Distinction (cont.): Therefore, granted, in general we hold that Ein Breirah, here we rule like R. Eliezer ben Yakov, for in such a case Yesh Breirah.

Rabanan argue with him because in any case, you must say that the matter is clarified now that at time Ploni it was totally acquired to him, which was not revealed from the beginning. Even in such a case, Ein Breirah.

Conclusion: It turns out that each has in his friend's portion a mere Kinyan Shibud, and Konamos uproot it. So it seems to me.

Mishnah: Both are forbidden to set up [in the Chatzer] a mill or oven, or to raise chickens.

Implied question: We say in Bava Basra (57b) that partners are not adamant about mere setting up!

Answer: In any case, if they are adamant, one can forbid the other. Even though normally they are Mevater (pardon), Vitur is forbidden to a Mudar Hana'ah.

Explanation: We do not need this clause, not according to Rabanan and not according to R. Eliezer ben Yakov. According to both of them, there is no difference whether both of them vowed, or one of them;

Rather, it was taught due to the Seifa, which teaches that we force the Noder to sell his share;

This is only when one of them vowed. Since he is forbidden and his friend is permitted, we are concerned lest he envy his friend, and even he will use it;

Therefore, lest he not stumble, we force him to sell.

Distinction: When they vowed Hana'ah from each other, so both of them are forbidden, we are not concerned., for each is careful about his Isur.

Extrapolation: The same applies to one who forbids his property to himself. For this very reason, we do not force him to sell. Only regarding partners, when one of them vowed, we force [him].

Even according to R. Eliezer ben Yakov, who permits to enter the Chatzer, we force him to sell. Also according to him, there is concern;

Since he sees his friend set up a millstone and oven, and he is not allowed, he will envy him, and come to do so.

Question: Granted, according to Rabanan, who forbid to him even Drisas ha'Regel, the reason of lest he be envious applies, for Drisas ha'Regel is forbidden to him and his friend is permitted, and he cannot protest;

However, according to R. Eliezer ben Yakov, why would he care about Drisas ha'Regel? Also he is permitted;

And if he is envious of his friend regarding setting up a millstone, he can stop him, for partners can stop each other regarding such matters!

Answer: Since partners are not particular about such matters, it is shameful to him to stop him, for the Gemara establishes the Seifa to be when they vowed from each other;

Note: Here we discuss when only one of them vowed. "They vowed" means that it discusses partners forbidding themselves, and not forbidding the other. (PF)

Since his friend did not cause him to be forbidden, but he himself caused it through vowing, why should he stop his friend from something that partners are not particular about it? Therefore, it is shameful to him to stop him.

Amidst that his friend sets up a millstone, he will envy him, and say "also I will do so."

Opinion #1: This clause was not taught due to the first Tana. According to him, obviously if one can stop his friend (i.e. partner), there is no need to say that he can stop an outsider!

Rather, this teaches a Chidush of R. Eliezer ben Yakov. Even against an outsider, a partner cannot forbid him.

Opinion #2: Below, you will see my opinion that it was taught even for a Chidush according to Rabanan.

Opinion #1: The Rashba wrote that this is only if he entered for the sake of the partner, whether he needed the partner, or the partner needed him, since the Chatzer is acquired to each of them, and to everyone who needs them;

However, for an outsider to enter for himself, not for the sake of the partner, is forbidden;

If they were Makneh the Chatzer to each other for their Drisas ha'Regel, and for everyone who needs them, they were not Makneh it to the entire world!

Opinion #2: However, the Ro'oh wrote that in every case it is permitted. I disagree.

Possibility #1: Perhaps all of them hold that Yesh Breirah, and letter of the law, even if they were Noder (to forbid themselves) it is permitted, but Rabanan hold that we fine them, and R. Eliezer ben Yakov holds that we do not fine;

However, when they were Madir (forbade each other), a fine does not apply. It is permitted according to letter of the law, for Yesh Breirah.

This is unlike Ravina, who establishes their argument in Bava Kama (51b) to be about whether or not Yesh Breirah.

