Commentary for Nedarim 5:8

השותפין – that each one of them a house in the courtyard, and the courtyard that is in front of the houses, both of them are partners in it But at the time when the courtyard has the law of division/partition, and as such there will be four cubits in the courtyard to each and every house in front of the house, and there will remain from the courtyard another four cubits to this one (i.e., person) and four cubits to that one (i.e., person), in this everyone admits that both of them are forbidden to enter into the courtyard until they divide it, for since the law of division/partition is there. But Rabbi Eliezer and the Rabbis do not disagree other than regarding a courtyard that does not have the law of division, as the Rabbis state that each of them enters through his fellow’s [property], but Rabbi Eliezer ben Yaakov holds that there is a retrospective designation (i.e., the legal effect resulting from an action selection or designation or disposal of things previously undefined for their purpose/ברירה) and this one goes to his and that one goes to his.

Introduction In the time of the Mishnah, people’s homes opened into jointly possessed courtyards. The custom was to use the courtyard for various purposes, including cooking, grinding wheat and raising chickens. However, each resident could prevent the others from using the courtyard for such purposes. Our mishnah discusses a situation in which either both or one of the owners of the courtyard has taken a vow not to benefit from the other. The question is, can they still use the courtyard?

ושניהם אסורים להעמיד שם רחים וכו' – But Rabbi Eliezer ben Yaakov admits in all of these that the partners prevent each other, for it does not belong to permit for the reason of the retrospective designation, for since it is within his hand/power to prevent him, and if he doesn’t prevent him,it is found that he provides him benefit.

If joint owners [of a courtyard] made a vow not to benefit from one another, they may not enter the courtyard. Rabbi Eliezer ben Jacob says: This one enters his own property and this one enters his own property. If both owners of the courtyard vowed not to benefit from the other, according to the first opinion neither may enter the courtyard at all. As we learned above (4:1), one who is not allowed by vow to benefit from another, may not walk on his property. Since the property is jointly owned, each one would be entering the other’s property. Rabbi Eliezer ben Jacob holds that since in general both people can enter the courtyard, neither is really entering someone else’s property. At each point where he stands he could claim that this part is his. Therefore, both can enter the courtyard.

ופופין את הנודר למכור את חלקו – for we are concerned that after he sees his fellow entering, he will forget and will also enter. But when both are prohibited [from entering] we don’t concern ourselves, and specifically when he took a vow on his own not to enjoy benefit from his fellow is when we force him to sell his portion but if his fellow made him take a vow that he will not benefit from him, he is the victim of an unavoidable accident, and we don’t force him to see for what can he possibly do? But if you stated such, each partner should make his friend take a vow that he will not benefit from him in order that we can force him to sell his portion.

And both are forbidden to set up a mill-stone or an oven or raise chickens. Neither may use the courtyard for any of its normal uses. Rabbi Eliezer ben Jacob would agree with this, since putting any of these things in the courtyard requires the neighbor’s permission, and in this case, permission cannot be granted.

If [only] one was forbidden by vow to benefit from the other, he may not enter the court. Rabbi Eliezer ben Jacob says: He can say to the other, “I am entering into my own, and I am not entering into yours.’ If only one owner is prohibited by vow from benefiting from the other, he may not enter the courtyard. Again, Rabbi Eliezer ben Jacob holds that this is permitted.

They force the one who vowed to sell his share [of the courtyard]. In such a case, the one who vowed must sell his share of the courtyard, lest he come to use the courtyard, which even Rabbi Eliezer ben Jacob prohibits. However, this is only true if he himself swore not to benefit from his neighbor. If his neighbor swore that he should not benefit from him, he is not forced to sell his share of the courtyard.

היה אחד מן השוק וכו'- to inform you of the power of Rabbi Eliezer ben Yaakov that it (i.e., the Mishnah) took this, for even one from the market that has no portion in the courtyard, Rabbi Eliezer ben Yaakov permits him to enter for the reason of restrospective designation/ברירה . And the Halakha is according to Rabbi Eliezer ben Yaakov.

