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Kollel Iyun Hadaf, Jerusalem

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Nedarim 46

NEDARIM 46 - has been dedicated in memory of Mrs. Gisela Turkel (Golda bas Chaim Yitzchak Ozer) at the completion of the Shiv'a, by her grandchildren Rachel and Oz Mandelbort and her great-grandchildren, Yisroel Aryeh and Talya. Her Yahrzeit: 25 Av 5760.



(a) According to the Tana Kama, the two partners (who were Madir Hana'ah from each other) are forbidden to install a mill or an oven, or to keep chickens in their joint Chatzer. The Sugya in Bava Basra, which states that partners are not usually fussy about such trivialities - speaks S'tam, when they did not indicate otherwise. Should they however, wish to forbid each other even those trivial benefits, they certainly have the right to do so. Note: The Machlokes between Rebbi Eliezer ben Ya'akov, whether 'Vitur Asur be'Mudar Hana'ah' or not, also speaks by S'tam, and they argue whether we presume that the Madir meant to include those benefits, too, or not.

(b) It is clear from the sequence of the statements, that Rebbi Eliezer ben Ya'akov agrees with the Rabbanan in this point (see the commentaries on the Mishnah).

(a) The Tana finds it necessary to repeat the Machlokes between the Tana Kama and Rebbi Eliezer ben Ya'akov (regarding the prohibition of entering the Chatzer), in a case when only one of the partners was Madir Hana'ah from the other - not for its own sake (since it contains no Chidush whatsoever), but for the continuation 've'Kofin es ha'Noder Limkor es Chelko', which is confined to this case, but does not apply in the Reisha (as we shall soon see).

(b) This Halachah ...

1. ... will not apply in the Reisha, when both partners were Madir Hana'ah from each other - because it is only when *one* of the partners is forbidden that this measure is necessary, in case he is jealous of his friend, who is permitted to enjoy these benefits, whilst he is forbidden them.
2. ... will not apply either, in a case where someone was Madir Hana'ah on *himself* - and for the same reason.
(c) Rebbi Eliezer ben Ya'akov agrees with the Rabbanan in this case. He not simply forbid his friend to do likewise (thereby removing the cause of his jealousy) - because we will later establish the case when they are both Mudar Hana'ah from each other, and one of them specifically included these benefits too. He will now be embarrassed to forbid on his partner such trivial benefits which people are not normally fussy (seeing as it was he himself who forbade these benefits on him, and not his partner).
(a) Regarding a case where one of the partners was Madir a third person - Rebbi Eliezer ben Ya'akov and the Rabbanan will engage in the same argument as they do regarding the partners themselves.

(b) According to the Tana Kama, there is no Chidush in this statement, and it is according to the Tana Kama that it needs to be inserted in the Mishnah.

(c) The Rashba maintains that the concession for the third person to enter the Chatzer is restricted to when either he needs the second partner or the second partner needs him, but not for his own personal needs - because it is not illogical to extend the unspoken understanding that each partner acquires the Chatzer for his own needs to a third person for *his*.

(d) We disagree with the Ra'ah in this matter - who argues with the Rashba, maintaining that the concession even extends to that case.

(a) If a Madir Hana'ah owns a bathhouse or an olive-press that he rented out, the Mudar may use these facilities - provided the owner does not receive direct revenue from them (this will be explained later), but not if he does.

(b) According to the Rashba, this concession is confined to where the bathhouse or the olive-press were rented out prior to the declaration of the Neder - but not if it was rented out afterwards. There, it will have to be sold first, in order to be considered being under new ownership, as is clear from the Mishnah (that we are about to learn), which permits a house which is Nadur if the owner sold it after the Neder was made, but not, we can infer, if it was only rented out (because then the Tana should have presented *that case* and we would have included when he sold it from a 'Kal va'Chomer').

(a) If a man says to his friend 'Konem le'Veischa sha'Ani Nichnas, ve'Sadcha she'Ani Lokei'ach', the Mudar Hana'ah will be permitted to enter the house or to buy the field should the Madir die - or if he sold it to a someone else first.

(b) The Din will differ if he said 'Konem Bayis *Zeh* she'Ani Nichnas, Sadeh *Zu* she'Ani Lokei'ach' - because then, the house remains forbidden irrespective of who the owner is.

(c) 'Beischa' will be more stringent than 'Bayis Zeh' - should the house fall down and the owner rebuilds it (because it is still the owner's house on the one hand, but a different house on the other).

(d) In the case of ...

