ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Nedarim 46
NEDARIM 46 - has been dedicated in memory of Mrs. Gisela Turkel (Golda bas
Chaim Yitzchak Ozer) at the completion of the Shiv'a, by her grandchildren
Rachel and Oz Mandelbort and her great-grandchildren, Yisroel Aryeh and
Talya. Her Yahrzeit: 25 Av 5760.
(a) According to the Tana Kama, the two partners (who were Madir Hana'ah
from each other) are forbidden to install a mill or an oven, or to keep
chickens in their joint Chatzer. The Sugya in Bava Basra, which states that
partners are not usually fussy about such trivialities - speaks S'tam, when
they did not indicate otherwise. Should they however, wish to forbid each
other even those trivial benefits, they certainly have the right to do so.
Note: The Machlokes between Rebbi Eliezer ben Ya'akov, whether 'Vitur Asur
be'Mudar Hana'ah' or not, also speaks by S'tam, and they argue whether we
presume that the Madir meant to include those benefits, too, or not.
(b) It is clear from the sequence of the statements, that Rebbi Eliezer ben
Ya'akov agrees with the Rabbanan in this point (see the commentaries on the
(a) The Tana finds it necessary to repeat the Machlokes between the Tana
Kama and Rebbi Eliezer ben Ya'akov (regarding the prohibition of entering
the Chatzer), in a case when only one of the partners was Madir Hana'ah from
the other - not for its own sake (since it contains no Chidush whatsoever),
but for the continuation 've'Kofin es ha'Noder Limkor es Chelko', which is
confined to this case, but does not apply in the Reisha (as we shall soon
(b) This Halachah ...
1. ... will not apply in the Reisha, when both partners were Madir Hana'ah
from each other - because it is only when *one* of the partners is forbidden
that this measure is necessary, in case he is jealous of his friend, who is
permitted to enjoy these benefits, whilst he is forbidden them.
(c) Rebbi Eliezer ben Ya'akov agrees with the Rabbanan in this case. He not
simply forbid his friend to do likewise (thereby removing the cause of his
jealousy) - because we will later establish the case when they are both
Mudar Hana'ah from each other, and one of them specifically included these
benefits too. He will now be embarrassed to forbid on his partner such
trivial benefits which people are not normally fussy (seeing as it was he
himself who forbade these benefits on him, and not his partner).
2. ... will not apply either, in a case where someone was Madir Hana'ah on
*himself* - and for the same reason.
(a) Regarding a case where one of the partners was Madir a third person -
Rebbi Eliezer ben Ya'akov and the Rabbanan will engage in the same argument
as they do regarding the partners themselves.
(b) According to the Tana Kama, there is no Chidush in this statement, and
it is according to the Tana Kama that it needs to be inserted in the
(c) The Rashba maintains that the concession for the third person to enter
the Chatzer is restricted to when either he needs the second partner or the
second partner needs him, but not for his own personal needs - because it is
not illogical to extend the unspoken understanding that each partner
acquires the Chatzer for his own needs to a third person for *his*.
(d) We disagree with the Ra'ah in this matter - who argues with the Rashba,
maintaining that the concession even extends to that case.
(a) If a Madir Hana'ah owns a bathhouse or an olive-press that he rented
out, the Mudar may use these facilities - provided the owner does not
receive direct revenue from them (this will be explained later), but not if
(b) According to the Rashba, this concession is confined to where the
bathhouse or the olive-press were rented out prior to the declaration of the
Neder - but not if it was rented out afterwards. There, it will have to be
sold first, in order to be considered being under new ownership, as is clear
from the Mishnah (that we are about to learn), which permits a house which
is Nadur if the owner sold it after the Neder was made, but not, we can
infer, if it was only rented out (because then the Tana should have
presented *that case* and we would have included when he sold it from a 'Kal
(a) If a man says to his friend 'Konem le'Veischa sha'Ani Nichnas, ve'Sadcha
she'Ani Lokei'ach', the Mudar Hana'ah will be permitted to enter the house
or to buy the field should the Madir die - or if he sold it to a someone
(b) The Din will differ if he said 'Konem Bayis *Zeh* she'Ani Nichnas, Sadeh
*Zu* she'Ani Lokei'ach' - because then, the house remains forbidden
irrespective of who the owner is.
(c) 'Beischa' will be more stringent than 'Bayis Zeh' - should the house
fall down and the owner rebuilds it (because it is still the owner's house
on the one hand, but a different house on the other).
(d) In the case of ...
1. ... 'Beischa' - the Mudar will remain forbidden to enter the house even
he rebuilt it in a different location.
2. ... 'Bayis Zeh' - the Mudar will be permitted to enter the house even if
he rebuilt it in the same location and to the same specifications as it was.
