Nedarim, Chapter Five, Mishnah Five



This mishnah explains the categories mentioned at the end of the previous mishnah.  It also discusses how people can avoid some of the difficult consequences of being forbidden to derive benefit from one another.


Mishnah Five

1)                     What are the things that belong to those that came up from Babylonia [to Jerusalem]?

a)                                           For example the Temple Mount and the Temple courtyards and the well in the middle of the road. 

2)                     What are the things that belong to that town?

a)                                           For example the public square, the bath-house, the synagogue, the ark, and the [sacred] scrolls. 

3)                     And he should assign his portion to the Patriarch. 

a)                                           Rabbi Judah says: it is the same whether he assigns it to the Patriarch or to a private individual.

i)                                                        But what is the difference between one who assigns it to the Patriarch and one who assigns it to a private individual?

ii)                                                       If he assigns it to the Patriarch, he need not [formally] confer title. 

b)                                          But the Sages say: both this and this  require formal conferring of title, they mentioned the Patriarch in particular as this is usual. 

c)                                           Rabbi Judah said: The Galileans need not assign [their portion], because their ancestors have already done so for them.



Section one:  The things that belong to “those who came up from Babylonia” are mostly holy property, for example the Temple and the courtyards.  Also included in this category are the wells dug for the pilgrims so that they would have water on their way over.  Those who may not receive benefit from one another may still benefit from this type of property since individuals do not own shares in them, rather they are owned collectively. 

Section two:  The city property includes most structures built specifically for a certain city, including the town square, synagogue, ark for keeping the scrolls and the scrolls themselves. Note that although these things are religious items, they still are jointly owned by the people of the city and not by all of Israel.  Therefore, if people cannot benefit from one another, they may not benefit from this property as well.

Section three: This next section gives advice on how to deal with a situation in which Reuven cannot benefit from all municipal property because he cannot benefit from Shimon’s property and likewise Shimon may not benefit from municipal property because of Reuven’s partial ownership.  After all, this could make life quite difficult.  The solution is that both write out a document assigning their shares to the Patriarch, so that he owns their share of the municipal property.  In this way, they will not be benefiting from each other’s property but from the Patriarch’s.

Rabbi Judah says that they need not assign the property to the Patriarch but rather may assign it to any individual.  The only difference between the two is that the transaction with the Patriarch does not require any formal transaction, whereas a transaction with an ordinary person does. 

The other Sages hold that no matter whom one assigns the property, a formal transaction is required.  The only reason that the earlier halakhah mentioned assigning the property to the Patriarch was that this was the normal way of doing things.  In other words, it is a suggestion and not mandatory.  In contrast, Rabbi Judah would say that the halakhah mentions the Patriarch because it is easier to assign him property than to an ordinary individual.  Nevertheless, he too would hold that this is not mandatory.

Finally, Rabbi Judah says that in the Galilee the Patriarch is already the formal owner of all municipal property, and hence the entire problem will not arise.