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Kollel Iyun Hadaf, Jerusalem

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Nedarim 27



(a) Rebbi Nasan in a Beraisa says - that someone who, after declaring a Konem on a basket of fruit and upon discovering that it contained white figs, claims that had he known that it did, he would never have declared a Neder on the basket - is permitted to eat the white figs, whereas the Neder on the rest of the basket remains intact.

(b) The Neder does not require Hatarah vis-a-vis the white figs - because there was an error in the Ikar Neder.

(c) Rebbi Akiva then came and taught - that 'Neder she'Hutar Miktzaso, Hutar Kulo'.

(d) To accommodate Rava's opinion - we establish the Beraisa when the Noder said that, had he known there were white figs in the basket, he would have said 'Kol ha'Kalkalah Asurah, u'Benos Shu'ach Mutaros' (since that is when the Rabbanan argue with Akiva).

(a) In another Beraisa, the Tana states 'Nadar me'Chamishah B'nei Adam ke'Echad, Hutar le'Echad Meihem, Hutru Kulam'. According to ...
1. ... Rabah - the author of the Beraisa is Rebbi Akiva.
2. ... Rava - the Beraisa is learned unanimously.
(b) The Tana speaks when he first said 'la'Zeh ve'la'Zeh' and then changed to 'Kulchem').

(c) The Tana continues 'Chutz me'Echad Meihen, Hu Mutar, ve'Hein Asurin'. According to ...

1. ... Rabah - the Beraisa is unanimous.
2. ... Rava - the author is the Rabbanan.
(d) The Tana speaks - when he said 'Kulchem' and remained with it.
(a) We finally rule with regard to 'Neder she'Hutar Miktzaso ... ' - like Rebbi Akiva.

(b) It is unclear however, whether we rule like Rabah or like Rava in their above-mentioned dispute. We might rule like Rabah because he was Rava's Rebbe (and we do not, as a rule, follow the opinion of a Talmid against his Rebbe). On the other hand, we might rule like Rava - because he lived later than Rabah, and we have a principle 'Halachah ke'Basra' (from Rabah and onwards).

(c) In fact - we conclude that the Halachah is like Rabah (Lechumra), in which case, the Noder must change not only the contents of the Neder, but also the wording, before we will say 'Neder she'Hutar Miktzaso, Hutar Kulo'.

(a) According to the Ramban - we will not say 'Neder she'Hutar Miktzaso Hutar Kulo' in a case where someone knew that his father was among the eaters, declared the Neder and then went to a Chacham to have the Neder nullified regarding his father without changing the Lashon ([also referred to as 'Ma'amid'] seeing as the second condition of changing the Lashon has not been met).

(b) Those who disagree, maintain - that it is only when the Noder *did not know* that his father was among those eating that 'Neder she'Hutar Miktzaso, Hutar Kulo' does not apply by Ma'amid, because then, seeing as his father was not included in the Neder to begin with, it is not a case of 'Neder she'Hutar Miktzaso'; whereas, in a case when he *did*, and then goes to a Chacham to have his Neder annulled, when the Chacham annuls the Neder, we will say 'Neder she'Hutar Miktzaso ... ', whether the Noder changed his Lashon or not.

(a) Regarding 'Neder she'Hutar Miktzaso ... ', Tosfos does not differentiate between whether a Neder was revoked through a Pesach or through Charatah. According to the Ramban however - the principle is confined to a Neder that one annuls by means of a Pesach (seeing as it is similar to a Neder Ta'us), but not to one that is annulled by means of Charatah. In such a case, the Noder's father and brother will be permitted to eat the figs, but not the other people involved.

(b) The difference (regarding the principle of 'Neder she'Hutar Miktzaso ... ') between 'la'Zeh, ve'la'Zeh' or 'la'Zeh, la'Zeh' is - that the former is considered one Neder, and the principle will apply, whereas the latter is like two individual Nedarim, and it will not.

(c) The principle of 'Neder she'Hutar Miktzaso ... '

1. ... extends neither to a Cherem and a Niduy ...
2. ... nor to the Hafaras Nedarim of a husband or a father.
(a) The example that the Mishnah gives for Nidrei Onsin is when Re'uven makes Shimon declare an Isur Hana'ah on himself (see above 24a.), should he fail to invite him for a meal, then Re'uven or his son falls ill, or he is unable to cross the river on his way to the Madir.

(b) The Tana needs to add the case of 'O she'Chalah B'no' - to teach that even a small O'nes (seeing as he could still have gone even though his son is ill) is also considered an O'nes.

(c) 'Nidrei Onsin' are void - because the Madir certainly did not have in mind to forbid his property on the Mudar under such circumstances.

(a) A certain litigant placed his documents in Beis-Din, and declared them void should he not return within thirty days. The case was postponed for thirty days time - because of the Halachah that grants either of the litigants the right to postpone the proceedings in order to bring proof that will substantiate his claim.

(b) It was necessary for him to place his documents in Beis-Din in the interim - because of the Halachah authorising Beis-Din to demand from him a security should they suspect that his claim is no more than a ruse to escape justice.

(c) An O'nes occurred and the defendant was delayed beyond the thirty-day limit. When Rav Huna declared his documents void - Rabah quoted him the Pasuk 'O'nes Rachmana Patrei'.

(a) The source of 'O'nes Rachmana Patrei' is - the Pasuk in Re'ei (in connection with a girl who is raped) "ve'la'Na'arah Lo Sa'aseh Davar".

(b) We know that it is not confined to cases of life and death (similar to those in the Pasuk) - because of our Mishnah, which is not a matter of life and death.

