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prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem

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Nedarim 48



(a) 'Hareini Alecha Cherem, ha'Mudar Asur'. Bearing in mind that by Cherem, the Tana of our Mishnah means Cherem shel Bedek ha'Bayis - he is referring to the people of Galil, who consider S'tam Charamim as belonging to Bedek ha'Bayis (and not according to the Anshei Yehudah, in whose opinion they belong to the Kohanim, in which case, they would not be Asur be'Hana'ah).

(b) 'Harei At Alai Cherem, ha'Noder Asur. Hareini Alecha va'At Alai, Sh'neihem Asurin'. This refers to municipal property. As far as things belonging to the Olei Bavel is concerned - they are both permitted to use and derive benefit from them.

(c) 'Municipal property' comprises the main square of the town, the bathhouse, the Shul, the Bimah and the Sifrei-Torah. 'Things belonging to the Olei Bavel' comprises - the Har ha'Bayis, the Azaros and the wells dug along the route to Yerushalayim by the Olei Bavel.

(d) The basic difference between 'municipal property' and 'things belonging to the Olei Bavel' - is that, whereas the former can be sold (via the seven committee members in the presence of all the residents), the latter cannot.

(a) When the Tana Kama says 've'ha'Kosev Chelko le'Nasi', he does not mean that when someone does so, it is included in the municipal property which is forbidden to the Mudarim. In fact we amend the Mishnah to read - 'u'Mah Taknasan, Yichtevu Chelkan le'Nasi', turning the statement into a loophole in the prohibition, rather than part of the prohibition.

(b) Rebbi Yehudah permits writing out his portion to anyone, and the reason that Chazal specified 'Nasi' was - because it is the Nasi who acquires even without a Kinyan, whereas anyone else to whom one would write it out would require a Kinyan, too.

(c) According to the Rabbanan, both the Nasi and anyone else require a Kinyan. The reason that Chazal specified 'Nasi' according to them is - because the Nasi is someone whom one can rely upon not to declare another Neder forbidding the property again on the Mudarim.

(d) The Tana nevertheless needs to tell us this (despite the fact that we have already learned that the Mudar is permitted to benefit from the property that he receives from a third person) - because in this case, the Mudarim continue to make use of the property, even after they have written the property to the Nasi, conveying the impression that the transaction is not genuine.

(a) We do not rule like our Mishnah, which forbids the Mudar to benefit directly from the Shul - because we have already issued the ruling like Eliezer ben Ya'akov with regard to a Chatzer which cannot be divided (under which category a Shul falls), permitting the Mudar to enter it.

(b) The problem we therefore have with the Rambam is - that he rules like our Mishnah despite that ruling.

(c) Rebbi Yehudah says - that the Anshei Galil did not need to write their share for the Nasi, because their parents had already done so on their behalf.

(d) They did it - because the people of the Galil were constantly quarreling and being Noder Hana'ah from one another.

(a) We have already discussed the episode of Beis Choron, where the man gave his Chatzer as a gift, to enable his father to participate in his son's wedding-feast - and where the Chachamim ruled that any gift that is not absolute, permitting the recipient to declare the object Hekdesh, is not a valid gift.

(b) They did not just say 'Kol Matanah she'Im Hikdishah ... ', but added the word ('Kol Matanah) she'Einah (she'Im Hikdishah ... )' - because (unlike a case of 'Matanah al-Menas Lehachzir', which is a Matanah for the as long as the recipient has it (despite the fact that he cannot declare the object Hekdesh) it is clear that even at the time that the recipient did not declare the Chatzer Hekdesh, it did not really belong to him (and that the owner was cheating on his Neder, and trying to use him as the medium to allow his father to benefit from the Chatzer).

(c) The problem with the Mishnah, which begins with the concession to benefit through a third person, and then tells the story of the episode of Beis Choron - is that the story does not support the Halachah (which is normally the objective of a story in the Mishnah). It does not contradict the initial Halachah however - because the Noder added 've'Einan Lefanecha Ela ... ', which is absent from the original case.

(d) To answer the Kashya - we amend the Mishnah, adding the words 've'Im Hochi'ach Sofo al Techilaso, Asur. u'Ma'aseh Nami ... '.

(a) We infer from the Lashon 've'Einan Lefanecha Ela Kedei she'Yavo Aba ve'Yochal ... ' - that had he just said 'she'Yehu Lefanecha she'Yavo Aba', then the gift would have been complete.

(b) According to the second Lashon - even the gift would not have been valid even if the owner had just said 'she'Yehu Lefanecha she'Yavo Aba'.

(a) When one man says to another 'Give four hundred Zuz (of mine) to so-and-so and let him marry my daughter' - the recipient receives the four hundred Zuz, but he is under no obligation to marry the man's daughter.

(b) Nevertheless, according to the second Lashon, we do not say the same with regard to the case under discussion (that the gift is valid at all costs) - because it is obvious that a person does not prepare a wedding feast for his son and then give it away.

(c) According to the Rashba this speaks only if he made the condition at the time that he gave the man the gift, but if he only said it afterwards, it will not override the gift that was already valid when he gave it to him. But according to the Rambam - the condition overrides the gift even in that case.




(a) That man (who was on his deathbed) reacted to the fact that his son used to steal bundles of flax - by disowning him.

