Nedarim 45a — the Talmud in English

Alternatively, if you wish, say:

the second beraita as well is in accordance with the view of Rabbi Yosei.

Rather, what Rabbi Yosei said in the first beraita, that the one who declares [the item] ownerless can retract, applies where

he declared it ownerless in the presence of two

[in the presence of two], as we learned in our Mishna, concerning which Rabbi Yosei's words in that beraita were stated: “and if no other person is with them”—that is, there were present only the one who declared it ownerless and the one who acquired it.

It is specifically in such a case that Rabbi Yosei prohibited, because he maintains that in such a case, when no other person is with them, or when only two others are with him, he intends to declare it ownerless only with regard to one of them, because two people do not publicize the matter, and others do not know that he declared it ownerless. Therefore, this declaration of ownerlessness resembles a gift: just as a gift leaves the possession of the giver only with regard to the recipient, so too here, this person declares it ownerless only with regard to the one who is with him, or with regard to one of the two who are with him.

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

But

this,

what we learned in the second beraita, that one who declares his vineyard ownerless and so forth is exempt from the tithe, refers to where

he declared it ownerless in the presence of three

[for example, he declared it ownerless in the presence of three], since in such a case the matter becomes public, and he declared it ownerless with regard to everyone, and this does not resemble a gift at all. Therefore, 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 of ownerlessness is not publicized, he intended to declare it ownerless only with regard to these two people, and this is like a gift.

And Rabbi Joshua 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 it ownerless

before three?

So that one

of those present

may acquire it, and two

of the others

may testify

to this.

We have returned to you, chapter “There Is No Difference for One Who Is Prohibited by a Vow.”

Introduction to the Chapter of the Partners

In this chapter, the law of a vow concerning jointly owned property is explained, when one of the partners in the property vows not to derive benefit from it, or makes his partner, or his fellow, prohibited by a vow from deriving benefit from it. Likewise, matters of partnership are explained in it, according to which the law of the vow concerning the jointly owned property is determined.

A. Partnership in property is possible in two ways:

The first, when several people acquire something jointly. And the second, when several heirs receive an inheritance from one person.

B. 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 disputed one another in the first Mishna of this chapter in a fundamental dispute.

According to the Ran, each of the partners has his portion in the property, and a right of use also in the portions belonging to the other partners. And according to the Ran’s view, the right that each partner has to use also the portions of the other partners is in the category of a “lien” that he has in them.

Whereas according to the Ramban, each of the partners does not have a right in a particular portion of the property; rather, they are all partners in the entire property, and they all have a right of use in the entire property, except that they divide among themselves the times of using it.

And 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. “Allocation,” concerning which tannaim and amoraim disputed whether there is allocation or there is no allocation, [means that] it is entirely his, and this is not a right or a lien that he has in his fellow’s property!

In a case where a person performs a particular act and makes the taking effect of the act, which takes effect already now, dependent upon a particular situation, when that situation has not yet come into being at the time of the act, but is destined to come into being afterward.

For example, a person who separates terumot and tithes from a barrel and says, “What I am destined to separate tomorrow as terumot and tithes shall take effect now.” For if there is allocation, the separation of terumot and tithes already takes effect now upon what he will separate tomorrow, and tomorrow it will become clear what the thing was upon which his separation of yesterday took effect.

D. The GRYZ explains that partners who divide the jointly owned property between them, even if we say that there is no allocation, and it was not clarified at the time of the division of the partnership that each one had this portion of his from the outset, do not need to transfer their portions to one another; rather, a “division” that establishes each one’s portion is sufficient, even by a mere lottery.

And what the Sages said—that according to the one who says there is no allocation, partners who divided 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.]