ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Nedarim 34
(a) We already explained the Seifa of our Mishnah 'Makom she'Notlin S'char,
Tipol Hana'ah le'Hekdesh', with regard to the case when the property of the
finder is forbidden to the owner (and when the finder foregoes the S'char).
We now ask on the one who permits returning the article even when it is the
property of the owner that is forbidden on the finder the following Kashya -
seeing as the finder's property is not forbidden on the owner, why should
the S'char go to Hekdesh? Why should the owner not be permitted to retain it
(according to Rabosai)?
(b) We cannot answer that it speaks when the owner wants to pay, but the
finder has no option but to refuse payment (seeing as the owner's property
is forbidden to him) - because, in that case, why should the money go to
Hekdesh (because it is one thing to be a nice guy and not claim one's
rightful S'char from the owner, and another to pay money that is due to the
finder, to Hekdesh)?
(c) Alternatively, the owner will even be permitted to pay the *finder*,
because it is similar to a bad sale (that we discussed above on 31a.).
where, even though the Mudar receives a field, he may nevertheless accept
from the Madir at market price, because he can easily find another such
article. Similarly, the finder should be permitted to accept the S'char from
the owner, because he is only claiming the Sela that he lost in the process
of returning the article (the S'char that he receives merely replaces the
money that he already had).
(d) We answer the initial Kashya 'a'Chada ka'Tani' - that 'Makom she'Notlin
Alehah S'char' only pertains to when the finder's property is forbidden on
the owner, but not to the reverse case (even though that case is included in
(a) According to the second Lashon, Rav Ami and Rav Asi both agree that when
the property of the *owner* is forbidden to the *finder*, the finder is
permitted to return the lost article, in spite of 'P'rutah de'Rav Yosef' -
because 'P'rutah de'Rav Yosef Lo Shechi'ach', as we explained above.
(b) They argue when it is the property of the *finder* that is forbidden to
the *owner* - where one of them forbids it (in spite of the fact that he is
only giving him what is already his) due to the fact that the benefit, in
this case, is real (because if he did not return it, the chances are that it
would be permanently lost to him), unlike repaying his loan, where he
doesn't really give him anything.
(c) According to the one who establishes 'Machzir Lo Aveidaso' when it is
the property of the owner which is forbidden to the finder - this case
differs basically from the other cases in our Mishnah 'Shokel Lo es Shiklo
u'Porei'a Lo es Chovo ... (ve'Torem Lo es Terumosav' - in the next Mishnah),
which all speak when it is the property of the finder which is forbidden to
(d) The Tana differentiates rather than confine himself to a standard set of
cases - because he wants to list all the cases where benefit is permitted in
spite of the Isur Hana'ah.
(a) The problem that the Seifa of our Mishnah ('Makom she'Notlin Alehah
S'char, Tipol Hana'ah le'Hekdesh') poses on the second Lashon is - according
to the one who confines our Mishnah to where the property of the owner is
forbidden to the finder, which cannot accommodate the Seifa 'Makom
she'Notlin S'char, Tipol Hana'ah le'Hekdesh', because either the S'char
ought to remain with the owner or it ought to go to the finder (as we
explained in the first Lashon).
(b) This problem remains unresolved.
(c) The Halachah regarding when the property of the owner is forbidden to
the finder is - that he may return his lost articles, due to the fact that,
in the second Lashon, the one holds who that he may not, is refuted, whereas
the one who establishes our Mishnah both ways remains intact in both
(a) Rava says - that someone who, after declaring a Hefker loaf Hekdesh,
picks it up to eat it, is Mo'el on the entire loaf (meaning that assuming
that he did what he did erroneously, he is obligated to pay Hekdesh for
having used it, and to add on a fifth).
(b) He refers specifically to a *Hefker* loaf, rather than a loaf that
belongs to him - because the latter case, where the loaf is already in his
domain, is similar to the case of a Gabai of Hekdesh, who will not be Mo'el
if he picks up Hekdesh already in his domain, with the intention of
(c) He does not acquire the loaf anyway, in spite of the fact that the
Chachamim gave each individual the four Amos in his immediate vicinity (in
the Reshus ha'Rabim) in order to acquire on his behalf - because that only
applies to a person who *intends* them to acquire for him, whereas in our
case, it is clear from his actions that *he* does not have that in mind.
(d) Hekdesh can acquire an article, even without the Makdish having acquired
it first - based on the principle 'ha'Magbihah Metzi'ah la'Chaveiro, Kanah
(a) Had he picked up the same loaf to bequeath it to his sons, he would only
have acquired it commensurate with the Hana'ah that he receives - the value
of his sons' gratitude towards him for what he did.
(b) He is not Mo'el completely, like he is in the first case - because he
did not place the loaf in their domain immediately, only at a later date.
(a) Rav Chiya bar Avin asked Rava what the Din will be in a case when
someone declared in his friend's presence 'Kikri Alecha' and then presented
him with the loaf. The two sides of the She'eilah are - whether 'Kikri'
implies only as long as the loaf is his; or whether 'Alecha' implies that it
is forbidden to him forever.
(b) This She'eilah does not extend to a case where the Madir sold the loaf
to a third person - because of the Mishnah in ha'Shutfin, which clearly
states that a third person breaks the power of the original owner permitting
the Mudar to benefit from the object that was forbidden to him.
(c) We cannot infer from the Mishnah in 'ha'Shutfin' which we just quoted
that if the Noder had not sold the loaf to a third person, but given it to
the Mudar, that it would be forbidden - because the Tana could well mention
the third person only on account of the Seifa, where he needed to mention
the third person for its inherent Chidush.
(d) The Tana in the Mishnah later permits the Mudar to benefit from the
Madir's food only if the Madir first gave it to a storekeeper or through a
third person. We cannot resolve Rav Chiya bar Avin's She'eilah from there,
explains the Rashbam - because that Mishnah speaks when the Noder forbade
any Hana'ah on the Mudar, and not just the object in question like our Sugya
(a) Rava replied that it is obvious that he meant to forbid the loaf
forever - because otherwise, what would be the purpose of his declaration?
As long as he has the loaf, why should he forbid it on his friend? The only
other alternative, would be in case the loaf was stolen, which would hardly
concern him sufficiently to place such an Isur on it. It must therefore be,
Rava concludes, that he intended to forbid the loaf on his friend even after
having presented it to him.
(b) Rav Chiya bar Avin disagrees with Rava - on the grounds that the Madir
might well have meant to forbid the loaf on the Mudar should he invite him
to his house. So the She'eilah remains unresolved.