Siman 205 — Halakha lema'asse: what does not bind, and what must nonetheless be done

The ruling of the siman line by line, with the source of each verdict — and three points the sources leave open

יורה דעה · סימן ר״ה

דִּין הָאוֹסֵר דָּבָר עָלָיו בְּאִסּוּר תּוֹרָה

⚖️ Halakha lema'asse · למעשה

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This level gives the line of the ruling: for each utterance the siman envisages, what binds, what does not, what must be done anyway, and what remains disputed. Siman 205 is peculiar in saying in the same sentence “nothing took hold” and “go to a חכם” — all the more reason for the practical conclusion to belong to the Rav.

Subject : Siman 205 — Halakha lema'asse: what does not bind, and what must nonetheless be done
Source : שולחן ערוך יורה דעה סימן ר״ה

Compilation : הרב יוסף חיים סממה
DAAT · daattorah.com

📑 Plan of study

1. What this level is, and what it is not

2. The rule that decides: what one may attach to

3. Seif א — attaching to a Torah prohibition

4. The שאלה of the עם הארץ: for whom, why, and how far

5. The procedure: פתח and not חרטה

6. Seif ב — the wine, the bread, and the word of penalty

7. The ruling table of the siman

8. What remains open, and what the sources do not give

1. What this level is, and what it is not

This level sets out the ruling as it is read in the sources of the siman — the Mehaber, the Rama's gloss, the Shach, the Taz, the Baer Hetev, the Pitchei Teshuva, the Nekudot HaKesef and the Rambam. It does not replace a Rav. And this siman has a peculiarity that must be said at once: it teaches both that the word bound nothing and that one must nevertheless go to a חכם. No one can decide alone which case he is in.

2. The rule that decides: what one may attach to

Ruling. The anchor must be a status that a man's word could install upon a thing. The קרבן can be; pork, נבלה, the idol, ערלה, כלאי הכרם, one's mother and sister cannot. This is the Rambam's rule, which the Shach copies out in full at ס״ק א and the Baer Hetev takes up at ס״ק א.

3. Seif א — attaching to a Torah prohibition

Ruling. “These fruits are to me like the flesh of a pig”, “like an idolatrous cult”, “like נבלות וטריפות” — and, said to his wife, “you are to me like my mother, like my sister, like ערלה, like כלאי הכרם”: all this is permitted, and there is no נדר here. The Taz gives the reason in one sentence.

An important reservation. The Pitchei Teshuva reports, in the Ralbach's name, that if the man said “you are forbidden to me like my mother” — with the word “forbidden” — it would be a true נדר. He at once notes that the Tashbetz left the matter in צ״ע. We do not decide: we note that a nuance of formulation changes the verdict here, and that this is one more reason to bring the case to the Rav.

4. The שאלה of the עם הארץ: for whom, why, and how far

Ruling. The Mehaber writes that an עם הארץ needs a שאלה, and that the ground is not his vow — there is none — but the example: כדי שלא ינהגו קלות ראש בנדרים. The Rama adds two י״א: (1) nowadays all are judged as עמי הארץ, most not being בני תורה; (2) but even for an עם הארץ, the שאלה is required only where he forbade his wife, not for other vows.

And here the Acharonim divide, and it changes practice. The Bach holds that nowadays all are עמי הארץ for every vow, and therefore that a שאלה is required in every case. The Shach (ס״ק ד) replies that the Rama's words — the second י״א — are primary, the sugya proving it, and such being the view of the Rosh, the Ran and Rabbeinu Yeruham. The Baer Hetev (ס״ק ג) transmits both and puts forward the Shach's conclusion.

Exception. One who was compelled (נאנס) to pronounce such a formulation is not subject to the requirement: the rabbis were not stringent to that point. The Shach reports it from the Rashbatz via the Beit Yosef, and the Baer Hetev takes it up at ס״ק ב.

5. The procedure: פתח and not חרטה

Ruling. The seif requires that one be stringent with him: חרטה does not suffice for him, one must open a פתח for him from another place. The Shach specifies that this holds even if he repents from the vow's origin. And the Ran adds a limit: that פתח is not opened for him by his mother's honour.

