Nedarim 34
תְּנַן: מָקוֹם שֶׁנּוֹטְלִין עָלֶיהָ שָׂכָר — תִּפּוֹל הֲנָאָה לַהֶקְדֵּשׁ. בִּשְׁלָמָא לְמַאן דְּאָמַר אֲפִילּוּ בְּשֶׁנִּכְסֵי בַּעַל אֲבֵידָה אֲסוּרִים עַל מַחְזִיר נָמֵי מַהְדַּר — הַיְינוּ דְּקָתָנֵי מָקוֹם שֶׁנּוֹטְלִין עָלֶיהָ שָׂכָר תִּפּוֹל הֲנָאָה לַהֶקְדֵּשׁ.
We learned in the mishna: In a place where one takes payment for returning a lost item, the benefit that he receives for returning the item should fall into the category of consecrated Temple property. The Gemara asks: Granted, according to the one who says that even in a case where the property of the owner of the lost item is forbidden to the one returning the lost item, he returns it to him. This explanation is consistent with that which the mishna teaches: In a place where one takes payment for returning a lost item, the benefit that he receives for returning the item should fall into the category of consecrated Temple property.
אֶלָּא לְמַאן דְּאָמַר כְּשֶׁנִּכְסֵי בַּעַל אֲבֵידָה אֲסוּרִים עַל מַחְזִיר לָא מַהְדַּר, אַמַּאי תִּפּוֹל הֲנָאָה לַהֶקְדֵּשׁ?
However, according to the one who says that in a case where the property of the owner of the lost item is forbidden to the one returning the lost item, he may not return it to him, and the mishna is referring exclusively to a case where the property of the one returning the lost object is forbidden to the owner of the lost object, why should the benefit fall into the category of consecrated Temple property? It is not prohibited for him to benefit from the property of the owner.
אַחֲדָא קָתָנֵי.
The Gemara answers: The tanna of the mishna teaches about only one of the cases: The property of the one returning the lost object is forbidden to the owner, and the one returning the lost object refuses to accept compensation. In that case, the owner of the lost item benefits from the one returning the lost object by allowing him to keep the compensation. Therefore, the benefit is donated to the Temple treasury.
אִיכָּא דְּמַתְנֵי לַהּ בְּהַאי לִישָּׁנָא: פְּלִיגִי בַּהּ רַבִּי אַמֵּי וְרַבִּי אַסִּי. חַד אָמַר: לֹא שָׁנוּ אֶלָּא בְּשֶׁנִּכְסֵי בַּעַל אֲבֵידָה אֲסוּרִין עַל מַחְזִיר, וּמִשּׁוּם פְּרוּטָה דְּרַב יוֹסֵף לָא שְׁכִיחַ. אֲבָל נִכְסֵי מַחְזִיר אֲסוּרִים עַל בַּעַל אֲבֵדָה — לָא מַהְדַּר לֵיהּ, מִשּׁוּם דְּקָא מְהַנֵּי לֵיהּ.
There are those who teach the dispute in this formulation: Rabbi Ami and Rabbi Asi disagree about this. One said: They taught this only in a case where the property of the owner of the lost item is forbidden to the one returning the lost item, and the concern due to the peruta of Rav Yosef is not a concern, because it is not common. However, in a case where the property of the one returning the lost item is forbidden to the owner of the lost item, he may not return it to him, due to the fact that in doing so he benefits him.
וְחַד אָמַר: אֲפִילּוּ נִכְסֵי מַחְזִיר אֲסוּרִים עַל בַּעַל אֲבֵידָה — מוּתָּר. דְּכִי מַהְדַּר לֵיהּ — מִידֵּי דְּנַפְשֵׁיהּ קָמַהְדַּר לֵיהּ.
And one said: Even if the property of the one returning the lost item is forbidden to the owner of the lost item, it is permitted to return it to him, as when he returns it, he is returning to him something of his own and is not giving him anything new.
תְּנַן: מָקוֹם שֶׁנּוֹטְלִין עָלֶיהָ שָׂכָר — תִּפּוֹל הֲנָאָה לַהֶקְדֵּשׁ. בִּשְׁלָמָא לְמַאן דְּאָמַר אֲפִילּוּ בְּשֶׁנִּכְסֵי מַחְזִיר אֲסוּרִים עַל בַּעַל אֲבֵידָה מַהְדַּר — הַיְינוּ דִּמְתָרֵץ מָקוֹם.
