ANSWERS TO REVIEW QUESTIONS
prepared by Rabbi Eliezer Chrysler
Kollel Iyun Hadaf, Jerusalem
Previous daf Nedarim 48
(a) 'Hareini Alecha Cherem, ha'Mudar Asur'. Bearing in mind that by Cherem,
the Tana of our Mishnah means Cherem shel Bedek ha'Bayis - he is referring
to the people of Galil, who consider S'tam Charamim as belonging to Bedek
ha'Bayis (and not according to the Anshei Yehudah, in whose opinion they
belong to the Kohanim, in which case, they would not be Asur be'Hana'ah).
(b) 'Harei At Alai Cherem, ha'Noder Asur. Hareini Alecha va'At Alai,
Sh'neihem Asurin'. This refers to municipal property. As far as things
belonging to the Olei Bavel is concerned - they are both permitted to use
and derive benefit from them.
(c) 'Municipal property' comprises the main square of the town, the
bathhouse, the Shul, the Bimah and the Sifrei-Torah. 'Things belonging to
the Olei Bavel' comprises - the Har ha'Bayis, the Azaros and the wells dug
along the route to Yerushalayim by the Olei Bavel.
(d) The basic difference between 'municipal property' and 'things belonging
to the Olei Bavel' - is that, whereas the former can be sold (via the seven
committee members in the presence of all the residents), the latter cannot.
(a) When the Tana Kama says 've'ha'Kosev Chelko le'Nasi', he does not mean
that when someone does so, it is included in the municipal property which is
forbidden to the Mudarim. In fact we amend the Mishnah to read - 'u'Mah
Taknasan, Yichtevu Chelkan le'Nasi', turning the statement into a loophole
in the prohibition, rather than part of the prohibition.
(b) Rebbi Yehudah permits writing out his portion to anyone, and the reason
that Chazal specified 'Nasi' was - because it is the Nasi who acquires even
without a Kinyan, whereas anyone else to whom one would write it out would
require a Kinyan, too.
(c) According to the Rabbanan, both the Nasi and anyone else require a
Kinyan. The reason that Chazal specified 'Nasi' according to them is -
because the Nasi is someone whom one can rely upon not to declare another
Neder forbidding the property again on the Mudarim.
(d) The Tana nevertheless needs to tell us this (despite the fact that we
have already learned that the Mudar is permitted to benefit from the
property that he receives from a third person) - because in this case, the
Mudarim continue to make use of the property, even after they have written
the property to the Nasi, conveying the impression that the transaction is
(a) We do not rule like our Mishnah, which forbids the Mudar to benefit
directly from the Shul - because we have already issued the ruling like
Eliezer ben Ya'akov with regard to a Chatzer which cannot be divided (under
which category a Shul falls), permitting the Mudar to enter it.
(b) The problem we therefore have with the Rambam is - that he rules like
our Mishnah despite that ruling.
(c) Rebbi Yehudah says - that the Anshei Galil did not need to write their
share for the Nasi, because their parents had already done so on their
(d) They did it - because the people of the Galil were constantly quarreling
and being Noder Hana'ah from one another.
(a) We have already discussed the episode of Beis Choron, where the man gave
his Chatzer as a gift, to enable his father to participate in his son's
wedding-feast - and where the Chachamim ruled that any gift that is not
absolute, permitting the recipient to declare the object Hekdesh, is not a
(b) They did not just say 'Kol Matanah she'Im Hikdishah ... ', but added the
word ('Kol Matanah) she'Einah (she'Im Hikdishah ... )' - because (unlike a
case of 'Matanah al-Menas Lehachzir', which is a Matanah for the as long as
the recipient has it (despite the fact that he cannot declare the object
Hekdesh) it is clear that even at the time that the recipient did not
declare the Chatzer Hekdesh, it did not really belong to him (and that the
owner was cheating on his Neder, and trying to use him as the medium to
allow his father to benefit from the Chatzer).
(c) The problem with the Mishnah, which begins with the concession to
benefit through a third person, and then tells the story of the episode of
Beis Choron - is that the story does not support the Halachah (which is
normally the objective of a story in the Mishnah). It does not contradict
the initial Halachah however - because the Noder added 've'Einan Lefanecha
Ela ... ', which is absent from the original case.
(d) To answer the Kashya - we amend the Mishnah, adding the words 've'Im
Hochi'ach Sofo al Techilaso, Asur. u'Ma'aseh Nami ... '.
(a) We infer from the Lashon 've'Einan Lefanecha Ela Kedei she'Yavo Aba
ve'Yochal ... ' - that had he just said 'she'Yehu Lefanecha she'Yavo Aba',
then the gift would have been complete.
(b) According to the second Lashon - even the gift would not have been valid
even if the owner had just said 'she'Yehu Lefanecha she'Yavo Aba'.
(a) When one man says to another 'Give four hundred Zuz (of mine) to
so-and-so and let him marry my daughter' - the recipient receives the four
hundred Zuz, but he is under no obligation to marry the man's daughter.
(b) Nevertheless, according to the second Lashon, we do not say the same
with regard to the case under discussion (that the gift is valid at all
costs) - because it is obvious that a person does not prepare a wedding
feast for his son and then give it away.
(c) According to the Rashba this speaks only if he made the condition at the
time that he gave the man the gift, but if he only said it afterwards, it
will not override the gift that was already valid when he gave it to him.
