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Rosh Kollel: Rav Mordecai Kornfeld
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Nedarim, 32
32b
1) TAKING SHORTCUTS THROUGH OTHERS' PROPERTY
QUESTION: The Mishnah states that one who makes a Neder not to derive
pleasure from his friend is prohibited from walking through his friend's
land. The Gemara says that the Mishnah is following the view of Rabbi
Eliezer, who holds that "Vitur" (any use of another's property which the
owner does not mind) is nevertheless prohibited to one who is Asur with a
Neder. We see that the Gemara considers it to be commonly accepted that a
person does not mind others walking through his courtyard.
The Rishonim ask that the Gemara in Bava Basra (57b) says that only partners
who jointly own a piece of land do not mind if each one walks on the field,
but they generally do *not* let any other person to walk on their field
without permission! How is our Gemara, which implies that a person does not
care if others walk though his field without permission, to be reconciled
with the Gemara in Bava Basra?
ANSWERS:
(a) The RAN quotes the RAMBAN who answers that the Gemara in Bava Basra is
referring to one who sits down and loiters in the courtyard. Most people do
not want others remaining in their courtyard without permission. Our Gemara,
on the other hand, is referring to one who just walks through the courtyard
as a shortcut. Most people do not mind if their property is used as a
shortcut.
(b) TOSFOS in Bava Basra quotes RABEINU TAM (also Tosfos here in brief) who
answers that the Gemara in Bava Basra is referring specifically to a
*courtyard*. People do not want others walking through their courtyards. Our
Gemara, on the other hand, is referring specifically to a Bik'a (a large,
open field, not used for personal purposes), and therefore the owner does
not mind if people walk through it.
HALACHAH: Regarding whether one may use someone else's property as a
shortcut without permission, it seems that the Ramban would permit it, while
Rabeinu Tam would prohibit walking through someone else's courtyard without
permission. Since today we cannot automatically assume that owners of
property permit everyone to take shortcuts through their property, every
situation needs to be evaluated individually. (E. Kornfeld)
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