THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) RECIPROCAL FAVORS
QUESTION: The Mishnah states that one who makes a Neder prohibiting his
friend from receiving pleasure from him may not lend to his friend nor
borrow from him, and he may not sell to him nor buy from him. Abaye explains
that although the Noder is not giving pleasure to his friend by borrowing
from him, it is still prohibited because the Chachamim made a Gezeirah not
to borrow so that he not come to lend to him. Similarly, based on this logic
they prohibited him from buying from his friend so that he will not come to
sell to him.
However, the Mishnah later (47b) says that if one prohibits his friend from
having Hana'ah from him, then his friend is prohibited to have Hana'ah from
him, but the Noder is permitted to have Hana'ah from his friend! This seems
to contradict Abaye's statement that there is a Gezeirah that the Noder not
have any Hana'ah from the Mudar in order to prevent him from giving Hana'ah
to the Mudar!
(a) The RAN answers that the Gezeirah of our Mishnah was instituted only
with regard to *borrowing* and *buying*, since people do not usually relate
to these acts as acts of giving pleasure. Therefore, the Chachamim were
concerned that if the Noder is permitted to borrow from the Mudar, people
will think that borrowing and lending are not considered acts of giving
Hana'ah and hence they would mistakenly assume that the Mudar is also
permitted to borrow from the Noder. In contrast, by permitting the Noder to
accept a gift from the Mudar, no one will mistakenly think that the Mudar
Hana'ah is also permitted to receive a gift from the Noder, because it is
obvious that giving a gift is an act of giving Hana'ah.
(b) TOSFOS (DH Beshleima, see also ME'IRI) and the RITVA answer that the
Chachamim made the Gezeirah only with regard to favors that people always
reciprocate to one another. One who lends to his friend usually borrows from
his friend in turn in his time of need. Therefore, there is a concern that
if we permit the Mudar Hana'ah to lend to the Noder, the Noder will
eventually return the favor and lend to the Mudar Hana'ah. This concern does
not exist for other forms of Hana'ah which are not usually reciprocal.
2) THE NATURE OF HEFKER
OPINIONS: The Mishnah states that if one makes a Neder prohibiting his
friend from receiving pleasure from him, and his friend does not have any
food to eat and there is no one else available to feed his friend, he may
declare his food to be Hefker for all, and then his friend may come and take
it. Rebbi Yosi disagrees and prohibits this.
In the Gemara, Rebbi Yochanan says that the disagreement is based on each
one's understanding of the nature of Hefker. The Chachamim (the Tana Kama)
understand that as soon as one makes his property Hefker, it no longer
belongs to him anymore. Since it does not belong to the Noder, the Mudar is
permitted to benefit from it. Rebbi Yosi, on the other hand, understands
that even after a person makes his property Hefker, it is still considered
to be in his possession until someone else actually acquires it. Hence, the
Mudar may not take the food that the Noder made Hefker since it is still the
Madir's food which is prohibited to him.
Rava proves that Rebbi Yosi agrees that Hefker does not belong to its
original owner. He says that the reason Rebbi Yosi disagrees with the Tana
Kama is only because of a Gezeirah d'Rabanan.
What is the nature of Hefker? Does making an item Hefker remove it from the
possession of the original owner completely, or does it remain in his
possession until someone else acquires it?
(a) The RAMBAM (Hilchos Nedarim 2:14) writes that although the declaration
of an item as Hefker is not a Neder, it is similar to a Neder in that one
who declares his item to be Hefker is *prohibited* to retract his word and
to take back the item into his possession. The Rambam's wording implies that
the person has the power to retract the Hefker but is prohibited to do so.
The KETZOS HA'CHOSHEN (273:11) understands that the Rambam means to say that
even after the person made the item Hefker, it is still in his possession.
He is prohibited to retract the Hefker only because Hefker is a type of
Neder and by retracting it he will transgress the prohibition of "Bal
(b) Many of the Acharonim (see CHIDUSHEI CHASAM SOFER ad loc., and SHA'AREI
YOSHER 5:23) disagree with this interpretation of the Ketzos, because we
find that the Chachamim in our Mishnah are of the opinion that Hefker does
not belong to the original owner who made it Hefker (and, according to Rava,
even Rebbi Yosi agrees).
The VILNA GA'ON (Choshen Mishpat 273) amends the Girsa of the Rambam so that
it reads that one who makes something Hefker is *not* able to retract it.
According to this Girsa, the Rambam is compatible with the Chachamim, who
say that when one makes an item Hefker it is no longer in his possession.
QUESTION: If the Rambam agrees that Hefker is not only a Neder but actually
is a monetary transaction which changes the ownership of the item (from the
original owner's to nobody's), then why does the Rambam write the laws of
Hefker among the laws of Nedarim (Hilchos Nedarim), and what need is there
to say that it is similar to a Neder?
ANSWER: The CHASAM SOFER (Teshuvos, YD 316) writes that the Rambam maintains
that Hefker is a type of Neder, whereby one binds himself to make a certain
object ownerless. However, the very declaration of the item as Hefker is a
fulfillment of the Neder, and therefore the item no longer belongs to him.
The SHA'AREI YOSHER (loc. cit.) says that the Rambam does not mean to say
that Hefker is a Neder. His correlation between Hefker and Nedarim is that
just like a Neder can create a new Halachic status (making an item Hekdesh,
Asur, or Tzedakah), so, too, Hefker creates a new Halachic status for the
item (taking it out of the possession of the original owner).