neder retroactively, the Korban Chatas remains Kadosh (and must be left to die).

Why, though, does the animal remain Kadosh if the woman retroactively was never a Nazir?

The Gemara proceeds to answer this question. There are, however, two different Girsa'os in the Gemara's explanation of its answer (see TOSFOS DH v'Hainu, and 22a, DH Ha Mani). According to one Girsa, the Chatas is Kadosh because the woman needs atonement (Kaparah) for her initial acceptance of Nezirus and to refrain from wine (until the time of the husband's Hafarah), or because of Rebbi Elazar ha'Kapar's principle that one who abstains from wine is a sinner. Therefore, the Chatas remains Kadosh even after the husband uproots her oath of Nezirus. According to the other Girsa, although the woman does not need atonement, since she consecrated the animal as a Chatas it does not become Chulin.

What is the logic behind the Gemara's conclusion, according to both Girsa'os? According to the second Girsa, if a person who is not a Nazir consecrates an animal as a Chatas Nazir, the animal certainly does not become Kadosh. Why should the woman's act of consecration of the animal as a Chatas Nazir be effective if, retroactively, she was never a Nazir?

According to the first Girsa, the Gemara's answer is also difficult to understand. Why should Rebbi Elazar ha'Kapar's principle obligate the woman to bring a Chatas Nazir? If a person who is not a Nazir refrains from wine for a month, he does not become obligated to bring a Chatas! Since, retroactively, the woman was never a Nazir, why should Rebbi Elazar ha'Kapar's principle require her to bring a Chatas?

One might answer this question by saying that the woman's very acceptance of Nezirus is the sin. Even if the husband retroactively removes her obligation to observe the Nezirus, she still sinned when she attempted to make herself a Nazir (see the Gemara on 23a which says that one who attempts to sin "needs Selichah v'Kaparah"). However, this assertion seems to be contradicted by the Gemara later (31b). If a woman made herself a Nazir, designated Korbanos, and then had a Chacham annul her Nezirus, her Korban is rendered a Hekdesh Ta'us (a Hekdesh made in error) and the animal reverts to Chulin! Apparently, neither Rebbi Elazar ha'Kapar's principle nor the logic of the other Girsa of the Gemara applies in the case of Hataras Chacham. Why, then, does it apply to Hafarah of the husband if Hafarah, like the Hatarah of a Chacham, also uproots the oath of Nezirus?

TOSFOS (31b, DH Amru Lahem) asks this question. He suggests first that the Gemara there follows the opinion of the Rabanan and not the opinion of Rebbi Elazar ha'Kapar. (This suggestion does not answer the question on the second Girsa of the Gemara here.) Tosfos adds that even if the Gemara there follows the view of Rebbi Elazar ha'Kapar, there is a difference between Hafarah and Hatarah. When Hatarah is used to annul a Neder, it makes the Neder as though it never took effect, even for a moment. In contrast, when Hafarah is used to annul a Neder, "the Neder took effect for one moment, since we find that the husband may do Hafarah without resorting to Charatah and making the Neder a Neder Ta'us." What do these words of Tosfos mean? How did the Neder take effect for one moment if the husband's Hafarah, like Hatarah, annuls the Neder retroactively?

A similar question may be asked on the ruling of the Gemara later (22a) with regard to a Nazir Tamei. The Gemara cites a Beraisa which states that if a woman accepts Nezirus, becomes Tamei, and then her husband annuls her Nezirus, she must bring a Chatas ha'Of but not an Olas ha'Of. The Gemara explains that the Beraisa maintains that the husband's Hafarah is "Meikar Akar," and that is why she does not bring an Olas ha'Of. The reason she brings a Chatas ha'Of is Rebbi Elazar ha'Kapar's principle. Why does the Gemara there apply Rebbi Elazar ha'Kapar's principle even when the Nezirus is removed retroactively? Why should it apply if the person retroactively was never a Nazir?

Moreover, the Gemara (beginning of 22a) cites Rami bar Chama who is in doubt about the law in the case of a person who makes a Neder in which he is "Matfis" to an object which was originally forbidden but which now is permitted. Does the person intend to be "Matfis" to the present state of the object (and his Neder does not take effect) or to the original state of the object (and his Neder takes effect)? Mar Zutra explains that a person intends to be "Matfis" to the original state of the object, and thus when a person is "Matfis" to the woman's Nezirus and afterwards her husband annuls her Nezirus, he remains a Nazir -- even if the Hafarah uproots the Nezirus retroactively -- since he was "Matfis" to the original state of Nezirus, prior to the Hafarah. This is the opinion of the "Yesh Mefarshim" in TOSFOS (DH Mar Zutra). The Gemara there, too, clearly indicates that even when the husband uproots the Nezirus retroactively with his Hafarah, the woman is considered to have been a Nazir originally (and thus the second person remains a Nazir). Why is she considered to have been a Nazir if the Nezirus is uprooted retroactively? After all, in the case of a Nezirus uprooted by a Chacham (20b), one who is "Matfis" to the Nezirus is not obligated to observe his oath.

TOSFOS asks this question on the opinion of the "Yesh Mefarshim" and answers ("v'Dochek") that since the Chacham's Hatarah is based on a "Pesach," his Hatarah transforms the Neder into a Neder Ta'us, and thus nothing remains of it. In contrast, a husband annuls his wife's Neder without a "Pesach." He annuls her Neder based on the authority granted to him by the Gezeiras ha'Kasuv which gives him the right of Hafarah. Therefore, even if his Hafarah uproots the Neder retroactively, for certain matters it is considered as though some element of the Neder remains.

