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Kollel Iyun Hadaf, Jerusalem

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Nedarim 47

NEDARIM 47 (4 Elul) - dedicated l'Iluy Nishmas Chaim Yissachar (ben Yaakov) Smulewitz on his Yahrzeit, by his daughter and son in law Jeri & Eli Turkel of Raanana, Israel.



(a) Avimi asked whether, if the owner of a house forbids his friend to have Hana'ah from it, it will remain forbidden even after it is no longer his. Assuming that he cannot - it is not because he did not say so. He would be forbidden to benefit from it even if he said so specifically.

(b) This case is worse than someone who forbids his friend's property on himself (despite the fact that, in both cases, the property is not his own) - inasmuch as a person can forbid something that is not yet in the world, just like he can forbid anyone's property on himself, but he cannot forbid his own property that is not yet in the world on his friend, just like he cannot forbid friend's property on his friend.

(c) Rava proves from a Mishnah in Bava Kama 'ha'Omer li'Veno, Konem she'I Atah Neheneh Li ... be'Chayav u've'Moso, Lo Yirshenah', that his Neder is indeed effective - Rava disagrees with the Sugya above (42b.) where we differentiated between where the Noder specified 'be'Chayav u've'Moso' or not.

(d) The Halachah is like the previous Sugya which does make this distinction.

(a) 'Lo Yirshenu' in the Mishnah in Bava Kama means that he is forbidden to benefit from the property, and must not be taken literally - because of the Seifa, which continues 've'Yitein le'Banav O le'Echav ... ', which only makes sense if he actually inherited the property.

(b) We have no problem with the Tana there, who says 'Lovin, u'Ba'alei Chov Ba'in ve'Nifra'in Mimenu', because it speaks when they take it of their own accord, in which case it is a case of 'Mavri'ach Ari', which is permitted.

(c) 'Nosnan le'Vanav O le'Echav' cannot be taken literally. In fact - all the son does is to point out to them that his father declared the property forbidden to him, that he doesn't know what to do with it, and that they are welcome to help themselves to it.

(d) When telling them this, he is obligated to add - that the property concerned was the property of his father.

(a) The Mishnah will later say that in a case where someone says 'Konem Peiros ha'Eilu Alai, Konem Hein al Pi, Konem Hein le'Fi' - Asur be'Chilufeihen ve'Giduleihen'

(b) Rami bar Chama asks 'Konem Peiros ha'Eilu *Al P'loni* Mahu be'Chilufeihen' - whether the above applies exclusively to where the Noder forbids the fruit on *himself* (even though the Chilufin and the Gidulin are not yet in the world), seeing as he could also have forbidden somebody else's fruit on himself, but not when he forbids his fruit on someone else, since he could not have forbidden somebody else's fruit on him; or whether there is not difference.

(c) Assuming that the Chalipin are permitted - that will certainly not mean that the Mudar is permitted to exchange or sell the fruit Lechatchilah, seeing as it Asur be'Hana'ah, only that if he did sell it (Bedieved), the proceeds are permitted.

(d) The She'eilah is by no means confined to Konamos - but extends to all Isurei Hana'ah, as we shall see at the end of the Sugya.

(a) The difference between Avodah-Zarah and Shevi'is and all other Isurei Hana'ah as regards Chalipin is - that the former retain their status, even after they have been exchanged for something else, whereas in the case of the latter, the Isur is trasferred to the second article, and the original becomes permitted.

(b) In spite of this - we ask whether they will remain forbidden to the one who made the exchange (only), because of a Rabbinical decree.

(c) The basis of the She'eilah is - whether the reason for the Mishnah 'Konem Peiros ha'Eilu Alai, Konem Hein al Pi, Kinem Hein le'Fi, Asur be'Chilufeihen ve'Giduleihen' is because the Noder forbade the fruit on himself (in which case the ability to do so is restricted to himself, as we explained earlier), or whether it is due to a Rabbinical decree, in which case it cuts across the board.

(d) Rami bar Chama confined his She'eilah specifically with regard to the Mudar, and not with regard to the Noder himself (in which case the She'eilah would be whether the 'Chalipin will be Asur even if someone else made the exchange [e.g. if Re'uven forbade Shimon's fruit on himself, and Shimon exchanged the fruit]) - because he considers it obvious that as far as the Noder is concerned, it is obvious that the Chalipin will be Asur, seeing as he said 'Peiros *Eilu*', rendering them like Hekdesh.

