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Nedarim, 44

1) MAKING AN ITEM HEFKER FOR A DAY

QUESTION: The Gemara quotes a Tosefta that states that a person may make an item Hefker that will remain Hefker for only one day.

Does the Tosefta mean that even if someone takes possession of the item during that day he must give it back at the end of the day, or does it mean that anyone may take possession of that item during that day and own it *permanently*, but after that day no one may take possession of it.

ANSWER: The ROSH writes that if no one takes possession of the item within the day (or any other time period for which the original owner made it Hefker), it automatically reverts back to the possession of the original owner. REBBI AKIVA EIGER (Teshuvos 145) and the RASHASH point out that this implies that if someone does acquire the item within that day, it will remain his permanently; the original owner merely limited the time during which others may take possession of it.

They explain in more depth how this works. The concept of Hefker is learned from the Halachos of the Shemitah year. During the Shemitah year, all who take possession of the ownerless produce become full owners of it. Likewise, all situations of Hefker work the same way -- the one who acquires remains the permanent owner. (Rebbi Akiva Eiger, however, remains with a question. If it is true that we derive the laws of Hefker from the laws of Shemitah, then why is one entitled to limit the time period during which others may acquire the item? There is no such varying time period during the Shemitah year!)

QUESTION: Ula says that the entire Tosefta is in accordance with the view of the Chachamim. Although the Chachamim maintain that once one declares an item Hefker, it is no longer under his control, they agree that if one specifies that the item is Hefker for only a limited amount of time (see previous Insight), he has the right to retract the Hefker. Ula explains that the reason in this case the original owner may change his mind and retract the Hefker is because it is not common for a person to make an item Hefker for a limited amount of time.

Why, though, is the fact that this is an unusual way of making something Hefker a reason to permit the original owner to retract the Hefker?

ANSWERS:

(a) The RAN answers that Ula means to say that since the person did not make the Hefker in the standard form (whereby he would have implied that the item should be Hefker forever until someone takes possession of it), we assume that he wants to retain partial control of the item. Therefore, we also assume that he does not want to make it the type of Hefker that completely leaves his control, but rather it remains in his possession so that he retains the right to retract the Hefker until someone acquires it. (That is, because of this logic, the Chachamim agree with Rebbi Yosi in this case.)

(b) TOSFOS answers that even though mid'Oraisa it is Hefker and no longer under his control, the fact that he made an unusual form of Hefker shows that he does not have full intention to give up ownership. Therefore, the Chachamim established that the Hefker does not fully take effect and he may still retract it.

44b

OPINIONS: The Gemara asks, "[If so,] perhaps he will come to separate Ma'aser from produce that is Chayav on behalf of produce that is Patur."

On what statement is the Gemara asking this question?

(a) TOSFOS understands that the question of the Gemara is on Ula's approach that the Tosefta is according to the opinion of the Chachamim. The Gemara is asking that since the Chachamim hold that *mid'Oraisa* one cannot retract his Hefker, consequently the produce is Patur from Ma'aser, mid'Oraisa. Even though *mid'Rabanan* the Chachamim give the person the right to change his mind, the produce remains Hefker mid'Oraisa, and that is why it is Patur from Ma'aser, mid'Oraisa. For this reason, the Gemara asks that since the Chachamim require him to separate Ma'aser from this produce, mid'Rabanan, he might come to separate Ma'aser from this produce on behalf of other produce that has a Chiyuv Ma'aser *mid'Oraisa*.

(b) The RAN explains that the Gemara is asking its question on the statement of Reish Lakish, who says that the entire Tosefta is in accordance with the opinion of Rebbi Yosi. The reason why one may not retract his Hefker after three days is a Takanah d'Rabanan (so that people not think that the Hefker did not take effect).

The Gemara assumes that since, mid'Oraisa, one has the power to retract the Hefker, the Hefker that remains after he attempted to retract is only a Hefker mid'Rabanan. Based on this, the Gemara asks that the owner might think that it is Hefker *mid'Oraisa* and therefore *Patur* from Ma'aser, mid'Oraisa.

QUESTION: The Chachamim have the authority to decide who has the ownership of property (based on the principle of "Hefker Beis Din Havi Hefker"). This authority is granted to them by the Torah, and thus their decision is binding even mid'Oraisa. Consequently, once the Chachamim decreed that one may not retract his Hefker, the item should remain Hefker *mid'Oraisa*! How, then, can produce that one made Hefker and then retracted have a Chiyuv d'Oraisa of Terumos and Ma'aseros?

The RAN answers that the Chachamim did not want to use their power of "Hefker Beis Din" to remove the requirement of separating Terumos and Ma'aseros. Hence, the produce remains Hefker only mid'Rabanan.

However, even if the produce remains Hefker mid'Rabanan, since everyone has the right to take it, it should still be Patur from Terumos and Ma'aseros! The mere fact that the Chachamim permit everyone to take the produce should automatically render it Patur, even if it is not Hefker mid'Oraisa! (See Yerushalmi, beginning of Ma'aseros, and Tosfos, Bava Kama 28a DH Zeh).

The NETZIV adds that the Gemara in Rosh Hashanah (15a) says that an Esrog that began growing in the Shemitah year and was picked in the following year is Patur from Ma'aser, even though there is a doubt whether it has the Kedushah of Shevi'is. TOSFOS (DH Beshleima) explains that although it is not known for certain whether the Esrog has Kedushas Shevi'is, nevertheless it is *definitely* Patur from Ma'aser since the Chachamim required the owner to make it Hefker. Hence, we see from there that as long as the owner makes the produce Hefker -- even if it was done only as a result of a Safek and is mid'Rabanan -- the produce is still Patur from Ma'aser! Why is the case of our Gemara different?

ANSWER: The NETZIV answers that the Ran agrees that if *someone else* takes possession of the produce that was made Hefker (even though it is only Hefker mid'Rabanan), the produce has no Chiyuv d'Oraisa of Terumos and Ma'aseros, since he had the permission to take it as a result of the Chachamim's Hefker. When the Ran writes that there is a Chiyuv mid'Oraisa of Terumos and Ma'aseros, he is referring only to a case where the *original owner* took the produce for himself. Although the Chachamim removed his right to retract his Hefker, this applies only insofar that he may not change his mind about the Hefker. He *may*, however, physically make a new acquisition of the produce for himself. In such a case, the fact that Chachamim made it Hefker is irrelevant. He, anyway, is re-taking possession of his produce. Therefore, it can be treated as though he retracted his Hefker and therefore it is Chayav in Terumos and Ma'aseros. (See the Netziv for further discussion; see also KOVETZ SHI'URIM II:14 for another explanation of the RAN.)