12TH CYCLE DEDICATION
NEDARIM 27 - (10 Shevat) - Dedicated by Hagaon Rav Yosef Pearlman of London, England, and his wife, Ruthie Pearlman, in memory of Ruthie's father, Harav Yeshayah ben Rav David Chaim Goldberg Z"L, who passed away on 10 Shevat 5738.

1)

(a)What does Rebbi Nasan in a Beraisa say about someone who, after declaring a Konam on a basket of fruit and upon discovering that it contains white figs, claims that had he known that it did, he would never have declared a Neder on the basket?

(b)Why does the Neder not require Hatarah vis-a-vis the white figs?

(c)What did Rebbi Akiva then come and teach?

(d)How do we establish this Beraisa in order to accommodate Rava's opinion?

1)

(a)Rebbi Nasan in a Beraisa says that if someone who, after declaring a Konam on a basket of fruit and upon discovering that it contains white figs, claims that had he known that it did, he would never have declared a Neder on the basket - he is permitted to eat the white figs, whereas the Neder on the rest of the basket remains intact.

(b)The Neder does not require Hatarah vis-a-vis the white figs - because there was an error in the Ikar Neder.

(c)Rebbi Akiva then came and taught - that 'Neder she'Hutar Miktzaso, Hutar Kulo'.

(d)To accommodate Rava's opinion - we establish the Beraisa when the Noder said that, had he known there were white figs in the basket, he would have said 'Kol ha'Kalkalah Asurah, u'Benos Shu'ach Mutaros' (since that is when the Rabanan argue with Akiva).

2)

(a)In another Beraisa, the Tana states 'Nadar m'Chamishah Bnei Adam k'Echad, Hutar l'Echad Mehem, Hutru Kulam'. Who is the author of the Beraisa, according to ...

1. ... Rabah?

2. ... Rava?

(b)How does the Tana speak? What is the case?

(c)The Tana continues 'Chutz m'Echad Meihen, Hu Mutar, v'Hen Asurin'. Who is the author, according to ...

1. ... Rabah?

2. ... Rava?

(d)How does the Tana speak?

2)

(a)In another Beraisa, the Tana states 'Nadar m'Chamishah Bnei Adam k'Echad, Hutar l'Echad Mehem, Hutru Kulam'. According to ...

1. ... Rabah - the author of the Beraisa is Rebbi Akiva.

2. ... Rava - the Beraisa is unanimous.

(b)The Tana speaks when he first said 'la'Zeh v'la'Zeh' and then changed to 'Kulchem').

(c)The Tana continues 'Chutz m'Echad Meihen, Hu Mutar, v'Hen Asurin'. According to ...

1. ... Rabah - the Beraisa is unanimous.

2. ... Rava - the author is the Rabanan.

(d)The Tana speaks - when he said 'Kulchem' and remained with it.

3)

(a)Like which Tana do we finally rule with regard to 'Neder she'Hutar Miktzaso ... '?

(b)It is unclear however, whether we rule like Rabah or like Rava in their above-mentioned dispute. We might rule like Rabah because he was Rava's Rebbi (and we do not, as a rule, follow the opinion of a Talmid against his Rebbi). Why, on the other hand, might we rule like Rava?

(c)So how do we in fact conclude?

3)

(a)With regard to 'Neder she'Hutar Miktzaso ... ' - we finally rule like Rebbi Akiva.

(b)It is unclear however, whether we rule like Rabah or like Rava in their above-mentioned dispute. We might rule like Rabah because he was Rava's Rebbi (and we do not, as a rule, follow the opinion of a Talmid against his Rebbi). On the other hand, we might rule like Rava - because he lived later than Rabah, and we have a principle that from Rabah and onwards, we rule like the latter opinion.

(c)In fact - we conclude that the Halachah is like Rabah (l'Chumra), in which case, the Noder must change not only the contents of the Neder, but also the wording, before we will say 'Neder she'Hutar Miktzaso, Hutar Kulo'.

4)

(a)What does the Ramban say about someone who knew that his father was among the eaters, declared the Neder and then went to a Chacham to have the Neder nullified regarding his father? Will 'Neder she'Hutar Miktzaso, Hutar Kulo' apply there too?

(b)What is the reason of those who say that it does?

4)

(a)According to the Ramban - we will not say 'Neder she'Hutar Miktzaso Hutar Kulo' in a case where someone knew that his father was among the eaters, declared the Neder and then went to a Chacham to have the Neder nullified regarding his father without changing the Lashon ([also referred to as 'Ma'amid'] seeing as the second condition of changing the Lashon has not been met).

