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Nedarim, 86


OPINIONS: The Gemara assumes that a person's future earnings are considered a "Davar she'Lo Ba l'Olam," and for that reason one cannot make a Neder to prohibit his earnings to someone else. How, then, can a wife prohibit her earnings to her husband, if her earnings are a "Davar she'Lo Ba l'Olam?" The Gemara answers that the woman can prohibit her earnings to her husband by saying, "My hands should be consecrated (Hekdesh) to their Creator." This, says the Gemara, solves the problem of "Davar she'Lo Ba l'Olam," because her hands do exist at present.
(a) TOSFOS (Kidushin 63a) uses this case of a woman prohibiting her earnings to her husband by being Makdish her hands to explain the case of one who sells a tree for its fruit ("Dekel l'Peirosav"). The Gemara says that even though the fruit that has not yet grown on the tree is a "Davar she'Lo Ba l'Olam," one can sell that fruit by selling the *tree* for the sake of its fruit. Although the future produce of a tree is a "Davar she'Lo Ba l'Olam," if one emphasizes that the *tree* is being sold (with regard to its fruit-producing quality) and not the future produce itself, then the sale no longer involves a "Davar she'Lo Ba l'Olam."

Tosfos in a number of places (see Gitin 66a) seems to explain that the sale is actually taking place with the tree itself; it is as if the buyer has become a partner in the ownership of the tree, and hence when the fruits later grow he does not receive them from the seller, but rather they are already his by virtue of his ownership of the tree.

This explanation, though, is problematic. How can Tosfos compare the case of "Dekel l'Peirosav" to the case of the woman who is Makdish her hands in order to prohibit her earnings to her husband? First, unlike the fruit of a tree, one's earnings are not direct outgrowths of the hands. Second, unlike the tree, the hands themselves cannot be sold, nor can they actually become Hekdesh!

(b) Due to these questions, the RASHBA (Kesuvos 58b, Gitin 42b, and numerous places in his Teshuvos) offers a different explanation to why the sale of "Dekel l'Peirosav" circumvents the problem of "Davar she'Lo Ba l'Olam." He explains that the sale does not transfer partial ownership of the tree to the buyer, because -- although that explanation suffices for the case of "Dekel l'Peirosav" -- it does not explain other cases mentioned in the Gemara, such as the purchase of a slave with regard to the buyer receiving the money of the Kenas in the eventuality that someone kills him and is Chayav to pay the Kenas to the slave's owner. The potential Kenas is certainly not an element that exists at present; it is a Chiyuv that occurs if such a situation happens to arise (see CHIDUSHEI RABEINU CHAIM HA'LEVY, Hilchos Mechirah).

Rather, the Rashba explains that the sale of "Dekel l'Peirosav" *is* a sale of the produce itself, similar to the sale of "Peiros Dekel." How, though, does it work, if the fruit has not yet come into the world? The Rashba explains that by making the formal Kinyan on the tree, which does exist at present, the tree serves as the vehicle with which to complete the sale of the produce and thereby circumvents the problem of "Davar she'Lo Ba l'Olam." That is, the *sale* is actually being made on the non-existent fruits, while the *Kinyan* to effect that sale is being made on the existent tree (this is conceptually similar to a Kinyan Sudar ("Chalipin"), whereby the Kinyan is made on a handkerchief while the sale takes effect on an object that is elsewhere). This, he reasons, can be applied to the case of the slave, as well as to our case of the woman's hands, even though the earnings are not a product of the hands nor can the hands be sold or made into Hekdesh outright. The woman is making her hands the vehicle by which the Neder takes effect on her earnings.


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