What does Tosfos mean? How can Hafarah both retroactively uproot a Neder and, at the same time, not uproot the Neder for certain matters?

(a) The BEIS HA'LEVI (1:45) explains that when the Gemara suggests that the husband's Hafarah is "Meikar Akar," it does not mean that he uproots his wife's Nezirus retroactively from its inception. Rather, it means that he uproots it retroactively from a moment after the Nezirus took effect. He does not have the ability to uproot it entirely retroactively, even from before it took effect. This is why Mar Zutra says that when one is "Matfis" to the first moment of the woman's Nezirus even after the husband has done Hafarah, his Nezirus is valid and binding. This also might be the intention of Tosfos (31b); the Nezirus took effect literally for one moment, and therefore Rebbi Elazar ha'Kapar's principle obligates her to bring a Korban.

However, this does not explain the Gemara according to the other Girsa, which states that once the woman has consecrated the animal the Hekdesh cannot be removed, even without the principle of Rebbi Elazar ha'Kapar. Why should the animal remain Hekdesh if it was consecrated long after the first moment of Nezirus?

(b) The BRISKER RAV (in CHIDUSHEI HA'GRIZ, end of Hilchos Nezirus) explains that even if the Hafarah uproots the Neder retroactively, it uproots it retroactively only for matters which pertain to the woman herself, but not for secondary consequences of the Nezirus which are not directly related to her. (See RAMBAM in Perush ha'Mishnayos, beginning of third Perek.)

Accordingly, with regard to Malkus, if the woman consumes wine before the husband annuls her Nezirus, his Hafarah removes the Neder retroactively and she does not receive Malkus. Similarly, the person who was "Matfis" to her Nezirus does not become a Nazir if he is not "Matfis" to her original state (as the Gemara assumes prior to Mar Zutra's statement), since the second person's Nezirus stems directly from her Nezirus. However, the Korban which she designated remains Kadosh. (See CHIDUSHEI RABEINU CHAIM HA'LEVI, Hilchos Ishus, who suggests a similar logic with regard to Mi'un.) It is not clear, however, what exactly is considered an integral part of the Nezirus and what is considered an offshoot of the Nezirus.

(c) Perhaps the reason for the difference between Hatarah and Hafarah may be explained as follows. In the case of Hatarah, when the Chacham annuls the Neder the operative factor which removes the Neder is inherent in the Neder itself. The Neder was a "Ta'us," an error, and therefore it does not take effect. Since the factor of "Ta'us" existed at the time the Neder was pronounced, the Hatarah works fully retroactively. In contrast, the woman's Neder contains nothing that should cause its annulment. The factor which annuls the Neder retroactively is the act of Hafarah itself. (Although the Gemara says that "Ishah Noderes Al Da'as Ba'alah," the Rishonim explain that this is only a "Taima d'Kra"; see RAN, end of Nedarim 73b.) Although the Neder is removed retroactively, it is considered to have existed until a certain point in time, and only after that point was it retroactively removed. (This is the way HA'GAON RAV YISRAEL ZEV GUSTMAN zt'l defines the concept of "mi'Kan ul'Haba l'Mafrei'a.") This may also be the intention of Tosfos (on 22a and 31b) when he differentiates between Hataras Chacham and Hafaras ha'Ba'al.

According to this understanding, it is clear that even after Hafarah, Rebbi Elazar ha'Kapar's principle gives the woman the status of a sinner, since until the moment of Hafarah she actually observed a full-fledged Nezirus. Her Nezirus is considered to have been uprooted retroactively only from the moment of Hafarah. Similarly, even without the principle of Rebbi Elazar ha'Kapar, it is possible that the Korban Chatas which the woman designated before Hafarah should be considered a "Chatas she'Mesah Ba'alehah," because the removal of its Kedushah did not come about through an error ("Ta'us") in the original statement (if it had, it retroactively would never have been a Chatas). Rather, it actually was a Chatas until a certain point, and then the Kedushah was removed from it. This removal of Kedushah of a Chatas -- which invalidates the animal from being offered -- is similar to the death of the owner of a Chatas which invalidates the Chatas from being offered, and therefore it is included in the Halachah l'Moshe mi'Sinai of "Chata'os Mesos."

Similarly, Mar Zutra -- who says that a person is "Matfis" to the woman's original state before the Hafarah -- does not mean that some element of her Nezirus remains after the Hafarah. Rather, he means that the person is "Matfis" to the time period before the Hafarah, during which she was a full-fledged Nazir. Hatarah, in contrast, retroactively removes the Nezirus completely so that even before the Hatarah the Neder was a "Ta'us" and the Nezirus never took effect. The Chacham, through Hatarah, reveals the truth -- that the Neder was a "Ta'us" all along. (A similar definition of "mi'Kan ul'Haba" is presented by the KESEF MISHNEH and LECHEM MISHNEH, Hilchos Nedarim 13:2, according to the opinion of "Meigiz Gayiz." See Insights to Nedarim 78:1.)

It should be noted that the ROSH in Nedarim (52a) cites the Yerushalmi which states that even the Hatarah of a Chacham works "mi'Kan ul'Haba l'Mafrei'a." The Rosh may follow the first answer of Tosfos (31b) in which Tosfos does not distinguish between Hatarah and Hafarah with regard to how each one removes the Neder retroactively.