Nedarim - Daf 36
- הכל צריכים דעת חוץ ממחוסר כפרה – שה לבית אבות לאו דאורייתא לקטנים
The Gemara returns to a statement of Rebbe Yochanan brought on the previous Daf: הכל צריכין דעת חוץ ממחוסר כפרה – All korbonos require consent of the owner for sacrificing, except for one who requires kaparah [before eating kodashim], שהרי אדם מביא קרבן על בניו ועל בנותיו הקטנים – for we see that one can bring this type of korban for his minor children who are not of age to provide consent. The Ran explains that Rebbe Yochanan holds דנין אפשר משאי אפשר – we derive the possible, from that which is impossible, meaning that we learn that an adult’s offering can be brought without his consent, from a minor where legal consent is impossible. The Gemara asks, אלא מעתה, יביא אדם פסח על חבירו – But if so, one should be able to bring a korbon pesach for his friend without his consent, שכן אדם מביא על בניו ועל בנותיו הקטנים – because one brings [a korbon pesach] for his minor children, meaning that they partake of the meat of his pesach, which may only be eaten by מנויין – those registered. Minors cannot provide consent to be registered, yet the father can register them for it. Why, then, does Rebbe Elazar say that one may not designate a pesach on his friend’s behalf? Rebbe Zeira answers: "שה לבית אבות" לאו דאורייתא – The law of “a lamb for each father’s house” is not d’Oraysa for minors. Since they can partake of the pesach without registration, there is no basis to permit the registration of an adult without his consent.
- התורם משלו על של חבירו צריך דעתו או לא
The Gemara asks: התורם משלו על של חבירו – One who separates terumah from his own produce on his friend’s tevel produce to permit it, צריך דעתו או לא – does he need [his friend’s] consent or not? Do we assume the owner would want his produce permitted without his having to use his own produce, and his consent would not be required, or might he prefer to do the mitzvah himself, even at the cost of using his produce for terumah? The Gemara attempts to bring a proof from our Mishnah which states that one may take terumah for a mudar hana’ah. The Gemara explains that the Mishnah cannot be speaking where he took terumah at the owner’s request, because acting at his behest would constitute a prohibited benefit. It cannot be that he used the owner’s own produce, for that could not have been done without consent. Rather, he must have used his own produce, and separated it as terumah without the owner’s consent, which resolves our question. The Gemara answers that the Mishnah may be in a case where the owner’s produce was used. Although consent is surely needed, it can be speaking where he said, כל הרוצה לתרום יבא ויתרום – ”Anyone who wants to separate terumah may do so,” which is adequate for another to act as his shaliach, but not specifically requesting this person’s service that it would qualify as a prohibited benefit.
- התורם משלו על של חבירו, טובת הנאה של מי
Rebbe Yirmiyah asked Rebbe Zeira: If one separated terumah from his own produce to permit his friend’s tevel produce, טובת הנאה של מי – to whom does the benefit of pleasure belong? Meaning, which of the two determines to which Kohen to give the terumah? The Ran explains that the giver stands to gain financially if a Yisroel offers him payment to give the terumah to his grandson who is a Kohen. The Gemara explains that the question revolves around the fact that each of the two components (the tevel produce of the owner, and the produce of the separator taken as terumah) was necessary for the terumah to exist. Rebbe Zeira answered that the language of the passuk “את כל תבואת זרעך...ונתת” – “all the grain of your planting…and you shall give,” implies that it is the owner of the original produce that gives the terumah to the Kohen. After deflecting a challenge from our Mishnah, the Gemara quotes a statement from Rebbe Yochanan which taught that the tovas hana’ah is the separator’s, not like what Rebbe Zeira had held.