The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
This month’s Steinsaltz Daf Yomi is sponsored by Dr. and Mrs. Alan Harris, the Lewy Family Foundation, and Marilyn and Edward Kaplan
Today’s Daf Yomi is dedicated in memory of Gladys Lewy, z”l (25 Shevat)
The Torah requires that once every seven years agricultural activity in the Land of Israel ceases. During this Sabbatical year, the produce that grows is considered ownerless and is readily available to all. The Mishnah on our daf teaches that a person who makes a vow prior to the Sabbatical year that he will not derive benefit from his friend, cannot enter onto his property or eat fruit from his trees even if they are growing on branches that grow outside of his property. During the Sabbatical year itself, however, even though he cannot enter his friend’s property, he would be allowed to eat fruit from the trees since the fruits are hefker – they are considered ownerless. The Mishnah continues by discussing a person whose vow related only to deriving benefit from eating. Generally speaking, such a person cannot take fruit, but can enter the property of the other person; on the Sabbatical year he can also eat fruit, since it is not owned by anyone.
There are two approaches to this Mishnah.
The majority of the rishonim – the Rosh, Ritva and others – understand that our Mishnah is not dealing with someone who makes a neder (vow) during the Sabbatical year, rather it is only talking about someone who makes the neder prior to the Sabbatical year. Thus, the first ruling that appears in the Mishnah is obvious – a person cannot derive benefit from someone who he has forbidden by means of a vow. The point that is being made by the Mishnah is that of the second case. During the Sabbatical year, even though entering the person’s property remains forbidden, the fruits are permitted.
Rashi and Tosafot suggest that the Mishnah is discussing two different types of vows. In one case, the vow is taken prior to the Sabbatical year, and both entering the field and benefiting from the fruits is forbidden – even during the Sabbatical year, since by means of a neder a person can effect the status of an object even after it has left his possession. In the second case, the vow is taken during the Sabbatical year itself, and only entering the person’s property will become forbidden, since the vow cannot affect the fruits, which do not belong to him.
The Mishnah on our daf lists three situations in which a person who cannot offer support to his friend because of a vow that had been made prohibiting such benefit, can arrange to do so surreptitiously in a time of need. These cases include:
- When his friend has nothing to eat, he can say to the local storekeeper “My friend has nothing to eat and I simply don’t know what I can do…” In such a case, the storekeeper can offer credit to the friend and collect from this person.
- When his friend has work that needs to be done – to build his house, put up a fence or harvest his field – he can go to the workers and say “I would like to help him out, but there is a vow that keeps me from helping him…” They can do the work and collect their wages from him.
- When they are traveling together and his friend has run out of food, he can give it as a present to another member of the party, who can then pass it on to the friend. If there are no other travelers, he can put it on a rock and declare it ownerless so that anyone who wants to can take it, allowing his friend to eat.
In all of these cases, he cannot directly tell the intermediary to pass along the food or to do the work for his friend, because that would create a situation of shelichut – effectively making that person his agent to carry out the transfer. Such an agreement would be forbidden because of the neder (vow). The Talmud Yerushalmi points out that although the person who suggested giving food or doing work could not help him directly, he is allowed to pay for it, but it should be clear that he would not be obligated to do so.
The Rosh and Tosafot point out that in the final case, it is only because of the extreme situation (sha’at ha-dechak) that he would be permitted to avoid the requirements of the neder. In normal circumstances he would not be permitted to do so (see the story of Bet Horon on daf 48).
Our Gemara quotes a baraita that teaches that if a person makes his vineyard hefker – he declares it ownerless – and the next morning he goes and harvests it, he will be obligated to leave the tithes that go to the poor (peret, olalot, shik’hah and pe’ah) but is free from the obligation of ma’aser (tithes to the levi).
Generally speaking, only a farmer who harvests his own field is obligated in all of the tithes that are commanded in the Torah. A field that is truly hefker – it has no owner – will not need to have tithes taken from it by the person who comes to harvest it. In our case, however, it is clear that this vineyard was not truly hefker, which is why the Sages distinguished between some of the tithes – those distributed to the poor – that still need to be brought and others that are no longer obligatory.
Most of the commentaries explain the difference between tithes based on the Gemara (Baba Kamma 94a) that points to the repeated use of the word ta’azov – “leave behind” – specifically in those tithes that are to be left for the poor. The Gemara concludes from here that whenever there is some possibility that these tithes should be distributed, we are obligated to do so. The Rambam offers a different source for this ruling. According to him, we find the word sadkhah – “your field” – only in reference to tithes for the poor. From this he concludes that whenever someone is harvesting his field – even if it was taken from hefker – he is still obligated in these tithes. With regard to the tithes for the priests and the Levites, since the term sadkhah does not appear, the exemption of hefker will apply.
The various tithes to the poor discussed here are:
- Peret – grapes that fall during harvest are left for the poor
- Olalot – oddly shaped clusters of grapes must be left for the poor
- Shik’hah – what is forgotten after the harvest must be left for the poor
- Pe’ah – leaving a corner of the field for the poor to harvest.
With regard to the power of hefker – that a person who owns a given object can declare it to be ownerless – we find that Rabbi Shimon ben Yehotzadak rules that it will only take effect if it is done before three people. Rabbi Yehoshua ben Levi rules that on a Torah level declaring an object to be ownerless will work even before one person; the Sages ruled that three people are necessary, so that one can take possession and the other two can act as witnesses.
