QUESTION: The Mishnah (45b) presents a case of partners who own property
(such as a courtyard) together who each made a Neder prohibiting himself
from having Hana'ah from the other. The Rabanan say that each partner is
prohibited from entering the courtyard, since he will thereby be deriving
benefit from the other partner's share of the property. Rebbi Eliezer ben
Yakov permits them to enter the courtyard, because wherever each one goes it
can be said that he is using his own part of the courtyard. The Gemara in
Bava Kama (51b) explains that the Machlokes between the Rabanan and Rebbi
Eliezer ben Yakov is whether Bereirah works. "Bereirah" refers to clarifying
the status of something in the past based on an event in the future (or
"retroactive determination"). The Rabanan hold "Ein Bereirah," and thus when
each partner uses the courtyard, it does *not* become clarified
retroactively that the part that he is using now was the part that he bought
as his portion at the time of the Kinyan, and thus he is using not only his
own portion but his friend's portion as well. Rebbi Eliezer ben Yakov holds
"Yesh Bereirah," and thus when each partner uses the courtyard, it becomes
clarified retroactively that that was the portion which he owned from the
beginning, and thus he is using only his portion and not his friend's.
In the Gemara, both Rav Huna and Rebbi Elazar rule like Rebbi Eliezer ben
Yakov, and this is the Halachah in practice.
The Rishonim ask, as the RAN (45b) cites, how can the Halachah follow the
opinion of Rebbi Eliezer ben Yakov, who holds "Yesh Bereirah?" The Gemara in
other places (Beitzah 38a) rules that we hold "*Ein* Bereirah" when it comes
to laws that are mid'Oraisa (and certainly the status of a Kinyan, and the
Isur of a Neder, are laws that are mid'Oraisa)!
Various approaches are given by the Rishonim. RABEINU TAM explains that
indeed, the Halachah is that "Ein Bereirah," but here the Gemara is ruling
like Rebbi Eliezer ben Yakov for a different reason. The only reason why
Rebbi Eliezer ben Yakov must hold "Yesh Bereirah" is because is there is no
Bereirah, then one when partner walks through the courtyard, is benefiting
from the other partner's portion. However, walking through someone else's
property is considered "Vitur," something which a person does not mind, and
there is a Machlokes whether "Vitur" is Asur to a Mudar Hana'ah or not. We
rule, asserts Rabeinu Tam, that "Vitur" is *Mutar* to a Mudar Hana'ah, and
thus the partner may walk through his friend's portion even though he is not
allowed to get Hana'ah from his friend! (According to this approach, if he
explicitly included in his Neder "walking upon my property," then,
l'Halachah, it will be *Asur*, because we do not rule like Rebbi Eliezer ben
Yakov with regard to Bereirah, but rather we hold "Ein Bereirah.")
The Rishonim reject Rabeinu Tam's answer, because the straightforward
understanding of a number of Sugyos is that "Vitur" is *Asur* to a Mudar
Hana'ah.
The RASHBA (cited by the Cheshek Shlomo) and the RAMBAN (in Bava Kama 106a,
cited by the Shalmei Nedarim; see also RE'EM cited by the Shitah Mekubetzes)
says that Rebbi Eliezer ben Yakov agrees that we rule "Ein Bereirah" in
matters that are mid'Oraisa. Here, though, he is only saying "Yesh Bereirah"
because the Isur of "Vitur" to a Mudar Hana'ah -- the Isur for each partner
to walk on the other's property -- is only an Isur d'Rabanan (as implied by
the Ran later, 48b, DH v'Zimnin), and the Halachah is "Yesh Bereirah" for
matters that are mid'Rabanan! (According to this approach, too, if he
explicitly included in his Neder "walking upon my property," then,
l'Halachah, it will be *Asur*, because then the Isur d'Oraisa of the Neder
prohibits walking through the property, and not just the Isur d'Rabanan of
"Vitur," and even Rebbi Eliezer ben Yakov holds that "Ein Bereirah" for
matters that are mid'Oraisa. Likewise, it is obvious why the Mishnah says
that Rebbi Eliezer ben Yakov agrees that it is Asur for each partner to set
up a millstone or raise chickens in the courtyard, since such uses are not
"Vitur" and thus they are Asur mid'Oraisa, and Rebbi Eliezer ben Yakov
agrees that we hold "Ein Bereirah" with regard to matters that are
mid'Oraisa.)