Introduction This mishnah is a continuation of yesterday’s mishnah. It again deals with the question of joint ownership of courtyards.

If a man from the street was forbidden by vow to benefit from one of them, he may not enter the courtyard. Rabbi Eliezer ben Jacob says: He can say to him, “I am entering into your friend’s and not into yours.” Reuven and Shimon share a courtyard. Levi is prohibited by vow from benefiting from Reuven. According to the first opinion, Levi may not enter the courtyard, because by doing so, he would be benefiting from Reuven’s property. Rabbi Eliezer ben Jacob says the same thing which he said in yesterday’s mishnah. Levi can enter the courtyard and tell Reuven that he is not benefiting from his property but rather from Shimon’s.

המודר הנאה מחבירו ויש לו מרחץ ובית הבד וכו' – Reuven who is forbidden upon him to derive benefit with the possessions of Shimon, and Shimon has in the city a bathhouse and an olive press building that he rented out to others, and Reuven comes to use them, we see if here remains to Reuven a place in this bathhouse and/or the olive press building that he didn’t rent to him as for example, the cistern in the bathhouse, and things similar to this, it would be forbidden for Reuven to use them, but if not, it is permitted.”

Introduction In the previous mishnayoth we learned rulings regarding entering a courtyard for someone who by vow is prohibited from receiving benefit from his neighbor. In this mishnah we learn the rules regarding other types of property: a bath-house, an olive press, a house and a field.

ומת או שמכרם לאחר מותר – for since he said, “your house”, “your field,” but he didn’t intend other than for the time when hey are his. B if he said, “this house,” or “this field,” he has forbidden them for him forever.

If one is forbidden by vow to benefit from his neighbor, and he owns a bath-house or an olive press which is leased to someone in the town, and he has an interest in them, he is forbidden [to make use of them]; If [he does] not [have an interest in them], he is permitted. Shimon is prohibited by vow from receiving benefit from Reuven, who owns a bath-house or an olive press. If Reuven rents the bath-house or olive press to a third party, but still retains an interest in them, for instance he gets a percentage of the profits or he did not rent out the whole thing, then Shimon may not enter them, for they are still partially Reuven’s property. However, if he retains no interest, and receives only a fixed sum as rent, then Shimon may enter. In the latter case when Shimon enters, he is entering a third person’s property, and it is therefore permitted.

If a man says to his neighbor, “Konam, if I enter your house”, or “[Konam] if I purchase your field”, and then [the owner] dies or sells it to another, he is permitted [to enter or buy it]; [But if he says] “Konam, if I enter this house”, or “[Konam] if I purchase this field”, and [the owner] dies or sells it to another, he is forbidden. If Shimon says to Reuven, “Konam if I enter your house” or “Konam if I purchase your field”, when Reuven dies or sells the property, Shimon may enter his house or buy his field, because it is no longer Reuven’s house or field. However, if he says “Konam, if I enter this house”, or “Konam, if I purchase this field”, he may not enter the house or buy the field even when they no longer belong to Reuven. In this case the house and the field itself are prohibited to him, no matter who owns them.

הריני עליך חרם – my benefit will be forbidden upon you like a חרם/property designated for sacred use only (or like excommunication) that you wil not be able to benefit from me.

Introduction The point of this mishnah is to teach the status of people who may not benefit from one another vis a vis public property. There are two types of public property mentioned in our mishnah and explained in the following mishnah. The first is property which belongs to the people of a given city and the second is property which belongs to all of Israel. Included in the latter category are wells dug by pilgrims from Babylonia coming up to Jerusalem. Hence, the last category is called “things which belong to those who came up from Babylonia”.

המודר אסור – even though he did not answer “Amen.” For a person can forbid upon his fellow that he will not benefit from him.

[If a man says to his neighbor] “Behold, I am herem to you” the opposite party is forbidden [to derive benefit from the one who swore]. “Behold, you are herem to me” the one who swore is forbidden. “Behold, I am [herem] to you, and you are [herem] to me”, both are forbidden. The first section of the mishanh basically teaches an additional way in which people may prohibit others from benefiting from themselves, or prohibit themselves from benefiting from others. Each may declare himself “herem” forbidden property, to the other, or the other “herem” to himself. In such a way Reuven may prohibit Shimon from benefiting from him, and he may prohibit himself from benefiting from Shimon, or he may even do both in the same statement.

