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Babylonian Talmud: Tractate Nedarim

Folio 44a

If he declares, 'Let this field be hefker for one day, one week, one year, or one septennate';1  before possession has been taken thereof, whether by himself or by a stranger, he can retract. But if it has [already] been acquired by himself or by a stranger, he cannot retract. [Must we assume that] the first clause agrees with the Rabbis, and the second with R. Jose?2  — Said 'Ulla: The second clause too agrees with the Rabbis. If so, why 'before possession has been taken thereof, whether by himself or by a stranger, he can retract?' — [Hefker for] a year or a septennate is different, being unusual.3  Resh Lakish said, Since the second clause agrees with R. Jose,4  the first too must agree with him. But this is the reason of the first clause:5  that the law of hefker may not be forgotten.6  If so, let it be hefker even from the first day? — Said Rabbah, This is on account of evaders, who may declare their property hefker, and then reacquire it.7  [Will you maintain] that by Biblical law it is not hefker:8

To Part b

Original footnotes renumbered.
  1. After the end of which it is to revert to himself, if no one has taken possession in the meanwhile.
  2. For since he cannot retract after three days even though no person has taken possession, it is evident that hefker is legally valid even before it reaches another. This agrees with the view of the Sages that the maddir can declare his property hefker and the muddar acquire it without its being regarded as passing direct from one to the other. But the second clause, stating that he can retract so long as no one has taken possession, shews that until then it is legally his. This agrees with R. Jose, that the maddir cannot declare his property hefker for the muddar to acquire it.
  3. 'Ulla interprets the whole Baraitha on the view of the Rabbis. Consequently, if one declares his property hefker, it immediately becomes so, and should the first owner take possession thereof, even immediately, the law of hefker applies thereto, rendering it free from tithe. That it is by Biblical law. Since, however, this is manifestly exposed to abuse, for by a legal fiction everyone could thus evade the tithe, the Rabbis enacted that the law of hefker should apply only after three days, during which a stranger can take possession. So Rashi and Asheri appear to interpret it, though according to the latter, if the first owner resumes possession within three days, explicitly declaring that he is acquiring hefker but not retracting, the crops are exempt From tithe. Ran and Tosaf. explain that within the first three days he can retract even if a stranger has already taken possession thereof. In N.M. 453, 9 the first interpretation is accepted. But in the second clause, the declaration itself is weak, being limited to a certain Period. Consequently the Rabbis admit that it is not valid until one has actually taken possession. — It may be asked, if it is hefker even if re-acquired by the first owner, of what use is the enactment? The answer is that to acquire hefker it is insufficient to make a mere declaration of acquisition, but some work must be done in the field. Before the owner has time to do this, he may be forestalled: that is regarded as a sufficient check to evasion (v. Rashi).
  4. Resh Lakish accepts the obvious implications.
  5. That 'after three days, the declaration is binding', even if no one has taken possession thereof.
  6. For if we rule that whenever the owner resumes possession, it is not regarded as hefker. it will be forgotten altogether that hefker is exempt from tithe. Therefore the Rabbis ruled that after three days the declaration is binding. Nevertheless, since on this view it is not, Biblically, hefker even after three days if no stranger has taken possession, the crops are not Free from tithe on the first owner re-acquiring them, for the Rabbis have no power to exempt crops which by Biblical law are liable, as is explained infra.
  7. V. p. 139, n. 5.
  8. V. n. 3.
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Nedarim 44b

but perhaps he will come to tithe from [produce] that is liable for [produce] that is exempt, or vice versa?1  — He is told, 'When you tithe, tithe for it out of itself.'2

An objection is raised: If a man declares his vineyard hefker and rises early on the following morning and vintages it,3  he is liable to peret,4  'oleloth,5  the forgotten sheaves,6  and pe'ah,7  but he is exempt from tithe. Now as for 'Ulla, it is well: it states the rabbinic law, and states the Biblical law.8  But on the view of Resh Lakish, why is he free from tithe?9  — He answers you thus: My statement is based on R. Jose; whilst this accords with the Rabbis.10

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Original footnotes renumbered.
  1. The tithe could be separated from one lot of produce upon another (of the same species), providing that both bore the same liability. E.g if one harvests his two fields, he can take From one the tenth of the combined produce. If, however, he separates a tithe of one field, thus freeing the rest, he cannot take another tithe from the same for the second field. Similarly, if he has two lots of corn, one liable to tithe by Biblical law, and the other only by Rabbinical law, so that by Biblical law it is really exempt, he may not separate from the one for the other. Now it has been explained here that according to R. Jose, so long as no stranger has taken possession, it is not hefker by Biblical law even after three days. and consequently Biblically liable. But by Rabbinical law it is hefker, even if the original owner re-acquires it. Nevertheless, as explained on p. 139, n. 5, the Rabbis ordered that he shall tithe it. Thus, in this respect, the Rabbis restored it to Biblical law. But the owner, being told that it is hefker, may regard the liability to tithe as merely a Rabbinical measure, and therefore, if he has any other corn which is only Rabbinically liable, separate from the one, which is really Biblically exempt, For the Biblically liable, or vice versa.
  2. Only in this respect is it regarded as hefker even if the first owner resumes possession.
  3. Thus he resumed possession thereof.
  4. Single grapes fallen off during the cutting, which must be left for the poor. — Lev. XIX, 10.
  5. 'Olelah, 'oleleth, pl. 'oleloth, gleanings reserved for the poor; in general, a small single bunch on a single branch. Ibid. and Deut. XXIV, 21.
  6. Sheaves (here grapes) forgotten in the course of ingathering, which had to be left for the poor. — Deut. XXIV, 19.
  7. Pe'ah — corner; the corner of the field left for the poor. — Lev. XIX, 9.
  8. 'Ulla maintains that the Baraitha in stating that he can retract within the first three days, teaches the Rabbinical law, whereas this Baraitha states the Biblical law according to which it is hefker immediately.
  9. Since he maintains that within the first three days it is not hefker even by Biblical law, and hence subject to tithes, and even after that it is hefker only by Rabbinical law, why is it taught here that on the very next day it is free from tithe?
  10. Who maintain in the Mishnah that it is hefker immediately, hence free from tithe.
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