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Nedarim 45



(a) According to Rebbi Yochanan Amar Rebbi Shimon ben Yehotzadak - Hefker in front of three is (completely) Hefker (because whatever is performed in front of three people has a 'Kol', [i.e. it soon becomes public knowledge], indicating that the owner intends the article to be Hefker for whoever takes it); Hefker in front of two is not (because, since there is no 'Kol', the owner meant *them* to have it, and not anybody else.

(b) This enables Resh Lakish to establish even the Beraisa of 'ha'Mafkir Karmo' like Rebbi Yossi - because it speaks when the owner declared the field Hefker in front of three people, in which case Rebbi Yossi concedes to the Rabbanan that the field leaves the owner's domain immediately.

(c) According to this explanation, 'Bifnei Sh'nayim, Lo Havei Hefker' might speak when only the owner and the Mudar are present when the owner declares the article Hefker (like the case in our Mishnah). It might also speak - when there are two people present besides the owner (depending upon whether the owner is counted among the three or not).

(a) This entire Sugya is rejected however. Rebbi Yochanan's interpretation of Rebbi Yossi (which is based on the theory of 'Hefker ke'Matanah') is unacceptable - since we already disproved it in the previous Sugya (see 43b).

(b) Consequently - the Beraisa of ha'Mafkir Karmo' will be unanimous (seeing as Rebbi Yossi agrees with the Rabbanan regarding Hefker - and we will explain the Beraisa like Ula [on 44a]).

(c) According to Rebbi Yehoshua ben Levi, min ha'Torah, Hefker is effective even in front of one person, and it is the Rabbanan who instituted that there should be three - so that if one of them should acquire the article, the other two will serve as witnesses (to prevent the owner from later denying that he declared it Hefker).

(d) The basis of the Machlokes between Rebbi Yochanan and Rebbi Yehoshua ben Levi is - whether the Halachah is like Rebbi Yossi (Rebbi Yochanan, which is why he establishes the difference between three and two as being d'Oraysa) or like the Rabbanan (Rebbi Yehoshua ben Levi, who holds that it is only mi'de'Rabbanan).

(a) Hefker in front of two ...
1. ... is considered Hefker, according to Rebbi Yochanan (though not completely).
2. ... is not considered Hefker (mi'de'Rabbanan), according to Rebbi Yehoshua ben Levi.
(b) The Halachah is like Rebbi Yehoshua ben Levi (see Tosfos DH 'Rebbi Yehoshua ben Levi').
***** Hadran Alach 'Ein Bein ha'Mudar' *****



***** Perek ha'Shutfin *****


(a) According to the Tana Kama, partners who forbade each other Hana'ah are forbidden to enter each other's Chatzer. According to Rebbi Eliezer ben Ya'akov - they are permitted, because each one enters his own domain.

(b) We will later establish the Machlokes by a Chatzer that is too small to divide. In the case of a larger Chatzer - Rebbi Eliezer ben Ya'akov will concede that they are both forbidden to enter.

(c) The basis of their Machlokes is - whether 'Yesh B'reirah' (Rebbi Eliezer ben Ya'akov (meaning that whenever one of them enters the Chatzer, he is entering what is entire his own) or 'Ein B'reirah' (the Tana Kama).

(a) The problem that we have with understanding the Tana Kama is how the Neder can possibly be valid - seeing as Neder apart, neither partner can forbid the other one from entering. How can he then stop him by means of a Neder?

(b) To resolve this problem - we explain that each of the partners has a Kinyan ha'Guf in the courtyard coupled with a Shibud (rights) on the Kinyan of his partner (because 'Ein B'reirah' prevents either one from being able to acquire it completely).

(c) Rebbi Eliezer ben Ya'akov disagrees. He holds 'Yesh B'reirah', as a result of which each partner actually acquires the Chatzer completely whenever he enters it.

(d) We prove from here - that the owner of a house has the power to forbid his house on the person who is renting it from him, even though, Neder apart, he would not have the right to prevent him from entering it.

(a) In Beitzah, we rule like Rav Oshaya - who rules 'bi'd'Oraysa Ein B'reirah, bi'de'Rabbanan, Yesh B'reirah'.

(b) This clashes with our Sugya however, which will later rule like Rebbi Eliezer ben Ya'akov - who holds 'Yesh B'reirah' in our Mishnah, even though it is bi'd'Oraysa.

(c) Rabeinu Tam answers that when we rule like Rebbi Eliezer ben Ya'akov, it is not for the same reason as him (because of 'Yesh B'reirah') - but because we hold 'Vitur Mutar be'Isurei Hana'ah' (against the opinion of Rebbi Eliezer, who holds Asur).

(d) If however, the Noder specifically includes 'D'risas ha'Regel' in his Neder - it will certainly be valid?

(a) The Ri (Rabeinu Yitzchak) however, refutes Rabeinu Tam's answer. He consider it a Dochek - because a number of S'tam Mishnahs hold like Rebbi Eliezer, and it is therefore unlikely that the Halachah should not be like him.

(b) The Ri reconciles the two rulings - by ruling like Rav Oshayah in Beitzah even by d'Oraysas too (and the only reason that they confine the ruling to de'Rabbanan, is because that is the topic discussed there in the Sugya, but not to preclude cases which are d'Oraysa).

(c) We disagree with the Ri too however, on the basis of a major ruling of Shmuel 'ha'Achin she'Chalku Lekuchos Hein, u'Machzirin Zeh la'Zeh ba'Yovel' (meaning that when brothers divide their deceased father's estate, their division is only arbitrary and, like a sale, it must be returned to the kitty in the Yovel-year) - proving that 'Ein B'reirah bi'de'Oraysa'.

(a) The Rambam resolves the contradiction by differentiating between this case of B'reirah and other cases - because unlike regular cases of B'reirah (which are based on a Safek - which only materializes later retroactively), this case is decided in advance; Both partners certainly acquire the filed, sometimes the one will acquire it for his use, and sometimes, the other. Consequently, it is possible to rule 'Yesh B'reirah' here, even though elsewhere, we hold 'Ein B'reirah.

(b) The problem with the Rambam's explanation however is - that they should not then have connected the Machlokes with 'Yesh B'reirah' or 'Ein B'reirah', seeing as Rebbi Eliezer does not consider it B'reirah at all.

(c) In fact, we conclude, this is proper B'reirah, yet we can still rule 'Yesh B'reirah'. It is possible ...

1. ... on the one hand, to be proper B'reirah - because it is not known in advance exactly when each one will want to use it (that will only be determined when they actually do).
2. ... on the other, to rule like Rebbi Eliezer ben Ya'akov, who holds 'Yesh B'reirah' even by a d'Oraysa - because, unlike other cases of B'reirah, here it is not a Safek *whether* each of the partners will acquire it but *when* he will acquire it, according to Rebbi Eliezer ben Ya'akov. And when he acquires it, it is on the understanding that he will acquire it completely for that period of time.
(d) The Rabbanan argue with Rebbi Eliezer ben Ya'akov - on the grounds that, since one has to come on to B'reirah one way or another, the ruling that 'bi'd'Oraysa, Ein B'reirah' will remain intact. Consequently, each one has a Shibud on his friend's part in the Chatzer, and Konamos have the power to detract from a Shibud.
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