(c) In the Mishnah in Gitin, with regard to a man who gives his wife a Get which should be valid on the condition that he fails to return within a year, and he is unable to return because he has died - the Tana rules that the Get is nevertheless valid.

(d) According to Rabah, the Tana not apply the principle 'O'nes Rachmana Patrei' - because that case is different, inasmuch as the only reason that he gave her the Get in the first place is so that, should he die, his wife should not be prevented from re-marrying, due to the Mitzvah of Yibum (so what difference will it make if he did not return within thirty days or if he died within thirty days?




(a) In the case where a certain husband gave his wife a Get which was to be valid on condition that he did not return within thirty days - he arrived at the far side of the river minutes before the time expired, only to discover that the ferry was on the other side and that he would be unable to cross. He screamed 'Im coming! I'm coming'! but to no avail.

(b) On the assumption that O'nes (negating conditions) applies to Gittin too, Shmuel ruled in that case that the Get was valid - because it was a foreseeable O'nes (and it is only unforeseen Onsin that will negate conditions).

(c) W could have dispensed with the current Kashyos - by quoting the Gemara in K'suvos, which states 'Ein O'nes be'Gittin' (because of 'Tznu'os and P'rutzos'), only our Sugya is working even on the assumption that O'nes be'Gittin.

(a) When we ask on Rav Huna (who declared the documents that the litigant handed over to Beis-Din void) 'Michdi Asmachta Hi', we mean - that since the nullification of the documents was only conditional (depending upon his not returning within thirty days), it falls under the category of 'Asmachta', and we have a principle 'Asmachta Lo Kanya' (though that itself is a Machlokes Tana'im, as well as Amora'im).

(b) We resolve this Kashya - by pointing out that the litigant had reinforced his statement by handing over his documents to Beis-Din (removing the case from the realm of 'Asmachta').

(a) The Mishnah in Bava Basra presents a case where someone repaid part of his loan and deposited his document with a third person with instructions to hand the document to the debtor, should he not return within thirty days. In the end, he did not return, and Rebbi Yehudah ruled 'Lo Yiten' - because he holds 'Asmachta Lo Kanya'.

(b) Rebbi Yossi ruled ' Yitein' - because he holds 'Asmachta Kanya'. Rabah bar Avuhah Amar Rav follows the opinion of Rebbi Yehudah.

(c) We reconcile Rav Huna (who, in our Sugya, does not consider the case where the litigant handed his documents to Beis-Din, Asmachta) with this ruling - by pointing out that in our Sugya he said 'Livatlan Hani Zachvasa'i' - which the Rambam explains to mean that should he not arrive, he will have been Mochel his claim (i.e. forgone it).

(d) Rashi disagrees. According to him, Asmachta applies even when the litigant is Mochel - and what we mean when we say that in our Sugya, he said 'Livatlan Hani Zachvasa'i' is - that such a statement is tantamount to saying that the contents of the documents are false.

(a) We conclude (with regard to Rav Huna's case) 've'Hilchesa Asmachta Kanya, ve'Hu de'Lo Anis, ve'Hu de'Kanu Minei be'Beis-Din Chashuv'. We are referring to - any sort of A'nus, even one like 'Chalah B'no', because, just like we explained in our Mishnah, a person does not make a condition expecting whoever is concerned to leave his sick child in order to fulfill it.

(b) 'Beis-Din Chashuv' cannot mean a Beis-Din Samuch (like the Rambam maintains) - because then we would have said 'Beis-Din Mumcheh'.

(c) Rabeinu Tam reconciles the need for a Beis-Din Chashuv as well as a Kinyan, with the fact that every Kinyan is considered as if he had said 'Me'achshav', and 'Me'achshav' removes the aspect of 'Asmachta' - because, he says, a Kinyan has the strength of 'Me'achshav' only when the recipient actually receives a Mashkon (a security), but not in our case, where he placed the documents in Beis-Din.

(d) Rav Hai Gaon disagrees with Rabeinu Tam. In his opinion, 'Me'achshav' helps to remove the aspect of 'Asmachta' in any event even in our case, but not a Kinyan (which requires a Beis-Din Chashuv, too) - because he handed his documents to Beis-Din (giving them jurisdiction over them); and the reason that the Kinyan alone (which is normally as effective as 'Me'achshav') will not suffice here is - because he added the clause 'Im Lo Ba'si ad Sheloshim Yam', negating the concept of 'Me'achshav'. Consequently, seeing as, in thirty days' time, the Kinyan is no longer in existence, it requires a Beis-Din Chashuv to remove 'Asmachta'.

(a) According to the above explanation (the Rif, explaining Rav Hai Gaon, elaborates), when someone has deposited his documents in a Beis-Din Chashuv, a Kinyan will help to remove the aspect of 'Asmachta' and so will the Lashon of 'Me'achshav'. We disagree with the Rif and Rav Hai Gaon - on the grounds that, if the Tana was coming to teach us the power of a Beis-Din Chashuv, then a Kinyan should not be necessary.

(b) We therefore conclude that a Kinyan would work in our case, in conjunction with 'Me'achshav'. The fact that he ...

1. ... said 'Livatlan Zachvasa'i' (Mechilah) will not suffice - because he qualified his statement with 'Im Lo Ba'si ... ' making it an 'Asmachta').
2. ... also said 'Me'achshav' (removing the 'Asmachta') will not suffice - because, even though it will remove the 'Asmachta', it will not place the documents in the ownership of the other litigant.
(c) The final Chidush is - that a Beis-Din Chashuv (together with the Kinyan) dispenses with the need for 'Me'achshav', because what someone does in front of such a Beis-Din, is done with sincerity and with a full heart (negating 'Asmachta', which negates a deal or a condition precisely because it is not taken seriously).
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