(a)How does Rebbi Yochanan Amar Rebbi Shimon ben Yehotzadak distinguish between Hefker in front of three and Hefker in front of two?
(b)How does this enable Resh Lakish to establish even the Beraisa of 'ha'Mafkir Karmo' like Rebbi Yosi? Why might even Rebbi Yosi now agree that the owner is Patur from Ma'aser?
(c)According to this explanation 'Bifnei Shenayim, Lo Havei Hefker' might be speaking when only the owner and the Mudar are present when the owner declares the article Hefker (like the case in our Mishnah). How else might it be speaking?
(d)When is he basis of the two explanations?
1)
(a)According to Rebbi Yochanan Amar Rebbi Shimon ben Yehotzadak - Hefker in front of three is (completely) Hefker (because whatever is performed in front of three people has a 'Kol', [i.e. it soon becomes public knowledge], indicating that the owner intends the article to be Hefker for whoever takes it); Hefker in front of two is not (because, since there is no 'Kol', the owner meant them to have it, and not anybody else.
(b)This enables Resh Lakish to establish even the Beraisa of 'ha'Mafkir Karmo' like Rebbi Yosi - because it speaks when the owner declared the field Hefker in front of three people, in which case Rebbi Yosi concedes to the Rabanan that the field leaves the owner's domain immediately.
(c)According to this explanation 'bi'Fenei Shenayim, Lo Havei Hefker' is speaking either when only the owner and the Mudar are present when the owner declares the article Hefker (like the case in our Mishnah), or - when there are two people present besides the owner ...
(d)... depending on whether the owner is counted among the three or not.
2)
(a)On what grounds do we refute this entire Sugya? Why is Rebbi Yochanan's interpretation of Rebbi Yosi unacceptable?
(b)Who will then be the author of the Beraisa of ha'Mafkir Karmo'?
(c)According to Rebbi Yehoshua ben Levi, min ha'Torah, Hefker is effective even in front of one person. Why then, did Chazal institute three?
(d)What is the basis of the Machlokes between Rebbi Yochanan and Rebbi Yehoshua ben Levi (see Tosfos DH 'Rebbi Yehoshua ben Levi')?
2)
(a)We refute this entire Sugya, due to the fact that Rebbi Yochanan's interpretation of Rebbi Yosi is based on the theory of 'Hefker k'Matanah' - a theory that we already disproved it in the previous Sugya (see 43b).
(b)Consequently - the Beraisa of ha'Mafkir Karmo' will be unanimous (seeing as Rebbi Yosi agrees with the Rabanan regarding Hefker - and we will explain the Beraisa like Ula [on 44a]).
(c)According to Rebbi Yehoshua ben Levi, min ha'Torah, Hefker is effective even in front of one person, and the Rabanan instituted three - so that in the event that one of them should acquire the article, the other two will serve as witnesses (to prevent the owner from later denying that he declared it Hefker).
(d)The basis of the Machlokes between Rebbi Yochanan and Rebbi Yehoshua ben Levi is - whether the Halachah is like Rebbi Yosi (Rebbi Yochanan, which is why he establishes the difference between three and two as being d'Oraisa) or like the Rabanan (Rebbi Yehoshua ben Levi, who holds that it is only mi'de'Rabanan).
3)
(a)Is Hefker in front of two considered Hefker, according to ...
1. ... Rebbi Yochanan?
2. ... Rebbi Yehoshua ben Levi?
(b)Like whom is the Halachah?
3)
(a)Hefker in front of two ...
1. ... is considered Hefker, according to Rebbi Yochanan (though not completely).
2. ... is not considered Hefker (mi'de'Rabanan), according to Rebbi Yehoshua ben Levi.
(b)The Halachah is like Rebbi Yehoshua ben Levi (see Tosfos DH 'Rebbi Yehoshua ben Levi').
HADRAN ALACH 'EIN BEIN HA'MUDAR'
45b----------------------------------------45b
PEREK HA'SHUTFIN
4)
(a)According to the Tana Kama, partners who forbade each other Hana'ah are forbidden to enter each other's Chatzer. What does Rebbi Eliezer ben Yakov say?
(b)We will later establish the Machlokes by a Chatzer that is too small to divide. What will they hold in the case of a larger Chatzer?
(c)What is the basis of their Machlokes?
4)
(a)According to the Tana Kama, partners who forbade each other Hana'ah are forbidden to enter each other's Chatzer. According to Rebbi Eliezer ben Yakov - they are permitted, because each one enters his own domain.
(b)We will later establish the Machlokes by a Chatzer that is too small to divide. In the case of a larger Chatzer - Rebbi Eliezer ben Yakov will concede that they are both forbidden to enter.
(c)The basis of their Machlokes is - whether 'Yesh B'reirah' (Rebbi Eliezer ben Yakov (meaning that whenever one of them enters the Chatzer, he is enters the section that belongs to him) or 'Ein B'reirah' (the Tana Kama).
5)
(a)What problem do we have with understanding the Tana Kama? Why would we think that the Neder ought not to be valid?
(b)How do we resolve this problem? On what grounds is the Neder valid?
(c)On what grounds then, does Rebbi Eliezer ben Yakov disagree?
(d)What can we prove from here with regard to the owner forbidding his house on the person who is renting it from him?
5)
(a)The problem with understanding the Tana Kama is how the Neder can possibly be valid - seeing as Neder apart, neither partner can forbid the other one from entering. How can he then stop him by means of a Neder?
