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Gitin, 36

GITIN 36 - Marcia and Lee Weinblatt of New Jersey have dedicated this Daf in memory of Marcia's mother, Esther Friedman (Esther Chaya Raizel bat Gershom Eliezer) and father, Hyman Smulevitz (Chaim Yisochar ben Yaakov).


OPINIONS: The Gemara cites a Machlokes Tana'im regarding whether a Neder that was made in public ("Neder she'Hudar b'Rabim") can be repealed. The Gemara says that according to all opinions, a Neder that was made "Al Da'as Rabim" cannot be repealed.

What is the reason for why a Neder made "Al Da'as Rabim" cannot be repealed?

(a) The RAN and RABEINU KRESKAS explain that the opinion that does not allow annulment for a Neder that was made in public maintains that a Neder is strengthened when it is was made in front of a number of people (see earlier, 33b, and RAN, beginning of Nedarim 7b). The other opinion maintains that a Neder made in public does not become more severe, because the people who were present had nothing to do with the actual Neder itself, and therefore they cannot serve to strengthen the Neder. However, when a Neder was made with the *consent* of the public ("Al Da'as Rabim"), then the fact that a number of people were involved in the Neder *does* make the Neder stronger.

The Gemara later (46a) explains that a Neder is called "Hudar b'Rabim," made in public, only when it was made in front of at least three people. The Ran and Rabeinu Kreskas maintain, therefore, that a Neder that was made "Al Da'as Rabim" is more severe only when it was made with the consent ("Al Da'as") of at least three people. Since these people become involved in the Neder, the Neder becomes more severe.

The Gemara here continues that we do repeal a Neder made "Al Da'as Rabim" if it is necessary to do so in order to fulfill a Mitzvah. According to the Ran, the reason is because the importance of the Mitzvah overrides the severity of repealing the Neder. Even though the Gemara's example is the Mitzvah of teaching children, the same would apply to any Mitzvah.

(b) The RITVA (K'sav Yad) explains that when a Neder is made "Al Da'as Rabim," it can be repealed only with the consent of every person involved. Since we cannot be sure that all of the people involved want to be Matir the Neder, therefore it cannot be annulled. This also seems to be the opinion of TOSFOS (35b, DH Aval), who writes that if all of the people agree to be Matir the Neder, it is possible to be Matir it.

TOSFOS (beginning of 46b) asks that according to this reasoning, even if a Neder is made with the consent ("Al Da'as") of a single person, we should not be able to be Matir it until that person consents. Why, then, does the Gemara emphasize that a Neder is severe only when made "Al Da'as *Rabim*?" Tosfos answers that when a person makes a Neder "Al Da'as" a single person, he does not really mean to leave it in the hands of that person to decide whether he may repeal the Neder or not. However, when he makes it dependent upon the public, he submits himself to the decision of the public and he truly intends for the Neder to be dependent upon their will.

According to this reasoning, it seems that even if the Neder was made "Al Da'as" two people, it could be called "Al Da'as Rabim" and it cannot be repealed.

The Ritva adds that the Neder is irrevocable only when it is made *in the presence* of those people on whose will he made the Neder dependent. His reasoning seems to be that if the other persons never knew that the Neder was made, then we have no doubt that they certainly do not want to deny the person who made the Neder the right to repeal it. This seems to be the opinion of RASHI (DH Al Da'as Rabim) here, for he implies that the Rabim must be present, and in Shevuos (39a, according to the text of Rashi cited by the Rashba here), where he implies that even two people are considered a Rabim.

When the annulment of the Neder is necessary for the sake of the fulfillment of a Mitzvah, we are certain that the other people would not deny the one who made the Neder the right to repeal the Neder, since they want him to be able to fulfill the Mitzvah. Therefore, even a Neder made "Al Da'as Rabim" may be repealed.

(c) The RASHBA writes that in order to repeal a Neder that was made "Al Da'as Rabim," it is not only necessary that every one of the members of the public agree to allow the one who made the Neder to repeal it, but each one must also have Charatah, regret, that the Neder was ever made in the first place. Since it is impossible for every member of the Rabim to have the exact Charatah and to regret agreeing to the Neder for the exact same reason, the Chacham cannot be Matir the Neder since he may only be Matir a Neder based on a single Charatah.

For this reason, the Rashba agrees with Tosfos that even if a Neder is made "Al Da'as" two people, it is considered a "Neder Al Da'as Rabim."