(b)Those who disagree, maintain - that it is only when the Noder did not know that his father was among those eating that 'Neder she'Hutar Miktzaso, Hutar Kulo' does not apply by Ma'amid, because then, seeing as his father was not included in the Neder to begin with, it is not a case of 'Neder she'Hutar Miktzaso'; whereas, in a case when he did, and then goes to a Chacham to have his Neder annulled, when the Chacham annuls the Neder, we will say 'Neder she'Hutar Miktzaso ... ', whether the Noder changed his Lashon or not.

5)

(a)Regarding 'Neder she'Hutar Miktzaso ... ', Tosfos does not differentiate between a Neder that has been revoked through a Pesach and one that was revoked through Charatah. What does the Ramban say?

(b)What is the difference (regarding 'Neder she'Hutar Miktzaso ... ') whether the Noder says 'la'Zeh, v'la'Zeh' or 'la'Zeh, la'Zeh'?

(c)Does the principle of 'Neder she'Hutar Miktzaso ... ' extend to ...

1. ... a Cherem or a Niduy?

2. ... the Hafaras Nedarim of a husband or a father?

5)

(a)Regarding 'Neder she'Hutar Miktzaso ... ', Tosfos does not differentiate between whether a Neder was revoked through a Pesach or through Charatah. According to the Ramban however - the principle is confined to a Neder that one annuls by means of a Pesach (seeing as it is similar to a Neder Ta'us), but not to one that is annulled by means of Charatah. In such a case, the Noder's father and brother will be permitted to eat the figs, but not the other people involved.

(b)The difference (regarding the principle of 'Neder she'Hutar Miktzaso ... ') between 'la'Zeh, v'la'Zeh' or 'la'Zeh, la'Zeh' is - that the former is considered one Neder, and the principle will apply, whereas the latter is like two individual Nedarim, and it will not.

(c)The principle of 'Neder she'Hutar Miktzaso ... '

1. ... extends neither to a Cherem and a Niduy ...

2. ... nor to the Hafaras Nedarim of a husband or a father.

6)

(a)What example does our Mishnah give for Nidrei Onsin?

(b)Why does the Tana need to add the case of 'O she'Chalah Beno'?

(c)Why are 'Nidrei Onsin' void?

6)

(a)The example that our Mishnah gives for Nidrei Onsin is when Reuven declares his property Asur on Shimon, should the latter fail to eat by him; and subsequently Shimon or his son falls ill, or he is unable to cross the river on his way to Reuven.

(b)The Tana needs to add the case of 'O she'Chalah Bno' - to teach that even a small Ones (seeing as he could still have gone even though his son is ill) is also considered an Ones.

(c)'Nidrei Onsin' are void - because the Madir certainly did not have in mind to forbid his property on the Mudar in the event that he turns out to be an Ones.

7)

(a)A certain litigant placed his documents in Beis Din, and declared them void should he not return within thirty days. On what grounds was the case postponed for thirty days time? Why did they not judge him immediately?

(b)Why was it necessary for him to place his documents in Beis Din in the interim?

(c)An Ones occurred and the defendant was delayed beyond the thirty-day limit. What did Rabah retort when Rav Huna declared his documents void?

7)

(a)A certain litigant placed his documents in Beis Din, and declared them void should he not return within thirty days. The case was postponed for thirty days time - because of the Halachah that grants either of the litigants the right to postpone the proceedings in order to bring proof that will substantiate his claim.

(b)It was necessary for him to place his documents in Beis Din in the interim - because of the Halachah authorizing Beis Din to demand from him a security should they suspect that his claim is no more than a ruse to escape justice.

(c)An Ones occurred and the defendant was delayed beyond the thirty-day limit. When Rav Huna declared his documents void - Rabah quoted him the Pasuk 'Ones Rachmana Patrei'.

8)

(a)What is the source of 'Ones Rachmana Patrei'?

(b)From where do we know that it is not confined to cases of life and death (similar to those in the Pasuk)?

(c)What does the Tana rule in the Mishnah in Gitin with regard to a man who gives his wife a Get which should be valid on the condition that he fails to return within a year, and he is unable to return because he has died?

(d)According to Rabah, why does the Tana not apply the principle 'Ones Rachmana Patrei'?

8)

(a)The source of 'Ones Rachmana Patrei' is - the Pasuk in Re'eh (in connection with a girl who is raped) "v'la'Na'arah Lo Sa'aseh Davar".

