Explanation: Also this Beraisa of one who was Mafkir his vineyard is like R. Yosi;

R. Yosi said that one who was Mafkir can retract, only when he was Mafkir in front of two. I.e. there were not three there, like the case of our Mishnah, which taught that no one else is with them;

Only in this case R. Yosi forbids, for he holds that in every such case, Hefker is like a gift. Until it comes to the Reshus of one who acquires, it does not leave the Reshus of the Mafkir.

The reason is because no one else is with [the Madir and Mudar]. Alternatively, if there are only two with him, he was Mafkir with intent only for one of them, for any[thing done in front of] two people gets no publicity. (Surely, he did not intend for others to take it.)

Therefore, it is like a gift. Just like a gift leaves his (the giver's) Reshus only with intent for the other (the recipient), also here he was Mafkir only with intent for the other, or one of the two [others];

Therefore, just like a gift does not leave his (the giver's) Reshus until it comes to the recipient's Reshus, also such a Hefker, for this Hefker is like a gift;

We establish the Beraisa of one who was Mafkir his field to discuss such a Hefker. Therefore, it taught that until someone acquired it, be it he (the Mafkir) or someone else, he can retract.

Distinction: However, we establish the Beraisa of one who was Mafkir his vineyard to be in front of three. Whenever there are three, there is publicity, and he was Mafkir it with intent for everyone. It is not like a gift at all;

Therefore, even though a gift, until it comes to the recipient's Reshus, it does not leave the giver's Reshus, regarding a Hefker like this, even R. Yosi agrees that it immediately leaves his Reshus.

Gemara: For R. Yochanan said, anyone who makes Hefker in front of three, it is Hefker.

Explanation: Because he made it Hefker with intent for all (anyone may take it).

Gemara: In front of two it is not Hefker.

Explanation: Since there is no publicity, he made it Hefker with intent only for them (the two). It is like a gift.

Remark: It seems to me that this is the Perush of our entire Sugya. In what I wrote are some matters that I learned from the Rishonim, of blessed memory.

Explanation: This entire Sugya is like we initially thought, that R. Yosi's reason is because he holds that Hefker is like a gift.

R. Yochanan, who said so above, was refuted. Therefore, according to the conclusion above, this entire Sugya is rejected;

We explain the Beraisa of one who was Mafkir his field like Ula's Ukimta, that it is totally like Rabanan.

Observation: It is also like R. Yosi, for R. Yosi does not argue with Rabanan about the law of Hefker at all!

Support: This is the reason for the Seifa, which teaches that until someone acquired it, he or someone else can retract;

Because [Hefker for] seven years or one year is not common, it does not leave the Reshus of the Mafkir until it come to the Reshus of the one who acquires it. Everything is like I explained above (44a, Sof DH Reisha).

Halachah: Regarding the Halachah.

Ruling: In the argument of R. Yochanan and R. Yehoshua ben Levi, we hold like R. Yehoshua ben Levi, who says that mid'Oraisa, even in front of one is Hefker;

Why did they say in front of three? It is so one can acquire, and two can testify. Therefore, mid'Rabanan, it is not Hefker until he is Mafkir in front of three. And so wrote the Rambam in Hilchos Nedarim (2:16).

Mishnah: Partners who vowed not to benefit one from the other, they may not enter the courtyard.

Explanation: This Tana holds that Vitur is forbidden for a Mudar Hana'ah.

Explanation: In the Gemara, we establish this to discuss a Chatzer without Din Chalukah (one partner cannot force the other to divide it, for each would get a share too small to be a proper Chatzer). However, if the Chatzer has Din Chalukah, all forbid.

Observation: In Bava Kama (51b), we establish their argument to be about Yesh Breirah (we may rely on future events to retroactively determine what takes effect now) or Ein Breirah;

R. Eliezer holds that Yesh Breirah. This one enters his own [portion of the Chatzer], and this one enters his own. Rabanan hold that Ein Breirah.

