Resources for Nedarim 21

1.     The גמרא questions what the halacha is in a case where someone makes a נדר that he won’t get הנאה from something if he spends more than 1.002 shekels on an item and the seller likewise swears that he won’t get הנאה from something if he sells it for one penny less than 1.002 סלעים. Do we say that this is נדרי זירוזין and neither of them meant it or do we say that since they were so specific in their amounts (one פּשט in the ר"ן) or since they were so far away from each other on price (רא"ש’s פּש͏ט and one פּש͏ט in ר"ן) that they must have actually meant to make that נדר. The גמרא leaves it as a ספק. The ר"ן says that since it is a ספק דאורייתא we must be מחמיר. Theרמב"ם  in הלכות נדרים פּרק הל׳ ג only brings the משנה’s case but not the case of the “1.002 סלעים” case. The כסף משנה understands from this that since the רמב"ם  only quoted the משנה’s case as a היתר there must not be any היתר in the case of the “slightly more than a סלע” and it would be אסור. The אחיעזר in חלק ב סימן י"ט asks that even if this were true the רמב"ם  should have quoted it to let us know there is no מלקות in that case since it is only a ספק in the גמרא. The אחיעזר has a beautiful answer. He says that in reality, we usually do not consider what a person is thinking if their words contradict those thoughts. In other words, if you say to a lady הרי את מקודשת לי and later say you are joking, we will say דברים שבלב אינם דברים. The only reason our משנה is different is because we know no one means it when they say those words and its likeדברים שבלב כל אדם and an אומדנא דמוכח which we do take into account. In our case, however, we are not sure what he meant. Perhaps since he was so specific or because it was so far apart from the seller that he really meant it. If we are unsure what he meant, it becomes דברים שבלב again and the thoughts become irrelevant and that נדר is a ונדר וואדי.

2.     The גמרא says in the name of רב אסי that a חכם can only be מתיר the type of נדרים that are in our משנה. The גמרא explains that he holds אין פּותחין בחרטה. The ר"ן explains the concept of חרטה vs. פּתח as follows: חרטה means that you were super mad at the time you made the נדר and nothing would have changed your mind at that time. However, now that you are more calm you wish you never would have made the נדר. By contrast, a פּתח is where had you known a certain piece of information at the time you made the נדר you never would have made the נדר. According to רב אסי, חרטה is not a basis of היתר . The תשובת מהרי"ט in חלק ב סימן כ"ז quotes his father the מבי"ט saying an astounding חידוש: a נדר with a פּתח is really מותר מן התורה without a התרת חכם. It’s essentially a type of מקח טעות. It’s only a דין דרבנן that you need התרת חכם. The מהרי"ט asks that if this is true, then according to רב אסי who only allows התרה by a case of פּתח what is the case that the Torah is talking about that needs התרת חכם? The נתיבות המשפּט in סימן נ"ה אות א says that a נדר with a פּתח really shouldn’t need a התרת חכם but it’s a גזרת הכתוב that it is required.