Nedarim 46b (מו:) — the Talmud in English

The dispute

between Rabbi Eliezer ben Yaakov and the Sages applies specifically to a courtyard

that is large enough to be divided.

The Sages prohibit its use because they maintain that there is no bereira, and we do not say that when each one uses the courtyard, it becomes clear that this is his portion. Since it is large enough to be divided, it is possible that when they divide it, this portion will not fall to his lot.

Rabbi Eliezer ben Yaakov maintains that even in such a case we say that there is bereira, since from the outset, when they purchased the courtyard, they purchased it on the understanding that as long as they did not divide it, the entire courtyard would be jointly owned for each of them to use.

But

if

it is not large enough to be divided—

according

to all opinions, it is permitted

to use the courtyard. For in such a case, where it is already known from the time of the purchase that the courtyard will remain jointly owned forever, and that each of them has permission to use the courtyard whenever he wishes, everyone agrees that there is bereira [since the essential point of this purchase was clarified from the outset: each one has the right to use it at his turn. What remained unclear was only when each one would use the courtyard. Ran].

Said

to him

Rav Yosef: Consider the synagogue, which is analogous to a

courtyard

that is not large enough to be divided,

for a synagogue is never divided,

and

nevertheless

we learned: Both of them are prohibited from matters belonging to that city [and the Mishna explains that “matters belonging to that city” refers to the synagogue]! According to you, that in a courtyard that is not large enough to be divided everyone agrees that it is permitted, whose view does this Mishna, which prohibits it in such a case, follow?!

Rather, Rav Yosef said in the name of Ze'iri: The dispute

between the Sages and Rabbi Eliezer ben Yaakov applies to a courtyard

that is not large enough to be divided.

The Sages maintain that even in such a case there is no bereira.

Rabbi Eliezer ben Yaakov maintains that since neither partner can prevent the other from using the courtyard forever, and neither can compel the other to divide the courtyard, it necessarily follows that from the outset they purchased it on the understanding that the courtyard itself would be fully owned by each one for his use whenever he uses it. And we say that at that time it retroactively becomes clear that from the outset it had been purchased by him for that period [Rabbi Eliezer ben Yaakov maintains that although generally there is no bereira, in a case such as this, where the essential nature of the purchase was clarified from the very beginning, we say that there is bereira. Ran].

But

in a courtyard

that is large enough to be divided—

according to all opinions, it is prohibited.

Since the courtyard is destined to be divided, it is impossible to say that from the outset they both purchased the entire courtyard, each for his own use, for it is possible that one will compel the other to divide it.

Rav Huna said: The halakha is in accordance with Rabbi Eliezer ben Yaakov,

so that one prohibited by vow from deriving benefit may enter the courtyard.

And Rabbi Elazar likewise said: The halakha is in accordance with Rabbi Eliezer ben Yaakov.

We learned in our Mishna:

“One who is prohibited by vow from deriving benefit from his fellow, and his fellow has a bathhouse there, etc.”

If he retains a stake in them, he is prohibited, etc.

And we raised a question concerning it:

How much

is considered

a retained stake,

such that the bathhouse is considered as though it belongs to the one who imposed the vow, and the one prohibited by vow is prohibited from using it?

Rav Naḥman said:

A retained stake means that the owner of the bathhouse earns

one-half, one-third, or one-quarter [that is, either one-half, one-third, or one-quarter] of the bathhouse’s income. Since the owner of the bathhouse earns his income according to the bathhouse’s income, it is considered his, and therefore the one prohibited by vow is prohibited from using it.

of the bathhouse’s income. Since the owner of the bathhouse profits his income according to the bathhouse’s income, it is considered his; therefore, the one prohibited by a vow from benefiting is prohibited to use it.

But

if the owner of the bathhouse earns

less

[than one-quarter] [less] than one-quarter—

it is not

considered as though it belongs to him, and the one prohibited by vow is permitted to use it.

[This is the explanation according to the version before us. Ran’s version reads: “But with eggs, it is permitted.” That is, it was customary for bathhouse owners to earn money by selling eggs to those who came to bathe Thus, if the owner of the bathhouse retained for himself only the profit from the sale of eggs, and took nothing from what those who came to bathe paid for the bathing itself, the one prohibited by vow is permitted to use it. This is not considered to mean that the one who imposed the vow has any stake in the bathhouse, since the profit he earns from the eggs does not come from the bathhouse itself].

Abaye said: Even

if he retains a stake

of less

than one-quarter [and according to Ran’s version: with eggs]—

the one prohibited by vow is prohibited

from using it, because he maintains that even this is considered a retained stake.

And

what is the case in which the one prohibited by vow is permitted

to use the bathhouse of the one who imposed the vow when it has been rented to another? It is a case

where he receives a fixed annual payment.

That is, the owner of the bathhouse does not receive a defined portion of the bathhouse’s profits; rather, the lessee gives him a fixed amount each year. In such a case, the owner of the bathhouse has completely withdrawn from his bathhouse.