How to circumvent a vow TB Nedarim 43

Today’s daf TB Nedarim 43 discusses how one can circumvent a vow. When a person vows, (in Hebrew the madir-מָדִיר) that he won’t benefit another person (in Hebrew the mudar-מוּדָּר), he can circumvent this vow if he does it indirectly. The first three cases mentioned in the Mishna uses a third party to circumvent a vow.

Case #1 “In the case of one for whom benefit from another is forbidden by vow (the mudar-מוּדָּר) and who does not have anything to eat, the one from whom benefit is forbidden (the madir-מָדִיר) goes to the shopkeeper and says to him: So-and-so (the madir-מָדִיר) vowed that benefit from me is forbidden for him and I do not know what I will do. After grasping his intent, the shopkeeper gives food to the one for whom benefit is forbidden, and then the shopkeeper comes and takes payment for the food from that one who spoke to him. (the madir-מָדִיר)”

Case #2 “Similarly, if the house of one for whom benefit is forbidden by a vow was to be built, his fence to be erected, or his field to be harvested, and laborers were required but he had no money to hire them, the one from whom benefit is forbidden goes to the laborers and says to them: Benefit from me is forbidden by vow (the madir-מָדִיר) to so-and-so (the mudar-מוּדָּר) and I do not know what I will do. And the laborers perform those tasks with him, and come and take payment for their labor from that person who approached them (the madir-מָדִיר).”

Case #3 “If the one who vowed to render benefit from him forbidden and the one for whom benefit is forbidden were traveling together along the road and the one for whom benefit is forbidden does not have anything to eat, the one who from whom benefit is forbidden gives food to one other person as a gift, and it is permitted for that person for whom benefit is forbidden to eat the food because it no longer belongs to the one from whom benefit is forbidden.”

Case #4 is different because there is no intermediary between the madir and the mudar. Because of this difference Rabbi Yosei disagrees with the tanna kamma. “If there is no other person with them, the one who vowed places the food on the nearest rock or on the nearest fence and says: These food items are hereby rendered ownerless (in Hebrew hefker- הֶפְקֵר) and are available to anyone who wants them. Then that person for whom benefit is forbidden takes and eats the food. Rabbi Yosei prohibits doing so.” (Sefaria.org translation for all four cases)

The tanna kamma’s position makes logical sense. By making something hefker, the madir no longer owns it; consequently, he is not benefiting the mudar. 

The rest of today’s daf tries to understand Rabbi Yosei’s position. Rabbi  Yoḥanan creates a novel solution. “With regard to the dispute between the Rabbis and Rabbi Yosei whether one from whom benefit is forbidden to another can give the other person food by declaring the food ownerless, Rabbi Yoḥanan said: What is the reason for the opinion of Rabbi Yosei? He holds that the legal status of the process of rendering property ownerless is like that of the acquisition of a gift. Just as acquisition of a gift is not complete until the item comes from the possession of the one who gives the gift into the possession of the one who receives the gift, so too, the process of rendering property ownerless is not complete until the item comes into the possession of the one who acquires it. According to Rabbi Yosei, it is prohibited for the one for whom benefit is forbidden to take the food that was declared ownerless. Since it still belongs to the one from whom benefit is forbidden, by taking the food he derives forbidden benefit from him.” (Sefaria.org translation) In other words, something that is hefker never leaves the original owner’s possession until somebody picks it up. Consequently in our case, the madir still owns it when the mudar picks it up and thus is benefiting him. This explanation is rejected by the Gemara.

Rava proposes a different understanding of Rabbi Yosei’s position.” Rava said that this is the reason for the opinion of Rabbi Yosei: It is prohibited by rabbinic decree for the one for whom benefit is forbidden to take food that was declared ownerless, due to the gift of Beit Ḥoron. An incident occurred in Beit Ḥoron involving a person who employed artifice and gave a gift to another to circumvent a vow. The Sages ruled that artifice of that sort is forbidden. Here too, when he renounced ownership he merely employed artifice to circumvent the vow.” (Sefaria.org translation)

Rambam poskins like the tanna kamma with a couple of exceptions when the intent is clearly to benefit the mudar. “If the two⁴³I.e., a person who took a vow not to benefit from a person and that person. were traveling on a journey and [the person who is forbidden to benefit from his colleague] does not have anything to eat, [that colleague] may give [food] to another person as a present and [the person who is forbidden] is then permitted to partake of it.⁴⁴Giving a present is not permitted in the situations described in the previous halachot, because there are other alternatives. Hence it is considered as too great a leniency. In this situation, there is no other alternative and therefore it is permitted. See Siftei Cohen 221:52. If there is no one else with them, [the person whose property is forbidden] should put [food] on a stone and say: "This [food] is considered ownerless for everyone who desires it."⁴⁵Generally, according to Rabbinic Law, there must be three people present when an object is declared ownerless. In this instance, however, since there is no other alternative, we do not require anything more than required by Scriptural Law (Siftei Cohen 221:53). The other person may then take it and eat.⁴⁶For then he is not partaking of the property of the person from whom he is forbidden to benefit, but from ownerless property.

“If, [however,] he gives a colleague a present [of a feast] and tells him: "This feast is given to you as a present. Let so-and-so who is forbidden to benefit from me come and eat with us," this is forbidden.⁴⁷For he is obviously making this gift solely so that the other person may partake of it. If it is a large feast, it is obvious that a person is not preparing it for the sake of giving it to a colleague. Nedarim 48b gives as an example, an instance where a person's father was forbidden to benefit from him. When he made a wedding feast for his son, he tried to employ this tactic to enable his father to attend. Moreover, even if he gave the present without saying anything, but afterwards⁴⁸The Kessef Mishneh states that there are opinions that maintain that this law applies only when the statements were made immediately after giving the feast. The wording chosen by the Rambam, however, indicates that the law applies even if he makes the statements later. The interpretation of the Kessef Mishneh is borne out by the Rambam's Commentary to the Mishnah (Nedarim 5:5). said: "Do you want so-and-so to come and eat with us?" it is forbidden if it appears that initially, he gave the present solely so that ultimately so-and-so could eat with them. For example, it is a large feast and he wants his father, his teacher, or the like to partake of the feast. For [the size of] the feast indicates that he did not intend to give it to him. Similar laws apply in all analogous situations.” (Mishneh Torah, Sefer Haflaah, Vows, chapter 7, Halakha 14-15. Sefaria.org translation)

Bottom line: better not to vow then make a vow you have to circumvent.