Resources and Review Test for Nedarim 46
The משנה says that if the owner of a house has rented it out and no longer has a תפיסת יד in it, he can’t make it אסור on others by making them מודר הנאה from his property. The ר"ן asks why not? After all, the גמרא says elsewhere that an owner can make a house הקדש even if he rented it out. If he can make it אסור on the renter by being מקדיש it, and קונמות are like הקדש, why cant he make it אסור on people if he is מדיר them בהנאה? He answers (based on רש"י’s שיטה elsewhere) that even though קונמות are like הקדש, it is only קדושת הגוף that is מפקיע מידי שעבוד and not קדושת דמים. This is against the שיטה of ר"ת who says that even קדושת דמים can be מפקיע מידי שעבוד. The קובץ הערות in סימן נ"ב אות א explains their מחלוקת as follows: both ר"ת and the ר"ן agree that when the owner is מקדיש a field, the field becomes owned by הקדש. They are just arguing as to whether it being הקדש makes the field אסור on the renter. The ר"ן holds that it may be owned by הקדש but the renter still has the right to use it. It would be similar to someone who rents out a field and then sells it to a third party. In that case, the renter still has rights to use of the house but just needs to pay the rent to someone else. Presumably he is understanding that the owner had no right to sell that which he had already given away which was the rights of the renter to dwell there. The איסור of נהנה מהקדש is based solely on גזל הקדש and here there is no גזל! However, ר"ת holds that there is an איסור to use הקדש even if there is no גזל as it is איסורי הנאה. The issue with this explanation of the ר"ן is that if the renter can still use it after it is הוקדש, then even if we were discussing קדושת הגוף it should not be מפקיע מידי שעבוד of a renter since he should still be able to use it! Therefore, רב אלחנן זצ"ל explains that even though the איסור to use קדושת דמים is based on גזל הקדש, the איסור to use קדושת הגוף is not משום גזל but rather משום איסורי הנאה. (My own question on his explanation is that the ר"ן says explicitly by קדושת דמים that he cant be מקדיש it which sounds to me like he cant be מקדיש it at all).
The ר"ן mentioned above asked why can’t the owner make the house he rented out אסור to the renter with a נדר if the גמרא says elsewhere that the owner can be מקדיש a house he rented out? One of the answers he brings is from the ירושלמי that the גמרא there is talking about where the renter hadn’t paid the rent in advance whereas our גמרא is talking about where the renter prepaid. In that latter case it is considered that the owner is disconnected enough from the house that he cant be מקדיש it. The רא"ש asks on the ירושלמי why should being מקדים the rent be relevant as to whether the owner owns it fully or not? The קובץ הערות inסימן נ"ג אות ט explains that the ירושלמי holds that שכירות can work in one of two ways: either you can pay for the usage in which case you pay at the end as שכירות אינה משתלמת אלא לבסוף. Alternatively, you can pay for the temporary “sale” like a regular מקח in which case you owe the money immediately. Therefore, if the renter paid immediately it is considered as if it is his and he has a קנין הגוף, at least for now, in which case the real owner can’t be מקדיש it. However, if he is paying at the end that he means he is just paying for the usage which is only a שעבוד and can be overridden by the הקדשה of the owner.
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