The Rashba writes that the only time we permit the Hatarah of such a Neder is for a Mitzvah similar to the Mitzvah of teaching children, which the Gemara mentions. The Neder not to hire a certain teacher was made "Al Da'as" all of the parents of the children in the class. Since all of the parents had a personal involvement in that Neder, it is possible for all of them to regret having made the Neder for the same reason (i.e. so that their children will have a teacher who is very precise). Only for such a Mitzvah do we permit a Neder that was made "Al Da'as Rabim" to be repealed.


QUESTION; The Gemara cites two verses to prove that "Hefker Beis Din" is Hefker. First, Rebbi Yitzchak cites the verse (Ezra 10:8) which relates that the Beis Din decreed that if the people do not fulfill the enactment of Beis Din, then they will confiscate all of their property. Rebbi Elazar cites a verse (Yehoshua 19:51) regarding the distribution of the land in Eretz Yisrael. The verse compares the community leaders to fathers, teaching that just like fathers can give property to whichever children they want, so, too, Beis Din can give the property of one person to any other person.

The RASHBA points out that from the second verse, it seems clear that Beis Din not only can take away a person's property, but they can also decide to give it to another person. It becomes the other person's property because of Beis Din's decree, even without a formal act of Kinyan. (See also YAM SHEL SHLOMO, Yevamos ch. 10; MAHARIT 1:7.)

This indeed seems evident from many places in the Gemara, where we find that there is such a thing as a Kinyan that is made because of a rabbinic decree. (See, for example, the Gemara earlier on 14a, regarding Ma'amad Sheloshtan, and on 20a, regarding the Zuz that a woman pays to the scribe in order to write a Get, which the Rabanan gave to the husband.)

The ALIYOS D'RABEINU YONAH (cited by the Shitah Mekubetzes in Bava Basra 100a) seems to reject this basic premise. Rabeinu Yonah discusses a field which the public became accustomed to walking through. The Rabanan enacted that the owner of the field cannot take away from the public the right to walk through his field. The Gemara asks in what way did the public make a Kinyan on that property.

Rabeinu Yonah is perplexed by the Gemara's question. If the Rabanan instituted that the public has the right to the property through which they became accustomed to walking, then the rule of "Hefker Beis Din Hefker" should make it theirs and they should need no Kinyan! Rabeinu Yonah answers that "Hefker Beis Din Hefker" does not give the item to a recipient; it only removes it from the possession of the original owner. Therefore, until the people make a Kinyan on the property, it is not theirs. (Rabeinu Yonah makes a similar point earlier in Bava Basra, 54b-55a. See also NESIVOS HA'MISHPAT 235:13.)

How can Rabeinu Yonah write that "Hefker Beis Din Hefker" does not make a Kinyan? We see from the Gemaras cited above and from other places that a Kinyan d'Rabanan made through their power of "Hefker Beis Din" does to grant ownership!

(a) The D'VAR AVRAHAM (1:1:15-16) explains that when the Rabanan institute that a certain act should accomplish a Kinyan, then that act certainly is on par with any Kinyan d'Oraisa and can be Makneh the object to the recipient. The only time that "Hefker Beis Din" cannot give an object to a recipient is when the "Hefker Beis Din" does not involve any act of Kinyan (for example, where no act at all is involved, or where one of the parties involved is a Katan).

His reasoning is as follows. The Gemara in Bava Metzia (74a) says that any act that becomes generally accepted to be an act that finalizes a sale ("Situmta") accomplishes a Kinyan *d'Oraisa*. A Kinyan that the Rabanan instituted is no less than the Kinyan of "Situmta." (This would not seem to answer our question from the Gemara on 20a, though.)

(b) The Rashba might be referring only to "Hefker Beis Din" that is being used to penalize someone, or to cause someone a monetary loss, which the person would not be willing to agree to on his own accord. When "Hefker Beis Din" is applied to take away money which the person would not be willing to give on his own, the Rabanan instituted only that the person loses the money, but not that it goes into the recipient's possession. However, if the person who is losing the money consents to having the money transferred, then "Hefker Beis Din" would even enable the recipient to receive the money. (The Rabanan only effected a single change: either they took the money away from a person against his will, or they gave it to another person despite the lack of a formal Kinyan, but they did not do both.)

Therefore, Rabeinu Yonah, who is discussing the way the Rabanan confiscated a person's property and gave it to the public, says that the Rabanan did not effect a Kinyan for the public, putting it into their possession. In contrast, in the case of Ma'amad Sheloshtan or the Zuz that a woman pays a scribe to write a Get, the person who is making the Kinyan certainly wants to part with his or her money (in the case of the Get, the woman certainly wants the Get to be a valid Get). Therefore, the Rabanan even put the money into the other person's possession without a formal act of Kinyan.