Question: Granted, Rabanan hold that Ein Breirah. [However,] why are they forbidden to enter the Chatzer?

Since the Chatzer has no Din Chalukah, and a partner cannot force the other to divide it, and cannot stop him from entering the Chatzer, how can he forbid to him?!

One cannot forbid something that is not his own to someone else!

Strengthening of question: Even if they vowed from each other, why are they forbidden? When each enters the Chatzer, he benefit from his own, and not from his friend, since the other cannot stop him!

Answer: It seems to me that Rabanan's reason is since we cannot say that each acquires the entire Chatzer with a permanent Kinyan ha'Guf (ownership of the matter itself, and not merely the Peros), for if it belongs to this one, it does not belong to this [other] one...

And also, we cannot say that when this one uses it, retroactively it is revealed that at the time they bought it, he acquired Kinyan ha'Guf for that time [that he will use it], for Ein Breirah.

Rather, each of these partners has a permanent Kinyan ha'Guf in this Chatzer, i.e. his share, and a Kinyan Shibud (lien) on his friend's share, that the other has no right to stop him, even though he did not acquire it (his friend's share) itself.

Therefore, Rabanan hold that the Kinyan Shibud that he has on his friend's share, Konamos uproot it;

This is why he is forbidden, because Konamos uproot Shibud, like it says at the end of this Maseches (86b).

Answer (cont.): R. Eliezer ben Yakov argues with them, for he holds that Yesh Breirah;

Therefore, we say that every time he enters the Chatzer, he enters his own, and he totally acquired the Chatzer itself for that usage;

He does not use it due to Kinyan Shibud, rather, due to Kinyan ha'Guf. As long as one can say that each has Kinyan ha'Guf, it is improper to say that it is Kinyan Shibud;

We do not call Kinyan Shibud something that will be like this permanently b'Al Korcho (against the will) of each of them.

Answer (cont.): Also Rabanan consider it like Kinyan Shibud only because they cannot consider it Kinyan ha'Guf, because Ein Breirah;

Below you will see more about my opinion of this Breirah.

Consequence: It seems to me that this is a clear proof that a landlord can forbid his house to the tenant, even though Rishonim argue about this, like we will write below with Shamayim's help.

Implied question: Letter of the law, a landlord cannot stop the tenant [from using the house, since it is Meshubad to him for the time of the rental]. Also here, this partner cannot stop the other!

Answer: Even so, he can forbid him through Konam, because Konamos uproot Shibud;

Also the landlord, through Konam, uproots the Shibud of the tenant, even if the tenant already paid the rent to the landlord.

Admission: There are some who hold unlike this, like we will write below, with Hash-m's help;

[Even so, what I wrote is correct,] for here the partner need not pay his friend [so he is like a tenant who already paid the rent], and even so he can forbid him, according to Rabanan, for the reason that I wrote (Konamos uproot Shibud).

[Do not say that one cannot forbid his partner through Konam, and Rabanan forbid only when each partners vowed from the other,] for the Gemara (46a) did not resolve [whether the Mishnah discusses] partners who forbade to each other.

Conclusion: So it seems to me. We will elaborate below about this law with Hash-m's help.

Question: Since R. Eliezer and Rabanan argue about Yesh Breirah or Ein Bereirah, for so Ravina established [the argument] in Bava Kama (51b)...

How can we rule in the Gemara like R. Eliezer ben Yakov, who holds that Yesh Breirah?

In Beitzah (38a), we conclude that R. Oshaya holds that Ein Breirah for Torah laws, but Yesh Breirah for mid'Rabanan, and we rule like R. Oshaya.

This shows that for Torah laws, Ein Breirah. This contradicts the Halachah [that we rule like R. Eliezer ben Yakov]!

