Nedarim - Daf 46
- Can partners who vowed against each other make use of their joint courtyard?
The Mishnah on Daf 45b brought a machlokes whether partners in a courtyard who prohibited themselves to derive benefit from one another may make use of the courtyard. The Gemara on our Daf states: בנדרו פליגי -They argue where the partners vowed to forbid themselves from benefiting from each other, and the Gemara asks: הדירו זה את זה מאי – If they vowed against each other, prohibiting the other from benefiting from himself, what do the Rabbonon hold? Perhaps only where the partners voluntarily prohibited themselves, do the Rabbonon hold they may not utilize the jointly owned property, because a penalty was imposed on them. But if they vowed against each other, דכי אנוסין דמו – they are considered faultless in their respective prohibitions, since it was imposed on him by the other. The Ran notes that in this version, the Rabbonon would agree that fundamentally we would rely on bereirah - retroactive determination and say that each partner’s usage of the property is his exclusive right. The question is left unresolved.
- If the machlokes is with a courtyard that has a דין חלוקה or not
Rabbah said in the name of Zeiri that the machlokes of the Mishnah applies to a courtyard that is large enough to be divided (i.e., large enough that each partner would be left with a usable property, and each may demand a division). But if it was not, the Rabbonon would agree that each partner may enter it. Rav Yosef disproved this from a Mishnah on 48a, which teaches that a publicly owned synagogue, which by definition is not divisible since regardless of its size it must be accessible to all congregants, is forbidden to residents who cannot benefit from each other. Therefore, Rav Yosef said the reverse: מחלוקת שאין בה כדי חלוקה – the argument is only by a property which is not large enough to be divided, אבל יש בה כדי חלוקה דברי הכל אסור – but if it is large enough to be divided, all agree that it is forbidden for each to enter. The Rabbonon never rely on bereirah to consider a partner’s usage exclusively his retroactively. Rebbe Eliezer ben Yaakov does, but only in a property that is not divisible. Because neither side can force a division, the original partnership was such that each one’s usage of the property would be determined retroactively as his from the start. However, with a property that is divisible, it is not known from the outset that each would be able to use the entire property, since it may be divided in the future. Therefore, even Rebbe Eliezer ben Yaakov agrees we cannot rely on bereirah to allow each to use the property.
- תפיסת יד of a rental property
The Mishnah on 46a taught: המודר הנאה מחבירו, ויש לו מרחץ ובית הבד מושכרין בעיר – One who is mudar hana’ah from his friend, and the friend has a bathhouse or olive press in the city, אם יש לו בהן תפיסת יד אסור – if the owner has a “holding” in it, it is forbidden for him to use, אין לו בהן תפיסת יד מותר – but if he does not have a holding in it, it is permitted. If the landlord retains a holding in the property, it is still considered his, and the user is benefiting from him. The Gemara here seeks to define what qualifies as a “holding” which is sufficient to consider the landlord the owner. Rav Nachman said: למחצה, לשליש ולרביע, אבל בבציר לא – his retaining half, a third, or a quarter of the profits is considered a “holding”, but less is not. Abaye disagreed and said even less is considered a “holding,” and the only case permitted would be דמקבל בטסקא – where he receives an annual fee. Since the amount is fixed and not affected by income, the renter is considered the current owner and the user is not benefiting from the landlord.