הרי אתה עלי חרם – that he forbid upon himself all benefit that would come to him from his fellow, the person making the vow is forbidden.

Both are permitted [to enjoy the use of] those things which belong to those who came up from Babylonia [to Jerusalem], but are forbidden [the use of] things that belong to that town. Although they may not benefit from each other, they may each still use “things which belong to those who came up from Babylonia [to Jerusalem]”. Each individual Jew is not considered an owner of these things, or even a partner in their ownership. Rather they belong collectively to the children of Israel. However, town property is owned in partnership by all of the members of the town. Therefore, it is treated like the common courtyard mentioned in mishnayoth one and two. If Reuven and Shimon cannot benefit from one another, then they may not use the commonly owned town property.

בדבר של עולי בבל – as, for example, the cistern of those who ascend for the Festivals, who would come up from Babylonia to the Land of Israel for the Festival, and that cistern was found in the middle of the path and the hands of all Israel were equal upon it and it was like ownerless, and not like something that belongs to partners.

הרחבה (town square) – the markets that are in the city.

Introduction This mishnah explains the categories mentioned at the end of the previous mishnah. It also discusses how people can avoid some of the difficult consequences of being forbidden to derive benefit from one another.

והתיבה (ark) -where they place in it the Scrolls/books.

What are the things that belong to those that came up from Babylonia [to Jerusalem]? For example the Temple Mount and the Temple courtyards and the well in the middle of the road. The things that belong to “those who came up from Babylonia” are mostly holy property, for example the Temple and the courtyards. Also included in this category are the wells dug for the pilgrims so that they would have water on their way over. Those who may not receive benefit from one another may still benefit from this type of property since individuals do not own shares in them, rather they are owned collectively.

והספרים – that the people of the city buy to study them.

What are the things that belong to that town? For example the public square, the bath-house, the synagogue, the ark, and the [sacred] scrolls. The city property includes most structures built specifically for a certain city, including the town square, synagogue, ark for keeping the scrolls and the scrolls themselves. Note that although these things are religious items, they still are jointly owned by the people of the city and not by all of Israel. Therefore, if people cannot benefit from one another, they may not benefit from this property as well.

והכותב חלקו לנשיא – It explains in the Gemara (Tractate Nedarim 48a) that this is what it is said, and what is their remedy? They should write/assign their portion to the President/Nasi, meaning to say that those who made vows are not to benefit from each other and are prohibited to use the street of the city and the Ark and the Scrolls/books, each one of them should write/assign the part/share that each has to the President/Nasi, and afterwards each one of them will be able to use them, for they are using the wealth of the President/Nasi, and not one of them is benefitting from his fellow.

And he should assign his portion to the Patriarch. Rabbi Judah says: it is the same whether he assigns it to the Patriarch or to a private individual. But what is the difference between one who assigns it to the Patriarch and one who assigns it to a private individual? If he assigns it to the Patriarch, he need not [formally] confer title. But the Sages say: both this and this require formal conferring of title, they mentioned the Patriarch in particular as this is usual. Rabbi Judah said: The Galileans need not assign [their portion], because their ancestors have already done so for them. This next section gives advice on how to deal with a situation in which Reuven cannot benefit from all municipal property because he cannot benefit from Shimon’s property and likewise Shimon may not benefit from municipal property because of Reuven’s partial ownership. After all, this could make life quite difficult. The solution is that both write out a document assigning their shares to the Patriarch, so that he owns their share of the municipal property. In this way, they will not be benefiting from each other’s property but from the Patriarch’s. Rabbi Judah says that they need not assign the property to the Patriarch but rather may assign it to any individual. The only difference between the two is that the transaction with the Patriarch does not require any formal transaction, whereas a transaction with an ordinary person does. The other Sages hold that no matter whom one assigns the property, a formal transaction is required. The only reason that the earlier halakhah mentioned assigning the property to the Patriarch was that this was the normal way of doing things. In other words, it is a suggestion and not mandatory. In contrast, Rabbi Judah would say that the halakhah mentions the Patriarch because it is easier to assign him property than to an ordinary individual. Nevertheless, he too would hold that this is not mandatory. Finally, Rabbi Judah says that in the Galilee the Patriarch is already the formal owner of all municipal property, and hence the entire problem will not arise.

