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Kollel Iyun Hadaf, Jerusalem

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Nedarim 85



(a) We just suggested that Rebbi (who obligates the person who ate his friend's Tevel to pay for all that he ate), holds 'Tovas Hana'ah Mamon', and Rebbi Yossi b'Rebbi Yehudah (who exempts him from paying for all the Ma'asros), 'Tovas Hana'ah Eino Mamon'. We try to repudiate this proof by establishing that both opinions hold 'Tovas Hana'ah Eino Mamon', and that their Machlokes is based on 'Matanos she'Lo Hurmu' - whether the Matanos contained inside the Tevel are considered Matanos (as if they had been separated - Rebbi Yossi be'Rebbi Yehudah), or not (Rebbi, in which case they will considered like Chulin).

(b) We reject this however, on the grounds that Rebbi's opinion will then make no sense - because, since he agrees that 'Tovas Hana'ah Eino Mamon', what difference does it make whether the Matanos are considered separated or not? Either way, seeing as the owner has no rights to them, the person who ate them should not be obligated to pay?

(c) According to Abaye, the Machlokes between Rebbi and Rebbi Yossj b'Rebbi Yehudah is based upon whom Chazal penalized - whether they penalized the thief, to make him pay in total (Rebbi - even if we hold 'Tovas Hana'ah Eino Mamon'), or whether they 'penalized' the owner to make him lose the T'rumos and Ma'asros (Rebbi Yossi b'Rebbi Yehudah - even if we hold 'Tovas Hana'ah Mamon').

(d) Regarding the She'eilah of 'Tovas Hana'ah Mamon' - they could hold either way, as we just explained.

(a) According to Rava, our Mishnah holds 'Tovas Hana'ah Mamon', which explains why Kohanim and Levi'im not included in the Neder must receive the T'rumos and Ma'asros. The reason that the Tana in the 'Reisha' permits Kohanim and Levi'im to receive them, in spite of the Neder, he explains - is because there (unlike in the Seifa) it speaks when the Noder forbade *all* Kohanim and Levi'im Hana'ah. Seeing as there is nobody else to whom to give his T'rumos and Ma'asros, it is as if he rendered them like dust, and to all intents and purposes, they are Hefker.

(b) We learn from Rava's explanation, that if the owner forbade fruit on himself - others may come and benefit from it against his wishes.

(c) In the event that the owner has his Neder revoked however - they will be obligated to pay (since a Chacham uproots a Neder retroactievly).

(d) Nevertheless, says the Rashba, in our case, we do not forbid Kohanim and Levi'im to benefit from the T'rumos and Ma'asros that the owner forbade, on the assuption that he might have his Neder revoked. The Rashba's precedent for this lenient ruling is a Mishnah in Kesuvos - where a man betroths a woman on condition that he or she has no Nedarim, and one of them is found to have Nedarim. It is evident (though not explicit) from the Mishnah which invalidates the first Kidushin, that the woman is permitted to marry someone else (even though the Neder can be revoked, reinstating the first Kidushin, and rendering the second Kidushin a Bi'as Z'nus).

(a) We query the Rashba's ruling (obligating whoever ate the fruit having to pay once the Noder has his Neder revoked) - on the grounds that, when someone aquires the fruit from 'Hefker', it becomes their's, and although the Isur Hana'ah is removed with the Chacham's Hatarah, the Kinyan of the person who acquired it, is not. Consequently, there is no reason why the person who ate the fruit should be obligated to pay for it.

(b) And we refute his proof from the Mishnah in Kesuvos (permitting the woman to marry again, despite the possibility that the Neder is revoked) - on the grounds that the Mishnah does not specifically permit her to marry again. It only says 'Einah Mekudeshes' (and even though the Rashba does extrapolate it from there, we disagree with him).

(c) Otherwise, were we to accept the Rashba's theory, we would not authorize anyone to eat the fruit that was forbidden through a Neder in the first place - because, seeing as a Neder stands to be annulled (for which reason we referred to it earlier as a 'Davar she'Yesh Lo Matirin'), it would be futile to allow anyone to eat the fruit, in the knowledge that the owner is bound to regain possession of it.

(a) If a woman declares 'Konem she'Ani Osah ...
1. ... al-Pi Aba'; ... al-Pi Avicha'; ... al-Pi Achi'; ... ve'al-Pi Achicha', her husband is not permitted to annul it - because it is neither a Neder of Inuy Nefesh nor of Beino le'Veinah.
2. ... she'Ani Osah al-Picha', her Neder does not require Hafarah - because she is Meshubad to her husband.
(b) Rebbi Akiva and Rebbi Yochanan ben Nuri disagree with the Tana Kama. According to Rebbi Akiva, the Neder requires Hafarah because she may produce more than the amount fixed by the Chachamim. The Tana Kama is not similarly concerned - because in his opinion, anything extra that she produces belongs to her husband too.

