Is silence assent? TB Nedarim 72

Today’s daf TB Nedarim 72 tries to answer the question raised at the very bottom of yesterday’s daf. Let me set the stage. A man and a woman have only gone through the first stage marriage, erusin. This wife is a na'arah hameorsah (נַעֲרָה הַמְאוֹרָסָה); consequently, both her father and her arus, her husband, must dissolve the vow together. Even though they haven’t gone through the second stage of marriage, nesuin, to break the bonds of this marriage the husband has to divorce his wife officially with a get (גֶט), a bill of divorce. This na'arah hameorsah makes a vow and is divorced on the same day. What is the default position of the divorce concerning the vow? Should the divorce be considered a ratification of the vow or be considered inconsequential?

“A dilemma was raised before the Sages: Is a husband’s divorce of his wife after she took a vow considered like silence (שְׁתִיקָ), or is it considered like ratification of the vow (הֲקָמָה)?

“The Gemara asks: What is the difference between the two possibilities? In any case, he did not nullify her vow before the divorce, and once he has divorced her he can no longer do so. The Gemara answers: There is a difference in a case where she took a vow, and her husband heard the vow, and divorced her, and he remarried her on the same day. If the Master says that divorce is like silence, the husband can now nullify the vow for her, since it is the same day. But if the Master says that divorce is like ratification, he cannot nullify the vow for her, as he has ratified it by divorcing her.” (Sefaria.org translation)

The Gemara tries to answer what the default position of the divorce concerning the vow by quoting two mishnayot and one baraita. Each time the Gemara deflects these answers by showing that they may be understood differently. I’ll just share the last attempt.

“Come and hear a resolution of the dilemma from a mishna (89a): If she took a vow on that day, and he divorced her and remarried her on the same day, he cannot nullify her vow. Learn from the mishna that divorce is like ratification.

“The Gemara rejects this proof: Say that here, i.e., in the mishna cited, we are dealing with a married woman, and that is the reason that he cannot nullify the vow. It is not because it has been ratified by divorce but because the husband cannot nullify his wife’s vows that precede their marriage. The dilemma remains unresolved.” (Sefaria.org translation)

Because the Gemara never answers this question, the Ron in his commentary ד"ה לענין הלכה cites Ramaban and the Rashba to clarify the halakha. Ramban says since we are dealing with a doubt concerning a Torah law, we decide stringently. The na'arah hameorsah’s vow is ratified and neither the father nor any new husbands may dissolve it. Both Rambam and the Shulkhan Arukh poskin stringently too. Rashba explains why the Gemara doesn’t take into consideration Shmuel’s innovative understanding found on yesterday’s daf. He says that when the Gemara wants to answer a question it always uses a mishna or a baraita and never a statement by an amora. Since Shmuel is an amora; he is not used as a resolution of our question.