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Nedarim, 43


QUESTION: The Mishnah states that one who makes a Neder prohibiting his friend from receiving pleasure from him may not lend to his friend nor borrow from him, and he may not sell to him nor buy from him. Abaye explains that although the Noder is not giving pleasure to his friend by borrowing from him, it is still prohibited because the Chachamim made a Gezeirah not to borrow so that he not come to lend to him. Similarly, based on this logic they prohibited him from buying from his friend so that he will not come to sell to him.

However, the Mishnah later (47b) says that if one prohibits his friend from having Hana'ah from him, then his friend is prohibited to have Hana'ah from him, but the Noder is permitted to have Hana'ah from his friend! This seems to contradict Abaye's statement that there is a Gezeirah that the Noder not have any Hana'ah from the Mudar in order to prevent him from giving Hana'ah to the Mudar!


(a) The RAN answers that the Gezeirah of our Mishnah was instituted only with regard to *borrowing* and *buying*, since people do not usually relate to these acts as acts of giving pleasure. Therefore, the Chachamim were concerned that if the Noder is permitted to borrow from the Mudar, people will think that borrowing and lending are not considered acts of giving Hana'ah and hence they would mistakenly assume that the Mudar is also permitted to borrow from the Noder. In contrast, by permitting the Noder to accept a gift from the Mudar, no one will mistakenly think that the Mudar Hana'ah is also permitted to receive a gift from the Noder, because it is obvious that giving a gift is an act of giving Hana'ah.

(b) TOSFOS (DH Beshleima, see also ME'IRI) and the RITVA answer that the Chachamim made the Gezeirah only with regard to favors that people always reciprocate to one another. One who lends to his friend usually borrows from his friend in turn in his time of need. Therefore, there is a concern that if we permit the Mudar Hana'ah to lend to the Noder, the Noder will eventually return the favor and lend to the Mudar Hana'ah. This concern does not exist for other forms of Hana'ah which are not usually reciprocal.


OPINIONS: The Mishnah states that if one makes a Neder prohibiting his friend from receiving pleasure from him, and his friend does not have any food to eat and there is no one else available to feed his friend, he may declare his food to be Hefker for all, and then his friend may come and take it. Rebbi Yosi disagrees and prohibits this.

In the Gemara, Rebbi Yochanan says that the disagreement is based on each one's understanding of the nature of Hefker. The Chachamim (the Tana Kama) understand that as soon as one makes his property Hefker, it no longer belongs to him anymore. Since it does not belong to the Noder, the Mudar is permitted to benefit from it. Rebbi Yosi, on the other hand, understands that even after a person makes his property Hefker, it is still considered to be in his possession until someone else actually acquires it. Hence, the Mudar may not take the food that the Noder made Hefker since it is still the Madir's food which is prohibited to him.

Rava proves that Rebbi Yosi agrees that Hefker does not belong to its original owner. He says that the reason Rebbi Yosi disagrees with the Tana Kama is only because of a Gezeirah d'Rabanan.

What is the nature of Hefker? Does making an item Hefker remove it from the possession of the original owner completely, or does it remain in his possession until someone else acquires it?

(a) The RAMBAM (Hilchos Nedarim 2:14) writes that although the declaration of an item as Hefker is not a Neder, it is similar to a Neder in that one who declares his item to be Hefker is *prohibited* to retract his word and to take back the item into his possession. The Rambam's wording implies that the person has the power to retract the Hefker but is prohibited to do so. The KETZOS HA'CHOSHEN (273:11) understands that the Rambam means to say that even after the person made the item Hefker, it is still in his possession. He is prohibited to retract the Hefker only because Hefker is a type of Neder and by retracting it he will transgress the prohibition of "Bal Yachel."

(b) Many of the Acharonim (see CHIDUSHEI CHASAM SOFER ad loc., and SHA'AREI YOSHER 5:23) disagree with this interpretation of the Ketzos, because we find that the Chachamim in our Mishnah are of the opinion that Hefker does not belong to the original owner who made it Hefker (and, according to Rava, even Rebbi Yosi agrees).

The VILNA GA'ON (Choshen Mishpat 273) amends the Girsa of the Rambam so that it reads that one who makes something Hefker is *not* able to retract it. According to this Girsa, the Rambam is compatible with the Chachamim, who say that when one makes an item Hefker it is no longer in his possession.

QUESTION: If the Rambam agrees that Hefker is not only a Neder but actually is a monetary transaction which changes the ownership of the item (from the original owner's to nobody's), then why does the Rambam write the laws of Hefker among the laws of Nedarim (Hilchos Nedarim), and what need is there to say that it is similar to a Neder?

ANSWER: The CHASAM SOFER (Teshuvos, YD 316) writes that the Rambam maintains that Hefker is a type of Neder, whereby one binds himself to make a certain object ownerless. However, the very declaration of the item as Hefker is a fulfillment of the Neder, and therefore the item no longer belongs to him.

The SHA'AREI YOSHER (loc. cit.) says that the Rambam does not mean to say that Hefker is a Neder. His correlation between Hefker and Nedarim is that just like a Neder can create a new Halachic status (making an item Hekdesh, Asur, or Tzedakah), so, too, Hefker creates a new Halachic status for the item (taking it out of the possession of the original owner).

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