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Babylonian Talmud: Tractate Nedarim

Folio 48a

NOW, WHAT ARE THE THINGS THAT BELONG TO THEM THAT CAME UP FROM BABYLON? E.G., THE TEMPLE MOUNT, THE COURTS OF THE TEMPLE AND THE WELL ON THE MIDROAD.1  WHAT ARE THE THINGS THAT BELONG TO THAT TOWN, E.G., THE PUBLIC SQUARE, THE BATH-HOUSE, THE SYNAGOGUE, THE ARK [IN WHICH THE SACRED SCROLLS WERE KEPT] AND THE BOOKS [OF THE LAW],2  AND [THE ESTATE OF] HIM WHO ASSIGNS HIS PORTION TO THE NASI.3  R. JUDAH SAID: IT IS THE SAME WHETHER HE ASSIGNS IT TO THE NASI OR TO A PRIVATE INDIVIDUAL, BUT WHAT IS THE DIFFERENCE? IF HE ASSIGNS IT TO THE NASI, HE NEED NOT [FORMALLY] CONFER TITLE;4  WHILST IN THE CASE OF AN INDIVIDUAL IT IS NECESSARY TO CONFER TITLE.5  BUT THE SAGES MAINTAIN: FORMAL GRANT OF TITLE IS NECESSARY IN BOTH CASES; THEY MENTIONED THE NASI IN PARTICULAR AS THIS IS USUAL.6  R. JUDAH SAID: THE GALILEANS NEED NOT ASSIGN [THEIR PORTION], BECAUSE THEIR ANCESTORS HAVE ALREADY DONE SO FOR THEM.

GEMARA. Why is it forbidden?7  — Said R. Shesheth, The Mishnah teaches thus: How can they repair their position?8  Let them assign their portion to the nasi.9

R. JUDAH SAID: THE GALILEANS NEED NOT ASSIGN [THEIR PORTION]. BECAUSE THEIR ANCESTORS HAVE ALREADY DONE SO FOR THEM. It was taught: R. Judah said: the Galileans were quarrelsome and wont to make vows not to benefit from each other: so their fathers arose and assigned their portions to the nasi.

MISHNAH. IF ONE IS FORBIDDEN BY VOW TO BENEFIT FROM HIS NEIGHBOUR AND HAS NOTHING TO EAT, THE LATTER CAN GIVE IT [FOOD] TO A THIRD PARTY, AND THE FORMER IS PERMITTED TO USE IT. IT HAPPENED TO ONE IN BETH HORON10  THAT HIS FATHER WAS FORBIDDEN TO BENEFIT FROM HIM. NOW HE [THE SON] WAS GIVING HIS SON IN MARRIAGE;11  SO HE SAID TO HIS NEIGHBOUR, 'THE COURTYARD AND THE BANQUET BE A GIFT TO YOU, BUT THEY ARE YOURS ONLY THAT MY FATHER MAY COME AND FEAST WITH US AT THE BANQUET. THEREUPON HE ANSWERED, 'IF THEY ARE MINE, LET THEM BE CONSECRATED TO HEAVEN!' 'BUT I DID NOT GIVE YOU MY PROPERTY TO CONSECRATE IT TO HEAVEN, HE PROTESTED. YOU GAVE ME YOURS SO THAT YOU AND YOUR FATHER MIGHT EAT AND DRINK TOGETHER AND BECOME RECONCILED TO ONE ANOTHER, WHILST THE SIN [OF A BROKEN VOW] SHOULD DEVOLVE UPON HIS HEAD,'12  HE RETORTED. [WHEN THE MATTER CAME BEFORE] THE SAGES, THEY RULED: EVERY GIFT WHICH IS NOT [SO GIVEN] THAT IF HE [THE RECIPIENT] CONSECRATES IT, IT IS CONSECRATED, IS NO GIFT [AT ALL].

GEMARA. [Does the Mishnah adduce] a Story to contradict [its ruling]?13  — The text is defective, and was thus taught: But if the end proves [his intention] at the beginning,14  it is forbidden, and so it happened in Beth Horon, in the case of one whose last action demonstrated his first [as a mere evasion].

Raba said: They [the Sages] taught [that it is forbidden] only if he said, 'They are yours only in order that my father may come [etc.].' But if he said, 'They are yours so that my father may come, he meant, 'It depends on your will.'15  A different version is this: Raba said: Do not think that he is forbidden only if he said, 'And they are yours only in order that my father may come', but if he said, 'They are yours so that my father may come' it is permitted. [That is not so,] for even if he said, 'They are yours: let my father come,' it is forbidden. What is the reason? Because the banquet proves his intention.

