Nedarim 48
וַאֲסוּרִים בְּדָבָר שֶׁל אוֹתָהּ הָעִיר. וְאֵיזֶהוּ דָּבָר שֶׁל עוֹלֵי בָּבֶל — כְּגוֹן הַר הַבַּיִת, וְהָעֲזָרוֹת, וְהַבּוֹר שֶׁבְּאֶמְצַע הַדֶּרֶךְ. וְאֵיזֶהוּ דָּבָר שֶׁל אוֹתָהּ הָעִיר — כְּגוֹן הָרְחָבָה, וְהַמֶּרְחָץ, וּבֵית הַכְּנֶסֶת, וְהַתֵּיבָה, וְהַסְּפָרִים. וְהַכּוֹתֵב חֶלְקוֹ לַנָּשִׂיא.
But it is prohibited for them to benefit from objects of that city, which are considered to be jointly owned by all its residents. And what are examples of objects belonging to those who ascended from Babylonia? For example, the Temple Mount, and the Temple Courtyards, and the water cistern in the middle of the road. And what are objects of that city? For example, the city square, and the bathhouse, and the synagogue, and the ark which houses the Torah scrolls, and the Torah scrolls. And one who writes, i.e., signs, his portion of the shared objects of that city over to the Nasi.
רַבִּי יְהוּדָה אוֹמֵר: אֶחָד כּוֹתֵב לַנָּשִׂיא, וְאֶחָד כּוֹתֵב לַהֶדְיוֹט. מָה בֵּין כּוֹתֵב לַנָּשִׂיא לַכּוֹתֵב לַהֶדְיוֹט? שֶׁהַכּוֹתֵב לַנָּשִׂיא אֵין צָרִיךְ לְזַכּוֹת, לַהֶדְיוֹט צָרִיךְ לְזַכּוֹת. וַחֲכָמִים אוֹמְרִים: אֶחָד זֶה וְאֶחָד זֶה צְרִיכִין לְזַכּוֹת, לֹא דִּבְּרוּ בְּנָשִׂיא אֶלָּא בַּהֹוֶה. רַבִּי יְהוּדָה אוֹמֵר: אֵין אַנְשֵׁי גָלִיל צְרִיכִין לִכְתּוֹב, שֶׁכְּבָר כָּתְבוּ אֲבוֹתֵיהֶן עַל יְדֵיהֶן.
Rabbi Yehuda says: This is the halakha with regard to both one who writes his portion over to the Nasi and one who writes it over to a common person. Rabbi Yehuda adds: What is the difference between one who writes it over to the Nasi and one who writes it over to a common person? That one who writes it to the Nasi need not formally confer possession of the item, whereas one who writes it over to a common person must confer possession to him. And the Rabbis say: Both this one and that one must confer possession, and they specifically mentioned the Nasi only so as to speak in the present, addressing situations that were prevalent. Rabbi Yehuda says: The people of Galilee do not have to write their portion over to the Nasi because their fathers already wrote it for them, declaring that all the public property belongs to him.
גְּמָ׳ אַמַּאי מִיתְּסַר? אָמַר רַב שֵׁשֶׁת, הָכִי קָתָנֵי: וּמָה תַּקָּנָתָן — יִכְתְּבוּ חֶלְקָן לַנָּשִׂיא.
GEMARA: The mishna appears to teach that one who is prohibited by a vow from benefiting from another may not benefit from property written over to the Nasi. The Gemara asks: Why is it forbidden? Rav Sheshet said: This is what the mishna is teaching: And what is their remedy, i.e., what can be done to enable the forbidden individuals to benefit from communal property? They should write their portion over to the Nasi, thereby relinquishing their shares in the communal property.
רַבִּי יְהוּדָה אוֹמֵר: אֶחָד כּוֹתֵב לַנָּשִׂיא וְאֶחָד כּוֹתֵב לַהֶדְיוֹט, וּמָה בֵּין כּוֹתֵב לַנָּשִׂיא לְכוֹתֵב לַהֶדְיוֹט? הַכּוֹתֵב לַנָּשִׂיא אֵין צָרִיךְ לְזַכּוֹת, וְהַכּוֹתֵב לַהֶדְיוֹט צָרִיךְ לְזַכּוֹת. וַחֲכָמִים אוֹמְרִים: אֶחָד זֶה וְאֶחָד זֶה — צְרִיכִים לְזַכּוֹת, לֹא דִּבְּרוּ בְּנָשִׂיא אֶלָּא בַּהֹוֶה.