(a) We suggest that perhaps (contrary to the way we learned until now -
which is the opinion of Ravina in Bava Kama) the Rabbanan agree with Rebbi
Eliezer ben Ya'akov when the two partners forbade each other Hana'ah, and
their Machlokes is confined to when each one forbade himself. The basis of
their Machlokes would then be - whether the Chachamim penalized the Noder
for forbidding his friend's property on himself unnecessarily (the
Rabbanan), or not (Rebbi Eliezer ben Ya'akov).
(b) The Rabbanan will agree with Rebbi Eliezer ben Ya'akov when the two
partners were Madir each other Hana'ah - because on the one hand, they agree
with him on principle, that 'Yesh B'reirah' (as we explained above), and on
the other, because one cannot penalize someone who is an A'nus.
(c) According to the new suggestion, we will have to amend the Mishnah,
which continues 'Hayah Echad Meihen *Mudar* Hana'ah me'Chaveiro ... ' (yet
they still argue, even though there is no reason to penalize the Mudar) - to
read 'Hayah Echad Meihen *Nadur* Hana'ah me'Chaveiro ... ' (which refers to
(d) We prove this explanation to be correct from the Seifa 've'Kofin es
ha'Noder Limkor' - which Chazal would only have instituted if he was Madir
himself, but not if he was Mudar from his partner (as we just explained).
(a) We prove from the Seifa that the Mishnah must speak when the Noder
forbade himself. The Tana cannot be referring to the Madir, whom we will be
penalizing for being Madir his partner - because Chazal would not penalize
someone for forbidding his property on his friend. Such a Neder is necessary
only for someone who forbids his friend's property on himself, something
that is unnecessary, giving us good reason to suspect that he will
contravene his Neder.
(b) The Ra'avad takes the Rambam to task - for his ruling that Chazal
penalized the Madir for forbidding the Mudar from deriving benefit from his
property (which, he claims, they would not do, as we just explained).
(c) The Rambam's ruling nevertheless concurs with a Tosefta - if he is in
the habit (Ragil) of doing that. 'Ragil', says the Yerushalmi, means even as
little as two times.
(d) The She'eilah (whether the Machlokes in our Mishnah is by 'Nadru' or
'Hidiru') remains unresolved (though it is unclear why the statement 'T'ni
*Nadur* me'Chaveiro' - which we went on to substantiate, is not final). We
suggest that it can perhaps be resolved from the Mishnah later which
discusses the Din when the Madir forbade himself on the Mudar and the Mudar
on him, because there, the Mudar is innocent, yet Chazal forbade him too,
proving that the Tana here is speaking even by 'Hidiru' and not only by
'Nadru'. Rabeinu Yonah refutes this proof - on the grounds that, even though
the Mudar is an A'nus, the Madir is not, and if Chazal were to permit the
Mudar, then the Madir would not keep the Neder either. Consequently, they
had no option other than to forbid both.
(a) Rabah Amar Ze'iri initially establishes the Machlokes Rebbi Eliezer ben
Ya'akov and the Tana Kama in our Mishnah by a Chatzer which is large enough
to be divided. But in the case of a Chatzer which is not, the partners are
permitted to enter - because, unlike other cases of B'reirah, here it is not
a Safek *whether* each of the partners will acquire it, but *when* he will
acquire it. And when he acquires it, it is on the understanding that he will
acquire it completely for that period of time (leaving only the question of
*when* he will acquire it to be decided by 'B'reirah').
(b) Rav Yosef queries this however, from the next Mishnah, which presents a
similar Halachah concerning a Shul - which in turn, cannot be divided, yet
the Tana forbids certain Hana'os. Clearly then, the Rabbanan do argue with
Rebbi Eliezer ben Ya'akov even in a case of a Chatzer that cannot be divided
(otherwise, will be the author of the Mishnah).
(c) So Rav Yosef amends Ze'iri's statement. According to the new version -
they argue in a case of a Chatzer which cannot be divided, but in the case
of a Chatzer which can, even Rebbi Eliezer ben Ya'akov will concede that
they are both forbidden to enter it.
(d) The reason for this is - because seeing as the Chatzer can and might be
divided, one can no longer claim that it was initially known that the
partners would both use it, and that was the unspoken condition at the time
of purchase. Consequently, the situation will be governed by 'B'reirah' and
the principle 'Ein B'reirah' will apply.
(a) With reference to the Reisha of our Mishnah, in the case of a field
which is large enough to be divided, even after they actually divided it,
according to the Rashba, the portion that now belongs to the Mudar remains
forbidden to him - because the criterion of 'B'reirah' is the fact that,
initially, it was a Safek, irrespective of what happens afterwards.
(b) The fact that we rule like Shmuel, who holds 'ha'Achin she'Chalku,
Lekuchos Hein' will not permit him to benefit from it (seeing as it is now
totally outside the jurisdiction of the Madir) - because, as we learned
earlier, that only helps if a third person acquires it first, and the Mudar
acquires it from him.
(c) The Rambam permits it nevertheless - because, in his opinion, 'we are
witnesses' that when they became partners, they did not intend to forbid
combined property on one another, permanently.
