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Nedarim, 42

1) PROHIBITING FRUIT THAT WILL GROW DURING SHEMITAH

QUESTION: The Mishnah states that when one makes a Neder before the Shemitah year saying that his friend should not have any pleasure from his possessions, his friend is prohibited to eat from his fruits Shemitah, even though they are Hefker and do not belong to the original owner (the one who made the Neder).

The Gemara explains that this applies only when he said "*these* possessions are prohibited to you." If he said "*my* possessions are prohibited to you," then his friend may eat from the fruit on Shemitah since the fruit is no longer in his possession.

Although one can make a Neder to prohibit his friend from having pleasure from his possessions, one cannot make a Neder to prohibit his friend from possessions that he does not own (see 57a). How, then, can one make a Neder before Shemitah to prohibit his friend from eating his fruit during Shemitah? At the time of the Neder, the fruit does not exist, and when the fruit comes into existence during Shemitah, it will be Hefker and it will not belong to him!

The Mishnah cannot mean that he made the Neder prior to Shemitah when his trees were already carrying fruit that would not be picked until the Shemitah year arrived, because fruit that started growing before Shemitah is not considered to be fruit of Shemitah and does not become Hefker.

ANSWER: The person did not make a Neder directly prohibiting his *fruit* to his friend. Rather, he made a Neder prohibiting his *possessions* to his friend. Since his trees are part of his possessions, they are prohibited to his friend, and therefore the fruit that grows from those trees is also prohibited! (See KEHILOS YAKOV who discusses this issue at length.)

42b

The Gemara asks why is the Mudar Hana'ah permitted to eat fruit from his friend's field during the Shemitah year, but he is not permitted to enter the land? Both the fruits and the land are Hefker during Shemitah! The Gemara answers that he is not permitted to enter the land because he might remain on the land even after he finishes picking the fruit.

This Gemara has important implications for the Halachos of Shemitah.

(a) First, we see from here that one's land is not entirely Hefker during Shemitah. The owner is only required to *treat* it like Hefker by letting others come in to pick the fruit. The owner does not have to let others enter the land for other purposes.

(b) Second, the Acharonim adduce proof from our Gemara to the question whether a landowner must make his field and fruit Hefker during Shemitah, or is it automatically Hefker once the Shemitah year arrives.

1. The text of the Gemara of the RAN reads "Rachmana Afkerei," which implies that the Torah automatically makes one's fruit Hefker, and makes the use of one's field Hefker for the sake of picking the fruit, on Shemitah, and the owner does not need to make them Hefker himself. The Mitzvah requires only that the owner *treat* them as Hefker and not prevent others from coming and picking the fruit. RASHI, TOSFOS, and the ROSH also have the Girsa, "Rachmana Afkerei." The MAHARIT (#43) proves from here that the Torah automatically makes the land and fruit Hefker during Shemitah (see there for a lengthy discussion on this issue).

2. The PE'AS HA'SHULCHAN (Hilchos Shevi'is 23:29) disagrees and says that since our Girsa is "Ar'a Nami Afkerei," which means "the land is also Hefker," there is no implication that the owner does not have to make his land Hefker.

The Maharit is of the opinion that the Hefker automatically takes effect on all land in Eretz Yisrael even if a Nochri owns the property. Accordingly, there is no obligation to separate Terumos and Ma'aseros from fruit grown by Nochrim in Eretz Yisrael during the Shemitah year (since Hefker is exempt from Terumos and Ma'aseros; however, there is an obligation to separate Terumos during all other years even from the produce of a Nochri, if a Jew performed the G'mar Melachah). In contrast, the Pe'as ha'Shulchan holds that one should separate Terumah from such produce.

The issue of separating Terumos and Ma'aseros from such fruit is directly related to the famous dispute between the BEIS YOSEF and the MABIT whether the laws of Shemitah apply to produce grown on land owned by Nochrim. If the laws of Shemitah apply to such fruit, then there is no requirement to separate Terumos from them. The Beis Yosef and the Pe'as ha'Shulchan was that such fruits do *not* have Kedushas Shevi'is, and thus Terumos and Ma'aseros must be separated from them. This was also the generally accepted custom of the old Yishuv in Yerushalayim.

The Mabit, the Maharit (the son of the Mabit), the Charedim, the Shelah, and the Chayei Adam disagree. The CHAZON ISH, too, was a strong proponent of this opinion (that fruit grown on land owned by Nochrim have Kedushas Shevi'is) and, as a result, many have adopted this as the accepted practice.