But according to the Rambam - the condition overrides the gift even in that
(a) That man (who was on his deathbed) reacted to the fact that his son
used to steal bundles of flax - by disowning him.
(b) And when they asked him what would happen should his grandson turn out
to be a Talmid-Chacham - he declared that in that case, let him initially
not inherit, but should that indeed happen, then he would.
(c) We learned earlier that the grandson inherits his grandfather's property
anyway - because even though the father forbade his property on his son with
a Neder, he nevertheless remains the heir, in which case, *his* heirs would
automatically inherit it from him.
(d) That might not be the case here however - because the previous Sugya
speaks when the son in question was the only heir, whereas we are speaking
when the man had two sons, one decent son and the other, a thief.
Consequently, when he declared his property Asur on the latter, he meant to
place it all in the hands of the former, and it was only when they queried
him about his grandson that he agreed to bequeath half of it to the other
son, in the event that his grandson turned out to be a Talmid-Chacham.
(a) The Pumbedisa'i rule that the grandson should not inherit the property -
because it is a case of (the son) acquiring purely in order to pass it on
(to his son), which is not considered a Kinyan.
(b) This case differs from 'Matanah al-Menas Lehachzir', which is also no
more than a Kinyan in order to return the article - inasmuch as there, the
recipient at least acquires the article for himself for a while, whereas
here the son did not acquire it at all.
(c) Rav Nachman disagrees - because, he says, it is not worse than a Kinyan
Sudar (the head-gear of a Talmid-Chacham, or any other article that one
hands over for the purpose of acquiring something), which the recipient only
acquires in order to pass another article over to the domain of the owner of
(d) Rav Ashi argues with Rav Nachman on two scores. One of them, because 'If
the recipient wishes to keep the Sudar, who says that he is not permitted to
do so'? The other, because - even if he is not, the case of Kinyan Sudar has
the advantage that the Kinyan at least comes into effect immediately,
whereas here, it was clearly the father's intention that his son should not
inherit his property until his grandson turns out to be a Talmid-Chacham, by
which time, the Kinyan would have long terminated.
(a) Rav Nachman disagrees with Rav Ashi's first query, because he maintains
that the recipient is not permitted to retain the Sudar. He refutes his
second argument (that the Kinyan only comes into effect later) - on the
grounds that, in his opinion, seeing as the father made his stipulation
S'tam, it is as if he said specifically 'Me'achshav' (from now), in which
case it is comparable to Kinyan Sudar.
(b) Rav Ashi disagrees with that - on the grounds that the father only
agreed for his son to inherit the property on the condition that his
grandson would turn out to be a Talmid-Chacham, it is clear that he does not
intend his son to inherit the property until such time tome as he did.
(c) We disagree with the Rashba, who maintains that Rav Ashi will only argue
with Rav Nachman with regard to Kinyan Meshichah or Chazakah, but not in the
case of a Kinyan Sh'tar (provided the Sh'tar was still there when the
grandson became a Talmid-Chacham - because of the principle 'Ein Sh'tar
le'Achar Misah'. Consequently, if the Sh'tar would not be valid immediately,
it would not be valid later either.
(a) Rava asked Rav Nachman - that the case of Matnas Beis Choron in our
Mishnah too, is a case of 'K'ni al-Menas Lehaknos', and we see that the
Kinyan is not valid.
(b) On one occasion, he answered him that the case there was different
because 'Se'udaso Mochachas Alav' - meaning that there it was obvious that
the son wanted his father to benefit from *him* directly, and not from a
third person (proving the Kinyan to the third person to be no more than a
farce); whereas in our case, to the contrary, the father probably wanted his
grandson to inherit the property through the medium of his (the grandson's)
father, since that is the normal channel of inheritance.
(c) On another occasion, Rav Nachman replied 'Rebbi Eliezer Hi, de'Amar
Vitur Asur be'Mudar Hana'ah' - meaning that, the Tana, taking his cue from
Rebbi Eliezer (who forbids Vitur by Nedarim, even though it is of no
consequence in other areas of Halachah), invalidates 'K'ni al-Menas
Lehaknos', even though elsewhere, the Kinyan is effective.
(d) Regarding the case of 'Matnas Beis Choron', our Mishnah concludes 'Amru
Chachamim, Kol Matanah she'Einah, she'Im Hikdishah, Tehei Mekudeshes, Einah
Matanah'. We reject the proof from the Lashon 'Kol' (which usually comes to
include something) that 'K'ni al-Menas Lehaknos' is not effective' - on the
grounds that it could come to include the second Lashon of Rava (on the
previous Amud - that the gift is nullified whether the son said 've'Einan
Lefanecha Ela ... ' or not).
(a) We rule like Rav Nachman (that the recipient of the Sudar is not
permitted to retain it). Despite the fact that Rav Ashi lived later than Rav
Nachman, the principle 'Halachah ke'Basra' is not applicable here - because
Rav Ashi himself only presented the S'vara in order to query Rav Nachman. In
fact, he himself agrees with him (as is evident in Kidushin).
***** Hadran Alach ha'Shutfin *****
(b) With regard to K'ni al-Menas Lehaknos however, there appears to be no
reason why we should not rule like Rav Ashi (who maintains that, in the case
of the grandson, the Kinyan was only intended to take place later, and was
therefore not effective. The Rambam however - rules like Rav Nachman in this
point too. He seems to assume that, since, regarding the one point, Rav Ashi
only comes to query Rav Nachman, the same is true of the second point (in
which case, he really agrees with his ruling).