When Halachah and the Torah Collide
And Yaakov made a vow saying: If the L-rd will be with me and guard me on this path [on] which I travel and give me bread to eat and clothing to wear, and I return in peace to my father’s home, and He will be to me a L-rd, [then] this stone that I placed as a monument will be for me as a house of the L-rd and all that You will give me I will tithe to You. (Sefer Beresheit 29:20-22)
Much of halachah – Jewish law – is derived from the Written Torah. In some instances, a law’s Biblical source is obvious. In other instances, the source may not be as easily identified. However, sometimes a law seems to contradict the Written Torah. An example is found in Parshat VaYetze. Let’s study this example and how it is addressed by our Sages.
II. Yaakov’s vow
Yaakov leaves his parents’ home. He is fleeing from his brother Esav. Also, his father has sent him to Charan to seek a wife. He has a dream. He sees a ladder reaching up to heaven. Angels are ascending and descending the ladder. Hashem stands nearby. He assures Yaakov that his descendants will be numerous. They will possess the Land of Cana’an. Everyone will recognize that they are blessed. Also, Hashem tells Yaakov that He will guard him and return him to the Land of Cana’an. In response to this vision, Yaakov takes a vow. In the place he slept, he will establish a house dedicated to the service of Hashem. Also, he will tithe all he acquires.
III. Vows are discouraged
Was it proper for Yaakov to make a vow? The Talmud discourages vows. Rambam – Maimonides – summarizes the position of the Sages:
“One who takes vows to perfect one’s attitudes and behaviors – this is proper and praiseworthy. For example, in the case of one who is a glutton and prohibits upon him/herself meat for a year or two years… Concerning these and similar vows, our Sages said: Vows are a fence for restraint.
Although they are [an expression of service to Hashem] one should not make many vows that prohibit and not become accustomed to them. Rather one should refrain from those things from which one should refrain without [taking] a vow. Our Sages said: Anyone who takes a vow is compared to one who builds an [unauthorized] altar. If one violates [the prohibition against taking vows] and takes a vow, one should ask [the court for a release. This is] so that it is not a stumbling block before him.” (Rambam, Mishne Torah, Hilchot Nedarim 13:23-25)
IV. A clarification
Rambam’s comments need clarification. He explains that vows that impose needed restraint are appropriate and praiseworthy. He cites as an example a person who struggles to control one’s appetite. The person takes a vow to not eat meat for a time. Then, Rambam asserts that even these vows should not be frequently taken. Furthermore, the Sages discouraged one from taking vows because of the danger that they may be transgressed. How can this comment be reconciled with his earlier statement that vows that impose needed restraint are proper and praiseworthy?
When Rambam describes vows imposed to provide needed restraint as praiseworthy, he is contrasting these vows to those that do not serve a meaningful purpose. Consider a person who is angry with another and takes a vow to have nothing to do with him or her. This vow is frivolous. Rambam’s position is that the basic content of the vow that imposes needed restraint is appropriate. Inherently, the vow is proper. However, because it may be violated, the vow should be avoided. The problem with the vow is not its content, only that it is potentially a stumbling block.
According to Rambam, there are two elements to the Torah’s attitude toward vows. It recognizes that vows can be a means of imposing needed restraint upon oneself. However, if one takes a vow, one must be faithful to one’s word. Violating a vow is a serious transgression. Therefore, it is best to avoid vows – even those that inherently are proper.
V. Permissible vows
This discussion suggests that Yaakov should not have taken his vow. Halachah discourages vows but the Torah tells us that Yaakov – one of our righteous patriarchs – took a vow. How can the position of the Sages which is codified into normative halachah be reconciled with the text of the Torah?
Midrash Rabbah addresses this question. It comments that from Yaakov we learn that we should take vows in times of affliction or danger. The Tosefot explain that when one is confronted with danger or an affliction, the prohibition against taking vows is set aside. Yaakov was in flight from his brother and traveling to a foreign strange land. His life and welfare were in jeopardy. In his circumstance, a vow was appropriate., The midrash is explaining that halachah is not inconsistent with Yaakov’s behavior. His situation is an exception to the general rule that vows should be avoided. Why was Yaakov’s vow an appropriate response to danger? Why, in general, are vows a fitting response to danger and affliction?
