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Nedarim 43b

נדרים מ״ג ע״ב

Learn Nedarim 43b step by step: Aramaic beside English, every question, answer and proof colour-coded.

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Topic

When does הפקר leave the owner? רבי אבא's question from vows, רבא's challenge from a שכיב מרע and his new reason (the גזירה of בית חורון), and a ברייתא about taking back הפקר within three days

Overview

The גמרא is testing רבי יוחנן's explanation of רבי יוסי: something made הפקר still belongs to its owner until someone actually picks it up. רבי אבא asks a question from a ברייתא about vows. If the owner made his food הפקר before he vowed, the other person may eat it, so why should the order matter if the owner still owns it? רבי אבא answers his own question: a person who vows does not have in mind what he already made הפקר. Then רבא challenges רבי יוחנן from a שכיב מרע (dying man). He gave part of his property to one person and all the rest to another, and the second gift counts as "everything" only if the first gift had already left him. Because of this, רבא gives a new reason for רבי יוסי: it is a rabbinic decree (גזירה) because of the gift of בית חורון, where a gift was used as a trick to get around a vow. Finally, the גמרא brings a ברייתא that someone who makes his field הפקר can take it back for three days, and the discussion of this source continues on the next amud.

Opening lines

אֲבָל אִם הָיָה הֶפְקֵירוֹ קוֹדֵם לְנִדְרוֹ —

But if his declaring it ownerless came before his vow,

הֲרֵי זֶה מוּתָּר.

it is permitted.

וְאִי אָמְרַתְּ עַד דְּאָתֵי לִרְשׁוּת זוֹכֶה,

And if you say it stays his until it comes into the possession of the one who acquires it,

מָה לִי נִדְרוֹ קוֹדֵם לְהֶפְקֵירוֹ,

what difference does it make to me if his vow came before his declaring it ownerless,

The steps (5)

  1. ChallengeWhy does the order of the vow and the הפקר matter?
  2. ResolutionA person who vows does not mean to include what he already made הפקר
  3. Challengeרבא challenges from a dying man who gave part to one person and all to another
  4. Resolutionרבא gives a new reason: a rabbinic decree because of the gift of בית חורון
  5. StatementA ברייתא: one can take back a declaration of ownerlessness for three days