The Gemara continues its quotation from the mishna: This is the halakha with regard to both one who writes his portion over to the Nasi and one who writes it over to a common person. Rabbi Yehuda adds: What is the difference between one who writes it over to the Nasi and one who writes it over to a common person? That one who writes it to the Nasi need not formally confer possession of the item, whereas one who writes it over to a common person must confer possession to him. And the Rabbis say: Both this one and that one must confer possession, and they specifically mentioned the Nasi only so as to speak in the present.
רַבִּי יְהוּדָה אוֹמֵר: אֵין אַנְשֵׁי גָלִיל צְרִיכִין לְזַכּוֹת, שֶׁכְּבָר כָּתְבוּ אֲבוֹתֵיהֶן עַל יְדֵיהֶן. תַּנְיָא, רַבִּי יְהוּדָה אוֹמֵר: אַנְשֵׁי גָלִיל קַנְטְרָנִין הָיוּ, וְהָיוּ נוֹדְרִין הֲנָאָה זֶה מִזֶּה, עָמְדוּ אֲבוֹתֵיהֶם וְכָתְבוּ חֶלְקֵיהֶן לַנָּשִׂיא.
§ The mishna teaches: Rabbi Yehuda says: The people of Galilee do not have to confer possession of their portion to the Nasi because their forefathers already wrote it for them. It is taught in a baraita that Rabbi Yehuda says: The people of Galilee were quarrelsome [kanteranin] and would often take vows prohibiting benefit from one another. So their forefathers arose and wrote their portions of the public property over to the Nasi so that they would be able to use communal property.
מַתְנִי׳ הַמּוּדָּר הֲנָאָה מֵחֲבֵירוֹ וְאֵין לוֹ מַה יֹּאכַל — נוֹתְנוֹ לְאַחֵר לְשׁוּם מַתָּנָה, וְהַלָּה מוּתָּר בָּהּ. מַעֲשֶׂה בְּאֶחָד בְּבֵית חוֹרוֹן שֶׁהָיָה אָבִיו נוֹדֵר הֵימֶנּוּ הֲנָאָה, וְהָיָה מַשִּׂיא אֶת בְּנוֹ. וְאָמַר לַחֲבֵרוֹ: חָצֵר וּסְעוּדָה נְתוּנִים הִינָּן לְפָנֶיךָ, אֶלָּא כְּדֵי שֶׁיָּבֹא אַבָּא וְיֹאכַל עִמָּנוּ בִּסְעוּדָה.
MISHNA: With regard to one who is prohibited by a vow from deriving benefit from another and he does not have anything to eat, the other may give the food to someone else as a gift and he is then permitted to eat it. The mishna recounts: An incident occurred involving someone in the city of Beit Ḥoron whose father had vowed not to derive benefit from him, and the son was marrying off his own son and wanted his father to be able to participate in the wedding meal. And he therefore said to another: The courtyard where the wedding will take place and the wedding meal are given before you as a gift, but only so that my father will come and eat with us at the meal.
אָמַר: אִם שֶׁלִּי הֵם — הֲרֵי הֵם מוּקְדָּשִׁין לַשָּׁמַיִם. אָמַר לוֹ: נָתַתִּי לְךָ אֶת שֶׁלִּי שֶׁתַּקְדִּישֵׁם לַשָּׁמַיִם?! אָמַר לוֹ: נָתַתָּ לִי אֶת שֶׁלְּךָ אֶלָּא שֶׁתְּהֵא אַתָּה וְאָבִיךְ אוֹכְלִין וְשׁוֹתִין וּמִתְרַצִּין זֶה לָזֶה, וִיהֵא עָוֹן תָּלוּי בְּרֹאשׁוֹ. אָמְרוּ חֲכָמִים: כׇּל מַתָּנָה שֶׁאֵינָהּ שֶׁאִם הִקְדִּישָׁהּ תְּהֵא מְקוּדֶּשֶׁת — אֵינָהּ מַתָּנָה.
The recipient said: If they are mine, they are all hereby consecrated to Heaven, i.e., the Temple, and are forbidden to everyone. The son said to him in anger: And did I give you my property so that you should consecrate it to Heaven? He, the recipient, said to him: You gave me your property only so that you and your father would eat and drink and thereby appease each other, and the sin of transgressing the vow would be hung on his, i.e., my, head, as I enabled the transgression. The Sages therefore said: Any gift that is not so absolute so that if the recipient were to consecrate the gift it would be consecrated, is not a gift. In other words, in order for it to be a gift, the recipient must have the ability to consecrate it.