VI. Responding to tragedy and danger
Rambam explains that when the Jewish people are confronted by danger and affliction, we must call out to Hashem. Turning to Hashem acknowledges that our suffering is not simply a happenstance occurrence. It is a response to deficiencies in our behaviors. This recognition is the first step toward repentance. He adds that an individual who is suffering should also fast and petition Hashem in one’s prayers. In this comment and others, Rambam explains that personal tragedy and suffering should be a catalyst for reaching out to Hashem and for repentance.
VII. Paying forward
How does one engage in repentance at a time of suffering? One can identify righteous or praiseworthy behaviors and one can pledge oneself to adopt them. One can single-out unworthy behaviors that one should curtail or abandon. But at the moment the person is in danger or is suffering one may be unable to perform these actions. Neither may the opportunity presently exist to abandon negative behaviors.
Consider a person hospitalized with a serious illness. This person studies his behaviors and comes to some conclusions. He has sometimes spoken to his spouse disrespectfully. He has been stingy with charities or treated their representatives with condescension or even disdain. He decides that this illness should be a catalyst to repent from these behaviors. He will be more respectful of others and be more attentive to the dignity of those who are less fortunate. He will support charities more generously and more enthusiastically. These are meaningful commitments. But they concern actions that the person plans to adopt in the future. His repentance will become more complete when his commitments are transformed into actions and behaviors. But how can this person alter his behaviors while confined to the hospital?
A vow is a legally binding commitment to make these changes. It is more than a private internal pledge. By making a vow, one has determined one’s future behavior. One who takes a vow to share a specific percentage of one’s income, or a specific sum with charities, cannot disregard the pledge. One is bound to it. Making the vow is as close as one can come to carrying-out the behavior it describes without actually performing it. A vow is a form of “paying forward”.
Yaakov was leaving the Land of Cana’an. At that moment, he could not establish there a house dedicated to the service of Hashem. Also, he did not have the income to tithe. Instead, he made a vow. His vow bound him to these actions and behaviors. They would be performed in the future, but he predetermined through his vow that he must perform them.
VIII. Learning from contradictions
This discussion demonstrates that our Sages were very aware of apparent contradictions between normative halachic requirements and the Written Torah. They recognized that these contradictions require study. But their approach to addressing these contradictions is very important. They viewed these contradictions as learning opportunities. They recognized that an apparent contradiction reveals or communicates a message. In this instance, the contradiction reveals that sometimes vows are appropriate. Using Yaakov as an example, the Torah communicates that in his circumstance – when in danger – a vow is appropriate.
 Midrash Rabbah, Sefer Beresheit 70:1.
 Tosefot, Mesechet Chullin 2b.
 Is it permitted to make vows in these circumstances or is it recommended? The language of the Tosefot is ambiguous. There are two texts of Piskei Tosefot. One is that it is a mitzvah to make a vow at a time of trouble. The other is that it is permitted. Shulchan Aruch, Yoreh Dayah 203:5 rules that such vows are permitted. See note 6 below.
 Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Ta’aniot 1:1-3.
 Rabbaynu Moshe ben Maimon (Rambam / Maimonides) Mishne Torah, Hilchot Ta’aniot 1:9.
 See note 3 above. It is correct to characterize such vows as permitted or as a mitzvah. The vow is not specifically required. The requisite response to affliction and danger is prayer, fasting, and repentance. The vow is not, itself, a required response. It this sense, it is correct to characterize the vow as permitted. However, repentance is a required response at such times. The vow is an element of the process of repentance. Because of its association with repentance, it is appropriate to describe the vow as a mitzvah. As noted, the Tosefot characterize the vow as both required and as merely fitting. This is not an ambiguity. Both characterizations are accurate.