THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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NEDARIM 42 (29 Av) - "Mechabdo b'Chayav, Mechabdo b'Moso" (Kidushin 31b).
This Daf has been dedicated by Yair Trebitsch l'Iluy Nishmas his father,
Eliezer Shmuel Binyomin ben Mayer Trebitsch, in honor of his Yahrzeit.
1) PROHIBITING FRUIT THAT WILL GROW DURING SHEMITAH
QUESTION: The Mishnah states that when one makes a Neder before the Shemitah
year saying that his friend should not have any pleasure from his
possessions, his friend is prohibited to eat from his fruits Shemitah, even
though they are Hefker and do not belong to the original owner (the one who
made the Neder).
The Gemara explains that this applies only when he said "*these* possessions
are prohibited to you." If he said "*my* possessions are prohibited to you,"
then his friend may eat from the fruit on Shemitah since the fruit is no
longer in his possession.
Although one can make a Neder to prohibit his friend from having pleasure
from his possessions, one cannot make a Neder to prohibit his friend from
possessions that he does not own (see 57a). How, then, can one make a Neder
before Shemitah to prohibit his friend from eating his fruit during
Shemitah? At the time of the Neder, the fruit does not exist, and when the
fruit comes into existence during Shemitah, it will be Hefker and it will
not belong to him!
The Mishnah cannot mean that he made the Neder prior to Shemitah when his
trees were already carrying fruit that would not be picked until the
Shemitah year arrived, because fruit that started growing before Shemitah is
not considered to be fruit of Shemitah and does not become Hefker.
ANSWER: The person did not make a Neder directly prohibiting his *fruit* to
his friend. Rather, he made a Neder prohibiting his *possessions* to his
friend. Since his trees are part of his possessions, they are prohibited to
his friend, and therefore the fruit that grows from those trees is also
prohibited! (See KEHILOS YAKOV who discusses this issue at length.)
2) HALACHAH: FRUITS AND FIELDS DURING SHEMITAH
The Gemara asks why is the Mudar Hana'ah permitted to eat fruit from his
friend's field during the Shemitah year, but he is not permitted to enter
the land? Both the fruits and the land are Hefker during Shemitah! The
Gemara answers that he is not permitted to enter the land because he might
remain on the land even after he finishes picking the fruit.
This Gemara has important implications for the Halachos of Shemitah.
(a) First, we see from here that one's land is not entirely Hefker during
Shemitah. The owner is only required to *treat* it like Hefker by letting
others come in to pick the fruit. The owner does not have to let others
enter the land for other purposes.
(b) Second, the Acharonim adduce proof from our Gemara to the question
whether a landowner must make his field and fruit Hefker during Shemitah, or
is it automatically Hefker once the Shemitah year arrives.
1. The text of the Gemara of the RAN reads "Rachmana Afkerei," which implies
that the Torah automatically makes one's fruit Hefker, and makes the use of
one's field Hefker for the sake of picking the fruit, on Shemitah, and the
owner does not need to make them Hefker himself. The Mitzvah requires only
that the owner *treat* them as Hefker and not prevent others from coming and
picking the fruit. RASHI, TOSFOS, and the ROSH also have the Girsa,
"Rachmana Afkerei." The MAHARIT (#43) proves from here that the Torah
automatically makes the land and fruit Hefker during Shemitah (see there for
a lengthy discussion on this issue).
2. The PE'AS HA'SHULCHAN (Hilchos Shevi'is 23:29) disagrees and says that
since our Girsa is "Ar'a Nami Afkerei," which means "the land is also
Hefker," there is no implication that the owner does not have to make his
The Maharit is of the opinion that the Hefker automatically takes effect on
all land in Eretz Yisrael even if a Nochri owns the property. Accordingly,
there is no obligation to separate Terumos and Ma'aseros from fruit grown by
Nochrim in Eretz Yisrael during the Shemitah year (since Hefker is exempt
from Terumos and Ma'aseros; however, there is an obligation to separate
Terumos during all other years even from the produce of a Nochri, if a Jew
performed the G'mar Melachah). In contrast, the Pe'as ha'Shulchan holds that
one should separate Terumah from such produce.
The issue of separating Terumos and Ma'aseros from such fruit is directly
related to the famous dispute between the BEIS YOSEF and the MABIT whether
the laws of Shemitah apply to produce grown on land owned by Nochrim. If
the laws of Shemitah apply to such fruit, then there is no requirement to
separate Terumos from them. The Beis Yosef and the Pe'as ha'Shulchan was
that such fruits do *not* have Kedushas Shevi'is, and thus Terumos and
Ma'aseros must be separated from them. This was also the generally accepted
custom of the old Yishuv in Yerushalayim.
The Mabit, the Maharit (the son of the Mabit), the Charedim, the Shelah, and
the Chayei Adam disagree. The CHAZON ISH, too, was a strong proponent of
this opinion (that fruit grown on land owned by Nochrim have Kedushas
Shevi'is) and, as a result, many have adopted this as the accepted practice.