(b)We know that it is not confined to cases of life and death (similar to those in the Pasuk) - because of our Mishnah, which is not a matter of life and death.

(c)In the Mishnah in Gitin, with regard to a man who gives his wife a Get which should be valid on the condition that he fails to return within a year, and he is unable to return because he has died - the Tana rules that the Get is nevertheless valid.

(d)According to Rabah, the Tana does not apply the principle 'Ones Rachmana Patrei' - because that case is different, inasmuch as the only reason that he gave her the Get in the first place was so that, should he die, his wife should not be prevented from re-marrying, due to the Mitzvah of Yibum (so what difference does it make whether he did not return within thirty days or whether he died within thirty days?)!

27b----------------------------------------27b

9)

(a)In the case where a certain husband gave his wife a Get which was to be valid on condition that he did not return within thirty days, what happened at the end of the thirty-day period?

(b)On the assumption that Ones (negating conditions) applies to Gitin too, why did Shmuel rule in that case that the Get was valid?

(c)How could we have dispensed with the current difficulties? What does the Gemara say in Kesuvos about Ones b'Gitin?

9)

(a)In the case where a certain husband gave his wife a Get which was to be valid on condition that he did not return within thirty days - he arrived at the far side of the river minutes before the time expired, only to discover that the ferry was on the other side and that he would be unable to cross. He screamed 'Im coming! I'm coming'! but to no avail.

(b)On the assumption that Ones (negating conditions) applies to Gitin too, Shmuel ruled in that case that the Get was valid - because it was a foreseeable Ones (and it is only unforeseen Onsin that will negate conditions).

(c)We could have dispensed with the current difficulties - by quoting the Gemara in Kesuvos, which states 'Ein Ones b'Gitin' (because of 'Tzenu'os and Perutzos'), only our Sugya is working even on the assumption that 'Yesh Ones b'Gitin'.

10)

(a)What do we mean when we query Rav Huna (who declared the documents that the litigant handed over to Beis Din, void) by asking 'Michdi Asmachta Hi'?

(b)How do we resolve this Kashya?

10)

(a)When we query Rav Huna (who declared the documents that the litigant handed over to Beis Din void) by asking 'Michdi Asmachta Hi', we mean - that since the nullification of the documents was only conditional (depending upon his not returning within thirty days), it falls under the category of 'Asmachta', and we have a principle 'Asmachta Lo Kanya' (though that itself is a Machlokes Tana'im, as well as Amora'im).

(b)We resolve this Kashya - by pointing out that the litigant had reinforced his statement by handing over his documents to Beis Din (removing the case from the realm of 'Asmachta').

11)

(a)The Mishnah in Bava Basra presents a case where someone repaid part of his loan and deposited his document with a third person with instructions to hand it to the debtor should he not return within thirty days. In the end, he did not return, and Rebbi Yehudah ruled 'Lo Yiten'. Why is that?

(b)What did Rebbi Yosi say? Like whom does Rabah bar Avuhah Amar Rav rule?

(c)We reconcile Rav Huna (who, in our Sugya, does not consider the case where the litigant handed his documents to Beis Din, Asmachta) with this ruling - by pointing out that in our Sugya, he said 'Livatlan Hani Zachvasa'i'. How does the Rambam explain this?

(d)Rashi disagrees. According to him, Asmachta applies even when the litigant is Mochel. How does Rashi then explain the above answer?

11)

(a)The Mishnah in Bava Basra presents a case where someone repaid part of his loan and deposited his document with a third person with instructions to hand the document to the debtor, should he not return within thirty days. In the end, he did not return, and Rebbi Yehudah ruled 'Lo Yiten' - because he holds 'Asmachta Lo Kanya'.

(b)Rebbi Yosi ruled ' Yiten' - because he holds 'Asmachta Kanya'. Rabah bar Avuhah Amar Rav however, follows the opinion of Rebbi Yehudah.

(c)We reconcile Rav Huna (who, in our Sugya, does not consider the case where the litigant handed his documents to Beis Din, Asmachta) with this ruling - by pointing out that in our Sugya he said 'Livatlan Hani Zachvasa'i', which the Rambam explains to mean that should he not arrive, he will have been Mochel (i.e. forgone) his claim.

(d)Rashi disagrees. According to him, Asmachta applies even when the litigant is Mochel - and what we mean when we say that in our Sugya, he said 'Livatlan Hani Zachvasa'i' is - that such a statement is tantamount to saying that the contents of the documents are false.