(a) We learned in our Mishnah, that if the Madir had direct stakes in the
bathhouse or the olive-press that he had rented out, then the Mudar may not
use it. According to Rav Nachman, it depends on how much of the profits he
receives. This was normally fixed at a half, a third or a quarter - if he
received less than a quarter, the Mudar would be permitted to use it.
(b) Others read 'be'Beitzim' instead of 'Batzir' - meaning that, as long as
the Madir received some of the direct profits from the bathhouse or the
olive-press, irrespective of the amount, the Madir would be forbidden to
benefit from them. But if he all he received was some of the eggs that the
bathers used to bring as a gift for the owner, that did not give him stakes
in the bathhouse or the olive-press, and the Mudar would be permitted to use
(c) Abaye forbids even that.
(d) The Madir is considered not to have stakes in the bathhouse or the
olive-press - only if the owner receives from the hirer 'Taska', an annual
fee paid by the hirer to the owner that had nothing to do with their usage.
(a) The Sugya in Erchin says that if the owner who rented out his house and
then declared it Hekdesh - the Hekdesh overrides the hirer's rights, and he
is forbidden to live in it.
(b) In that case - why is the Mudar permitted to use the bathhouse even in
the latter case (when the Madir does not have direct stakes)? Why does the
Konem not override the Mudar's rights?
(c) Tosfos differentiates between where the Hefker or even the gift has not
yet taken full effect and our case, where the rental is already fully
effective. According to Rabeinu Tam - it is only a Konem K'lali that has the
Din of Hekdesh (which can override a hirer's rights), but not a Konem P'rati
(the case in our Mishnah) which cannot.
(d) Others explain that - in the case in Erchin, Hekdesh overrides the
hirer's rights only because it speaks when he has not yet paid the owner, in
which case, he now owes Hekdesh the rental, giving Hekdesh rights over the
property; whereas our Mishnah is speaking when the hirer has already paid
the owner, in which case neither he, nor Hekdesh, has any claims on the
(a) We would like to resolve our problem by pointing out that the Sugya in
Erchin is talking about a case of 'Bayis S'tam' - which would explain why
the Hekdesh takes effect there (seeing as the owner can still fulfill his
condition by providing the hirer with another house), whereas our Mishnah
would be speaking in a case of 'Bayis Zeh' (which the owner would be exempt
from replacing - in which case the Konem would not override the hirer's
rights), because the principle 'Hekdesh Mafki'a mi'Yedei Shi'bud' only
applies to Kedushas ha'Guf (Hekdesh Mizbei'ach), but not to Hekdesh Bedek
ha'Bayis (according to the opinion of Rashi), which is only Kedushas Damim,
which we would assume our Mishnah to be.
(b) This answer is inadequate however, due to the fact that our Mishnah is
talking about Konamos - which have a Din of Kedushas ha'Guf, which override
the Shibud of the hirer.
(c) If in addition, we extend the principle that 'Konem Mafki'a mi'Yedei
Shi'bud' to a Konem P'rati and decline to make a distinction between whether
the hirer has paid the owner or not, the only possible way to differentiate
between the hirer in our Sugya, and the Hefker and Matanah above is - that
of Tosfos (who differentiate between where the Hefker or even the gift has
not yet taken full effect, and our case, where the rental is already fully
effective, and which the Madir does therefore not have in mind to include in
(a) Yet others differentiate between a regular hirer and the hirer in our
Mishnah, and they base this distinction on Abaye's answer ('Heichi Shari,
di'Mekabel Taska'). They explain - that the regular hirer actually becomes
the owner, because, provided he pays his annual fee, the field becomes
permanently his (explaining why the Madir's Konem is ineffective). The Tana
nevertheless refers to it as rental - because, should he fail to pay, the
field reverts to the original owner (the Madir).
(b) We reject this answer however - because the Tana clearly holds that as
long as the owner does not have direct stakes in the property, *any hirer*
is permitted to benefit from the bathhouse or the olive-press.
(c) We finally answer the Kashya - by drawing a distinction between the case
in Erchin, where the owner is Madir the hirer (and where we apply the
principle 'Konem Mafki'a mi'Yedei Shibud) and our Mishnah, where he is Madir
his partner, and then rents his bathhouse to someone in town - where his
Konem forbidding his partner cannot take effect, due to the rights of the
hirer (who was not included in the Konem).
(d) This will affect what we learned in an earlier Mishnah 'Hayah Echad min
ha'Shuk Mudar me'Echad Meihem Hana'ah, Lo Yikanes le'Chatzer', which we
explained was no Chidush - inasmuch as it now transpires that it is indeed a
Chidush, teaching us that even though his Neder concerns a third person, and
not the partner himself, it is nevertheless valid. The reason for that is -
because since the Madir could acquire the property in its entirety, his
Neder is even effective vis-a-vis the third person as well.