Nedarim - Daf 45
- The difference between mafkir in front of two people and in front of three people
The Gemara on this Daf offers a second way how Reish Lakish can resolve the contradiction between Baraisos if one can retract his hefker: הא דאפקריה באנפי תרין – This Baraisa is speaking where he was mafkir it in front of two people, והא דאפקריה באפי תלתא – and this Baraisa is speaking where he was mafkir it in front of three people. The Ran explains that Rebbe Yose’s reason for saying one can retract his hefker, and it does not leave his domain until someone acquires it, is because he considers it akin to a gift. The Gemara here is saying that this is only when the hefker is made in front of two (or fewer) people. Since it will not become publicly known, it seems that the owner intends for it to be taken specifically by one of these people, which is like a gift. A hefker declared in front of three, on the other hand, will become public knowledge, and Rebbe Yose agrees in such a case that it is immediately ownerless, and he cannot retract.
- Machlokes how many people are needed for hefker
The Gemara records a machlokes between Amoraim about how many people must be present for hefker to be effective. Rebbe Yochanan said in the name of Rebbe Shimon ben Yehotzadak: כל המפקיר בפני שלשה הוי הפקר, בפני שנים לא הוי הפקר – Anyone who is mafkir before three people, it is hefker. But before two people, it is not hefker, at least as far as being able to retract. Rebbe Yehoshua ben Levi said: דבר תורה אפילו באחד הוי הפקר – By Torah Law, even with one person present it is hefker. ומה טעם אמרו בשלשה, כדי שיהא אחד זוכה ושנים מעידין – And why did they say to be mafkir before three? So that one can acquire it and two will be able to testify. This would ensure that the owner would not be able to deny the hefker after it is acquired.
- If mudarei hana’ah may enter their jointly owned property
The first Mishnah in the fifth Perek begins: השותפין שנדרו הנאה זה מזה אסורין ליכנס לחצר – Partners who vowed not to benefit from each other are forbidden to enter their jointly owned courtyard. The Ran notes that this Mishnah follows the opinion that even activities that owners usually allow others to do for free are forbidden by a mudar hana’ah. Rebbe Eliezer ben Yaakov says: זה נכנס לתוך שלו וזה נכנס לתוך שלו –This one enters his share, and this one enters his share, which means that wherever each one walks in the property is considered his portion. The Gemara in Bava Kamma (51b) explains that the dispute is rooted in ברירה – retroactive determination. Rebbe Eliezer ben Yaakov holds that whenever one partner makes use of the jointly owned property, it is determined retroactively that this usage was his exclusive right, and he is not using his counterpart’s property at all. Therefore, he is not violating the neder by entering the courtyard. The Rabbonon disagree and say אין ברירה – we do not rely on later events to make retroactive determinations of ownership. He is therefore considered to also be making use of his counterpart’s property, which is forbidden.