Possibility #2: Or, perhaps Rabanan argue also when they were Madir, like Ravina holds there.

Gemara: Come learn [from our Mishnah]. If one was Mudar from his friend... and Rabanan argue!

Explanation: It was taught Stam Mudar from his friend. This shows that they argue even when his friend forbade him.

Gemara: Teach that he was Nadur from his friend.

Explanation: I.e. also Noder (he forbade himself) is called Mudar. Mudar can mean by (he forbade) himself, or via others (who forbade him).

Explanation: [We force him] because he caused himself [to be forbidden];

However, if you will say that he did not vow to forbid himself, why do we force him? This is Ones!

Question: Why can't he say that really, the case is that his friend was Madir him. When it says that we force the Noder, it means the Madir!

Answer: We hold that it is improper to force a man to sell his property because he forbade it to his friend;

However, it is proper to force a Noder. What does he gain from forbidding to himself his friend's property, and there is concern lest he stumble?

Question: Why did the Rambam (Hilchos Nedarim 7:5) write that we force the Madir?!

Even though this is like the Yerushalmi, this is unlike the Bavli! The Ra'avad already challenged this.

Distinction: However, if he regularly is Madir, we force him to sell.

Source (Tosefta 2:9): If one of them regularly was Madir Hana'ah on his share, we force the one who is regular to sell his share.

The Yerushalmi explains that twice is called regular, for it says there "you transgressed once. You transgressed a second time. You have transgressed [so many times, i.e. twice, that] from now and onwards, either sell your share or permit your vow!"

Explanation: The question [in our Sugya] was not resolved, whether Rabanan argue even when he was Madir him.

Question: We should resolve it from the Mishnah below (47b) [if one said] "I am Cherem to you, and you to me", both of them are permitted matters of Olei (those who ascended to Eretz Yisrael from) Bavel, and forbidden matters of that city;

Citation (47b): What are matters of that city? They are the square, the bathhouse and the Beis ha'Keneses.

Inference: They argue even in a case when they were Madir!

Answer (R. Yonah): There, the reason is because even though it is Ones regarding the Mudar, since it is not Ones for the Madir, and he is forbidden, both of them are forbidden;

If you would permit the Mudar, the Noder will not heed [that he himself is forbidden]. Therefore, Rabanan do not disagree.

Explanation: Rabanan forbid because they hold that Ein Breirah. We do not say that the matter is clarified when he uses the Chatzer, that the Chatzer itself was acquired to him for his use;

Because it had Din Chalukah, at the time they bought it, it was not clarified that this one may use this portion, for perhaps it will not come to his share [when they will divide]!

R. Eliezer holds that even in such a case, we say [that Yesh] Breirah, because initially when they acquired it, they acquired it with intent that as long as they do not divide it, the entire Chatzer itself will be acquired for use of each of them.

Gemara: If it does not have Din Chalukah, all agree that it is permitted.

Explanation: Since it does not have Din Chalukah, and it is known that it will always remain in partnership, and each has the right to use it whenever he needs, all agree that Yesh Bereirah;

This is because the majority of this Kinyan was clarified from the beginning. It is unlike other cases of Bereirah, like I explained in our Mishnah (45b-46a, DH v'Ika).

Gemara: Rav Yosef told him, a Beis ha'Keneses is like [a Chatzer] without Din Chalukah, and a Mishnah teaches that both are forbidden in a matter of that city!

Explanation: This Mishnah in our Perek (48a) proceeds to explain that 'a matter of that city' is like a Beis ha'Keneses;

This is fine if they argue only when there is no Din Chalukah. The Mishnah is Rabanan;

However, if you will say that in a Chatzer without Din Chalukah, all permit, like whom will you establish the Mishnah?!

Explanation: Rabanan hold that even in such a case, Ein Breirah;

R. Eliezer ben Yakov holds that since it is impossible for one of the partners to stop his friend from ever using it, and he cannot force him to divide, from the beginning they bought it with intent that it itself is totally acquired to whoever uses it, at the time he uses it;

When he uses it, it is revealed retroactively that from the beginning it was acquired to him for that time.