(c) Rebbi Yochanan ben Nuri agrees with the Tana Kama regarding a wife's extra products. The Neder nevertheless requires Hafarah - because he may divorce her, and it will take effect then, As a result, he will then be unable to re-marry her, since he will be unable to avoid benefitting from her.

(d) The Tana Kama might disagree with Rebbi Yochanan ben Nuri because the Hafarah of a husband (even when it is made during the marriage) cannot come into effect after he divorces his wife. Or he might disagree - because since the Neder does take effect now, it will not take effect after her divorce either.




(a) Shmuel rules like Rebbi Yochanan ben Nuri in our Mishnah (who says 'Yafer') - from which we can deduce the principle 'Adam Makdish Davar she'Lo Ba le'Olam'.

(b) If a man declares his wife's work Hekdesh, the Tana Kama in the Mishnah in Kesuvos permits her to eat what she produces. This might speak even when her husband is sustaining her, due to the principle stated by Rav Huna - 'Yecholah Ishah Lomar le'Ba'alah, Eini Nizones ve'Eini Osah'.

(c) Anything extra that she produces, Rebbi Meir considers Hekdesh - but only after her death, when her husband inherits all her property.

(d) Rebbi Yochanan ha'Sandlar considers it Chulin - because he holds 'Ein Adam Makdish Davar she'Lo le'Olam').

(a) Shmuel rules like Rebbi Yochanan ha'Sandlar in the Mishnah in Kesuvos. This seems to clash with his ruling here like Rebbi Yochanan ben Nuri in our Mishnah [who says 'Yafer'] - from which we deduced that 'Adam Makdish Davar she'Lo Ba le'Olam'.

(b) We initially try to resolve the apparent contradiction - by suggesting that he only rules like Rebbi Yochanan ben Nuri by extra work that she has already produced, which in Rebbi Yochanan ben Nuri's opinion, belongs to the husband (and not because he holds 'Adam Makdish Davar she'Lo Ba le'Olam').

(c) We refute this suggestion on three scores: Because then he should either have said 'Halachah ke'Rebbi Yochanan ben Nuri be'Ha'adafah' or 'Ein Halachah ke'Rebbi Akiva' - or 'Halachah ke'Tana Kama' (who said 'Ein Tzarich Lehafer' (because he holds 'Ein Adam Makdish ... ').

(d) 'Ein Halachah ke'Rebbi Akiva' - would refer both to his ruling 'Yafer' and to his ruling that any extra work produced by a woman belongs to her.

(a) Rav Yosef differentiates between Hekdesh, where Shmuel holds 'Ein Adam Makdish Davar she'Lo Ba le'Olam', and Konamos - which differ from Hekdesh inasmuch as one can forbid one's friend's things on oneself (even though one cannot declare it Hekdesh). Consequently, one can also forbid a 'Davar she'Lo Ba le'Olam'.

(b) Abaye queries Rav Yosef. He concedes that one can forbid one's friend's things on himself, but not that he should be able to forbid something that is not yet in the world - in the same way as he can forbid his own things on his friend, but not his friend's things on his friend.

(c) Abaye compares forbidding ...

1. ... his friend's things on himself to forbidding his things on his friend - because a person is in his own possession no less than his things are.
2. ... something that is not yet in the world to forbidding his friend's things on his friend - because the he has no more jurisdiction over the former than he has over the latter.
(d) Rav Huna B'rei de'Rav Yehudah finally establishes our Mishnah in a way that renders it a 'Davar she'Ba le'Olam' - by establishing it when the woman declared her hands Konem (automatically incorporating whatever they produce).
(a) When we query Rav Huna B'rei de'Rav Yehudah's explanation on the grounds that the hands themselves are Meshubad to her husband - this has nothing to do with the She'eilah of 'Adam Makdish Davar she'Lo le'Olam', because even the lenient opinion there agrees that the Hekdesh is only effective in the event that one specifically states that the the article is to become Hekdesh when it comes into the world, but not if he is Makdish it S'tam.

(b) We answer - that the Mishnah does indeed speak when she said that they should only become forbidden after her divorce.

(c) The problem we have with this answer is - that seeing as she cannot declare her hands forbidden immediately, why is it not still considered a 'Davar she'Lo Ba le'Olam'?

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