(b)To resolve this problem - we explain that each of the partners has a Kinyan ha'Guf in the courtyard coupled with a Shibud (rights) on the Kinyan of his partner (because 'Ein B'reirah' prevents either one from being able to acquire it completely).
(c)Rebbi Eliezer ben Yakov disagrees. He holds 'Yesh B'reirah', as a result of which each partner actually acquires the Chatzer completely whenever he enters it.
(d)We prove from here - that the owner of a house has the authority to forbid his house on the person who is renting it from him, even though, Neder apart, this would not be the case.
6)
(a)In Beitzah, we rule like Rav Oshaya. What does Rav Oshaya rule with regard to Bereirah?
(b)How does this clash with our Sugya, which will later rule like Rebbi Eliezer ben Yakov?
(c)Rabeinu Tam answers that when we rule like Rebbi Eliezer ben Yakov, it is not for the same reason as him. What does he mean?
(d)According to Rabeinu Tam, what will be the Halachah if the Noder specifically includes 'Derisas ha'Regel' in his Neder?
6)
(a)In Beitzah, we rule like Rav Oshaya - who rules 'bi'd'Oraisa Ein B'reirah, bi'de'Rabanan, Yesh B'reirah'.
(b)This clashes with our Sugya however, which will later rule like Rebbi Eliezer ben Yakov - who holds 'Yesh B'reirah' in our Mishnah, even though it is d'Oraisa.
(c)Rabeinu Tam answers that when we rule like Rebbi Eliezer ben Yakov, it is not for the same reason as him (because of 'Yesh B'reirah') - but because we hold 'Vitur Mutar b'Isurei Hana'ah' (people tend to forego such trivial Hana'os with regard to Isurei Hana'ah [against the opinion of Rebbi Eliezer, who holds Asur]).
(d)If however, the Noder specifically includes 'D'risas ha'Regel' in his Neder, according to Rabeinu Tam - it will certainly be valid!
7)
(a)On what grounds does the Ri (Rabeinu Yitzchak) refute Rabeinu Tam's answer? Why does he consider it a Dochek (pushed)?
(b)So how does the Ri reconcile the two rulings? How does he explain the ruling in Beitzah like Rav Oshayah?
(c)We disagree with the Ri too however, on the basis of a major ruling of Shmuel 'ha'Achim she'Chalku Lekuchos Hen, u'Machzirin Zeh la'Zeh ba'Yovel'. What does this prove?
7)
(a)The Ri (Rabeinu Yitzchak) however, refutes Rabeinu Tam's answer. He considers it a Dochek (pushed) - because a number of Stam Mishnahs hold like Rebbi Eliezer, and it is therefore unlikely that the Halachah is not like him.
(b)The Ri therefore reconciles the two rulings - by ruling like Rav Oshayah in Beitzah even by d'Oraysas too (and the only reason that they confine the ruling to d'Rabanan, is because that is the topic discussed there in the Sugya, but not to preclude cases which are d'Oraisa).
(c)We disagree with the Ri too however, on the basis of a major ruling of Shmuel 'ha'Achin she'Chalku Lekuchos Hein, u'Machzirin Zeh la'Zeh ba'Yovel' (meaning that when brothers divide their deceased father's estate, their division is only arbitrary and, like a sale, it must be returned to the kitty in the Yovel-year) - proving that 'Ein B'reirah bi'de'Oraisa'.
8)
(a)The Rambam resolves the contradiction by differentiating between this case of B'reirah and other cases. What is the difference between them? Why might we rule 'Yesh B'reirah' here, even though elsewhere we hold 'Ein Bereirah?
(b)What is the problem with the Rambam's explanation?
(c)We conclude that this is proper Bereirah, yet we can still rule 'Yesh B'reirah'. Why is it ...
1. ... on the one hand, proper Bereirah?
2. ... on the other, nevertheless possible to rule like Rebbi Eliezer ben Yakov, who holds 'Yesh Bereirah' even by a d'Oraisa?
(d)On what grounds then, do the Rabanan argue with Rebbi Eliezer ben Yakov?
8)
(a)The Rambam resolves the contradiction by differentiating between this case of B'reirah and other cases - because unlike regular cases of B'reirah (which are based on a Safek - which only materializes later retroactively), this case is decided in advance; Both partners certainly acquire the field, sometimes the one will acquire it for his use, and sometimes, the other. Consequently, it is possible to rule 'Yesh B'reirah' here, even though elsewhere, we hold 'Ein B'reirah.
(b)The problem with the Rambam's explanation however is - that they should not then have connected the Machlokes with 'Yesh B'reirah' or 'Ein B'reirah', seeing as Rebbi Eliezer ben Yakov does not consider it B'reirah at all.
(c)In fact, we conclude, this is proper B'reirah, yet we can still rule 'Yesh B'reirah'. It is possible ...
1. ... on the one hand, to be proper B'reirah - because it is not known in advance exactly when each one will want to use it (that will only be determined when they actually do).
2. ... on the other, to rule like Rebbi Eliezer ben Yakov, who holds 'Yesh B'reirah' even by a d'Oraisa - because, unlike other cases of B'reirah, here it is not a Safek whether each of the partners will acquire it but when he will acquire it, according to Rebbi Eliezer ben Yakov. And when he acquires it, it is on the understanding that he will acquire it completely for that period of time.
(d)The Rabanan argue with Rebbi Eliezer ben Yakov - on the grounds that, since one has to come on to B'reirah one way or another, the ruling that 'bi'd'Oraisa, Ein B'reirah' will remain intact. Consequently, each one has a Shibud on his friend's part in the Chatzer, and Konamos have the power to detract from a Shibud.
