Nedarim 46b — the Talmud in English

The dispute

between Rabbi Eliezer ben Yaakov and the Sages is specifically in a courtyard

that has sufficient area for division.

For the Sages prohibit it, because they hold that there is no ascertainment, and we do not say that when each one uses the courtyard, it is clarified that this is his portion. Since it has sufficient area for division, it is possible that when they divide it, this portion will not come into his possession.

And Rabbi Eliezer ben Yaakov holds that even in such a case we say that there is ascertainment, because from the outset, when they purchased the courtyard, they purchased it with this understanding: that as long as they would not divide it, the entire courtyard would be purchased for the use of each one of them.

But

if

there is no sufficient area for division—

according

to all, 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 always remain in partnership, and that each one of them has permission to use the courtyard whenever he wishes, everyone agrees that there is ascertainment [according to the Ran, the “majority” of this purchase was clarified from its beginning: that each and every one has the right to use it in his turn; what was not clarified is only when each one will use the courtyard].

He

said to him

Rav Yosef: Behold, a synagogue, which is like a

courtyard

of one that does not have sufficient area for division,

for they never divide a synagogue,

and

nevertheless

we learned: Both of them are prohibited regarding an object belonging to that city [and the Mishna explains that “an object belonging to that city” means a synagogue]! But according to your words, that in a courtyard that has no sufficient area for division everyone agrees that it is permitted, this Mishna, which prohibits in such a case—according to whose view is it?!

Rather, Rav Yosef said in the name of Zeiri: The dispute

between the Sages and Rabbi Eliezer ben Yaakov is in a courtyard

that has no sufficient area for division.

For the Sages hold that even in such a case there is no ascertainment.

And Rabbi Eliezer ben Yaakov holds: Since one of the partners cannot prevent the other from using the courtyard forever, and he also cannot compel him to divide the courtyard, it is necessarily the case that from the outset they purchased it with this understanding: that its substance would be entirely purchased by each one for his use at the time that he uses it. And we say that at that time it is clarified retroactively that from the outset it had been purchased for him for this time [and Rabbi Eliezer ben Yaakov holds that although ordinarily there is no ascertainment, in such a case, where the essence of the purchase was clarified from the first moment, we say that there is ascertainment].

But

in a courtyard that

has sufficient area for division—

according to all, it is prohibited.

Since the courtyard stands to be divided, it is impossible to say that from the outset they both purchased all of it, each one for his 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,

that the one prohibited by a vow from benefiting is permitted to enter the courtyard.

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

We learned in our Mishna:

“One prohibited by a vow from benefiting from his fellow, and he has a bathhouse there, etc.”

If he has a holding in them, he is prohibited, etc.

And we raised it:

And how much

is considered

a holding,

such that because of it the bathhouse is considered as though it belongs to the one who imposed the vow, and the one prohibited by a vow from benefiting is prohibited to use it?

Rav Naḥman said:

A holding means that the owner of the bathhouse profits

half, a third, or a quarter [that is, either half, or a third, or a quarter]

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 profits

less [

less] than a quarter—

not

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

This is the interpretation according to the version before us. And the Ran has the version: “But with eggs—it is permitted.” That is, it was the practice of the owners of bathhouses that they profited by selling eggs to those who came to bathe. That is, if the owner of the bathhouse retained for himself only the profit from the sale of the eggs, and took nothing from what those who came to bathe paid for the bathing itself, the one prohibited by a vow from benefiting is permitted to use it. For this is not considered that the one who imposed the vow has anything in the bathhouse, since the profit that he earns from the eggs is not from the substance of the bathhouse].

Abaye said: Even

if he has a holding

of less

than a quarter [and according to the version of the Ran: “with eggs”]—

the one prohibited by a vow from benefiting is prohibited

to use it, because he holds that this too is considered a holding.

And

what are the circumstances in which the one prohibited by a vow from benefiting is permitted

to use the bathhouse of the one who imposed the vow that was rented to another? It is in a case

where he receives a fixed annual payment.

That is, the owner of the bathhouse does not take a known share in the bathhouse’s profit; rather, the lessee gives him a fixed amount for the year. For in such a case the owner of the bathhouse has completely removed himself from his bathhouse.