גְּמָ׳ מַעֲשֶׂה לִסְתּוֹר! חַסּוֹרֵי מִיחַסְּרָא וְהָכִי קָתָנֵי: וְאִם הוֹכִיחַ סוֹפוֹ עַל תְּחִילָּתוֹ — אָסוּר. וּמַעֲשֶׂה נָמֵי בְּבֵית חוֹרוֹן בְּאֶחָד, דַּהֲוָה סוֹפוֹ מוֹכִיחַ עַל תְּחִילָּתוֹ.
GEMARA: The Gemara asks: Was an incident cited to contradict that which was initially stated in the mishna? The mishna explicitly stated that one may give a gift to another in order to bypass the prohibition of a vow. The Gemara answers: The mishna is incomplete and is teaching like this: And if his ultimate actions prove the nature of his initial intent, i.e., if the prior owner protests that he gave the gift only as a technicality in order to bypass the vow, it is forbidden. And to illustrate this point, there was also an incident in Beit Ḥoron concerning someone whose ultimate protest proved that his initial intent was not to give a true gift.
אָמַר רָבָא: לֹא שָׁנוּ אֶלָּא דְּאָמַר לֵיהּ ״וְהִינָּן לְפָנֶיךָ אֶלָּא כְּדֵי שֶׁיָּבֹא אַבָּא״. אֲבָל אָמַר לֵיהּ: ״שֶׁיְּהוּ לְפָנֶיךָ, שֶׁיָּבֹא אַבָּא״ — ״מִדַּעְתְּךָ״ הוּא דְּאָמַר לֵיהּ.
Rava said: They taught this prohibition only in a case where he said to him: And the gifts are given before you only so that my father should come, as he explicitly mentioned that he did not intend to give an absolute gift. But if he said to him less explicitly: That they should be before you that my father should come, there is no prohibition, since he is essentially saying to him: It is up to your judgment whether or not to invite him.
לִישָּׁנָא אַחֲרִינָא: אָמְרִין לַהּ, אָמַר רָבָא: לָא תֵּימָא טַעְמָא דְּאָמַר לֵיהּ ״וְהִינָּן לְפָנֶיךָ״ הוּא דְּאָסוּר, אֲבָל אֲמַר לֵיהּ ״הֵן לְפָנֶיךָ שֶׁיָּבֹא אַבָּא וְיֹאכַל״ — מוּתָּר. אֶלָּא אֲפִילּוּ אָמַר לֵיהּ ״הֵן לְפָנֶיךָ יָבֹא אַבָּא וְיֹאכַל״ — אָסוּר. מַאי טַעְמָא — סְעוּדָתוֹ מוֹכַחַת עָלָיו.
Some say another version of this statement. Rava said: Do not say that the reason for the prohibition is because he said to him: And the gifts are given before you only so that my father will come, and that is why it is forbidden; but if he said to him: They are before you so my father should come and eat, it would be permitted. This is not so. Rather, even if he said to him: They are before you, my father should come and eat, it is forbidden. What is the reason for this? His wedding meal proves about him that his sole intention was to bypass the vow.
הָהוּא גַּבְרָא דַּהֲוָה לֵיהּ בְּרָא דַּהֲוָה שָׁמֵיט כִּיפֵּי דְכִיתָּנָא. אַסְרִינְהוּ לְנִכְסֵיהּ עֲלֵיהּ. אָמְרוּ לֵיהּ: וְאִי הֲוַאי בַּר בְּרָךְ צוּרְבָּא מֵרַבָּנַן, מַאי? אֲמַר לְהוֹן: לִיקְנֵי הָדֵין, וְאִי הֲוַאי בַּר בְּרִי צוּרְבָּא מֵרַבָּנַן, לִקְנְיֵיהּ. מַאי?
There was a certain man who had a son who seized in theft sheaves [keifei] of flax, and the father took a vow prohibiting his son from deriving any benefit from his possessions. They said to the father: And if the son of your son would become a Torah scholar, and you would want him to be able to inherit your possessions, what would you do? He said to them: Let this son of mine acquire the possessions, and only if the son of my son becomes a Torah scholar then let him, my grandson, acquire them from my son. They asked: What is the ruling?
אָמְרִי פּוּמְבְּדִיתָאֵי: ״קְנִי עַל מְנָת לְהַקְנוֹת״ הוּא, וְכׇל ״קְנִי עַל מְנָת לְהַקְנוֹת״ — לָא קָנֵי.
The Sages of Pumbedita say: This is just as if he stated: Acquire the property on the condition that you transfer it to your son. In such a case he has not given anything to the recipient, but has merely made him a conduit to transfer the item to someone else. And in any case where one says: Acquire this item on the condition that you transfer ownership, the recipient does not acquire the item, and the statement has no effect.
