Wednesday, February 06, 2008

The prohibition remaining even after the item leaves his possession

Avimi inquired (Nedarim Daf 47): If one said to his friend, “Konam, your entering this house,” and then he dies or sold it to someone else, what is the halacha? Does a person have the ability to prohibit something presently in his ownership, and the prohibition will remain even after it leaves his ownership or not?

The Nimukei Yosef cites a Ritva, who quotes the following Yerushalmi: A person will only have the ability to prohibit something presently in his ownership, and the prohibition will remain even after it leaves his ownership. However, he cannot initially prohibit the item only for the time after it leaves his possession.

The Haflaas Nedarim explains: The only reason that someone would have the ability to prohibit something presently in his ownership, and the prohibition will remain even after it leaves his ownership is because it is similar to hekdesh. Since the item in question is presently in his possession, the neder takes effect and the prohibition remains on this object forever just like hekdesh. However, one does not have the ability to consecrate an item that is presently not in his possession, and therefore, a neder to prohibit something only for the time after it leaves his possession will not take effect.

The Korban Nesanel asks: Why couldn’t this inquiry be resolved from the Gemora above (42a-b) which concluded that if one says to his fellow, “These possessions should be forbidden to you”; if he vowed prior to shemitah, he may not enter his field and he may not eat from the fruits which are growing on the branches outside of his field even when shemitah arrives? This is because a person has the ability to prohibit something presently in his ownership, and the prohibition will remain even after it leaves his ownership! Shouldn’t the halacha be the same in our case where he sold the property to someone else?

He answers that shemitah is different. Since the vower has the right to acquire the fruits that are growing just like anyone else, it is regarded as if it is still in his possession, and that is why the fruits remain forbidden. (This is a tremendous chiddush that something can be considered yours because you have the right to acquire it.) However, the Gemora’s inquiry here is regarding a case where he sold the property. In this case, the item is not in his possession at all, and perhaps, the prohibition will not remain after it leaves his possession.

The Shitah Mikubetzes answers that Avimi did not know the conclusion of the Gemora above and that is why he made this inquiry.

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Sunday, February 03, 2008

Hefker in Front of Three - Nedarim Daf 45

Rabbi Yehoshua ben Levi said: Biblically, it is considered hefker even if his declaration was only in front of one person. Why was it decreed upon that it should be in front of three? It is in order for there to be one person who will take possession and two people to testify to this.

The Rishonim ask from the Mishna that we learned above (43a), which stated: If a person vowed not to have benefit from someone and these two people were walking together on the road, and the person who cannot benefit from his friend had no food, the halacha is that if there is nobody else around, he can put the food on the rock or fence and say, “These are ownerless for anyone who wants to take them.” The other person can then eat. If they are the only two present, it should not be regarded as hefker?

The Ritva answers that the Rabbis were lenient in a case where there was an extreme necessity to provide the person with food. They ruled in this case that the Biblical law stands and the hefker is valid.

The Bach answers that even when there are not three people present, the hefker is valid. The Sages instituted that he can retract from his hefker declaration if three people weren’t present. However, as long as he did not retract, the hefker is completely valid.

The Shach cites Tosfos that the Rabbinical decree requiring three people to be present was only said in regard to the hefker of land; however, regarding movables, such as food, it does not apply.

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