Nedarim - Daf 43
- Why it is forbidden to borrow articles from a mudar hana’ah
The Mishnah on 42b stated about a mudar hana’ah: לא ישאילנו ולא ישאל ממנו, לא ילונו ולא ילוה ממנו, ולא ימכור לו ולא יקח ממנו – He cannot lend him nor borrow from him articles, he cannot lend him nor borrow from him money, and he cannot sell to him nor buy from him. The Gemara asks, that although some of the cases can be understood as conferring benefit to the mudar hana’ah, but why can one not borrow articles from him, since there is no possible benefit? Rebbe Yose bar Rebbe Chanina answers that the Mishnah is discussing where both men were mudar hana’ah from each other, therefore all transactions are forbidden. The Ran adds that the novelty of the Mishnah is that it follows the position of Rebbe Eliezer that forbids even benefits that are not generally charged for. Abaye answered that the Rabbis decreed that he may not borrow from the mudar hana’ah, for fear he may come to lend to him. The Ran adds two caveats: This is only where he was forbidden to a single person, but not if he was forbidden to benefit from all Jews. Also, this decree was only made for borrowing and the like, which people may err and think is permitted, but obviously forbidden benefits such as food did not warrant any decree.
- The machlokes about being mafkir to provide goods to a mudar hana’ah
The next Mishnah discusses methods for providing goods indirectly to a mudar hana’ah in cases of need, such as through a third party. The final case states that if they were traveling and the mudar hana’ah does not have food, and there is no one with them to give the food to,מניח על הסלע או על הגדר ואומר הרי הן מופקרים לכל מי שיחפוץ, והלה נוטל ואוכל – he places it on a rock or fence and says, “These are hereby ownerless and available for anyone who wants,” and [the mudar hana’ah] may take it and eat it because he is not receiving it from the person himself. But Rebbe Yose forbids this. Rebbe Yochanan explained that Rebbe Yose holds that hefker operates similarly to a gift: מה מתנה עד דאתיא מרשות נותן לרשות מקבל – Just as a gift is not transacted until it comes from the giver’s domain to the recipient’s, and until then he can retract, אף הפקר עד דאתי לרשות זוכה – so too hefker until it reaches the domain of the acquirer the owner can retract, which means it is still his. Therefore, Rebbe Yose considers the mudar hana’ah to be receiving the item from his benefactor. The Gemara will refute this interpretation.
- Final explanation of Rebbe Yose - גזירה משום מתנת בית חורון
Rebbe Abba challenged this explanation from a Baraisa which teaches that Rebbe Yose only forbids this stratagem when the hefker was declared after the neder, but if it was made before, he agrees to permit it. Why would this case be permitted if Rebbe Yose considers all hefker items to belong to their owner until they are acquired? He himself answered that although it is his, כל הנודר אין דעתו על מה שהפקיר – Anyone who vows, his mind is not on what he was mafkir, i.e., he did not include it in what he prohibited to his friend. Rava refutes this answer from a Baraisa, and therefore explains Rebbe Yose differently: גזירה משום מתנת בית חורון – it is a decree because of “the gift of Beis Choron.” This refers to a Mishnah on 48a about an incident where someone wanted to invite his father, who was mudar hana’ah from him, to his wedding. To facilitate this, he gifted the courtyard and banquet to a third party. It subsequently became evident that the gift was insincere and still forbidden to the father, and because of this Rebbe Yose holds that the Rabbis decreed that all similar cases be forbidden, lest the mafkir express his true intent and invalidate the hefker.