Babylonian Talmud: Tractate Nedarim

Folio 35a

He objected: If A says to B, 'Lend me your cow,' and B replies, 'Konam be [this] cow if I possess [another] for you,'¹  or, my property be forbidden you if I possess any cow but this': [or,] 'Lend me your spade,' and he replies, 'This spade be forbidden me if I possess [another];' or 'my property be forbidden me, if I possess any spade but this', and it is discovered that he possesses [another]. During his, [B's] lifetime it is forbidden [him]; but if he dies, or it is given to him,²  it is permitted?³  — Said R. Aha son of R. Ika: That is if it was given to him through another.⁴  R. Ashi said: This may be proved too, for it is stated, 'it is given to him,' not 'he gives it to him.'⁵

Raba asked R. Nahman: Does the law of trespass apply to Konamoth?⁶  — He replied, We have learnt this: WHERE PAYMENT IS TAKEN FOR THIS, THE BENEFIT MUST ACCRUE TO HEKDESH. This teaches that it is as hekdesh: just as the law of trespass applies to hekdesh, so it applies to Konamoth.

This is dependent on Tannaim: If one Says, 'Konam, this loaf is hekdesh,'⁷  then whosoever eats it, whether he or his neighbour, commits trespass; therefore the law of redemption applies to it.⁸  [But if he says,] 'This loaf is hekdesh to me'; [by eating it] he commits trespass; but his neighbour does not commit a trespass; therefore the law of redemption does not apply:⁹  this is the view of R. Meir. But the Sages maintain: In both cases no trespass is involved, because the law of trespass does not apply to Konamoth.

R. Aha son of R. Avi asked R. Ashi: [If A says to B,] 'My loaf be forbidden to you,'¹⁰  and then makes a gift of it to him, who is liable for trespass? Shall the giver incur it but it is not forbidden to him? Is the receiver to incur it — but he can say, 'I desired to accept what is permitted, not what is forbidden?'¹¹  — He replied: The receiver incurs the liability when he uses it, for whoever converts money of hekdesh into hullin,¹²  thinks that it is hullin, yet he is involved in trespass;¹³  so this one too is liable for trespass.

1. The actual wording is difficult, and the commentators attempt various explanations. The literal translation is given here.
2. V. infra.
3. This contradicts Raba.
4. B gave it to C, who gave it to A. Since B voluntarily (in contradistinction to theft) let it out of his possession, his vow loses its validity.
5. Though the Hebrew word is the same for both, by tradition it was to be read as a niphal, not as a kal.
6. A term in us technicus for things interdicted by a vow, usually introduced with the formula konam. Since konam is a korban (a sacrifice) when one vows that a thing shall be konam, he declares it to be virtually consecrated, and hence if the vow is violated, it is as though trespass has been committed. Or it may be argued that in spite of its origin, konam is used without the suggestion of consecration, but merely to imply prohibition.
7. Not specifying to whom, and therefore applying it to all, including himself. [Read with MS.M.: 'This loaf is hekdesh', omitting konam, v. also Shebu. 22a.]
8. Since it is so much regarded as consecrated that by eating it one commits trespass, it is also so in respect of redemption, whereby it reverts to hullin (non-consecrated), whilst the redemption money becomes consecrated.
9. Since it is not regarded as consecrated in respect of all.
10. Using the formula 'konam'.
11. The receiver not knowing that this was the forbidden loaf.
12. V. Glos.
13. Because the law of trespass applies only to unwitting misuse of hekdesh.

MISHNAH. AND HE MAY SEPARATE HIS TERUMAH AND HIS TITHES WITH HIS CONSENT.¹  HE MAY OFFER UP FOR HIM THE BIRD SACRIFICES OF ZABIM AND ZABOTH²  AND THE BIRD SACRIFICES OF WOMEN AFTER CHILDBIRTH, SIN-OFFERINGS AND GUILT-OFFERINGS.³  HE MAY TEACH HIM MIDRASH, HALACHOTH AND AGGADOTH,⁴  BUT NOT SCRIPTURE.⁵  YET HE MAY TEACH SCRIPTURE TO HIS SONS AND DAUGHTERS.⁶

GEMARA. The scholars propounded: Are the priests [in sacrificing] our agents or agents of the All-Merciful? What is the practical difference? — In respect of one who is forbidden to benefit [from a priest]: if you say that they are our agents, surely he [the priest] benefits him [by offering up his sacrifices]; hence it is prohibited. But if you say that they are the agents of the All-Merciful, it is permitted. What [then is the ruling]? — Come and hear: We learnt: HE MAY OFFER UP FOR HIM THE BIRD SACRIFICES [etc.]. Now if you say that they are our agents, does he not benefit him? Then on your view, let him [the Tanna] teach, HE MAY OFFER UP SACRIFICES FOR HIM?⁷  But those who lack atonement are different.⁸  For R. Johanan said: All [sacrifices] require [the owner's] consent,⁹  save for those lacking atonement; since a man brings a sacrifice for his sons and daughters when minors, for it is said, This is the law of him that hath issue,¹⁰  [implying] both for a minor or an adult.¹¹  If so, according to R. Johanan, does, This is the law for her that hath born [a male or a female]¹²  imply both an adult or a minor? Is a minor capable of childbirth? But R. Bibi recited in R. Nahman's presence: Three women use a resorbent [to prevent conception]: a minor, a pregnant woman, and a woman giving suck: a minor, lest she conceive and die?¹³  — That verse, 'This is the law for her that hath born', [teaches,] that it is a]] one whether the woman be sane or an imbecile, since one must offer a sacrifice for his wife, if an imbecile, in accordance with R. Judah's dictum. For it was taught. R. Judah said: A man must offer a rich man's sacrifice¹⁴  for his wife, and all other sacrifices which are incumbent upon her; since he writes thus for her [in her marriage settlement]: [I shall pay] every claim you may have against me from before up to now.¹⁵