1. ... 'Beischa' - the Mudar will remain forbidden to enter the house even he rebuilt it in a different location.
2. ... 'Bayis Zeh' - the Mudar will be permitted to enter the house even if he rebuilt it in the same location and to the same specifications as it was.
(a) We suggest that perhaps (contrary to the way we learned until now - which is the opinion of Ravina in Bava Kama) the Rabbanan agree with Rebbi Eliezer ben Ya'akov when the two partners forbade each other Hana'ah, and their Machlokes is confined to when each one forbade himself. The basis of their Machlokes would then be - whether the Chachamim penalized the Noder for forbidding his friend's property on himself unnecessarily (the Rabbanan), or not (Rebbi Eliezer ben Ya'akov).

(b) The Rabbanan will agree with Rebbi Eliezer ben Ya'akov when the two partners were Madir each other Hana'ah - because on the one hand, they agree with him on principle, that 'Yesh B'reirah' (as we explained above), and on the other, because one cannot penalize someone who is an A'nus.

(c) According to the new suggestion, we will have to amend the Mishnah, which continues 'Hayah Echad Meihen *Mudar* Hana'ah me'Chaveiro ... ' (yet they still argue, even though there is no reason to penalize the Mudar) - to read 'Hayah Echad Meihen *Nadur* Hana'ah me'Chaveiro ... ' (which refers to the 'Noder').

(d) We prove this explanation to be correct from the Seifa 've'Kofin es ha'Noder Limkor' - which Chazal would only have instituted if he was Madir himself, but not if he was Mudar from his partner (as we just explained).

(a) We prove from the Seifa that the Mishnah must speak when the Noder forbade himself. The Tana cannot be referring to the Madir, whom we will be penalizing for being Madir his partner - because Chazal would not penalize someone for forbidding his property on his friend. Such a Neder is necessary only for someone who forbids his friend's property on himself, something that is unnecessary, giving us good reason to suspect that he will contravene his Neder.

(b) The Ra'avad takes the Rambam to task - for his ruling that Chazal penalized the Madir for forbidding the Mudar from deriving benefit from his property (which, he claims, they would not do, as we just explained).

(c) The Rambam's ruling nevertheless concurs with a Tosefta - if he is in the habit (Ragil) of doing that. 'Ragil', says the Yerushalmi, means even as little as two times.

(d) The She'eilah (whether the Machlokes in our Mishnah is by 'Nadru' or 'Hidiru') remains unresolved (though it is unclear why the statement 'T'ni *Nadur* me'Chaveiro' - which we went on to substantiate, is not final). We suggest that it can perhaps be resolved from the Mishnah later which discusses the Din when the Madir forbade himself on the Mudar and the Mudar on him, because there, the Mudar is innocent, yet Chazal forbade him too, proving that the Tana here is speaking even by 'Hidiru' and not only by 'Nadru'. Rabeinu Yonah refutes this proof - on the grounds that, even though the Mudar is an A'nus, the Madir is not, and if Chazal were to permit the Mudar, then the Madir would not keep the Neder either. Consequently, they had no option other than to forbid both.




(a) Rabah Amar Ze'iri initially establishes the Machlokes Rebbi Eliezer ben Ya'akov and the Tana Kama in our Mishnah by a Chatzer which is large enough to be divided. But in the case of a Chatzer which is not, the partners are permitted to enter - 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. And when he acquires it, it is on the understanding that he will acquire it completely for that period of time (leaving only the question of *when* he will acquire it to be decided by 'B'reirah').

(b) Rav Yosef queries this however, from the next Mishnah, which presents a similar Halachah concerning a Shul - which in turn, cannot be divided, yet the Tana forbids certain Hana'os. Clearly then, the Rabbanan do argue with Rebbi Eliezer ben Ya'akov even in a case of a Chatzer that cannot be divided (otherwise, will be the author of the Mishnah).

(c) So Rav Yosef amends Ze'iri's statement. According to the new version - they argue in a case of a Chatzer which cannot be divided, but in the case of a Chatzer which can, even Rebbi Eliezer ben Ya'akov will concede that they are both forbidden to enter it.

(d) The reason for this is - because seeing as the Chatzer can and might be divided, one can no longer claim that it was initially known that the partners would both use it, and that was the unspoken condition at the time of purchase. Consequently, the situation will be governed by 'B'reirah' and the principle 'Ein B'reirah' will apply.

(a) With reference to the Reisha of our Mishnah, in the case of a field which is large enough to be divided, even after they actually divided it, according to the Rashba, the portion that now belongs to the Mudar remains forbidden to him - because the criterion of 'B'reirah' is the fact that, initially, it was a Safek, irrespective of what happens afterwards.

(b) The fact that we rule like Shmuel, who holds 'ha'Achin she'Chalku, Lekuchos Hein' will not permit him to benefit from it (seeing as it is now totally outside the jurisdiction of the Madir) - because, as we learned earlier, that only helps if a third person acquires it first, and the Mudar acquires it from him.

(c) The Rambam permits it nevertheless - because, in his opinion, 'we are witnesses' that when they became partners, they did not intend to forbid combined property on one another, permanently.