(a) Although the above She'eilah concerns where the Noder forbade the fruit on the Mudar, its source already lies in our Mishnah 'Konem Peiros ha'Eilu Alai, Konem Hein al Pi, Kinem Hein le'Fi Asur ... u've'Giduleihen' (which concerns only the Noder himself) - inasmuch as we can ask whether 'Eilu' is specific (meaning that his having said 'Eilu' indicates that he intended to include the Gidulin and the Chalipin), or whether it is not necessary (because it does not depend on his intention, but on the Takanah of Chazal, who forbade them anyway.

(b) The Tana could have asked the same She'eilah with regard to the Noder himself when he did not say 'Eilu' (which is the same She'eilah as the case as the Mudar using it, when the Noder said 'Eilu' - only the Tana preferred to ask the She'eilah when he said 'Eilu' and with regard to the Mudar.




(a) The Mishnah in Kidushin, which states that if someone forbids his wife Hana'ah with a Konem, 'Lovah u'Ba'alei Chov Ba'in ve'Nifra'in' - must be speaking when he declared the Neder whilst they were still betrothed (because after the marriage, when he is Meshubad to her, his Neder would not valid).

(b) The author of this Mishnah could be Chanan - because even though he said in Kesuvos that someone who sustains his friend's wife in his absence 'Hini'ach Ma'osav al Keren ha'Tz'vi' (and he cannot reclaim his expenses) - that is only if he provided for her in the form of Mezonos (as a stand-in for her husband), but not in the current case, where he did so in the form of a loan.

(a) We attempt to resolve Rami bar Chama's She'eilah from the Mishnah in Kidushin - inasmuch as she has benefited from the Chalipin of her husband's property, which remains Meshubad to her (even though she is forbidden to benefit from it).

(b) According to some, the proof is from the fact that she is permitted to borrow on the basis of the creditors subsequent claiming from her husband (because there is no prohibition on the part of the creditors). We prefer to explain however - that the proof is from the fact that Chazal permitted the creditors to claim from her husband's property (seeing as they are claiming *her* debt, thereby causing her to sin).

(c) Initially, it seems, we could have brought the same proof from the Seifa of our Mishnah, which states (in the case of a father who was Madir his son Hana'ah from his property) 'Loveh u'Ba'alei Chov Ba'in ve'Nifra'in'. We nevertheless found it necessary to bring the proof from the Mishnah in Kidushin - because the proof there is from the case of a woman, who cannot acquire property independent of her husband, which is closer to being a case of exchanging with her husband's property; whereas in the case of the son, who is able to acquire property of his own, it appears less like exchanging with his father's property.

(d) Rava refutes the proof because, he says 'Dilma Lechatchilah Hu de'Lo, ve'I Avid, Avid' - meaning that this can be compared to a case of Bedieved, because when the woman borrowed the money or the food, it was not directly in exchange for her husband's property, seeing as he did not yet receive anything in exchange. It is only later that he claims payment from the husband, making it a case of Bedieved.

(a) The Mishnah in Kidushin states 'ha'Mekadesh be'Orlah, Einah Mekudeshes'. The Tana go on to say however - that if he sold the Orlah and betrothed a woman with the proceeds, the betrothal is valid.

(b) We attempt to prove from there that one is permitted to benefit from Chalipei Isurei Hana'ah even Lechatchilah - because otherwise, it ought not to be valid Bedi'eved either, and a second betrothal should be required (to turn the Safek Kidushin into a Vaday).

(c) We refute this proof too - on the same grounds as the previous one; that the Hana'ah is Asur Lechatchilah, but Mutar Bedieved (though this is unclear, because the initial She'eilah was only with regard to Bedieved, as we explained above).

(d) The Rambam rules le'Chumra in the case of the Mudar or the Noder himself who did not say 'Peiros Eilu' (like we usually do by Safek Isur). There might well be good reason to rule leniently here however - on the basis of what we learned earlier that the Isur 'Chilufeihen (ke'Giduleihen') here is only mi'de'Rabbanan, and we have a principle 'S'feika de'Rabbanan Lekula'.

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