(b) And when they asked him what would happen should his grandson turn out to be a Talmid-Chacham - he declared that in that case, let him initially not inherit, but should that indeed happen, then he would.

(c) We learned earlier that the grandson inherits his grandfather's property anyway - because even though the father forbade his property on his son with a Neder, he nevertheless remains the heir, in which case, *his* heirs would automatically inherit it from him.

(d) That might not be the case here however - because the previous Sugya speaks when the son in question was the only heir, whereas we are speaking when the man had two sons, one decent son and the other, a thief. Consequently, when he declared his property Asur on the latter, he meant to place it all in the hands of the former, and it was only when they queried him about his grandson that he agreed to bequeath half of it to the other son, in the event that his grandson turned out to be a Talmid-Chacham.

(a) The Pumbedisa'i rule that the grandson should not inherit the property - because it is a case of (the son) acquiring purely in order to pass it on (to his son), which is not considered a Kinyan.

(b) This case differs from 'Matanah al-Menas Lehachzir', which is also no more than a Kinyan in order to return the article - inasmuch as there, the recipient at least acquires the article for himself for a while, whereas here the son did not acquire it at all.

(c) Rav Nachman disagrees - because, he says, it is not worse than a Kinyan Sudar (the head-gear of a Talmid-Chacham, or any other article that one hands over for the purpose of acquiring something), which the recipient only acquires in order to pass another article over to the domain of the owner of the Sudar.

(d) Rav Ashi argues with Rav Nachman on two scores. One of them, because 'If the recipient wishes to keep the Sudar, who says that he is not permitted to do so'? The other, because - even if he is not, the case of Kinyan Sudar has the advantage that the Kinyan at least comes into effect immediately, whereas here, it was clearly the father's intention that his son should not inherit his property until his grandson turns out to be a Talmid-Chacham, by which time, the Kinyan would have long terminated.

(a) Rav Nachman disagrees with Rav Ashi's first query, because he maintains that the recipient is not permitted to retain the Sudar. He refutes his second argument (that the Kinyan only comes into effect later) - on the grounds that, in his opinion, seeing as the father made his stipulation S'tam, it is as if he said specifically 'Me'achshav' (from now), in which case it is comparable to Kinyan Sudar.

(b) Rav Ashi disagrees with that - on the grounds that the father only agreed for his son to inherit the property on the condition that his grandson would turn out to be a Talmid-Chacham, it is clear that he does not intend his son to inherit the property until such time tome as he did.

(c) We disagree with the Rashba, who maintains that Rav Ashi will only argue with Rav Nachman with regard to Kinyan Meshichah or Chazakah, but not in the case of a Kinyan Sh'tar (provided the Sh'tar was still there when the grandson became a Talmid-Chacham - because of the principle 'Ein Sh'tar le'Achar Misah'. Consequently, if the Sh'tar would not be valid immediately, it would not be valid later either.

(a) Rava asked Rav Nachman - that the case of Matnas Beis Choron in our Mishnah too, is a case of 'K'ni al-Menas Lehaknos', and we see that the Kinyan is not valid.

(b) On one occasion, he answered him that the case there was different because 'Se'udaso Mochachas Alav' - meaning that there it was obvious that the son wanted his father to benefit from *him* directly, and not from a third person (proving the Kinyan to the third person to be no more than a farce); whereas in our case, to the contrary, the father probably wanted his grandson to inherit the property through the medium of his (the grandson's) father, since that is the normal channel of inheritance.

(c) On another occasion, Rav Nachman replied 'Rebbi Eliezer Hi, de'Amar Vitur Asur be'Mudar Hana'ah' - meaning that, the Tana, taking his cue from Rebbi Eliezer (who forbids Vitur by Nedarim, even though it is of no consequence in other areas of Halachah), invalidates 'K'ni al-Menas Lehaknos', even though elsewhere, the Kinyan is effective.

(d) Regarding the case of 'Matnas Beis Choron', our Mishnah concludes 'Amru Chachamim, Kol Matanah she'Einah, she'Im Hikdishah, Tehei Mekudeshes, Einah Matanah'. We reject the proof from the Lashon 'Kol' (which usually comes to include something) that 'K'ni al-Menas Lehaknos' is not effective' - on the grounds that it could come to include the second Lashon of Rava (on the previous Amud - that the gift is nullified whether the son said 've'Einan Lefanecha Ela ... ' or not).

(a) We rule like Rav Nachman (that the recipient of the Sudar is not permitted to retain it). Despite the fact that Rav Ashi lived later than Rav Nachman, the principle 'Halachah ke'Basra' is not applicable here - because Rav Ashi himself only presented the S'vara in order to query Rav Nachman. In fact, he himself agrees with him (as is evident in Kidushin).

(b) With regard to K'ni al-Menas Lehaknos however, there appears to be no reason why we should not rule like Rav Ashi (who maintains that, in the case of the grandson, the Kinyan was only intended to take place later, and was therefore not effective. The Rambam however - rules like Rav Nachman in this point too. He seems to assume that, since, regarding the one point, Rav Ashi only comes to query Rav Nachman, the same is true of the second point (in which case, he really agrees with his ruling).

***** Hadran Alach ha'Shutfin *****

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