רבי יהודה אומר – if they wanted, let them assign their shares/portions to an ordinary person, but if they wrote/assigned them to the Nasi, there is no need to make assignment to him/to take possession of it through another person, since because of the importance of the Nasi, he acquires even though that he was not assigned it by another, but an ordinary person does not acquire until he makes assignment to him/he takes possession of it through another [person].

אנשי גליל אין צריכין לזכות – the people of the Galilee were quarrelsome (see Talmud Nedarim 48a) and through their anger, they would make vows against benefiting from one another, their fathers stood up and assigned their shares to the Nasi, so that if their children after them would make vows forbidding benefit from one another, they would not be forbidden in the street of the city or the Ark or the Scrolls/Books, for they are the wealth of the Nasi.

ומעשה בבית חורון וכו' – In the Gemara (Tractate Nedarim 48a), it explains that the Mishnah is deficient and should be read as follows: if its end proves/serves as evidence about its beginning, it is prohibited. And there is the episode in Bet Horon also with one whose last action demonstrated his first [as a mere evasion], etc.

Introduction This mishnah discusses a subject already dealt with in 4:8, how a person who cannot benefit from another person may nevertheless derive benefit from him by there being a third party intermediary. Our mishnah teaches that when Reuven gives the property to Levi so that Shimon who cannot receive benefit from Reuven, may use the property, the gift needs to be complete. In reality, Levi need not do with the property as Reuven requested. A poignant story shall illustrate this.

ואינן לפניך אלא כדי שיבא אבא ויאכל – so we see that he didn’t give them [the courtyard and the food as a gift] other than in order that his father could come and eat, and that is prohibited. But if he had said: “Lo, these are before you, and if it is your desire that [my father] father comes and eats,” it is permitted. But if his meal shows/proves that it he increased the meal more than what he should have and these things are recognized that it was for his father that he did this in order that he would come and eat it is prohibited.

If one is forbidden by vow to benefit from his neighbor and has nothing to eat, he may give it [the food] to a third party, and he is permitted to use it. This halakhah was basically taught above in mishnah 4:8. It is brought here as an introduction to the story.

It happened to one in Beth Horon that his father was forbidden to benefit from him. Now he [the son] was giving his son in marriage and he said to his neighbor, “The courtyard and the banquet are give to you as a gift, but they are yours only that my father may come and feast with us at the banquet.” He said to him, “If they are mine, let them be dedicated to heaven!” [The son] responded, “But I did not give you my property to dedicate it to heaven.” [The other] responded, “You gave me yours so that you and your father might eat and drink together and become reconciled to one another, while the sin [of a broken vow] should devolve upon his (i.e. head.” When the matter came before the Sages, they ruled: every gift which is not [so given] that if he [the recipient] dedicates it, it is dedicated, is no gift [at all]. The father could not enter his son’s courtyard or eat of his food, because he was forbidden by oath to benefit from his son. It is unclear how this situation arose, whether the father or the son initiated the vow. In any case, there was clearly strife in their past. Now that his own son is marrying, the son wants his father to be able to attend the wedding and join in the feast. To solve the problem he gives the courtyard and the food to a third party. However, the third party declares that it is all dedicated to the Temple, which would make it impossible to use for a feast. The Sages rule that since the son does not want the dedication to be valid, he did not really give it to the third party. Therefore it is still his, and his father may not come to the wedding. This is truly a sad situation, and it is clearly meant to demonstrate what disastrous results may arise from rashly-made vows taken against loved ones. Indeed, it may still ring as a warning in our ears, not to let our disagreements with family members cross the line of no return. It is a message that unfortunately too many families need.