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What’s Mine Is Mine and What’s Yours Is Mine, Too

Giving, taking, owning, donating, and other elements of property law, in this week’s ‘Daf Yomi’

Adam Kirsch
July 14, 2015
Main image: Eadweard Muybridge (1830-1904) via Wikimedia Commons
Main image: Eadweard Muybridge (1830-1904) via Wikimedia Commons
Main image: Eadweard Muybridge (1830-1904) via Wikimedia Commons
Main image: Eadweard Muybridge (1830-1904) via Wikimedia Commons

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Reading Tractate Nedarim over the last several weeks, it has become clear that the rabbis of the Talmud walk a fine line when it comes to vows. On the one hand, they disapprove of the institution of vowing and offer many opportunities for a Jew to annul his or her vows. We saw, for instance, that a vow made in exaggerated terms, or one made in the heat of a business negotiation, can be canceled by the court. On the other hand, the rabbis do not want people to use deliberately dishonest means to get out of their own vows—for instance, by claiming that they didn’t use the words they seemed to use, but meaningless homonyms. After all, if people could get out of their vows so easily, it might have the perverse effect of making vowing more common—not to mention encouraging contempt for the law. Threading this needle—making it easy to get out of your vows, but not too easy—is an ongoing challenge for the rabbis.

A good example of a legal maneuver that crosses the line into outright deception came up in this week’s Daf Yomi reading. In Nedarim 48a, we hear about an incident that took place in Beit Choron, a city near Jerusalem. A certain father vowed not to derive any benefit from his son, using a standard vow formula. (The cases that come up in the Talmud seem to involve a lot of family members, spouses, and friends vowing against each other in anger—another good reason why vowing is discouraged, since these are the very people you would eventually want to forgive.) The son, however, was putting on a banquet for the wedding of his own son, and naturally he wanted to invite his father—the groom’s grandfather—to participate. How could the father come to the banquet without violating his vow not to benefit from his son?

The son thought of what seemed like a clever work-around. He would transfer his courtyard, where the party was to take place, and the food itself to the ownership of a third person. That way, his father would technically not be partaking of his son’s hospitality, but of this stranger’s. However, before the banquet could take place, the third person unexpectedly announced: “If they are mine, they are all hereby consecrated to heaven.” Consecrating the property and the meal to heaven meant donating them to the Temple, which rendered them unusable by anyone else. Not unreasonably, the original owner protested: “Did I give you my property so that you should consecrate it to heaven?” The new owner replied that, since the transfer had only been a legal fiction designed to circumvent a vow, it was itself sinful, and he chose to consecrate the property rather than be party to such a sin.

Clearly, this consecration violated the spirit of the donation; but did it violate the letter of the law? The incident of Beit Choron turns out to raise an important legal issue, having to do with whether a gift can be made subject to conditions, and that question in property law dominated this week’s reading. The sages used the case to enunciate a principle: “Any gift that is not so absolute so that if the recipient were to consecrate the gift it would be consecrated, is not a gift.” You can’t have your cake and eat it too: If a gift is genuine enough to transfer ownership of a piece of property, then the new owner of that property can do anything he likes with it. If the donor retains rights over the disposition of the property, it is not a complete gift.

Tact—sparing people pain and embarrassment—is an important Jewish virtue.

What bothered the rabbis in this case was the fraudulence of the original donor’s intentions; he did not mean to make a real gift, only to circumvent his vow. In other cases, however, the rabbis permit the circumventing of vows, as long as it is being done for a virtuous purpose. Earlier in Chapter 4, the Mishna raised the case of a man, call him Isaac, who has sworn never to derive benefit from another man, call him Jacob. As we have seen in earlier chapters, this includes eating Jacob’s food, as well as receiving any monetary benefit that could be exchanged for food. But what happens if Jacob learns that Isaac is starving to death because he can’t afford to buy anything to eat? Is there any way for Jacob to circumvent Isaac’s vow in order to give him food?

In Nedarim 43a, the rabbis describe two legal mechanisms for making such a gift. One is for Jacob to go to a shopkeeper and describe Isaac’s predicament, adding, “I do not know what I will do.” The shopkeeper then takes the hint and gives food to Isaac, sending the bill to Jacob, who pays for it. In this way, Jacob has benefited Isaac, but only through a third party and without explicitly declaring his intention to do so. This scenario calls for tact and compassion all around—after all, Isaac would presumably be humiliated if he knew that it was Jacob who was feeding him. But then, we have seen many times in the Talmud that tact—sparing people pain and embarrassment—is an important Jewish virtue.

But what if there is no shopkeeper available to give Isaac food? What if Isaac and Jacob “were traveling along the road,” and Jacob had food but Isaac had none? In this case, they can make use of the second legal mechanism for getting around the vow: Jacob “places the food on a rock or on a fence and says: These are hereby rendered ownerless and available to anyone who wants them.” In this way, the rock serves the same function as the storekeeper in the previous example: It is a neutral third party that enables the exchange between Jacob and Isaac. Instead of Jacob giving Isaac a gift, Jacob declares that he no longer owns the food, and Isaac takes it—not from Jacob, but from the public domain where it now legally belongs. This may seem awfully similar to the incident of Beit Choron—again, a gift is being made with an ulterior motive—but since the rabbis approve of the motive, they permit it.

All these issues start out being about vows, but what is really at stake is the nature of ownership. Can you give something away and still control it? Can an object be truly ownerless, or does it remain the property of its original owner until someone else claims it? Other related issues emerged in this week’s reading as well, such as joint ownership, like a real-estate partnership, or communal ownership, as when a town builds a synagogue using the funds of all the residents. If you and I own a courtyard together, and I prohibit you from benefiting from my property, does that mean you are now unable to use the courtyard? Surely it wouldn’t be fair for one person to be able to deprive another of the use of his own property this way—but is there a legal way around the problem? And what about the synagogue, in which both you and I can be considered shareholders—does my vow prohibit you from making use of the synagogue, which I partly own? And if I vow that you cannot benefit from my house, and then I sell the house to a third person, are you still prohibited from entering it, or does my vow expire with my ownership? The difficulties caused by such disputes are reason enough for the rabbis not to like vowing.


To read Tablet’s complete archive of Daf Yomi Talmud study, click here.

Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.