Babylonian Talmud: Tractate Nedarim

Folio 43a

GEMARA. As for 'HE MUST NOT LEND TO HIM,' that is well, since he [thereby] benefits him. But 'HE MUST NOT BORROW FROM HIM' — how does he benefit him? Further, [even] 'HE MUST NOT RECEIVE A LOAN FROM HIM' and 'HE MUST NOT PURCHASE FROM HIM' are well, since he [the muddar] may benefit.¹  But 'HE MUST NOT BORROW FROM HIM': how does he [the muddar] benefit? — Said R. Jose son of R. Hanina: It means e.g., that they made a vow not to benefit from one another. Abaye answered: He is forbidden to borrow, lest he also lend, and the same applies to the other clauses.²

MISHNAH. IF ONE SAYS TO ANOTHER, 'LEND ME YOUR COW, TO WHICH THE OTHER REPLIES, 'IT IS NOT FREE'; WHEREUPON HE EXCLAIMS, 'KONAM, IF I EVER PLOUGH MY FIELD WITH IT', IF HE GENERALLY PLOUGHED HIMSELF, HE IS FORBIDDEN,³  BUT OTHERS ARE PERMITTED. BUT IF HE DID NOT GENERALLY PLOUGH HIMSELF, HE AND ALL MEN ARE FORBIDDEN.⁴  IF ONE IS FORBIDDEN BY VOW TO BENEFIT AUGHT FROM HIS NEIGHBOUR, AND HE HAS NAUGHT TO EAT, HE [THE MADDIR] CAN GO TO THE SHOPKEEPER AND SAY, SO-AND-SO IS FORBIDDEN BY VOW TO BENEFIT AUGHT FROM ME, AND I DO NOT KNOW WHAT TO DO'. THE SHOPKEEPER MAY THEN SUPPLY HIM, AND COME AND RECEIVE PAYMENT FROM HIM [THE MADDIR]. IF HE HAD HIS [THE MUDDAR'S] HOUSE TO BUILD, OR HIS FENCE TO ERECT, OR HIS FIELD TO REAP, HE [THE MADDIR] MAY GO TO LABOURERS, AND SAY, 'SO-AND-SO IS FORBIDDEN BY VOW TO BENEFIT AUGHT FROM ME, AND I DO NOT KNOW WHAT TO DO.' THERE UPON THEY WORK FOR HIM [THE MUDDAR]. AND COME AND RECEIVE WAGES FROM HIM [THE MADDIR]. IF THEY ARE WALKING TOGETHER ON THE ROAD, AND HE [THE MUDDAR] HAS NOTHING TO EAT, HE [THE MADDIR] CAN MAKE A GIFT TO A THIRD PERSON, AND HE [THE MUDDAR] IS PERMITTED [TO HAVE] IT. IF THERE IS NO OTHER WITH THEM, HE PLACES IT ON A STONE OR A WALL, SAYING, 'THIS IS FREE TO WHOMEVER DESIRES IT'; AND THE OTHER TAKES AND EATS IT. BUT R. JOSE FORBIDS THIS.

GEMARA. R. Johanan said, what is R. Jose's reason? He maintains that hefker⁵  is like a gift: just as a gift [is not valid] until it passes from the possession of the giver into that of the receiver, so hefker too [is not valid] until it passes into the ownership of him who acquires it.⁶  R. Abba objected: And the other [the muddar] takes and eats it; but R. Jose forbids this. Said R. Jose: When is that? If the vow preceded his renunciation;

1. For the maddir may borrow worn coins, and return new ones. As the value of coins depended to some extent on their weight, the muddar would benefit. Likewise, the maddir may not purchase an article for which there is no demand, and for the same reason.
2. By 'other clauses' the reference is only to borrowing money. — Asheri.
3. To plough the field with that cow, if it is subsequently lent to him.
4. For his vow must have referred to others.
5. V. Glos.
6. I.e., when a person declares a thing to be hefker, it does not immediately cease to be his, but remains his property until taken. Thus the muddar takes the maddir's food.

Raba objected: [If the dying person assigned] part [of his property] to the first, and all of it to the second, [and then recovered,] the first acquires, but not the second!¹  But Raba said, This is R. Jose's reason: It is a preventive measure, on account of the gift of Beth Horon.²

It was taught: If one declares his field hefker: he can retract within the first three days, but not after.³

1. V. B.B. 148b. The law of a sick person likely to die is this: If he assigns all his property to anyone, and then recovers, his gift is invalid, it being assumed that it was made only on account of expected death. But if he leaves part for himself, it is valid; for, we argue, were it on account of approaching death, he would have left nothing for himself. Here, when he made the first assignation, part was still left for himself: hence it remains valid on his recovery. But after the assignation of the second nothing is left: consequently, on his recovery, it is null. Now, if it is maintained that a gift is not valid until the recipient actually takes possession, why is it more valid for the first than for the second: just as the portion assigned to the second is the residue left by the first, so that assigned to the first may be regarded as the residue left by the second? — So Rashi. On this interpretation, 'all of it' means 'the rest of it'. Asheri and Tosaf., however, point out that in such a case both gifts would be null on recovery, since he leaves after all nothing for himself. Accordingly, they explain thus: He assigned part of his property to A, then all to B, meaning also that already assigned to A. Consequently his gift to B was the result of a new intention, not borne in mind when making his first gift. Now, just as in making a gift, the donor intends it to apply even to that which he has already given away, as shewn, so when one vows, the vow is made even with respect to that which he has previously declared hefker. This refutes the distinction drawn by R. Abba. — Ran has a variant reading of this passage.
2. V. 48a. There it is a case of a gift being an obvious evasion; so here too, his declaration of hefker does not appear genuine but as a mere evasion of his vow.
3. This is in reference to the tithe. No tithe was due on produce taken from ownerless fields. Now, if he either revokes his declaration within the first three days, or takes possession without a formal retraction, his declaration is null: consequently, it has never been ownerless, and the crops must be tithed. But after three days, the declaration has legal force. Naturally, if no one else takes possession thereof, he can do so himself, but whether he or another, it is free from tithe.