R. Eliezer holds that granted, in general Ein Breirah, but in such a case Yesh Breirah, since the primary acquisition was clarified from the beginning.

Explanation: Because this Chatzer is destined to be divided, it is impossible to say that from the beginning each bought it for his use, for perhaps one partner will force the other [to divide]!

Therefore, even according to R. Eliezer ben Yakov, they are forbidden.

Opinion #1: The Rashba wrote that they are forbidden not only before division, rather, also after division they are forbidden;

Suggestion: Perhaps we can say that it was clarified retroactively that this is the share that was proper for him from the beginning, and he was forbidden only in his friend's share!

Rejection: If so, this Breirah is like other Breiros, and we hold that Ein Breirah for Torah laws!

Question: In any case, we hold like Shmuel, who said that brothers who divided are partners, and it is as if he bought it from him!

Answer: This is wrong. Even if he bought it, he is forbidden, like we said above (34b) regarding "my loaf is forbidden to you." Even if he gave it to him for a gift, if no one interrupted (owned it) in the middle, it is forbidden;

A sale is like a gift, like the Mishnah taught (46a) "Konam is your house that I will not enter it, [or] your field that I will not buy it", if he died or sold it to someone else, it is permitted;

Inference: If he sold it to him (the Mudar), even when he said "Konam is your house that I will not enter it", it is forbidden. This is the Rashba's opinion.

Opinion #2: The Rambam wrote in Hilchos Nedarim (7:4) 'if both of them were partners in a Chatzer, if it has Din Chalukah, they may not enter it until they divide it, and then each enters his portion.'

Inference: He permits after division!

Explanation: It seems to me that he holds that even though we hold that Ein Breirah for Torah laws, Anan Sahadei (it is so certain that we can testify) that they became partners on condition that one cannot forbid his friend so that he is forbidden after division;

If so (he could forbid), he forbids to him his (the Mudar's) property, and this is improper.

Mishnah: If one is Mudar Hana'ah from his friend, and he has a bathhouse or olive press rented out in the city.

Explanation: The Madir has a bathhouse or olive press, but he rented them to someone else.

Mishnah: If he has Tefisas Yad in them.

Explanation: If the Madir [has Tefisas Yad], the Mudar may not benefit from them. Since the Madir has Tefisas Yad, they are like his. The Gemara explains what is Tefisas Yad.

Explanation: He does not benefit from him (the Madir), rather, from the renter.

Assertion: The Rashba wrote that when we say that when he has no Tefisas Yad it is permitted, this is only when they were already rented, but not if he rented them afterwards.

Implied question: The next Mishnah says "[Konam is] your house that I will not enter it", if he died or sold it to someone else, it is permitted!

Answer: It is permitted only through a sale, but not through rental.

Proof: If it were permitted even through rental, it should have taught when he rented them, and [we would know] all the more so if he sold them!

Conclusion: Surely, if he vowed before the rental, the Isur does not leave through the rental.

However, our Mishnah discusses when they were already rented. Therefore, whenever he has no Tefisas Yad in them, the Isur does not take effect on them.

Gemara: How much is Tefisas Yad? Rav Nachman said, he gets a half, a third, or a quarter.

Explanation: Since the owner of the bathhouse profits according to what the bathhouse profits, it is like his.

Gemara: However, [if he has only rights] in eggs, it is permitted.

Explanation: Their custom was that the bathhouse owner profits via eggs. People who come to bathe buy eggs from him;

Therefore, it says that if the bathhouse owner does not profit from the bathhouse profits, only he left for himself that profit from eggs, it is permitted, for this is not from the bathhouse itself.

Gemara: Abaye said, even [rights] in eggs, it is forbidden.

Explanation: Even such a case is called Tefisas Yad.

Explanation: He does not take a known portion of the profits of the bathhouse. Rather, he gives to him a fixed amount per year. In every such case, the owner of the bathhouse is totally removed from his bathhouse.

Question: Even in such a case, why is it permitted? In any case, the bathhouse itself [permanent ownership] belongs to the landlord. He can forbid it to the renter himself!