Original footnotes renumbered. See Structure of the Talmud Files
  1. Between Babylon and Palestine, for the supply of water to the pilgrims, v. 'Erub. 104b. These things were declared the property of all Israel.
  2. (Rashi. Asheri: Books purchased by the congregation for the reading of the general public.]
  3. The head of the Sanhedrin in Jerusalem and subsequent places. According to this reading, this portion too would be forbidden. But the Gemara amends the text of the Mishnah.
  4. I.e., by the mere documentary assignation it becomes the Nasi's property.
  5. E.g., one of the recognised methods of acquisition.
  6. For one would fear to assign his portion in communal property to an individual, lest he then forbid it to him. V. also Halevy, Doroth, I, 3, p. 61 and general discussion a.l.
  7. This question is based on the assumption that if the maddir assigns his portion to the nasi, the muddar is still forbidden.
  8. Since the use of communal property as defined in the Mishnah is essential to them.
  9. In cur. edd. a portion of the Mishnah is here reproduced in brackets, viz., 'R. Judah said, It is the same … this is usual'. But the quotation is pointless, and should be deleted.
  10. A border town between Benjamin and Ephraim.
  11. And desired his father's presence.
  12. [Probably a euphemism for 'my head'. J. reads 'my head'.]
  13. Surely not! For the Mishnah states that the maddir may make a gift for the muddar to benefit thereby, and then quotes a case where this was forbidden.
  14. That it was a mere device.
  15. Hence it is permitted.

Nedarim 48b

A certain man had a son who used to carry off bundles of flax. Thereupon his father forbade his property to him.1  'But,' said others to him, 'what if the son of your son is a scholar?'2  He replied, 'Let him acquire it, and if my3  grandson be a scholar, it shall be his.'4  Now, what is the law? — The Pumbedithans5  ruled, This is a case of 'Acquire, in order to give possession,' and such does not give a legal title. R. Nahman said: He [the son] acquires [it], for [the giving of] a sudarium too is a case of 'Acquire, in order to give possession.'6  R. Ashi demurred: But in the case of a sudarium, who tells you that if he retains it, it is not his?7  Moreover, the sudarium is a case of 'Acquire in order to give possession,' and 'Acquire [it] from now.'8  But as for this property, — when shall he acquire it? When his grandson is a scholar: [but] by then the sudarium [whereby the transference was made] has been returned to its owner.9  Raba [also] questioned R. Nahman: But the gift of Beth Horon was a case of 'Acquire, in order to give possession,' yet it was invalid? Sometimes he answered, Because his banquet proves his intention;10  sometimes he answered, This is taught in accordance with R. Eliezer, who maintained that even the extra [given by the vendor to a customer] is forbidden to one who is interdicted by vow to benefit.11

We learnt, THE SAGES RULED, EVERY GIFT WHICH IS NOT [SO GIVEN] THAT IF HE [THE BENEFICIARY] CONSECRATES IT, IT IS CONSECRATED, IS NOT A GIFT [AT ALL]. Now, what does EVERY include? Surely it includes such as this case of stealing flax?12  — No. It includes the case of the second version of Raba's ruling.13

Original footnotes renumbered. See Structure of the Talmud Files
  1. Though, as stated above, (supra 47a) his son would still inherit it, this story may be explained on the supposition that he had two sons, and wished to give the whole of his estate to the second (Ran).
  2. At the time he had no grandson yet.
  3. This is Rashi's reading. Cur. edd.: and if … [Var. lec. 'let him not acquire, and if …' v. BaH.]
  4. But if not, it reverts to my other son. — Ran.
  5. A great academy town in Babylonia, at the mouth of the Beditha (which is the meaning of the name), a canal of the Euphrates.
  6. One of the methods of acquisition was by exchange (halifin), in which an object (a sudarium kerchief) was given by the purchaser or recipient to the vendor or donor as a symbolical substitute v. B.M. 47a. Now, actually. this was given merely in order that the latter might give legal possession to the former, and was generally returned, yet it was valid.
  7. I.e., though in fact it was only a symbol, and usually returned, yet it may be retained; but here it was not intended that the son should have possession at all but merely to be the medium of transference, for if his grandson would not be a scholar, the estate was to revert to his second son.
  8. [Ran reads: Acquire in order to give possession from now.] As soon as the vendor acquires the scarf, the purchaser is the legal owner of his purchase.
  9. [At the time when the title was granted the grandson was not yet in existence, and when he is ripe enough to receive the legacy the act of transference had long been a matter of the past, and no longer effective.]
  10. I.e., it was not a genuine gift at all.
  11. On account of this he ruled that he may not even walk over his field (32b), though ordinarily walking over another person's field is not accounted an encroachment of rights. Thus R. Eliezer treats vows far more stringently than other matters. Consequently, here too he rules the gift invalid. But the Sages, who disagree with him, would regard the gift of Beth Horon valid.
  12. That such a gift is invalid, not merely because of the greater stringency of vows, but because 'Acquire in order to give possession' confers no title. [This is the reading of Ran. Rashi and Asheri: Where the condition was repeated or cast in two forms (v. supra p. 149 n. 3). Our text presents a conflation of the two readings.]
  13. V. Supra.