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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Nedarim 34



(a) We already explained the Seifa of our Mishnah 'Makom she'Notlin S'char, Tipol Hana'ah le'Hekdesh', with regard to the case when the property of the finder is forbidden to the owner (and when the finder foregoes the S'char). We now ask on the one who permits returning the article even when it is the property of the owner that is forbidden on the finder the following Kashya - seeing as the finder's property is not forbidden on the owner, why should the S'char go to Hekdesh? Why should the owner not be permitted to retain it (according to Rabosai)?

(b) We cannot answer that it speaks when the owner wants to pay, but the finder has no option but to refuse payment (seeing as the owner's property is forbidden to him) - because, in that case, why should the money go to Hekdesh (because it is one thing to be a nice guy and not claim one's rightful S'char from the owner, and another to pay money that is due to the finder, to Hekdesh)?

(c) Alternatively, the owner will even be permitted to pay the *finder*, because it is similar to a bad sale (that we discussed above on 31a.). where, even though the Mudar receives a field, he may nevertheless accept from the Madir at market price, because he can easily find another such article. Similarly, the finder should be permitted to accept the S'char from the owner, because he is only claiming the Sela that he lost in the process of returning the article (the S'char that he receives merely replaces the money that he already had).

(d) We answer the initial Kashya 'a'Chada ka'Tani' - that 'Makom she'Notlin Alehah S'char' only pertains to when the finder's property is forbidden on the owner, but not to the reverse case (even though that case is included in the Reisha).

(a) According to the second Lashon, Rav Ami and Rav Asi both agree that when the property of the *owner* is forbidden to the *finder*, the finder is permitted to return the lost article, in spite of 'P'rutah de'Rav Yosef' - because 'P'rutah de'Rav Yosef Lo Shechi'ach', as we explained above.

(b) They argue when it is the property of the *finder* that is forbidden to the *owner* - where one of them forbids it (in spite of the fact that he is only giving him what is already his) due to the fact that the benefit, in this case, is real (because if he did not return it, the chances are that it would be permanently lost to him), unlike repaying his loan, where he doesn't really give him anything.

(c) According to the one who establishes 'Machzir Lo Aveidaso' when it is the property of the owner which is forbidden to the finder - this case differs basically from the other cases in our Mishnah 'Shokel Lo es Shiklo u'Porei'a Lo es Chovo ... (ve'Torem Lo es Terumosav' - in the next Mishnah), which all speak when it is the property of the finder which is forbidden to the owner?

(d) The Tana differentiates rather than confine himself to a standard set of cases - because he wants to list all the cases where benefit is permitted in spite of the Isur Hana'ah.

(a) The problem that the Seifa of our Mishnah ('Makom she'Notlin Alehah S'char, Tipol Hana'ah le'Hekdesh') poses on the second Lashon is - according to the one who confines our Mishnah to where the property of the owner is forbidden to the finder, which cannot accommodate the Seifa 'Makom she'Notlin S'char, Tipol Hana'ah le'Hekdesh', because either the S'char ought to remain with the owner or it ought to go to the finder (as we explained in the first Lashon).

(b) This problem remains unresolved.

(c) The Halachah regarding when the property of the owner is forbidden to the finder is - that he may return his lost articles, due to the fact that, in the second Lashon, the one holds who that he may not, is refuted, whereas the one who establishes our Mishnah both ways remains intact in both Leshonos.




(a) Rava says - that someone who, after declaring a Hefker loaf Hekdesh, picks it up to eat it, is Mo'el on the entire loaf (meaning that assuming that he did what he did erroneously, he is obligated to pay Hekdesh for having used it, and to add on a fifth).

(b) He refers specifically to a *Hefker* loaf, rather than a loaf that belongs to him - because the latter case, where the loaf is already in his domain, is similar to the case of a Gabai of Hekdesh, who will not be Mo'el if he picks up Hekdesh already in his domain, with the intention of acquiring it.

(c) He does not acquire the loaf anyway, in spite of the fact that the Chachamim gave each individual the four Amos in his immediate vicinity (in the Reshus ha'Rabim) in order to acquire on his behalf - because that only applies to a person who *intends* them to acquire for him, whereas in our case, it is clear from his actions that *he* does not have that in mind.

(d) Hekdesh can acquire an article, even without the Makdish having acquired it first - based on the principle 'ha'Magbihah Metzi'ah la'Chaveiro, Kanah Chaveiro'.

(a) Had he picked up the same loaf to bequeath it to his sons, he would only have acquired it commensurate with the Hana'ah that he receives - the value of his sons' gratitude towards him for what he did.

(b) He is not Mo'el completely, like he is in the first case - because he did not place the loaf in their domain immediately, only at a later date.

(a) Rav Chiya bar Avin asked Rava what the Din will be in a case when someone declared in his friend's presence 'Kikri Alecha' and then presented him with the loaf. The two sides of the She'eilah are - whether 'Kikri' implies only as long as the loaf is his; or whether 'Alecha' implies that it is forbidden to him forever.

(b) This She'eilah does not extend to a case where the Madir sold the loaf to a third person - because of the Mishnah in ha'Shutfin, which clearly states that a third person breaks the power of the original owner permitting the Mudar to benefit from the object that was forbidden to him.

(c) We cannot infer from the Mishnah in 'ha'Shutfin' which we just quoted that if the Noder had not sold the loaf to a third person, but given it to the Mudar, that it would be forbidden - because the Tana could well mention the third person only on account of the Seifa, where he needed to mention the third person for its inherent Chidush.

(d) The Tana in the Mishnah later permits the Mudar to benefit from the Madir's food only if the Madir first gave it to a storekeeper or through a third person. We cannot resolve Rav Chiya bar Avin's She'eilah from there, explains the Rashbam - because that Mishnah speaks when the Noder forbade any Hana'ah on the Mudar, and not just the object in question like our Sugya is.

(a) Rava replied that it is obvious that he meant to forbid the loaf forever - because otherwise, what would be the purpose of his declaration? As long as he has the loaf, why should he forbid it on his friend? The only other alternative, would be in case the loaf was stolen, which would hardly concern him sufficiently to place such an Isur on it. It must therefore be, Rava concludes, that he intended to forbid the loaf on his friend even after having presented it to him.

(b) Rav Chiya bar Avin disagrees with Rava - on the grounds that the Madir might well have meant to forbid the loaf on the Mudar should he invite him to his house. So the She'eilah remains unresolved.

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