This explains why the Gemara here cites two separate verses. The first verse teaches that the Rabanan have the right to confiscate property through "Hefker Beis Din," but that property remains Hefker. The second verse teaches that when a person *wants* the Rabanan to transfer his property (such as when Eretz Yisrael was divided up, and each person wanted himself and others to receive a proper portion), "Hefker Beis Din" can be used even to make the second person acquire the object even without a formal act of Kinyan.

QUESTION: The Gemara discusses whether Hillel enacted the institution of Pruzbul only for his generation, or whether it was an everlasting Takanah that applies even to subsequent generations. The Gemara says that the practical difference between these two possibilities is whether a later generation can annul the Takanah (in a generation where people are willing to lend money despite the fact that Shemitah will cancel their loans).

The Gemara cites proof from Shmuel that Pruzbul was instituted only for Hillel's generation. Shmuel said, "If I would have the power, then I would annul the Takanah of Pruzbul!" If Hillel had instituted Pruzbul even for future generations, then Shmuel should not be able to annul Hillel's Takanah, since we have a rule that one Beis Din may annul a decree that another Beis Din instituted only when it is greater in Chachmah and Minyan (wisdom and numbers) than the original Beis Din.

If Hillel only instituted Pruzbul for his generation, then why should it be necessary to annul the enactment of Pruzbul after his generation has passed? It should automatically become annulled, since it was made only to take effect during Hillel's lifetime! (RAMBAN)


(a) The RAMBAN explains that once Hillel enacted Pruzbul for his generation, he set a precedent for any powerful Beis Din to institute Pruzbul for their generation if they deem it necessary. When the Gemara says that Shmuel wanted to annul the enactment of Pruzbul, it means that he wanted to prevent Pruzbul from ever being re-enacted, even by a future Beis Din.

(b) The RAN explains that Hillel's enactment of Pruzbul was not limited to his generation. Rather, he enacted it for any generation which is *similar* to his generation, insofar that people are not willing to lend money because Shemitah will cancel their loans. Even though Hillel's Takanah did not apply to generations in which people *were* willing to lend money, we cannot know that the generation has improved and that people are willing to lend money until Beis Din determines the prevailing societal attitude towards lending.

This is what Shmuel means when he says that he would annul the decree of Hillel: he would not literally annul it; rather, he would reveal that the Takanah does not apply to his generation.

(c) The CHASAM SOFER points out that according to Tosfos (36a, DH Mi Ika), Hillel did not actually institute a new way to prevent Shemitah from canceling a debt. Rather, when a person makes a Pruzbul, mid'Oraisa his debt will not be canceled by Shemitah, since he has given his loans to Beis Din. Hillel's Takanah was simply to encourage people to write a Pruzbul and thereby prevent Shemitah from canceling their loans.

According to this, Shmuel might have meant not that it was necessary to annul Hillel's enactment, but that he wanted to prevent people from continuing the practice of giving their loans to Beis Din, so that Shemitah *will* be able to cancel their loans.

(d) The MOSHAV ZEKEINIM (Parshas Vayigash) and SHIBOLEI HA'LEKET (2:49) cite the Gemara in Beitzah (5a) that says that if a Takanah was made for a certain purpose, even if the purpose no longer applies, the Takanah remains until Beis Din repeals it.

They point out that when repealing a Takanah which no longer applies, it is not necessary for the second Beis Din to be greater than the original Beis Din in Chachmah and Minyan. Hence, the later annulment of the Takanah of Pruzbul -- although it was made only for Hillel's generation -- needs a Beis Din, even though the Takanah no longer applies. Since it does not apply, though, the Beis Din may even be a lesser Beis Din in Chachmah and Minyan than the original one that instituted the Takanah.

The Shibolei ha'Leket points out that from this Gemara we see that even a Takanah which was originally enacted with a specific time limit cannot be repealed unless Beis Din actually convenes and repeals it. This is in contrast to the opinion of most Rishonim (see TOSFOS in Beitzah 5a and Sanhedrin 69b).

Perhaps even according to the other Rishonim, we can explain that Hillel did not specify that the Takanah should be revoked when his generation passes. Rather, the Gemara means that Hillel specified that the Takanah was enacted only because people were not loaning money before the Shemitah year. Since he did not give the Takanah a set amount of time, many Rishonim agree that a second Beis Din must convene and repeal it in order for the Takanah not to remain in effect. (See Insights to Beitzah 5a.)

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