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Nedarim, 34

1) RETURNING A LOST OBJECT TO SOMEONE WHO IS PROHIBITED FROM RECEIVING BENEFIT FROM THE FINDER

QUESTION: The Mishnah (33a) states that when one makes a Neder not to give pleasure to his friend, he is permitted to return his friend's lost object to him. The Gemara here explains that this is permitted because he is not giving his friend any new pleasure, but he is merely returning his friend's own object to him.

The Gemara in Kesuvos (108a) explains that he is permitted to return his friend's lost object since he is doing a Mitzvah. Why does the Gemara here give a different reason why it is permitted? Also, according to the Gemara in Kesuvos, he should be permitted to give Tzedakah to his friend, since that is a Mitzvah, while according to the Gemara here, giving Tzedakah to his friend should be Asur, because he is giving him something new that never belonged to him!

ANSWER: When one returns a lost object to his friend, there are two possible sources of pleasure that his friend receives: first, he experiences the pleasure of the favor that his friend did for him in returning his object, and second, he experiences pleasure from having his item back in his possession (regardless of how it got there). The two reasons of the Gemara here and the Gemara in Kesuvos are necessary in order to explain why both of these sources of pleasure do not make it prohibited to return his friend's lost object. The first source of pleasure, that his friend did him a favor, is not prohibited, because it is not considered as though he is receiving pleasure from his friend. Rather, he is receiving pleasure from the Mitzvah (that his friend is obligated to fulfill). Still, though, his friend's fulfillment of the Mitzvah provided him with another pleasure -- having his item back. For this, our Gemara says that since it was his item to begin with, it is not considered to be a pleasure that is prohibited.

The TALMIDEI RABEINU YONAH, quoted by the SHITAH MEKUBETZES in Kesuvos, explain that when one returns a lost object in order to fulfill the Mitzvah of "Hashavas Aveidah," the recipient is not considered to be deriving pleasure from the finder, but rather he is getting pleasure from the *Mitzvah*. (The one who is returning the item is not doing so out of his will to give pleasure to his friend, but he is just a Shali'ach, so to speak, in carrying out Hashem's will, as RAV YISRAEL ZE'EV GUSTMAN zt'l explains in Kuntrusei Shi'urim.)

The Talmidei Rabeinu Yonah explain that even though it is a Mitzvah to give Tzedakah, one may not give Tzedakah to the person who is prohibited from receiving Hana'ah from him, since he can give his Tzedakah money to someone else and is not required to give his Tzedakah to that particular person. (Giving Tzedakah to that particular person is a result of his personal decision, and is not a result of the directive of the Mitzvah.) Normally, though, he is permitted to give money to someone who is prohibited to receive benefit from him when he is doing a Mitzvah.

In contrast, the RITVA in Kesuvos explains that one may *never* give money to someone who is prohibited to receive Hana'ah from him, even when there is no other choice but to give it to that person, since he is increasing his friend's assets by giving him money. Hence, when he gives his friend Tzedakah, his friend is getting pleasure from the giver's money, even if he only gave the money because of the Mitzvah of Tzedakah. Therefore, it is prohibited to give him Tzedakah, even though he is doing a Mitzvah.

The Gemara in Nedarim is explaining that he is not giving him anything new, but he is just returning his friend's own object. (The RAN in our Sugya also stresses that he is just "chasing away a lion" from his friend's property.) Still, though, his friend is receiving some degree of pleasure from the service performed of the return of the object. The Gemara in Kesuvos explains that the service he does is permitted since he is not doing the service for his friend's benefit but in order to follow Hashem's command to do the Mitzvah, and therefore it is not an act of giving pleasure to his friend and is permitted.

(b) The RASHBA here explains that when one makes a Neder not to give Hana'ah to (or receive Hana'ah from) his friend, he does not intend to prohibit Hana'ah from acts of Mitzvos that his friend does. This is true, though, only when he is not giving anything new to his friend (for example, when he visits his friend who is sick); if he gives money to his friend (such as Tzedakah) then his friend will have pleasure from the money even after the Mitzvah is completed and therefore he is having pleasure from more than just the act of the Mitzvah. Likewise, when one returns a lost object, his friend not only derives pleasure from the act of the Mitzvah, but he continues to derive pleasure from having his item back. Although the moment that the object is returned it is not considered Hana'ah because he was only doing a Mitzvah, after the Mitzvah is completed the owner continues to experience Hana'ah since he has his item back. Hence, the Gemara here does not give the reason that it gives in Kesuvos because it argues and holds that that reason ("Mitzvah Ka Avid") does not suffice. The Gemara needs to say that this Hana'ah is not prohibited to give to his friend because he is only giving his friend's own item back to him.

(c) The RAN later (39b) writes that the fact that one is doing a Mitzvah suffices to make the Hana'ah permitted *only* when the Hana'ah comes automatically as a result of the Mitzvah (such as visiting the sick). But when the Hana'ah is directly given from the person to his friend, then even though he is doing a Mitzvah, it is still considered Hana'ah that is prohibited. According to the Ran, this explains why the Gemara here is not satisfied with the reason of "Mitzvah Ka Avid" in order to explain why it is permitted to return the lost object, since in this case he is actually giving him Hana'ah directly by giving him the object.