Source: We say in Erchin (21a), that if one rented a house to his friend, and he was Makdish it, one who lives in it pays rent to Hekdesh;

We establish this to be when the landlord was Makdish it. The tenant pays rent to Hekdesh.

Citation (21a) Question: We said that one who lives in it pays rent to Hekdesh. How may he live there? He transgresses Me'ilah!

Inference: He can forbid it to the renter, since he owns the land itself. All the more so he can forbid it to others!

Summation of Question (b): When he (the owner) has no Tefisas Yad, why is it permitted?

Answer #1 (Tosfos): Indeed, if he explicitly forbade the bathhouse, the Isur takes effect, since he owns the Guf, like the case in Erchin, in which he was Makdish the house itself;

Here, we discuss one who was Stam Mudar Hana'ah from [Ploni's] property. He does not intend for what he rented out.

Question: Above (43b), we thought that one does not intend for what he was Mafkir, and this was rejected!

Answer: We can say that there is different. Surely, when one forbids his property Stam, he intends for everything in his Reshus. Therefore, since his Hefker is still not Hefker, and his gift is not yet a gift, they are included in the Isur;

However, what left his Reshus at the time through rental, since now it is not in his Reshus, he does not intend to forbid it.

Answer #2 (R. Tam): The case in Erchin applies only to one who was Makdish, because Hekdesh uproots a lien;

Here, regarding Konamos even though they uproot liens, like it says in Kesuvos (59b) and below (86b), this is only regarding Konam Kelali, [which is] like Hekdesh;

Konam Perati, since it is unlike Hekdesh, Rabanan strengthened the other's lien, so [Konam] does not uproot it.

Source: This is like it says there, that Rabanan strengthened a husband's lien (if a woman made her earnings Konam to the husband, this does not forbid them to him). R. Tam ruled like this.

Answer #3: Others answered that the case in Erchin is when [the tenant] did not yet pay the rent to the landlord;

Since the tenant cannot avoid being obligated to pay rent to Hekdesh, it turns out that Hekdesh has a Yad (power of acquisition) and rights in the entire house, like the owner had [before he was Makdish it];

Therefore, Hekdesh takes effect on the house, and when he lives there, he transgresses Me'ilah. However, in our Mishnah the tenant already paid the rent to the landlord. Since the landlord is totally removed, he cannot forbid.

Support: Also the Yerushalmi distinguishes like this, between when he already paid the rent and when he did not pay it in advance.

Observation: Surely, the Gemara in Erchin is not difficult. It discusses one who rented a house Stam (he did not specify which).

Proof: It taught there that if it fell, he must provide another house for him. If he rented "this house", and it fell, [his rental] went away;

Rather, surely it discusses [one who rented] a house Stam. Therefore, we ask "how may he live there? He transgresses Me'ilah!"

Since he did not rent to him a known house, rather, a house, the landlord can be Makdish it, and give another house to the renter;

However, if he rented to him this house, the landlord cannot be Makdish it;

Implied question: [Making] Hekdesh uproots a lien!

Answer: That refers only to Hekdesh Mizbe'ach. However, Hekdesh Bedek ha'Bayis does not, like Rashi says;

This is unlike R. Tam, who says that even Hekdesh Bedek ha'Bayis uproots a lien.

Proof: It says in Kesuvos (59b) and below (86a) that this resembles one who said to his friend "this field that I mortgaged to you for 10 years, when I will redeem it, will be Kadosh." It becomes Kadosh;

Inference: It becomes Kadosh only when he redeems it, but it is not Kadosh before this. Therefore, the Gemara in Erchin is not difficult at all from our Mishnah

Question: However, still our Mishnah is difficult, for Konamos are like Kedushas ha'Guf, like it says in Kesuvos (59b) and below (86a). Why don't they uproot the lien?

Therefore, our Mishnah is resolved only through one of the [three] answers that I wrote.

I already wrote above in our Mishnah that even Konam Perati, and even if he already paid the rent, the landlord can forbid to them. The latter two answers (#2 and #3) are rejected.

Answer #4: Others answered that here, "rented" does not mean like a regular rental.