Answer #1 (R. Tam): Here, the Halachah follows R. Eliezer ben Yakov, but not for his reason. He holds that Yesh Breirah and Vitur is forbidden to a Mudar Hana'ah;

We hold that Ein Breirah, but Vitur is permitted to a Mudar Hana'ah. Therefore, we discuss not only a Chatzer without Din Chalukah. Rather, even if it has Din Chalukah, it is permitted!

Consequence: According to this Perush, if they explicitly vowed from Drisas ha'Regel (walking on the other's property), they may not enter the Chatzer.

Objection (Ri): It is unreasonable to reject several Stam Mishnayos in our Maseches that are like the opinion that forbids Vitur to a Mudar Hana'ah! The entire previous Perek is like this opinion.

Answer #2 (Ri): Surely, we hold like the one who says that even for Torah laws, Yesh Breirah. [This is clear] from our Sugya.

Implied question: We rule like R. Oshaya in Beitzah!

Answer: We rule like his teaching that for mid'Rabanan laws, Yesh Breirah, for this is the primary argument there.

Proof: A Mishnah in Temurah (30a) regarding an animal traded for a dog says "similarly, if there were two partners, and one took 10 lambs, and the other took nine lambs and a dog, all those [nine] with the dog are permitted (for a Korban). All those [10] opposite it are forbidden;

We ask in the Gemara "we should take one opposite the dog [to be in exchange for the dog], and permit the rest"!

Inference: Even for Torah laws, Yesh Breirah!

Rebuttal: This is wrong. Surely for Torah laws, Ein Breirah, for we hold like Shmuel, who said (Bava Kama 9a) that brothers who divided [an inheritance] are like buyers and like R. Yochanan, who rules like him in Gitin (48a).

Note: The text must be fixed more. Our text "Rav Nachman" is difficult. In Kidushin 42b, he ruled that brothers who divided are like buyers, but there he refers to Ona'ah (overcharging), and not Breirah. In Perek ha'Shole'ach (Gitin 48a), R. Yochanan did not mention Shmuel's teaching. He said a bigger Chidush, that brothers who divided are like buyers, and they return to each other in Yovel. Chidushei ha'Ran shows why this cannot be the Halachah. However, we rule like the first half of R. Yochanan's teaching, i.e. like Shmuel. It would be better if the Ran said "v'Savar R. Yochanan" (he holds), and not "vechid'Pasak" (and like he ruled). Perhaps the coming two words of the Ran should be replaced by "v'Ta'amei" (his reason, i.e. R. Yochanan's), for there the Gemara says so about R. Yochanan's teaching. It does not mention Shmuel's teaching about brothers.

Shmuel's reason is because he holds that Ein Breirah (so we cannot say that each received his proper share), like it says explicitly in Gitin (25a).

The Gemara in Temurah not difficult. The premise of the question was unlike the Halachah, rather, according to the opinion that mid'Oraisa, Yesh Breirah.

It asked in the way of 'granted, if you will say [that mid'Oraisa Ein Breirah, this is fine. However, if Yesh Breirah, we should take one opposite the dog...!]' We often find like this in the Gemara.

Question: If so, the question returns! (Here, we rule that Yesh Breirah mid'Oraisa.)

Answer #3 (to Question (b) - the Ramban in his Halachos): The Breirah here is unlike elsewhere. Here, there is nothing that is not clarified now, and it is clarified later, that we should say that it is retroactively clarified that [even initially] it was like now;

Rather, it is a Chatzer without Din Chalukah. Each one uses the entire [Chatzer];

Since this is the way partners use [a Chatzer], from now we say that each enters his [property], and does not use his friend's.

If you would forbid him, it turns out that this [partner] expels him from his (the latter's) property. One cannot forbid another's property to its owner!

Support: It was said in such a case in the Gemara there.

Note: There, we said that R. Eliezer ben Yakov holds that each partner in a pit owns it when he uses it, because Yesh Breirah, and Chachamim disagree, because Ein Breirah. Ravina said that this is like they argue in our Mishnah.