(Indeed, this answer seems so straightforward that REBBI AKIVA EIGER in
Mishnayos concludes with "Tzarich Iyun" on the Ran and other Rishonim who
give different answers and understand that Rebbi Eliezer ben Yakov holds
"Yesh Bereirah" even for matters that are mid'Oraisa. See Insights to
Nedarim 32b:1 (a and b) for possible ways to explain why here it is a matter
of a d'Oraisa.)
According to the other Rishonim, though, who say that Rebbi Eliezer ben
Yakov indeed rules contrary to the ruling of the Gemara in Beitzah (38a)
with regard to Bereirah, how can the two Halachic rulings be reconciled?
ANSWERS: A number of approaches to resolving this question are given by the
Rishonim; we will review a few of these answers here. To better understand
the answers, we first need to address how a partnership or joint-ownership
("Shutfus") works.
The RAN (45b) points out that it is not possible for two people to own an
item jointly such that each person owns the *entire* item *all* of the time.
An item can only be owned by one person. If two people purchased an item
together (each one paying half of the value of the item), then what does
each one own?
The simple understanding is that each person owns *half* of the item. Hence,
when two people buy a dividable commodity (such as a bushel of fruits or a
large piece of land), each person owns half of the commodity and may force
the other to split it up and take his share (Bava Basra 13a). However, when
the commodity is not dividable (such as a small piece of land like a
courtyard, an animal, or an Eved), how does the joint-ownership work?
Some say that the joint-ownership works in that each person owns the
*entire* item for *half* of the time (instead of owning *half* of the item
for the *entire* time). Hence, if two people own an Eved together, for
example, each one uses the Eved on alternating days (or whatever similar
arrangement they make).
Alternatively, it could be that the joint-ownership works in that each
person owns only *half* of the item, but since the item cannot be divided,
each owner is required to permit the other owner to use his share when he
wants (at agreed-upon times). This arrangement can be understood in [at
least] three ways. The first way to understand it is that when two people
buy one indivisible item together, such as a small courtyard, each person
owns half of the land, and he is entitled to use the other person's land
because of a "Shi'abud" that obligates each partner to let the other use his
portion. (According to this view, each partner may use the entire
courtyard.)
The second way to understand it is that when two people buy a courtyard
together such that each owns half of the courtyard, ownership of *half* of
the courtyard brings with it the automatic right to use the *entire*
courtyard, by virtue of the fact that the courtyard cannot be divided. It is
not that one partner's share is "Meshubad" to the other's usage, but that
each person's Kinyan of half of the courtyard *means* that he may use the
entire courtyard, since it is impossible to make a Kinyan which is limited
to using half of the courtyard (since the courtyard is not dividable). In
other words, when one person buys half of the courtyard, he acquires two
things through the Kinyan: half of the value of the courtyard (so that when
it is sold, he receives half of the profits), and the right to use the
entire courtyard (but it is not because the other person has a "Shi'abud" to
let him use the courtyard). (According to this view, too, each partner may
use the entire courtyard.)
Finally, the joint-ownership of an indivisible commodity could work through
Bereirah, according to the opinion that holds "Yesh Bereirah." Each person
owns only half of the land, but when he uses any part of the land, it
becomes determined retroactively that this part of the land was the part
that he bought. (According to this view, though, each partner may only use
up to *half* of the courtyard at any given moment.)
Based on this introduction, let us review some of the approaches that the
Rishonim give to our Sugya.
(a) The RAMBAN (cited by the RAN 45b and by the NIMUKEI YOSEF in Bava Kama
51b) says that the reason Rebbi Eliezer ben Yakov permits each partner to
use the land is not because he holds "Yesh Bereirah." When each partner uses
the land, it is *not* being determined retroactively that this is the part
that he owns. When the Gemara in Bava Kama (51b) says that the Rabanan and
Rebbi Eliezer ben Yakov are arguing about "Bereirah," it does not mean the
Bereirah of retroactive determination. Rather, the Gemara there means
something entirely different by the word "Bereirah." (He says that we
occasionally find in the Gemara a word that has entirely different meanings
in different contexts.) When the Gemara says that Rebbi Eliezer ben Yakov
permits using the courtyard because of "Bereirah," "Bereirah" means the
right of each partner to use the entire courtyard. Each partner may choose
any part of it and say that he is exercising his right that he bought (along
with half of the value of the land) to use whatever part he wants. Rebbi
Eliezer ben Yakov agrees, though, that there is no retroactive determination
of ownership here.
