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The Mishnah on daf TB Nedarim 43 provides three cases where one can circumvent a vow made by the madir-מָדִיר by using an intermediary to benefit mudar-מוּדָּר, the one the vow has been made against. The fourth case is when there is no intermediary the rabbis permit making the food available by declaring it ownerless hefker-הֶפְקֵר. The Mishnah concludes Rabbi Yosei forbids this. 

Explaining Rabbi Yosei’s position, Rabbi  Yoḥanan creates a novel solution. Hefker is more akin to giving a gift. He says something that is hefker never leaves the original owner’s possession until somebody picks it up. The owner is only saying anybody who wants it may have. Consequently in our case, the madir still owns it when the mudar picks it up and thus is benefiting him.

Yesterday and today’s dappim TB Nedarim 44-45 challenge this understanding by bringing different baraitot. The Gemara has to go through hoops to explain how Rabbi Yosei’s position is a possible alternative. These case studies are complicated

Ze-ev Safrai in his book Mishnat Eretz Yisrael, a socio-historical commentary to the Mishnah, provides what I think a simpler and better solution. He sees all four cases as a breakdown of the social fabric of society. Because of a vow, one can’t help feed a hungry person. Because of a vow, one can’t help build a house for a homeless person. Because of a vow, the very fabric of society is torn.

He suggests that Rabbi Yosei prohibits all circumventions described in the Mishna albeit using legal technical terminology like hefker. The person should not have made the vow. But since he did, he cannot use an artifice to circumvent his vow. The rabbis, on the other hand, understand that when we need to find a solution to prevent the breakdown of the social fabric, we find a solution.

We see this dichotomy in the first Mishna in chapter 5 of our massekhet. “Partners who vowed not to derive benefit from one another are prohibited from entering into a courtyard that they jointly own, since each one has a portion in it and benefits from the share owned by the other, thereby leading to a violation of the vow. Rabbi Eliezer ben Ya’akov says: It is permitted for both to use the courtyard, as it can be said that since each has a portion in the courtyard; this one enters into his own portion and that one enters into his own portion.” (Sefaria.org translation) The courtyard under discussion is too small to be divided into sections. The inability to enter one’s own home is untenable. This time Rabbi Eliezer ben Ya’akov is the one who finds a solution when the solution is necessary. Each partner of the courtyard has 100% use of that courtyard. Since they cannot enter at the same time, each one has 100% use of the courtyard when he enters. The same is true when the estranged partner enters.

 

As we have previously learned the halakha always follows Rabbi Eliezer ben Ya’akov.