(a) We learned in our Mishnah, that if the Madir had direct stakes in the bathhouse or the olive-press that he had rented out, then the Mudar may not use it. According to Rav Nachman, it depends on how much of the profits he receives. This was normally fixed at a half, a third or a quarter - if he received less than a quarter, the Mudar would be permitted to use it.

(b) Others read 'be'Beitzim' instead of 'Batzir' - meaning that, as long as the Madir received some of the direct profits from the bathhouse or the olive-press, irrespective of the amount, the Madir would be forbidden to benefit from them. But if he all he received was some of the eggs that the bathers used to bring as a gift for the owner, that did not give him stakes in the bathhouse or the olive-press, and the Mudar would be permitted to use them.

(c) Abaye forbids even that.

(d) The Madir is considered not to have stakes in the bathhouse or the olive-press - only if the owner receives from the hirer 'Taska', an annual fee paid by the hirer to the owner that had nothing to do with their usage.

(a) The Sugya in Erchin says that if the owner who rented out his house and then declared it Hekdesh - the Hekdesh overrides the hirer's rights, and he is forbidden to live in it.

(b) In that case - why is the Mudar permitted to use the bathhouse even in the latter case (when the Madir does not have direct stakes)? Why does the Konem not override the Mudar's rights?

(c) Tosfos differentiates between where the Hefker or even the gift has not yet taken full effect and our case, where the rental is already fully effective. According to Rabeinu Tam - it is only a Konem K'lali that has the Din of Hekdesh (which can override a hirer's rights), but not a Konem P'rati (the case in our Mishnah) which cannot.

(d) Others explain that - in the case in Erchin, Hekdesh overrides the hirer's rights only because it speaks when he has not yet paid the owner, in which case, he now owes Hekdesh the rental, giving Hekdesh rights over the property; whereas our Mishnah is speaking when the hirer has already paid the owner, in which case neither he, nor Hekdesh, has any claims on the hirer.

(a) We would like to resolve our problem by pointing out that the Sugya in Erchin is talking about a case of 'Bayis S'tam' - which would explain why the Hekdesh takes effect there (seeing as the owner can still fulfill his condition by providing the hirer with another house), whereas our Mishnah would be speaking in a case of 'Bayis Zeh' (which the owner would be exempt from replacing - in which case the Konem would not override the hirer's rights), because the principle 'Hekdesh Mafki'a mi'Yedei Shi'bud' only applies to Kedushas ha'Guf (Hekdesh Mizbei'ach), but not to Hekdesh Bedek ha'Bayis (according to the opinion of Rashi), which is only Kedushas Damim, which we would assume our Mishnah to be.

(b) This answer is inadequate however, due to the fact that our Mishnah is talking about Konamos - which have a Din of Kedushas ha'Guf, which override the Shibud of the hirer.

(c) If in addition, we extend the principle that 'Konem Mafki'a mi'Yedei Shi'bud' to a Konem P'rati and decline to make a distinction between whether the hirer has paid the owner or not, the only possible way to differentiate between the hirer in our Sugya, and the Hefker and Matanah above is - that of Tosfos (who differentiate between where the Hefker or even the gift has not yet taken full effect, and our case, where the rental is already fully effective, and which the Madir does therefore not have in mind to include in his Neder).

(a) Yet others differentiate between a regular hirer and the hirer in our Mishnah, and they base this distinction on Abaye's answer ('Heichi Shari, di'Mekabel Taska'). They explain - that the regular hirer actually becomes the owner, because, provided he pays his annual fee, the field becomes permanently his (explaining why the Madir's Konem is ineffective). The Tana nevertheless refers to it as rental - because, should he fail to pay, the field reverts to the original owner (the Madir).

(b) We reject this answer however - because the Tana clearly holds that as long as the owner does not have direct stakes in the property, *any hirer* is permitted to benefit from the bathhouse or the olive-press.

(c) We finally answer the Kashya - by drawing a distinction between the case in Erchin, where the owner is Madir the hirer (and where we apply the principle 'Konem Mafki'a mi'Yedei Shibud) and our Mishnah, where he is Madir his partner, and then rents his bathhouse to someone in town - where his Konem forbidding his partner cannot take effect, due to the rights of the hirer (who was not included in the Konem).

(d) This will affect what we learned in an earlier Mishnah 'Hayah Echad min ha'Shuk Mudar me'Echad Meihem Hana'ah, Lo Yikanes le'Chatzer', which we explained was no Chidush - inasmuch as it now transpires that it is indeed a Chidush, teaching us that even though his Neder concerns a third person, and not the partner himself, it is nevertheless valid. The reason for that is - because since the Madir could acquire the property in its entirety, his Neder is even effective vis-a-vis the third person as well.

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