The Gemara does not discuss a case where a person – in the privacy of his own home – declares that he no longer wants to own an object, and there is no one there to witness the statement. According to the Rambam this cannot possibly work. After all, Rabbi Yehoshua ben Levi’s statement appears to require at least one person, and if no one knows of it, what meaning can a statement of hefker have? Nevertheless, Tosafot, the Rosh and the Me’iri all believe that hefker will work even if it was made privately with no witnesses.
The difficulty with Rabbi Yehoshua ben Levi’s ruling that we require three at least on a Rabbinic level, is that we find many cases in the Gemara where hefker appears to be effective even without three witnesses. Even the Mishnah under discussion (43a) included a case where there are only two people and one of them declares his food ownerless in order to accommodate his friend. Similarly, we find cases in hilkhot Shabbat where the recommended ruling is to declare an object to be ownerless in order to solve halakhic problems, and there is no indication that three witnesses are required.
Tosafot explain that the requirement of three is only applied to cases where a person makes his property hefker, but it does not apply to other objects.
The Ritva‘s approach is that in cases of distress – such as the case in our Mishnah or on Shabbat – the Sages did not apply their requirement of three, leaving the basic Biblical rule of one witness.
As we learned previously, someone who cannot derive benefit from another person because of a vow that was taken, cannot profit from anything that belongs to him, even if he is not the sole owner of the object. The fifth chapter of Masechet Nedarim which begins on our daf deals with a list of situations where the forbidden property is owned only in part by the person whose possessions are forbidden. Thus the discussion revolves around what circumstances make a person considered to be the owner of an object (at least in part). A related question is how public property should be treated. Do we consider public property to be owned in partnership by all members of the community?
The first Mishnah in the new perek discusses a case where two people who were equal partners in the courtyard of a house took vows forbidding each other from benefiting from one-another. In such a case, the Tanna Kamma forbids each of them to enter the courtyard, since all of it is partially owned by the other person, from whom he cannot derive any benefit. Rabbi Eliezer ben Yaakov permits each of them to enter the courtyard – each to the portion that he has designated for his own use. All are in agreement, however, that one of them cannot set up a mill or an oven or raise chickens in the courtyard.
Several explanations are put forward regarding the last halakha – that one of them cannot set up a mill or an oven or raise chickens in the courtyard. One suggestion made by Tosafot and the Ran is that even though ordinarily partners allow each other to do these things, since they require permission it would be considered vitur – a concession – which cannot be made in this case. Tosafot also point out that in the case of a mill we can assume that the owner will bring customers in who will inevitably make use of the partner’s side of the courtyard, which will be forbidden. Similarly, chickens will certainly wander around the entire courtyard, eating whatever they find, even if it belongs to the partner.
The Mishnah (46a) distinguishes between two cases:
- A person who takes a vow “I will not enter your house or purchase your field”
- A person who takes a vow “I will not enter this house or purchase this field”
In the first case, if the house or the field is sold, or if the original owner dies, the person who took the vow can enter it or purchase it. In the second case, where the vow did not relate to the owner, but to the property, even if the owner dies or sells his property, the vow remains in effect.
In our Gemara, Avimi introduces a third, similar case. If a person takes a vow saying “You cannot enter this house” what will be the situation should he die or sell the house? Will the vow remain in effect even after the house passes from his ownership due to sale or death? Rava responds that a person can take a vow that remains in effect even after death, quoting this baraita as a proof text: “If a person takes a vow, saying to his son ‘You cannot benefit from me,’ the son can receive the inheritance. If he says, however, ‘You cannot benefit from me, neither during my lifetime nor after I die,’ the son will not inherit his father.”
The Rosh explains that the case raised by Avimi differs from those of the Mishnah, because the cases in the Mishnah describe a person who is imposing limitations on his own activities, while Avimi’s case describes someone who is prohibiting others from benefiting from him. Since a person can only forbid something that he controls, Avimi’s question is whether the prohibition that was successfully established by means of the neder (vow) will remain in force even after he no longer controls it.
The Mishnah on our daf shows sensitivity to the fact that a neder (vow) – forbidding one person to derive benefit from another – is potentially dangerous. What if that person has nothing to eat? How can his friend – who at one time took a vow – assist him in his moment of need? The Mishnah suggests a type of legal fiction; he can give a third party food to eat with the tacit understanding that it will be transferred to the person who is suffering from hunger.
Although the language of the Mishnah appears to grant broad powers that allow a person to avoid fulfilling his oath in times of need, the Gemara understands that the continuation of the Mishnah, which tells a story about a wedding party in Bet Horon, effectively limits this loophole to situations where the trickery is not obvious. The Mishnah relates that a person in Bet Horon had taken an oath forbidding his father from deriving any benefit from him. When he was preparing a wedding feast for his son, he turned to his friend and told him that he was turning over the entire feast to him, with the understanding that now his father would be invited. The man was taken aback by this request, and indicated that he wanted no part of such chicanery.
Bet Horon, where this story took place, is in the northern area of the Tribe of Judah and is divided into two sister cities –Bet Horon Elyon (upper) and Bet Horon Tahton (lower). These cities are already mentioned in the Bible, and their proximity to the main road to Jerusalem led to a number of historic battles being fought nearby – for example, Judah Maccabee’s victory during the Great Revolt. In ancient settlements like these, where the Jewish community was reestablished during the Second Temple period, there was usually great sensitivity to Jewish law and tradition, as we see illustrated in the story related by the Mishnah.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.