Nedarim 45b — the Talmud in English

Mishna:

The partners

who entered into partnership in one courtyard,

who vowed not to derive benefit from one another—

are forbidden to enter the courtyard

because the tanney of our Mishna holds that “relinquishment,” even mere setting foot, which is the slightest benefit, is also forbidden to one from whom benefit is prohibited by a vow, as was explained above, at the beginning of the chapter “There Is No Distinction Concerning One from Whom Benefit Is Prohibited by a Vow.”

Rabbi Eliezer ben Yaakov says:

the partners may enter the courtyard, because he holds that “there is allocation.” That is, we say that when a partner enters

this one

into the courtyard, it is clarified that he

entered into

the portion

that is his, and when

a partner

this one,

the second, enters the courtyard, it is likewise clarified that he

entered into

the portion

that is his.

Whereas the first tanney holds that there is no allocation. And therefore, both of them are forbidden to enter the courtyard, for each one enters his fellow’s portion, and he has thereby prohibited his property to him. Rabbeinu Tam answered that the reason the Gemara rules here that the halakha is in accordance with Rabbi Eliezer ben Yaakov is not his position that there is allocation and that relinquishment is forbidden to one from whom benefit is prohibited by a vow. Rather, there is indeed allocation, but we hold that relinquishment is permitted to one from whom benefit is prohibited by a vow. And Rabbeinu Yitzchak answered that the halakha truly follows the one who says that even in matters of Torah law there is allocation, as was ruled in our discussion. And that which they rule in tractate Beitza in accordance with Rabbi Oshaya, who distinguishes between allocation by Torah law and allocation by rabbinic law, refers specifically to what he said—that in matters of rabbinic law there is allocation. The Ran was astonished by this: Surely they rule in accordance with Rabbi Oshaya even concerning what he said, that in matters of Torah law there is no allocation. For the halakha is in accordance with Shmuel, who said: “Brothers who divided are purchasers, and they return [their portions] to one another at the Jubilee”; and Shmuel’s reason is that he holds that there is no allocation in a matter that is from the Torah! If so, the difficulty returns to its place! The Ramban wrote that the allocation here is not similar to allocation elsewhere. For here it is not a matter that is not clarified now, at the time when they entered into partnership, and will be clarified in the future, at which point we say that the matter was retroactively clarified. Rather, from the outset, such is the partnership in a courtyard that is not large enough for division: each one uses all of it, and this is the manner of use of partners. Therefore, we say that each one is considered as though he entered his own portion, and is not using his fellow’s. For if you prohibit it to him, it turns out that the other is removing him from his courtyard! And a person cannot prohibit his fellow’s property to its owners! According to his words, the use here of the concept “allocation” is not connected at all with the law of allocation that we find everywhere; rather, we find two uses of one expression for two entirely separate matters. See what the Ran challenged him. The Ran himself holds that, in truth, the allocation here is governed by the law of allocation elsewhere. For it is impossible to say that the entire courtyard belongs to this one and the entire courtyard belongs to that one. Rather, one is compelled to say that when the partners acquired the courtyard, they acquired it with the understanding that each one would have half the courtyard, together with a right of use in the other half belonging to his fellow. And since, from the time of the partnership, we do not know on which day and at which hour each of them will use it, we require allocation, to say that now, when one of them uses it, it is retroactively clarified that from the outset he had the right to use all of it at this time. Nevertheless, they rule in our discussion in accordance with Rabbi Eliezer ben Yaakov, even though elsewhere we hold that in matters of Torah law there is no allocation, because the allocation here is superior to allocation elsewhere. That is, what we say elsewhere—that there is no allocation—is because it is not proper for a matter to take effect upon uncertainty. Therefore, one who says to a scribe, “Write a bill of divorce for my wife, and whichever of them I wish, I will divorce,” it is invalid to divorce with it, because from the outset there is uncertainty concerning the essence of the bill: for whom does it take effect? And similarly in the other places where we say there is no allocation. This is not so here, where the essence of the matter is clarified already from the outset, and only a minority of it is clarified afterward. For even from the outset, we know that each of the partners has his own portion in the courtyard, and a right of use also in his fellow’s portion; and each of the partners is destined to acquire the use of the entire courtyard at the time that comes to him, and he will acquire it at every time that he wishes. Rather, afterward, at the time when they use it, the minority is clarified—that is, the time at which he wished to acquire the body of the courtyard. In such a case we say that there is allocation, since the minority that was not clarified from the outset does not prevent the majority that was clear from the beginning! Rabbi Akiva Eiger wrote [in responsum 66] that their dispute has a practical consequence concerning a mezuzah, if a Jew had a partnership with a non-Jew in a house [and a house jointly owned by a Jew and a non-Jew is exempt from mezuzah], in a case where each of the partners uses it exclusively during a defined period of time. For according to the Ramban, during the Jew’s period of time he is a complete owner, and he is not called one who uses his half and the non-Jew’s half. If so, he would be obligated in mezuzah, because they said that partnership with a non-Jew exempts from mezuzah only when both of them use the house at the same time. But according to the Ran, the house would be exempt from mezuzah, because even when the Jew makes his exclusive use of it, he is using the non-Jew’s half that is liened to him for this purpose. And the Gemara below [46b] establishes our Mishna specifically as referring to a courtyard that does not have the law of division, that is, whose measure is so small that one of the partners cannot compel his fellow to divide the courtyard [that is, it does not contain four cubits by four cubits].] But if it has the law of division, according to everyone both of them are forbidden to enter the courtyard [and below the reason for the matter will be explained].