Working Around Nedarim

Nedarim (5:6) | Yisrael Bankier | 12 years ago

Much of this week we discussed cases where one person (Reuven) made a neder against gaining any benefit from another (Shimon). The Mishnayot discussed the scope of the neder in varying circumstances as well as how one can work around the neder in times of great need. For example the Mishnah (5:6) teaches that if Reuven has no food to eat, Shimon can gift supplies to another person who can in turn then provide Reuven with food, provided that Shimon did not expressly direct the third party to do so. 

One Mishnah however restricts this solution by way of example. The Mishnah (5:6) records an incident in Beit Choron, where a father made a neder preventing him from gaining any benefit from his son. The son was soon to marry, so the son gave the meal he prepared for the wedding and his courtyard to another as a gift and said at the time that he was doing so only so his father could attend the wedding. The friend accepted and subsequently declared that if it is indeed his it is sanctified. The son objected. The Mishnah ends by teaching “that any gift that is not given such that the receiver can sanctify it, is not a gift.” 

The Tosfot Yom Tov notes that we find in other areas that a gift that is given on the condition that it is returned is considered a gift while it is in the possession of the recipient. In this case however the son had no real intention of giving it to his friend at all. The son was only doing so to get around the neder.

At first glance it appears that the insincerity of the gift in our Mishnahis what is problematic. This raises a number of questions. The Mishnah presented the solution of using a shopkeeper, a tradesmen (4:7) or a fellow traveller (4:8) to provide Reuven with the means he requires as stated in our introduction. The Mishnah even taught that if Reuvenand Shimon were travelling alone and Reuven had no food, according to the Chachamim, Shimon can declare the food ownerless and Reuvencan then take it. How are these cases different to the incident of Beit Choron in our Mishnah?

The Tifferet Yisrael (Boaz 2) addresses this issue. He explains that we cannot say that the difference is that in the other cases Shimon said nothing to the third party, because we find that in on case (4:7) Shimon explains the situation to the shopkeeper and exclaims, “I do not know what to do.” He continues that we also cannot suggest that as long as Shimon’s declaration is indirect then it is fine, since the other cases are only permitted when Reuven has nothing to eat, implying that even speaking indirectly is somewhat signification.

The Tifferet Yisrael answers that this case is different because the ha’aramah (trickery) is patently obvious. No one prepares and funds a wedding only to give it away to someone else. Since it is clear that the receiver has no freedom to use the gift any other way, then it is not considered a gift and the neder would be violated (Ran). Since however in the other cases, the sum of money is small and the ha’aramahis small and it is only in the end that the ha’aramah is revealed, it is prohibited on a rabbinic level and waived in times of need. 

The Rashba differentiates by explaining that in case of Beit Choron the son gave the gift with a condition– so that his father could come – therefore it is not considered a complete gift. If however the gift was handed over without articulating any condition (stum), and the son only later request that his father be invited, it is the same as the other cases and permitted.

The Rambam (Nedarim 7:15) however rules that even if it was given stum and the intent was expressed later, it is still a problem. The Kesef Mishnah however explains that the Rambam means that the intent was expressed very soon after the gift was given. If it was later then that, then it would not be a problem.

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