Conduct. This requirement is not something one can “do at home”. Finding a פתח is an act of a חכם: it needs someone who knows the halakha of נדרים, who knows what a פתח can and cannot be, and who conducts the procedure. That is why the conclusion of this whole level holds in one line: one goes to a Rav.

6. Seif ב — the wine, the bread, and the word of penalty

Ruling, in three moments. (1) “Let my wine be יין נסך and my bread פת כותים”, said plainly: nothing took hold — there is no דבר הנדור. The Shach specifies that he must have explicitly meant the wine of the cult (ס״ק ו). (2) Said בדרך קנס, and he transgressed: יש אוסרים ויש מתירים — the Shulchan Arukh does not decide. (3) The Rama: even then, for an עם הארץ, one releases — and the Shach adds that nowadays all are such, and that the prohibition is practised.

This last sentence of the Shach deserves a pause, for it is the clearest practical conclusion in the whole siman: one releases by a שאלה, and — in the meantime — the prohibition is practised. In other words: one who has pronounced such a formulation does not behave as if nothing had happened.

And the community. The Rama expressly distinguishes: all this holds for an individual who takes it upon himself. רבים may, in the time of the Sanhedrin, so decree against rebels and transgressors, and what they decree stands. This is no longer a question of נדר but of communal power; the Rama relies on a responsum of the Rashba and refers to siman 229.

7. The ruling table of the siman

8. What remains open, and what the sources do not give

The words	Verdict	Source of the verdict
“these fruits are to me like the flesh of a pig / like an idolatrous cult / like נבלות וטריפות”	Does not bind	שו״ע יו״ד ר״ה:א · ט״ז ס״ק א · באר היטב ס״ק א
“you are to me like my mother / like my sister / like ערלה / like כלאי הכרם”	Does not bind	שו״ע יו״ד ר״ה:א · רמב״ם הלכות נדרים א׳:ל
“you are forbidden to me like my mother”	Disputed — a true נדר for the Ralbach; צ״ע for the Tashbetz	פתחי תשובה יו״ד ר״ה ס״ק א
The same, said by an עם הארץ (and the Rama: all, nowadays)	שאלה required — with a פתח, not a חרטה	שו״ע יו״ד ר״ה:א · רמ״א יו״ד ר״ה:א · ש״ך ס״ק ג
The extent of this requirement today	Disputed — all vows (Bach) · only the wife (Shach)	ש״ך ס״ק ד · באר היטב ס״ק ג
One who was compelled (אונס)	No שאלה	ש״ך ס״ק ב · באר היטב ס״ק ב
“let my wine be יין נסך”, said plainly	Does not bind	שו״ע יו״ד ר״ה:ב · ש״ך ס״ק ז, ט · ט״ז ס״ק ג
The same, said בדרך קנס, and he transgressed	Disputed — יש אוסרים (Rivash) · יש מתירים (Rosh)	שו״ע יו״ד ר״ה:ב · ש״ך ס״ק ח, ט · ט״ז ס״ק ד
The same, for an עם הארץ	One releases, and the prohibition is practised meanwhile	רמ״א יו״ד ר״ה:ב · ש״ך ס״ק י · ט״ז ס״ק ה · באר היטב ס״ק ה
A community decreeing, in the time of the Sanhedrin	Stands	רמ״א יו״ד ר״ה:ב, after a responsum of the Rashba

Three points remain open, and we do not close them. (1) The extent of the requirement of a שאלה today: the Bach against the Shach. (2) The utterance said בדרך קנס: the Shulchan Arukh itself writes יש אוסרים ויש מתירים without concluding. (3) The formulation “you are forbidden to me like my mother”: the Ralbach on one side, the Tashbetz's צ״ע on the other.

The Nekudot HaKesef. On this siman they do exist — and they have but a single entry, on the Taz's ס״ק ד: there the Shach recalls that the Bach had raised the same difficulty before him. They therefore decide nothing in the siman, and we do not make them say more. It should also be noted honestly that their internal reference designates a ס״ק number that does not coincide with the one under which the Bach's discussion is read in our edition of the Shach.

Conduct, finally. This siman teaches that certain utterances bind nothing — and it teaches in the same sentence that one must nonetheless go to a חכם. It would therefore run against the siman to draw a permission from it oneself. If one thinks one has pronounced one of these formulations, one does not decide: one goes to a Rav, who will say whether release is called for and how.