12)

(a)We conclude (with regard to Rav Huna's case) 'v'Hilchesa Asmachta Kanya, v'Hu d'Lo Anis, v'Hu d'Kanu Minei b'Beis Din Chashuv'. What sort of Ones are we referring to?

(b)How do we know that 'Beis Din Chashuv' does not mean a Beis Din Samuch (like the Rambam maintains)?

(c)How does Rabeinu Tam reconcile the need for a Beis Din Chashuv as well as a Kinyan, with the fact that every Kinyan is considered as if he had said 'me'Achshav', and 'me'Achshav' removes the aspect of 'Asmachta'?

(d)Rav Hai Gaon disagrees with Rabeinu Tam. In his opinion, 'me'Achshav' helps to remove the aspect of 'Asmachta' in any event, even in our case, but not a Kinyan. Why is a Beis Din Chashuv necessary in our case, according to him? Why will the Kinyan alone not suffice?

12)

(a)We conclude (with regard to Rav Huna's case) 'v'Hilchesa Asmachta Kanya, v'Hu d'Lo Anis, v'Hu d'Kanu Minei b'Beis Din Chashuv'. We are referring to - any sort of Ones, even one like 'Chalah Beno', because, just like we explained in our Mishnah, a person does not make a condition expecting whoever is concerned to leave his sick child in order to fulfill it.

(b)'Beis Din Chashuv' cannot mean a Beis Din Samuch (like the Rambam maintains) - because then we would have said 'Beis Din Mumcheh'.

(c)Rabeinu Tam reconciles the need for a Beis Din Chashuv as well as a Kinyan, with the fact that every Kinyan is considered as if he had said ' m'Achshav', and 'm'Achshav' removes the aspect of 'Asmachta' - because, he says, a Kinyan has the strength of 'm'Achshav' only when the recipient actually receives a Mashkon (a security), but not in our case, where he placed the documents in Beis Din.

(d)Rav Hai Gaon disagrees with Rabeinu Tam. In his opinion, ' m'Achshav ' helps to remove the aspect of 'Asmachta' in any event even in our case, but not a Kinyan (which requires a Beis Din Chashuv, too) - because he handed his documents to Beis Din (giving them jurisdiction over them); and the reason that the Kinyan alone (which is normally as effective as ' m'Achshav ') will not suffice here is - because he added the clause 'Im Lo Ba'si ad Sheloshim Yam', negating the concept of ' m'Achshav '. Consequently, seeing as, in thirty days' time, the Kinyan is no longer in existence, it requires a Beis Din Chashuv to remove 'Asmachta'.

13)

(a)According to the above explanation (the Rif, explaining Rav Hai Gaon, elaborates), when someone has deposited his documents in a Beis Din Chashuv, a Kinyan will help to remove the aspect of 'Asmachta' and so will the Lashon of 'me'Achshav'. On what grounds do we disagree with the Rif and Rav Hai Gaon?

(b)We therefore conclude that a Kinyan would work in our case, in conjunction with 'me'Achshav'. Why will it not suffice if he ...

1. ... said 'Livatlan Zachvasa'i' (Mechilah)?

2. ... also said 'me'Achshav' (removing the 'Asmachta')?

(c)Then what is the final Chidush?

13)

(a)According to the above explanation (the Rif, explaining Rav Hai Gaon, elaborates), when someone has deposited his documents in a Beis Din Chashuv, a Kinyan will help to remove the aspect of 'Asmachta' and so will the Lashon of ' m'Achshav '. We disagree with the Rif and Rav Hai Gaon however - on the grounds that, if the Tana was coming to teach us the power of a Beis Din Chashuv, then a Kinyan should not be necessary.

(b)We therefore conclude that a Kinyan would work in our case, in conjunction with ' m'Achshav '. The fact that he ...

1. ... said 'Livatlan Zachvasa'i' (Mechilah) will not suffice - because he qualified his statement with 'Im Lo Ba'si ... ' making it an 'Asmachta').

2. ... also said 'm'Achshav' (removing the 'Asmachta') will not suffice - because, even though it will remove the 'Asmachta', it will not place the documents in the ownership of the other litigant.

(c)The final Chidush is - that a Beis Din Chashuv (together with the Kinyan) dispenses with the need for 'm'Achshav', because what someone does in front of such a Beis Din, is done with sincerity and with a full heart (negating 'Asmachta', which negates a deal or a condition precisely because it is not taken seriously).

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