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Kollel Iyun Hadaf, Jerusalem

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Nedarim 46

EDARIM 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.
How will we reconcile this with the Sugya in Bava Basra, which states that partners are not usually fussy about such trivialities?

(b) Does Rebbi Eliezer ben Ya'akov argue with the Rabbanan in this point too?

(a) Why does the Tana find 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? What does the Tana go on to say?

(b) Will the same apply ...

  1. ... in the Reisha, when both partners were Madir Hana'ah from each other?
  2. ... in a case where someone was Madir Hana'ah on *himself*? Will he too, be obligated to sell his rights in his Chatzer?
(c) Rebbi Eliezer ben Ya'akov agrees with the Rabbanan in this case.
Why is that? Why can he not simply forbid his friend to do likewise (thereby removing the cause of his jealousy)?
(a) What will be the Din regarding entering the Chatzer if one of the partners was Madir a third person? May *he* enter the Chatzer?

(b) According to whom does the Tana need to tell us this, the Tana Kama or Rebbi Eliezer ben Ya'akov?

(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.
Why is that?

(d) We disagree with the Ra'ah in this matter.
What does the Ra'ah say?

(a) If a Madir Hana'ah owns a bathhouse or an olive-press that he rented out, under which circumstances may the Mudar use these facilities and under which, may he not?

(b) According to the Rashba, this concession is confined to where the bathhouse or the olive-press was rented out prior to the declaration of the Neder.
How does he infer this from the current Mishnah 'le'Beischa she'Ani Nichnas')? Why should that be worse than the case where he sold the field after the Neder was declared?

(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.
Under which circumstances will he be allowed to do so even whilst the Madir is still alive?

(b) How will the Din differ if he said 'Konem le'Bayis *Zeh* she'Ani Nichnas, Sadeh *Zu* she'Ani Koneh'?

(c) In which case will 'Beischa' be more stringent than 'Bayis Zeh'?

(d) Will it make any difference whether he rebuilt it elsewhere or in the same location as the previous one, in the case of ...

  1. ... 'Beischa'?
  2. ... 'Bayis Zeh'?
(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.
What would then be the basis of their Machlokes?

(b) Why would the Rabbanan agree with Rebbi Eliezer ben Ya'akov when the two partners were Madir each other Hana'ah?

(c) According to the new suggestion, how will we 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)?

(d) How do we prove this explanation to be correct from the Seifa 've'Kofin es ha'Noder Limkor'?

(a) How can we prove from the Seifa that the Mishnah must speak when the Noder forbade himself? Ho do we know that it does not refer to the Madir, and it is *him* whom we are penalizing for being Madir his partner?

(b) In which point does the Ra'avad take the Rambam to task?

(c) Under which circumstances does the Rambam's ruling nevertheless concur with a Tosefta? What does the Yerushalmi consider 'Ragil'?

(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 too, yet Chazal forbade him, proving that the Tana here is speaking even by 'Hidiru' and not only by 'Nadru'.
How does Rabeinu Yonah refute this proof?

Answers to questions



(a) Rabah Amar Ze'iri initially establishes the Machlokes between 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, even the Rabbanan will concede that the partners are permitted to enter.
Why is that?

(b) Rav Yosef queries this however, from the next Mishnah, which prohibits the Mudar from benefiting from communal benefits such as the Shul.
What would be the problem according to Rabah's version of Ze'iri's statement?

(c) So how does Rav Yosef amend Ze'iri's statement?

(d) Why does Rebbi Eliezer ben Ya'akov agree in the case of a Chatzer which can be divided?

(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.
Why is that?

(b) Why will the fact that we rule like Shmuel, who holds 'ha'Achin she'Chalku, Lekuchos Hein' not permit him to benefit from it, seeing as it is now totally outside the jurisdiction of the Madir?

(c) On what grounds then, does the Rambam permit it?

(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.
What is the minimum that he would need to receive in order to forbid the Mudar to benefit from them?

(b) Others read 'be'Beitzim' instead of 'Batzir'.
What does that mean?

(c) What does Abaye say about 'Beitzim'?

(d) Then in which case *is* the Madir considered not to have stakes in the bathhouse or the olive-press?

(a) What does the Sugya in Erchin say about the owner who rented out his house and then declared it Hekdesh? Does the Hekdesh take effect?

(b) What problem does that create with our case?

(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.
What distinction does Rabeinu Tam make between two kinds of Konem, to answer the Kashya?

(d) Others make a distinction between whether the owner has been paid or not.
What do they mean?

(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'.
How would this answer our Kashya? How would we then reconcile this with the principle 'Hekdesh Mafki'a mi'Yedei Shi'bud'?

(b) This answer is inadequate however, due to the fact that our Mishnah is talking about Konamos.
So what if it is?

(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, which is the only possible way to differentiate between the hirer in our Sugya, and the Hefker and Matanah above?

(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, de'Mekabel Taska').
What makes Taska different than other cases of rental? Then on what basis does the Tana refer to it as rental?

(b) On what grounds do we reject this answer?

(c) We finally answer the Kashya by drawing a distinction between the Mishnah in Erchin and our Mishnah, where the owner is Madir his partner, and then rents his bathhouse to someone in town, and the case in Erchin, where he is Madir the hirer.
What exactly, is the difference between them?

(d) How will this 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? Why then, *is* his Neder valid?

Answers to questions

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