The Ramban is saying that Rebbi Eliezer ben Yakov holds that joint-ownership
of an undividable commodity works according to the second way explained
above. The Rabanan who argue with Rebbi Eliezer ben Yakov might hold that
joint-ownership of such property works because of a "Shi'abud" (as the Ran
on 45b explains) and not because of a Zechus that was included in the
Kinyan, and since a Neder has the power to uproot a "Shi'abud," each partner
is prohibited to use the courtyard.
(b) The RAN (46a) says, too, that Rebbi Eliezer ben Yakov agrees that the
Halachah is "Ein Bereirah." However, the form of Bereirah in this case is
different than the cases in which we say "Ein Bereirah." "Ein Bereirah"
means that "it is not appropriate for a Kinyan to take effect in a way that
leaves a doubt as to how it took effect." This means that the Kinyan must
take effect at the same moment at which the action which accomplishes the
Kinyan is performed (such as the act of giving a Get). The Kinyan cannot be
left undecided, dependant on future events, to take effect after the act,
because the act which makes the Kinyan will be no longer present at that
time. Thus, if at the moment that the act is performed, the Kinyan
"does not know" where to take effect, the Kinyan does not take effect.
Here, though, the Kinyan takes effect completely at the moment the partners
buy the land. There is no doubt involved in the Chalos of the Kinyan: each
partner now owns half of the value of the land. The land, according to the
Ran, is divided by *time* of usage, so that each person owns the entire
land, half of the time. The only thing that remains to be clarified is the
minor detail of *when* each person owns the land. (As to how the ownership
of the land can go back and forth between the two owners, this is the topic
of the Sugya of "v'Acharecha l'Ploni;" see KETZOS HA'CHOSHEN 241:4 and
171:1). This detail -- since it is not intrinsic to the Chalos of the
Kinyan -- *is* able to be clarified through Bereirah, even though, normally,
Bereirah does not work. When each partner uses the field in the future, it
becomes clarified that that was the day and the time for which his half
ownership of the value of the field entitled him to use the field. Hence, we
can rule like Rebbi Eliezer ben Yakov that such Bereirah works, and at the
same time rule that Bereirah that effects the actual Chalos of the Kinyan
does not work.
The Ran is explaining that according to Rebbi Eliezer ben Yakov, a
joint-ownership of an undividable commodity works through Bereirah (like the
third way of understanding Shutfus explained above), but the Bereirah is one
which clarifies only a secondary detail about the Kinyan, and not one which
clarifies a primary, inherent detail which the Kinyan needs in order to take
effect.
The Rabanan, on the other hand, argue and hold that even such a form of
Bereirah does not work. Rather, the joint-ownership of such property works
because of a "Shi'abud" and not because of Bereirah clarifying when each
person's Kinyan applies, and since a Neder has the power to uproot a
"Shi'abud," each partner is prohibited to use the courtyard.
HALACHAH: There are a number of practical differences between the Ran's way
of understanding the view of Rebbi Eliezer ben Yakov and the Ramban's way.
For example, REBBI AKIVA EIGER (Teshuvos #66) discusses whether a house
owned jointly by a Jew and a Nochri needs a Mezuzah. According to the Ran,
the house would need a Mezuzah, because when the Jew lives there, he owns it
entirely. According to the Ramban, though, the house would not need a
Mezuzah, because even when one partner uses it, the entire house belongs to
both of them (that is, each owns half of the value of the house), and a
house owned even partially by a Nochri does not require a Mezuzah. (See
other practical differences cited by YOSEF DA'AS here and in TESHUVOS DOVEV
MEISHARIM I:36.)
It seems that the SHACH (YD 276:4) follows the view of the Ramban, while the
KETZOS HA'CHOSHEN (171:1) follows the view of the Ran.