AND BOTH ARE FORBIDDEN TO SET UP A MILL-STONE OR AN OVEN OR BREED FOWLS THEREIN.1 IF [ONLY] ONE WAS FORBIDDEN BY VOW TO BENEFIT FROM THE OTHER, HE MAY NOT ENTER THE COURT. R. ELIEZER B. JACOB SAID: HE CAN MAINTAIN, 'I AM ENTERING INTO MY OWN, NOT INTO YOURS.' HE WHO THUS VOWED IS FORCED TO SELL HIS SHARE [OF THE COURT].2 IF A MAN FROM THE STREET WAS FORBIDDEN BY VOW TO BENEFIT FROM ONE OF THEM, HE MAY NOT ENTER THE COURT. R. ELIEZER B. JACOB SAID: HE CAN MAINTAIN, 'I ENTER YOUR NEIGHBOUR'S PORTION, AND I DO NOT ENTER INTO YOURS. IF ONE IS FORBIDDEN BY VOW TO BENEFIT FROM HIS NEIGHBOUR, AND THE LATTER POSSESSES A BATH-HOUSE OR AN OLIVE PRESS LEASED TO SOMEONE IN THE TOWN, AND HE HAS AN INTEREST THEREIN, HE [THE MUDDAR] IS FORBIDDEN [TO MAKE USE OF THEM]; IF NOT, HE IS PERMITTED. IF A MAN SAYS TO HIS NEIGHBOUR, 'KONAM, IF I ENTER YOUR HOUSE', OR 'IF I PURCHASE YOUR FIELD,' AND THEN [THE OWNER] DIES OR SELLS IT TO ANOTHER, HE IS PERMITTED [TO ENTER OR BUY IT]; [BUT IF HE SAYS.] 'KONAM, IF I ENTER THIS HOUSE, OR 'IF I PURCHASE THIS FIELD,' AND [THE OWNER] DIES OR SELLS IT TO ANOTHER, HE IS FORBIDDEN.
GEMARA. The scholars propounded: They differ when they interdicted themselves by vow. But what if each imposed a vow upon the other? Do we say, they differ [only] in the former case, but that in the latter the Rabbis agree with R. Eliezer b. Jacob, since they are involuntarily prohibited;3 or perhaps the Rabbis dispute even in the latter case?4 Come and hear: IF [ONLY] ONE WAS FORBIDDEN BY VOW5 TO BENEFIT FROM THE OTHER … and the Rabbis dispute it! — Learn, forbade himself from his neighbour.6 This is logical too, for the second clause states: NOW, HE WHO THUS VOWED IS FORCED TO SELL HIS SHARE OF THE COURT. Now, this is reasonable if the vow was self-imposed: hence he is compelled. But if you say that a vow was imposed against him, why is he compelled. Seeing that the position is not of his making?7
Rabbah said in Ze'iri's name:
Original footnotes renumbered.
- R. Eliezer b. Jacob admits this, for joint owners can object to this. Consequently, if they do not, each benefits by the permission of the other.
- For since he may enter, but not the other (this being taught on the view of the Sages), the second, in resentment, might enter none the less in disregard of the vow.
- For if they voluntarily interdict themselves of all benefit, it may be maintained that each thereby renounces also his share, which is inseparable from his partner's. But when each forbids the other, it may be argued that neither can prohibit that which the other enjoys in his own right.
- For the prohibition arises because in their opinion it is impossible to distinguish between the portions belonging to each.
- Muddar is the hofal, and implies that the vow was imposed upon him by another.
- Nadur, passive Kal. implies self-imposed. No emendation is really made in the Mishnah, but the Talmud answers that muddar may be synonymous with nadur, self-imposed.
- Lit., 'surely he is under constraint'. I.e., it is equitable to force him to sell, if as a result of his own vow he may come to transgression, but not otherwise.
The dispute is only if it [the court] is large enough to be divided; but if not, all agree that they are permitted.1 Said R. Joseph to him: But what of a synagogue which is as a thing which cannot be divided,2 yet we learnt, Both are forbidden [the use of] the [common] property of the town?3 — But, said R. Joseph in Ze'iri's name, The controversy is only when it is not [large] enough to divide;4 but if it is, all agree that both are forbidden. R. Huna said: The halachah is as R. Eliezer b. Jacob; and R. Eleazar said likewise: The halachah is as R. Eliezer b. Jacob.
IF ONE IS FORBIDDEN BY VOW TO BENEFIT FROM HIS NEIGHBOUR, AND THE LATTER POSSESSES A BATH-HOUSE etc. How much is meant by AN INTEREST THEREIN? — R. Nahman said: A half, third, or a quarter, but not less.5 Abaye said, Even for less, he is forbidden. Under what conditions is he permitted? If he [the lessee] rents it in return for [the payment of] the land-tax.6
Original footnotes renumbered.
- The smallest area of a court to be of any use as such is four square cubits. Now, only if it contains at least eight square cubits do the Rabbis maintain that each is forbidden to enter, since it is possible for them to divide, and yet each portion shall be large enough itself for a court; for then it cannot be said that when they purchased it jointly, each was entitled to the whole of it, as explained on p. 142, n. 2. But a lesser area cannot be divided, and therefore the original condition of purchase must have been that the whole belongs to each.
- Since its essential use is joint worship, and should it be divided, it ceases to be a synagogue.
- Infra 48a.
- Yet even then the Rabbis maintain that each is forbidden to enter.
- Less than a quarter is regarded as negligible. And the muddar is not forbidden to use it on its account. [Var. lec., 'but for eggs it is permitted'. [H] for [H], the reference being to the egg-shaped forms of clay which are placed in the oven of the bath-house for drying. If his interest consists in the use he makes of the bath-house for that purpose, it is not regarded of any consequence.]
- The tax must have been very high if the owner was prepared to forego any possible profit. — Taska was the Persian land tax. (v. Obermeyer. p. 221, n. 3), and the Mishnah, which was produced in Palestine, cannot actually refer to this tax. Abaye's interpretation must therefore be regarded merely as an illustration. [Aliter: If he (the lessee) obtained it on a rental; retaining all the profit to himself.]