Nedarim 45a (מה.) — the Talmud in English

Alternatively, say:

In truth, the second beraita as well is in accordance with the opinion of Rabbi Yosei.

Rather, what Rabbi Yosei said in the first beraita, that one who declares an item ownerless can retract his declaration, applies when

he declared it ownerless in the presence of two [

before two], as we learned in our Mishna, to which Rabbi Yosei’s statement in that beraita, “and if there is no other person with them,” refers—that is, there were only the one who declared the item ownerless and the one who acquired it.

It was specifically in such a case that Rabbi Yosei prohibited retraction, because he holds that in such a case, when there is no other person with them, or when only two others are with him, he intends to declare the item ownerless only with regard to one of them, since two people do not cause the matter to become public, and others do not know that he declared the item ownerless. Therefore, this declaration of ownerlessness is similar to a gift: Just as a gift leaves the possession of the giver only with regard to the recipient, so too here, this person declares the item ownerless only with regard to the one who is with him, or with regard to one of the two who are with him.

Therefore, just as a gift does not leave his possession until it enters the possession of the recipient, so too, an act of declaring an item ownerless in such a case does not leave the possession of the one who declared it ownerless until it enters the possession of the one who acquires it. Therefore, Rabbi Yosei said that until one acquires it, whether he himself or another, he can retract his declaration.

But

this,

what we learned in the second beraita, that one who declares his vineyard ownerless and so on is exempt from tithes, refers to a case where

he declared it ownerless in the presence of three [

for example, he declared it ownerless before three people]. In such a case, the matter becomes public, and he declared it ownerless with regard to everyone; therefore, it is not at all similar to a gift. Consequently, in such a case Rabbi Yosei concedes that it leaves the possession of the one who declared it ownerless immediately.

For Rabbi Yohanan said in the name of Rabbi Shimon ben Yehotzadak: Anyone who declares an item ownerless in the presence of three—

it is ownerless,

because he intended to declare it ownerless with regard to everyone.

But if he declared it ownerless

in the presence of two—

it is not ownerless.

Since such a declaration does not become public, he intended to declare it ownerless only with regard to these two people, and it is therefore like a gift.

And Rabbi Yehoshua ben Levi said: By Torah law, even in the

presence of

one, it is ownerless.

And for what reason did

the Sages say that one must declare an item ownerless

before three?

So that one

of those present

will acquire it, and two

others

will testify

to that.

We have completed the chapter “There Is No Difference with Regard to One Who Is Forbidden by a Vow.”

Introduction to the Chapter of the Partners

This chapter explains the law of a vow concerning jointly owned property, when one of the partners in the property vows not to derive benefit from it, or makes his partner or another person forbidden by a vow to derive benefit from it. It also explains the laws of partnership, on the basis of which the law of a vow concerning jointly owned property is determined.

A. Partnership in property is possible in two ways:

The first is when several people jointly purchase an item. The second is when several heirs receive an inheritance from one person.

Regarding the definition of the partners’ ownership, and likewise regarding the definition of the right of use that each of the partners has in the jointly owned property, the Ran and the Ramban disagree in a fundamental dispute in the first Mishna of this chapter.

According to the Ran, each of the partners has his own share in the property, as well as a right to use the portions belonging to the other partners. In the Ran’s view, the right that each partner has to use the portions of the other partners is in the category of a lien (shi’bud) that he has upon them.

According to the Ramban, however, each of the partners does not have a right to a particular portion of the property. Rather, they are all partners in the entire property, and they all have the right to use the entire property, except that they divide the times of use among themselves.

When each of the partners uses the property, he uses it as though the entire property were his, and he is not considered to be using his fellow’s portion.

C. Bereira, regarding which tanna’im and amora’im disagree as to whether there is bereira or there is no bereira, means that the entire property is his, and that his right is not a right or a lien in his fellow’s property!

This applies when a person performs a particular action and makes the validity of the action—which takes effect immediately—dependent upon a particular state of affairs, even though that state of affairs has not yet come into existence at the time of the action, but will come into existence afterward.

For example, a person separates teruma and tithes from a barrel and says: “Whatever I will separate tomorrow as teruma and tithes shall take effect now.” If there is bereira, the separation of teruma and tithes takes effect immediately upon whatever he will separate tomorrow, and tomorrow it will become clear what the separation performed yesterday took effect upon.

D. The GRIZ explains that when partners divide jointly owned property between themselves, even if we say that there is no bereira, and it was not clarified at the time the partnership was divided that each one had this particular portion from the outset, they do not need to transfer ownership of each one’s portion to the other. It is sufficient for there to be a “division” that establishes each person’s portion, even if it is done merely by a lottery.

What the Sages said—that according to the one who says there is no bereira, partners who divided their property are considered “purchasers”—is because of the division between them, and not because they needed to transfer ownership to one another. [See the novellae of Rabbi Shmuel at the beginning of tractate Bava Batra].