34b

QUESTION: The Gemara discusses a case of a person who declares to his friend, "My loaf of bread is [prohibited] upon you," and then he gives the loaf to his friend as a gift. The Gemara asks whether his friend may eat the loaf, since the owner said "*my* loaf" is Asur, but now it is no longer his loaf, or whether his friend remains prohibited from eating the loaf, since the wording of the Neder implies that the loaf is prohibited "upon you" regardless of who owns it. The Gemara asks that if the loaf is permitted when he gives it to his friend, then in respect to what did he intend to prohibit it? The Gemara answers that the owner meant to prohibit his friend from eating it when he invites his friend to his home to eat with him. The Gemara seems to conclude that when a host serves a loaf of bread in front of a guest, the guest is *not* considered to be the owner of the bread. Hence, if a person makes a Neder prohibiting his friend from eating his bread, and then he invites his friend to his home and serves him bread, the guest is not allowed to eat the bread, since the host is still considered the owner.

Does this imply that a guest does not have full ownership of his portion of food before he eats it? If so, then a guest may do with the food only what the owner (the host) intended. He only has permission to eat it, and he may not give it to someone else.

ANSWERS:

(a) The RAN and RITVA indeed learn that this is the Gemara's conclusion. Accordingly, a guest does not acquire ownership of the food served to him, but he is merely eating the host's food. Hence, he may not do with the food anything he pleases, but he may only eat it.

(b) The MEFARESH educes the opposite point from the Gemara. He understands that the Gemara is saying that if a host invites a guest to eat with him, and he serves him food, and then he declares "my food is Asur on you," the food that he gave the guest does *not* become Asur, since the guest already acquired it and it no longer belongs to the host.

The ROSH also understands the Gemara differently. The Rosh explains that the Gemara means that it is prohibited to *invite* one's friend to come eat the bread, since his friend will have pleasure from the invitation even before he comes and eats the bread. Accordingly, it is possible that the guest fully acquires his portion of food when he picks it up to eat since the Hana'ah that the host prohibited is the Hana'ah of the invitation, and not the actual eating.

Finally, the NIMUKEI YOSEF understands that the Gemara is just discussing a question concerning the *intention* of the person making the vow. It is not discussing the technical question of what belongs to him. Even if the guest who eats the bread is Koneh it when he eats it, the intention of the owner was that the other person should not benefit from the bread by being Koneh it by eating it "*at my house*." The owner of the bread allows, though, for the person to benefit from the bread if he receives it as a gift outside of the house and eats it later.

HALACHAH: The MAHARIT (Teshuvah 150) cites the Mishnah in Demai (7:1) that states that when one is a guest at the table of a friend whom he does not trust to have separated Terumos and Ma'aseros, he is permitted to separate the Terumos and Ma'aseros himself from the food that his friend serves to him. It is not considered stealing, even though he is giving away part of the food that was given to him and he is not eating it. The Yerushalmi in Demai explains that the host wants his guest to enjoy himself and therefore it is assumed that he would permit him to separate the Terumos and Ma'aseros. The Maharit (Teshuvah 150) says that we cannot prove from there that the guest owns the food that is given to him and that he may do whatever he wants with it. He writes that there is reason to say that since the host invited him to eat with him, the host granted him permission to do anything with the food that would make it possible to eat, but he does not give him permission to use it for other purposes.

The Maharit quotes the Gemara in Bava Metzia (87b) that concludes that a worker in a field has the right to eat from the field in which he works, but he is not permitted to give produce from the field to his family members. The Maharit attempts to prove from there that a guest does *not* have permission to give his portion to others.

On the other hand, the Maharit quotes the RI'AZ (Kidushin, end of second Perek) who writes that if one of the guests gave his portion to a woman for the sake of marrying her, the Kidushin *does* take effect, since we assume that the host gives his guests full ownership over their food, and thus they may do whatever they want with their food. The Maharit remains in doubt about this issue.

The REMA (EH 28:17) rules that when a guest takes the food given to him by his host and gives it to a woman as Kidushin, the Kidushin is valid. It seems that the Rema rules that a guest does own the food that his host gives to him.

However, the SHULCHAN ARUCH (OC 170:19) rules that a guest is *not* permitted to take the food that the host gives him and give it to the children or the servants without permission of the host (this is based on the Gemara in Chulin 94a). The TAZ (EH 28:34) infers from here that the guest does not own the food, and that when the Rema says that the Kidushin is valid, it is only a Safek to require that she receive a Get. However, the simple meaning of the Gemara in Chulin is that the guest may do with the food whatever he wants *except* to give it to the members of the household, because doing so might harm the Shalom Bayis in the home (see the incident in Chulin 94a). This seems to be the intention of the BEIS SHMUEL (EH 28:46) when he says that the guest *does* own the food, but he is not permitted to give it to the host's children for a different reason. (See also MISHNAH BERURAH OC 170:40.)

It is interesting to note that none of the Poskim quote the Gemara here in Nedarim as proof that the guest does not own the food that his host gives him. RAV SHLOMO KLUGER (in NIDREI ZERIZIM) says that no Posek quotes our Gemara because the Halachos of Kidushin and other laws cannot be learned from the Halachos of Nedarim. Nedarim depend on the way people speak, and thus what is determined with regard to Nedarim is not necessarily the legal status for other Halachos. A person says "my loaf" even when he invite someone to come eat with him and fully gives the loaf to the guest, and he does not actually mean that he retains ownership of the loaf when he gives it to the guest.

Whether or not a guest owns the food that his host gives him is also relevant to Pesach night. The Gemara in Pesachim (38a) teaches that the Matzah used for the Mitzvah must be owned by Jews ("Lachem"). Accordingly, the SEFAS EMES (Sukah 35a) infers that one must be the owner of the Matzah in order to fulfill the Mitzvah of eating Matzah on Pesach night. He points out that according to this, if one has guests at the Seder, he should have them acquire the Matzos before they eat them. He admits that the Minhag is not to do so, and he explains that since it is necessary to acquire the Matzos, it is assumed that he gave them the Matzos in a fashion that they will acquire it fully before they eat it. (See Insights to Pesachim 38:2.)