Babylonian Talmud: Tractate Nedarim

Folio 34a

Others report it in the following version: R. Ammi and R. Assi differ thereon: one said: This was taught only if the finder may not benefit from the loser's property. R. Joseph's perutah being rare; but if the loser may not benefit from the finder's property, he may not return it, because he [the finder] benefits him. While the other maintained: Even if the loser may not benefit from the finder's property, he may return it, for he is only returning his own.

We learnt: WHERE PAYMENT IS TAKEN FOR THIS, THE BENEFIT MUST ACCRUE TO HEKDESH. Now that is well on the view that even if the loser may not benefit from the finder, he may also return it: thus he justifies WHERE [etc.],⁴  but on the view that if the loser may not benefit from the finder, he may not return it, how is WHERE [etc.] explained?⁵  This is a difficulty.

1. For since the finder cannot benefit from the loser, he cannot receive his fee from him; on the other hand, the loser is liable for it; therefore it goes to hekdesh; v. p. 104, n 2, for the reverse case.
2. Since he may not return it, there is no fee.
3. I.e., where the loser may not benefit from the finder. This is the interpretation of the passage according to our text. But the text of Ran is reversed, and (with its explanation) is as follows: This is well on the view that only if the loser may not benefit from the finder it may be returned, but not in the reverse case. Hence, the fee must go to the Temple treasury. if it is beneath the finder's dignity to accept it, for were the loser to retain it, he would be benefiting from the finder. But on the view that even if the finder must not benefit from the loser it may be returned, why must the fee go to the Temple treasury? If the finder declines it, the loser may retain it, since here is no prohibition upon him. If on the other hand the finder wishes to accept it, why may he not do so: in accepting it he is not benefiting from the loser, but merely being paid for lost time? The Talmud replies that though the law permitting the return of the lost article applies to both cases, the statement that the fee must go to the sanctuary applies only to one, viz., where the loser may not benefit from the finder.
4. The law referring to this case, as explained above, where it is beneath the finder's dignity to accept the fee.
5. For then it may be returned only if the loser may benefit from the finder; but in that case, why must the fee be given to hekdesh? If the finder does not accept it, the loser may retain it for himself.

Raba said: If a hefker loaf¹  lies before a man, and he declares, 'This loaf be hekdesh', and he takes it to eat it, he trespasses in respect of its entire value; if to leave it to his children, he trespasses in respect of its goodwill value only.²  R. Hiyya b. Abin asked Raba: [What if one says to his neighbour,] 'My loaf [be forbidden] to you,' and then gifts it to him: now, he said, 'my loaf,' meaning only so long as it IS In his own possession;³  or perhaps, having said '[be forbidden] to you,' he has rendered it to him hekdesh?⁴  — He replied: It is obvious that even if he gifted it to him, it is forbidden. For what was it [his vow] to exclude? Surely not the case where it would be stolen from him?⁵  — He replied, No: It excludes the case where he invites him for it.⁶

1. V. Glos.
2. A Zar (i.e., not a priest) is forbidden to eat consecrated food; if he does, he is guilty of trespass. and bound to make restitution of its value plus a fifth (Lev. XXII, 14). Now as soon as he takes this consecrated loaf, with the intent of eating it, he withdraws it from the possession of hekdesh into his own. Hence he has trespassed in respect of the whole of it. But if he merely intends leaving it to his children, he merely benefits by its goodwill value (i.e., the benefit he enjoys through his children's knowing that he wishes to leave it to them) and hence liable for that only. [Had, however, the loaf been his own, he would not have been guilty of a trespass by taking it up with the intent of eating it. Since it was all the time in his possession, both before and after the consecration, he would be treated in regard to it as a Temple Treasurer, to whom the law of trespass does not apply, v. B.K. (Sonc. ed.) p. 103.]
3. Therefore now that he gave it to him, it is no longer his; hence permitted.
4. So that the prohibition always remains.
5. When A says to E, 'My loaf be forbidden to you', thus excluding B from its enjoyment, what is his purpose? Obviously, as long as it is in A's possession it is forbidden to B in any case, since it does not belong to him. Surely A did not intend his vow only in the unlikely event of the loaf being stolen? Hence he must have meant, 'Even if I give you this loaf which is now mine, it shall be forbidden to you.'
6. I.e., if A should invite B to dine with him off that loaf of bread, it should be forbidden to him; but not if he gives it to him. This interpretation follows Ran. Others explain the passage differently. According to all versions, [H] must be deleted from the text.