1. If A is forbidden to benefit from B, B (the maddir) may separate terumah on the produce of the former (called the muddar). The Gemara discusses whose consent is meant.
2. V. Glos.
3. Lev. XV, 14f, 29f, XII, 6-8. i.e., the maddir, if a priest, may offer these sacrifices for the muddar.
4. The three branches of Jewish learning. Midrash (from darash, to study, investigate) means any kind of Biblical hermeneutics. In contradistinction to the peshat (literal interpretation) it denotes the deeper investigation into the text of the Bible in order to derive interpretations and laws not obvious on the surface. Halachoth is a term referring to religious law (embracing both civil and ritual law) whether based on Biblical exposition, (and thus arrived at by Midrash) or not. By Aggadah (or Haggadah, from higgid, to narrate) is meant the whole of the non-legal portion of the Talmud. Thus it includes narratives, homiletical exegesis of the Bible (which inculcate morals, beliefs, etc. but no actual laws) medicine, astronomy, dreams, legends and folklore in general.
5. Lit., 'that which is (to be) read' sc. from a written text. The Pentateuch with its literal interpretations in contradistinction to Midrash, v. Aboth (Sonc. ed.) p. 75, n. 1. As will be seen on 37a, Scripture was generally regarded as the study of children only, adults usually investigating the deeper meaning too.
6. From this we see that it was usual to teach the Bible to girls, in spite of the Talmudic deduction that daughters need not be educated (Kid. 30a). The opposition of R. Eliezer to teaching Torah to one's daughter (Sot. 20a: He who teaches his daughter Torah is as though he taught her lewdness) was probably directed against the teaching of the Oral Law, and the higher branches of study. [V. Maim. Yad. Talmud Torah, I, 13.] Yet even in respect of this, his view was not universally accepted, and Ben 'Azzai (a.l.) regarded it as a positive duty to teach Torah to one's daughters. The context shows that the reference is to the higher knowledge of Biblical law. In point of fact, there were learned women in Talmudic times e.g., Beruriah, wife of R. Meir (Pes. 62b).
7. Sacrifices, in general, not lust these.
8. I.e., those who are unclean, and not permitted to eat holy food (e.g., the flesh of sacrifices) or enter the Sanctuary until their sacrifices have been offered up. This term however does not refer to sinners, whose sacrifice makes atonement for them. The sin- and guilt-offerings mentioned in the Mishnah will also refer to the former.
9. Before the priest may offer them.
10. Lev. XV. 32, referring to the sacrifices.
11. The expression 'this is the law' is emphatic, and hence extends its provisions to include those who might otherwise not have been included. Since a minor cannot bring a sacrifice himself, his father must do so for him. Moreover, a minor has no legal consent. Thus, we see that these sacrifices can be brought without their owner's (i.e., those on whose behalf it is offered) consent. Since their consent is unnecessary, the priests do not act as their agents, and on that account it is permitted.
12. Ibid. XII, 7.
13. V. Yeb. 12b. Thus we see that a minor is incapable of childbirth. — Of course, the same might have been stated simply on physiological grounds.
14. Certain sacrifices were variable, depending on their owner's financial position (v. Lev. V, 1-13; XII, 1-8). Now in a strictly legal sense every married woman is poor, since she has no proprietary rights, everything belonging to her husband. Nevertheless, if he is wealthy, he must bring the sacrifice of a rich person.
15. [This clause is taken as referring to sacrifices for which she may have become liable after the betrothal.] So curr. edd. Ran omits 'R. Judah said' from the beginning of the Baraitha, and adds at this point: R. Judah said: Therefore, if he divorced her, he is free from this liability, for thus she writes (in the document acknowledging receipt of settlements due to her on divorce): (I free you) from all the liabilities hitherto borne by you in respect of me. From the Rashi in B.M. 104a, it appears that his version there was the same as the Ran's here. Now, reverting to the argument, since R. Judah (and the first Tanna) taught that a husband is liable for his wife's obligatory sacrifices, 'this is the law' may be interpreted as applying to an imbecile too, the liability resting with her husband. For if this principle of the husband's liability were not admitted, this interpretation would be impossible, since an imbecile herself is not a responsible person.