We learned in the mishna: In a place where one takes payment for returning a lost item, the benefit that he receives for returning the item should fall into the category of consecrated Temple property. The Gemara asks: Granted, according to the one who says that even if the property of the one returning the lost item is forbidden to the owner of the lost item he returns it to him, this is the reason that it is necessary to resolve the halakha in a place where one takes payment.
אֶלָּא לְמַאן דְּאָמַר בְּשֶׁנִּכְסֵי מַחְזִיר אֲסוּרִין, וְלָא מַהְדַּר, הֵיכִי מְתָרֵץ מָקוֹם? קַשְׁיָא.
However, according to the one who said that in a case where the property of the one returning the lost item is forbidden to the owner of the lost item he may not return it to him, how does he explain the halakha taught with regard to a place where one takes payment? Since the mishna is referring to a case where the property of the owner of the lost item is forbidden to the one returning the lost item, why is it prohibited for the owner of the lost item to keep the payment? It is not prohibited for him to benefit from the property of the one returning the lost item. The Gemara concludes: Indeed, it is difficult.
אָמַר רָבָא: הָיְתָה לְפָנָיו כִּכָּר שֶׁל הֶפְקֵר, וְאָמַר: ״כִּכָּר זוֹ הֶקְדֵּשׁ״, נְטָלָהּ לְאוֹכְלָהּ — מָעַל לְפִי כּוּלָּהּ. לְהוֹרִישָׁה לְבָנָיו — מָעַל לְפִי טוֹבַת הֲנָאָה שֶׁבָּהּ.
Rava said: In a case where there was a loaf of ownerless bread before a person, and he said: This loaf is consecrated, if he took the loaf to eat it, he misused consecrated property. His repayment to the Temple for that misuse is based on the loaf’s entire value. However, if his intent was not to take the loaf for himself but to bequeath it to his sons, he misused the consecrated property, and his repayment to the Temple is based on the discretionary benefit that he derived from the fact that his children are indebted to him for the bequest, as he himself derived no direct benefit from the loaf.
בְּעָא מִינֵּיהּ רַב חִיָּיא בַּר אָבִין מֵרָבָא: ״כִּכָּרִי עָלֶיךָ״ וּנְתָנָהּ לוֹ בְּמַתָּנָה, מַהוּ? ״כִּכָּרִי״ אָמַר לוֹ, כִּי אִיתֵיהּ בִּרְשׁוּתֵיהּ הוּא דְּאָסוּר. אוֹ דִּלְמָא ״עָלֶיךָ״ אֲמַר לֵיהּ, עִילָּוֵיהּ שַׁוִּיתֵיהּ הֶקְדֵּשׁ?
Rav Ḥiyya bar Avin raised a dilemma before Rava. If one said to another: My loaf is konam for you, and then he gave it to him as a gift, what is the halakha? Should one infer: My loaf is forbidden, i.e., he said to him that when the loaf is in his possession, that is when it is forbidden, but when he gives him a gift, it is no longer in his possession and it is no longer forbidden? Or, perhaps the inference is: Forbidden to you, i.e., he said to him that he rendered the loaf for him like a consecrated item that is forbidden even after the loaf is no longer in his possession.
אֲמַר לֵיהּ: פְּשִׁיטָא דְּאַף עַל גַּב דְּיַהֲבַהּ לֵיהּ בְּמַתָּנָה — אָסוּר. אֶלָּא ״כִּכָּרִי עָלֶיךָ״ לְאַפּוֹקֵי מַאי? לָאו לְאַפּוֹקֵי דְּאִי גַּנְבַהּ מִינֵּיהּ מִיגְנָב? אֲמַר לֵיהּ: לָא, לְאַפּוֹקֵי דְּאִי אַזְמְנֵיהּ עֲלַהּ.
Rava said to him: It is obvious that although he gave it to the other person as a gift, it is forbidden. Rav Ḥiyya bar Avin asked him: But if that is so, when he said: My loaf is forbidden to you, with emphasis on the word my, what does it come to exclude? Does it not come to exclude a case where he stole it from him, as in that case it is permitted? The same would be true if he gave it to him as a gift. Rava said to him: No, it comes to exclude a case where he invited him to eat from the loaf before he vowed. In that case, that part of the loaf that he invited him to eat is his, and the owner cannot render it forbidden. However, even if he invited the other person before he vowed, the entire loaf remains forbidden if he gave it to him as a gift.