וְרַב נַחְמָן אָמַר: קָנֵי, דְּהָא סוּדָרָא ״קָנֵי עַל מְנָת לְהַקְנוֹת״ הוּא.
But Rav Naḥman said: He does acquire, as an acquisition by means of a cloth is a case of an act of acquisition performed only in order to transfer ownership. In such a case, one gives another a cloth in order to confer ownership of some other item, but the cloth itself does not assume new ownership. Still, this is an effective means of acquisition. So too, the property of the grandfather may be effectively conferred upon the grandson through the son, without the son acquiring it himself.
אָמַר רַב אָשֵׁי: וּמַאן לֵימָא לַן דְּסוּדָרָא אִי תָּפֵיס לֵיהּ לָא מִיתְּפִיס? וְעוֹד: ״סוּדָרָא קָנֵי עַל מְנָת לְהַקְנוֹת וְקָנֵי מִן הַשְׁתָּא״. הָלֵין נִיכְסִין דְּהָדֵין לְאִימַתִּי קָנֵי — לְכִי הָוֵי בַּר בְּרֵיהּ צוּרְבָּא מֵרַבָּנַן, לְכִי הֲוָה — הָדַר סוּדָרָא לְמָרֵיהּ!
Rav Ashi said: And who will say to us concerning the cloth that if the recipient of the cloth would seize it with the intention of keeping it that it would not be an effective seizure? While the cloth is technically transferred, the recipient does not usually exercise his right to it. And furthermore, an acquisition by means of a cloth is a case where the giver is saying: Acquire only in order to transfer ownership, but acquire from now. However, with regard to these possessions of this one who took the vow, when does the son acquire? Only when his son’s son becomes a Torah scholar. And when he becomes a Torah scholar, the cloth has already been returned to its owner, i.e., the act of acquisition had taken place long before the grandson became a Torah scholar. The initial transfer therefore has no effect.
אֲמַר לֵיהּ רָבָא לְרַב נַחְמָן: וְהָא מַתְּנַת בֵּית חוֹרוֹן ״דִּקְנִי עַל מְנָת לְהַקְנוֹת״ הוּא, וְלָא קָא קָנֵי!
Rava said to Rav Naḥman: But the gift of Beit Ḥoron discussed in the mishna is an example of an acquisition performed only in order to transfer ownership, and there he did not acquire it at all.
זִימְנִין אֲמַר לֵיהּ: מִשּׁוּם דִּסְעוּדָתוֹ מוֹכַחַת עָלָיו, וְזִימְנִין אֲמַר לֵיהּ רַבִּי אֱלִיעֶזֶר הִיא, דְּאָמַר: אֲפִילּוּ וִיתּוּר אָסוּר בְּמוּדָּר הֲנָאָה.
The Gemara recounts: Sometimes when Rav Naḥman was asked this question he said to him: That is because his wedding meal proves about him that he did not truly intend to give the items to the recipient, and not because such an acquisition is invalid per se. And sometimes he said to him that in that case they followed the stringent opinion of Rabbi Eliezer, who said: Even negligible benefits ordinarily waived are forbidden to one prohibited by a vow from deriving benefit from another. So too, Rabbi Eliezer holds that one cannot rely on an act of acquisition performed merely in order to transfer ownership to a third party.
תְּנַן, אָמְרוּ חֲכָמִים: כׇּל מַתָּנָה שֶׁאֵינָהּ שֶׁאִם הִקְדִּישָׁהּ תְּהֵא מְקוּדֶּשֶׁת — אֵינָהּ מַתָּנָה. ״כׇּל״ לְאֵיתוֹיֵי מַאי? לָאו לְאֵתוֹיֵי הָא מִילְּתָא דְּשַׁדְיָא בְּכִיפֵּי? לָא, לְאֵתוֹיֵי לִישָּׁנָא בָּתְרָאָה דִּשְׁמַעְתֵּיהּ דְּרָבָא.
§ We learned in the mishna (48a): The Sages therefore said: Any gift that is not so absolute so that, if the recipient were to consecrate the gift it would be consecrated, is not a gift. The Gemara asks: What is added by the word: Any? Is it not adding this matter of one who seized sheaves of flax, and to say that the gift of the father has no effect? The Gemara responds: No, the intent is to add the latter version of the aforementioned statement of Rava, that a gift given as a means of circumventing a vow has no effect, even when the giver mentions the nature of the gift only casually and does not stipulate it as a formal condition.
הַדְרָן עֲלָךְ הַשּׁוּתָּפִין
