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Nedarim, 45


QUESTION: The Gemara quotes Rebbi Yehoshua ben Levi who says that mid'Oraisa an item can be made Hefker in front of just one person, but the Rabanan enacted that it be made in front of three people.

The simple reading of the Gemara indicates that mid'Rabanan, Hefker must be made in front of three people, and mid'Oraisa an item becomes Hefker if there is at least one person aware of it. However, this seems to contradict the Gemara in Shabbos (18b). The Gemara there quotes the opinion of Beis Shamai who holds that one is prohibited to have work done with his utensils on Shabbos. When we see a person's lamp burning on Shabbos, we assume that the owner made his lamp Hefker before Shabbos, even though no one actually witnessed the Hefker.

Although the requirement for three people is only mid'Rabanan, and the Rabanan permitted a person to make an item Hefker without three people when he has no choice, he still needs one person for the Hefker to take effect mid'Oraisa!


(a) The RASH (quoted by the Piskei ha'Rosh) proves from the Gemara in Shabbos that our Gemara here does not mean that there is a requirement that Hefker be made in front of one person. Even if no one is present when one makes it Hefker, the item becomes Hefker Min ha'Torah.

(b) TOSFOS in Bava Metzia (30b, DH Afkera) explains that witnesses are required to assure that the owner really intends to make the item Hefker. In a case where his failure to make an item Hefer will result in a transgression of an Isur, then we can assume beyond any doubt ("Anan Sehadi") that he has full intentions of making the item Hefker and there is no need for other witnesses. Hence, in the case in Shabbos, where the owner of the lamp will be desecrating Shabbos if he does not make the lamp Hefker, we can assume that he made it Hefker with full intentions.

(c) TOSFOS there also says that Rebbi Yehoshua ben Levi requires the Hefker to be made in front of others only with regard to making produce exempt from Ma'aser. With regard to other laws, the Hefker takes effect even if no one else is observing it.

(d) The MORDECHAI (quoted by the VILNA GA'ON OC 246) answers that there is a need for witnesses only when one is making Hefker an item that is not usually made Hefker. Since everyone is Mafkir their lamps before Shabbos (according to Beis Shamai), there is no need for witnesses.

HALACHA: The SHULCHAN ARUCH (CM 273:7) quotes the RAMBAM'S opinion that mid'Oraisa one must be Mafkir the item in front of one person, and mid'Rabanan in front of three. The REMA quotes the ROSH, that if one was Mafkir on front of no one, the Hefker still takes effect. (See VILNA GA'ON ad loc.)

QUESTION: However, the Shulchan Aruch seems to contradict his ruling. In Hilchos Shabbos (OC 246:3), the Shulchan Aruch rules that if one rented his animal to a Nochri on the condition that the Nochri return it before Shabbos, and the Nochri kept it in his possession during Shabbos, the owner should be Mafkir the animal in front of *no* witnesses. (The Rema says that it is preferable to be Mafkir it in front of three.)

How can the Shulchan Aruch rule (in Hilchos Shabbos)that one be Mafkir the animal in front of no one, if he rules (in Choshen Mishpat) that one must be Mafkir an item in front of at least one person for the Hefker to take effect mid'Oraisa?

In addition, the Rema (in Choshen Mishpat) cites the Rosh who says that the Hefker takes effect even if there are no witnesses. Why, then, in Hilchos Shabbos does the Rema mention being Mafkir the animal in front of three people?

ANSWER: The SHA'AR HA'TZION (OC 246:18) quotes the TOSFOS SHABBOS who answers that in Hilchos Shabbos, the Shulchan Aruch is dealing with a case where the owner has no one present to serve as a witness to the Hefker. Since he has no choice, the Shulchan Aruch writes that at least he should be Mafkir his animal by himself, since such Hefker does work according to some opinions.

An alternate explanation might be that in Hilchos Shabbos, the Shulchan Aruch is relying on the answer of Tosfos in Bava Metzia who says that there is no need for witnesses in a situation where the owner wants to prevent himself from transgressing an Isur.

Regarding the contradiction in the Rema, the REMA in Hilchos Shabbos writes that one should be stringent and be Mafkir his animal in front of three people, because he is following the view of the Mordechai mentioned above. Since people usually do not make their animals Hefker, one who wants to make his animal Hefker must do so in front of three witnesses. (The MISHNAH BERURAH there writes that when possible one should be Mafkir his animal in front of at least one person.)


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