Proof: Here (46a), we ask about Hediru (each forbade to the other). Perhaps even Rabanan agree to R. Eliezer ben Yakov (that they are permitted), for this is like Ones, and one cannot forbid his friend's property to his friend. These are the Ramban's words.

Rebuttal: I disagree. If so, why does it say "Ein Breirah" and "Yesh Breirah" in Bava Kama? R. Eliezer ben Yakov's reason is not at all because Yesh Breirah;

Rather, it is because you say that from the beginning, the entire Chatzer is acquired to each of them!

Answer #4: It seems to me that the words are like their simple meaning. Here we discuss the usual Breirah. However, because this Breirah is preferable, here we rule like R. Eliezer ben Yakov.

However, also here we need Breirah, that it is revealed retroactively like regular Breirah, because we cannot say that this Chatzer belongs entirely to him and entirely to him. If it belongs to him, it does not belong to him!

Rather, we say as follows. These partners, when they bought the Chatzer, bought it with intent that when each one uses it, it is entirely his for usage;

Note: Daf Al ha'Daf cites Nidrei Zerizin, who infers from here that if brothers inherited a Chatzer, one can forbid the others. However, he also cites Teshuvas Pnei Yehoshua, who learns from the Ran (Teshuvah 35) that brothers who inherited have the same law. I do not understand why when one uses it, it belongs entirely to him. Can two not use different parts at the same time?! (PF)

Since at the beginning we do not know which day and which hour each one will use it, we need Breirah to say that now that each one uses it, it is clarified retroactively that from the beginning he totally acquired it for this time.

Implied question: Surely, [all agree that] one can be Makneh (transfer ownership of) it for one month to Reuven and one month to Shimon, and in the time of each, it is totally acquired to him!

This is just like "my property is [given] to you, and after you, to Ploni" (Bava Basra 136a)!

Answer: Rather, because here the time of each is not known, it helps only according to the opinion that Yesh Breirah, for we say that it is revealed retroactively that from the beginning they acquired it for these times.

Question: Since Breirah here is like regular Breirah, that it is revealed now what was not known at the time they bought it, how do we rule like R. Eliezer ben Yakov, since in general we hold that for Torah laws, Ein Breirah?

Answer: The Breirah here is better than regular Breirah;

The reason why normally we say Ein Breirah is because it is not proper that something take effect on a Safek;

Therefore, one who told a scribe "write a Get for my wife", and I will divorce with it whichever [of my wives] I want, it is Pasul to divorce with it, because there is a Safek from the beginning in the essence of the Get, for whom it takes effect.

Similarly, "if a Chacham will come to the east, my Eruv is to the east. If [he will come] to the west, my Eruv is to the west" does not help, because at the time the Eruv acquires, it is not clarified at all which acquires;

Therefore, since in each of these Eruvin, we can say that perhaps it does not acquire at all, even though afterwards it will be clarified, Ein Breirah.

Similarly, brothers who divided, since from the beginning there is a Safek, perhaps he will not acquire this share at all, it turns out that it is a total Safek from the beginning. Also for everything like this, Ein Breirah.

Distinction: Here, the essence of the matter is clarified from the beginning, and the minority afterwards. Even from the beginning we do not have a Safek that each one will not acquire the entire Chatzer itself;

Also, we do not have a Safek lest even if he wants to acquire on a certain day, he will not acquire;

This is because from the beginning we know that in the future, each will acquire the entire Chatzer itself, and that he will acquire every time that he wants.

Therefore, since the essence of the matter is clarified from the beginning, and what is clarified afterwards, that was not clarified from the beginning, is only the minority, i.e. the time he wanted to acquire the Chatzer itself, and he acquired it...

In every such case Yesh Breirah, for the minority that is in doubt from the beginning, and is clarified afterwards, does not stop the majority that is clarified from the beginning [from taking effect].