תלמוד על נדרים 4:1

HALAKHAH: “Partners who mutually made vows not to have usufruct from one another,” etc. The rabbis say, every single [square] hand-breadth is common property of the partners. Rebbi Eliezer ben Jacob says, each one enters into what is his. If the courtyard was divided by pebbles⁶Greek ψῆφος. If at some time they decide to mark the borders between the domains belonging to the different houses by rows of pebbles cemented into the ground, this amounts to a division of the common property and the rabbis will not hold that a formal contract is needed to disestablish the former common domain. (In modern Hebrew, the word means “mosaic”.), even the rabbis agree. If one of them went and sold his part, even Rebbi Eliezer ben Jacob agrees⁷If one of the partners sells his part, he can no longer claim to enter into what is his and even according to R. Eliezer ben Jacob he is forbidden to set foot in the courtyard.. If they contracted between themselves to concede⁸They split the common courtyard as outlined in Baba batra but in the contract agreed that they would not insist on excluding the other party from entering the separate domain of the other party. Then for the rabbis the split did not change anything., it is still in the hands of the partners. It is only needed if they did not contract between themselves to concede; what is the position of Rebbi Eliezer ben Jacob? And did we not state there, “he buys higher and sells lower⁹Chapter 3, Note 147. Does R. Eliezer ben Jacob permit transactions at the regular price?”? What is the position of Rebbi Eliezer ben Jacob? And did we not state there, “he should not lend him nor ask him for anything¹⁰Chapter 4, Note 99. Since no transfer of property is involved, does R. Eliezer ben Jacob agree?,”? What is the position of Rebbi Eliezer ben Jacob? And what Rebbi Simeon ben Yaqim said, that he should not stay long¹¹Chapter 4, Note 76. Does R. Eliezer ben Jacob agree that the visits have to be as short as possible??

Rebbi Jacob bar Aḥa said, Rebbi Joḥanan and Rebbi Eleazar disagree, for Rebbi Joḥanan said, one whips for prohibitions³⁶Somebody forbade something for himself without using the language either of vows or of oaths or any of the recognized substitute expressions. If he then breaks his own prohibition this falls under the biblical prohibition of “he shall not profane his word” (Num. 30:3). The question is whether this is a sin or a prosecutable offense. In Nazir 1:1 (51a 1. 34), R. Joḥanan is quoted as holding that it is not a prosecutable offense. Accordingly, one has to read here “one does not whip”, and in the opinion of R. Eleazar “one does whip” since this is also required by the argument quoted later by R. Jacob bar Aḥa. (Alternatively one would have to switch names in that argument, but then the quote in Nazir would remain unexplained.) and Rebbi Eleazar said, one does not whip³⁶Somebody forbade something for himself without using the language either of vows or of oaths or any of the recognized substitute expressions. If he then breaks his own prohibition this falls under the biblical prohibition of “he shall not profane his word” (Num. 30:3). The question is whether this is a sin or a prosecutable offense. In Nazir 1:1 (51a 1. 34), R. Joḥanan is quoted as holding that it is not a prosecutable offense. Accordingly, one has to read here “one does not whip”, and in the opinion of R. Eleazar “one does whip” since this is also required by the argument quoted later by R. Jacob bar Aḥa. (Alternatively one would have to switch names in that argument, but then the quote in Nazir would remain unexplained.). Rebbi Jacob bar Aḥa said, so did Rebbi Joḥanan answer Rebbi Eleazar: According to you, who says one does not whip on prohibitions, did we not state³⁷Mishnah 4:4: “If somebody has vowed not to have any usufruct from another and he goes to visit him (when he is sick), he may stand but not sit down and heal him (but not his animals).” He cannot sit down because he would derive usufruct from the other’s possessions. The question makes sense only if R. Eleazar holds that transgressing the prohibition is prosecutable.: “If somebody has vowed not to have any usufruct from another and he goes to visit him,” let him not enter³⁸If transgressing a private prohibition is not prosecutable, one can explain the Mishnah as referring to a prohibition of usufruct, not a formal vow or oath. But if it is prosecutable as a formal vow, why permit to enter since the person entering will find shelter there from the sun in summer and the rain in winter?! Rebbi Jeremiah said, there is a difference there because of the ways of peace³⁹“Ways of peace” are the obligations of interpersonal relationships necessary in a civilized society; in this case, visiting the sick.. Rebbi Yose asked: If it is because of the ways of peace, should he not also be permitted in case of an oath? But we have stated⁴⁰Mishnah 2:2: “A vow that I shall not build a tabernacle, that I shall not take a lulab, that I will not wear phylacteries: vows are forbidden, oaths permitted, for one cannot swear to break religious obligations.” If somebody makes a vow that religious objects should be forbidden to him (as if they were dedicated sacrifices), he commits a twofold sin in making a frivolous vow and breaking biblical commandments, but what he did is done. But if he swears that he will not fulfill his religious obligations, the oath is invalid since, in the language of the Babli, “he already is under oath from Mount Sinai”, and a valid oath cannot be superseded by another oath. Since visiting the sick is a religious obligation, if the prohibition of usufruct is interpreted as an oath it should be nonexistent in the case of a visit to a sick person. No answer is given since practice follows R. Joḥanan.: “Vows are forbidden, oaths permitted.”

There, we have stated³⁴Mishnah 4. Personal healing is healing a human, which is a biblical commandment (Deut. 22:2) and cannot be abolished by a vow. Financial healing is veterinary medicine. The question is, if he is required to return what the other one had lost as required in Mishnah 2, why can he not heal his cow which is lost without medical help?: “He heals him in the sense of personal healing but not in the sense of financial healing.” Rebbi Judan and Rebbi Yose. One of them said, here if the vow refers to his body, there if the vow refers to his property³⁵Mishnah 2 refers to a vow that B cannot personally have any gain from A; therefore A may return what B lost. Mishnah 3 deals with the case that B cannot have any material advantage from A; therefore A cannot heal B’s animal.. But the other one said, here if he has somebody else who can heal him, there if there is nobody else who can heal him. If he has somebody else who can heal him, he should not be able to heal him personally! Not by everybody is a person successfully healed³⁶The personal skills of a medical man are not transferable..