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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Nedarim 43



(a) The Tana of our Mishnah forbids a Mudar Hana'ah to borrow or to buy from the Madir. The difference between 'She'eilah' and 'Halva'ah' (both of which he includes in the prohibition) is - that the former pertains to articles (which one generally returns intact), and the latter, to money (which is meant to be spent).

(b) The reason for this Halachah is obvious, though the reason that he is not even permitted to lend or to sell to the Madir is initially obscure, due to the fact that the Tana is speaking about a good sale, where the seller does not gain anything by the fact that this man wants to buy. The reason that we establish the Mishnah by a good sale, rather than by a bad or an average one is - in order to establish the case of selling to him in the same light as lending him vessels or money, where he gains nothing.

(c) Rebbi Yossi b'Rebbi Chanina establishes the Mishnah when both the Madir and the Mudar had actually forbidden their property on one another. The Tana's Chidush will then be - that these cases are included in 'Vitur' (minor gains) which only Rebbi Eliezer forbids, (as we learned earlier).

(d) Abaye resolves the problem (as to why the Mudar is forbidden to lend or sell to the Madir) - by ascribing the prohibition to a decree (forbidding lending to the Mudar on account of borrowing from him, and selling to him on account of buying from him).

(a) The Rambam explains that the Tana in the Mishnah in Arba'ah Nedarim 'she'Eini Neheneh le'Yisrael, Lokei'ach be'Yeser, u'Mocher be'Pachos ... ' *does not decree* buying on account of selling and vice-versa, in spite of Abaye, who just explained that *our* Tana *does* - because the Tana there speaks when the Mudar forbade himself from benefiting from *all Jews*, in which case, if we were to decree buying on account of selling, he would be forced to deal entirely with Nochrim, which involves an enormous Tircha (bother - which Chazal did not want to enforce upon him).

(b) And we resolve the Mishnah in 'ha'Shutfin' 'Hareini Alecha Cherem, ha'Mudar Asur' (implying 'ha'Madir Mutar') with our Mishnah (where the Tana decrees the Madir because of the Mudar) - by pointing out that there the Isur is clear and not subject to misunderstanding, in which case there is no need to issue a decree; whereas in our case, it is by no means clear that Madir Hana'ah includes borrowing and selling (which is only 'Vitur' as we just explained). Consequently, it is necessary to issue a decree, to safeguard the initial prohibition.

(a) The Tana of our Mishnah presents the case of a would-be borrower, who, upon being informed that his friend's cow is not currently available, disbelieves him, and, in his anger, he makes a Neder, declaring that he will not plow his field with it. If he ...
1. ... normally plows his field - then *he* is forbidden to do so (because that is what he obviously had in mind when he declared the Neder), though the prohibition does not extend to other people.
2. ... does not normally plow his field - then he obviously intended to include everybody in the prohibition.
(b) If the Mudar has nothing to eat and relies on the Madir to help him out - then the Madir may approach a store-keeper with whom he is acquainted, tell him of his friend's predicament, and say that he doesn't know what to do. This does not render the store-keeper his Sheli'ach, and does not obligate him to recompense him later should he provide the Mudar with food (though he will be permitted to repay him should he so wish).

(c) The Tana mentions that he goes to a store-keeper with whom he is well-acquainted - to teach us that even though he knows the store-keeper well, and he often makes purchases from him on credit, that does not make him his Sheli'ach.

(d) The Madir would not however, be permitted to announce 'Anyone who hears this announcement should feed so-and-so' - because that would render anyone who responded, the Madir's Sheli'ach and obligate him to recompense him.

(a) The Tana adds a further case when the Mudar needs his house to be built, his fence to be repaired or his field to be harvested, which he permits under the same circumstances. He adds this case - because we would otherwise have thought that it is only when it concerns the Mudar's livelihood that Chazal permitted the Madir to take such action, but not in other cases.

(b) If they are traveling and the latter runs out of food, assuming that there ...

1. ... is a third person traveling with them - the Madir can give food to the third person in the form of a gift, and the Mudar may accept it from him.
2. ... is not (according to the Tana Kama) - he may place it on a rock or whatever, declaring it Hefker for all, seeing as then, the Mudar receives it from Hefker and not from the Madir.
(c) Rebbi Yossi forbids this latter case.

(d) When Rebbi Yochanan ascribes Rebbi Yossi's stringency to the fact that he holds 'Hefker ke'Matanah' - he means that, according to Rebbi Yossi, Hefker, similar to Matanah, is only finalized when it enters the domain of the person who picks it up (whereas before that, the owner can retract verbally). Consequently, it transpires that the Mudar receives the food from the Madir, and not from an ownerless domain.




(a) Rebbi Yossi in a Beraisa explains - that it is only when the Neder preceded the Hefker that he argues with the Tana Kama (and forbids the Mudar to acquire from Hefker), but when the Hefker preceded the Neder, then he too, concedes that it is permitted.

(b) Rebbi Aba attempts to prove Rebbi Yochanan wrong from there - because, if Rebbi Yossi's reason was that the Hefker is only finalized once it reaches the domain of the person who acquired it from Hefker, then what difference does it make whether the Neder preceded the Hefker or the Hefker, the Neder? Either way, it should be forbidden?

(c) Rebbi Aba himself refutes this Kashya however - by explaining that it is not because the Hefker article (which preceded the Neder) is no longer in the Madir's domain that it is permitted, but because a person who declares a Neder, does not mean to include something that is already Hefker.

(a) We learned in a Beraisa in Bava Basra that if someone gives some of his property to one of his two slaves, and all the property to his second slave, the first slave acquires nothing, whereas the second one acquires everything - including the first slave.

(b) The first slave does not acquire anything - because for all we know, he himself is included among those things that the master did not give to him (and whatever a slave acquires belongs to him master).

(c) Rava refutes Rebbi Aba's explanation from this Beraisa - because, according to him, just as the Madir does not have in mind that what he has already declared Hefker, he would also not have in mind that what he already given away (to the first slave), yet we see that this is not the case, because the Tana ruled that the second slave acquires *everything*.

(a) So Rava explains Rebbi Yossi's stringency by Hefker as 'Gezeirah Mishum Beis Choron' - where a man from Beis Choron who had been Madir his father Hana'ah, and who was now marrying off a son, presented a third person with his Chatzer. When the recipient declared the Chatzer Hekdesh, the donor protested on the grounds that he only gave him the gift so that his father should be able to participate in the festivities.

(b) What Rava therefore means is - that based on the Chachamim's ruling there that such a gift is invalid, we decree on every case where it is clear that the Madir gave away property or declared it Hefker purely to allow the Mudar to benefit from it.

(c) This will also explain the difference between the case where the Neder preceded the Hefker, and where the Hefker preceded the Neder - because the reason to decree only applies in the former case, but not in the latter.

(d) According to Rava (in Rebbi Yossi), a Hefker article leaves the owner's domain immediately after it has been declared Hefker.

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