1)

DAVAR SHE'LO BA L'OLAM [Davar she'Lo Ba l'Olam]

(a)

Gemara

1.

42b - Question: If one sold his slave only regarding the right to collect the fine if the slave will be gored, is this a valid sale? We ask according to R. Meir, and according to Chachamim.

i.

R. Meir said that one can be Makneh (transfer ownership of) Davar she'Lo Ba l'Olam (something not yet in the world) in a cases like fruits of a date tree, which normally come. Here, perhaps the slave will not be gored, and even if he is gored, the owner can admit to the fine and be exempt from paying!

ii.

Chachamim said one cannot be Makneh Davar she'Lo Ba l'Olam acquire something not yet in the world regarding Peros of a date tree, for they are not here yet. Here, the slave and oxen are already in the world.

2.

Nedarim 85a (Shmuel): The Halachah follows R. Yochanan ben Nuri, who says that if a woman forbade her earnings to her husband, he should annul it, lest he divorce her, and the vow would prevent him from remarrying her.

3.

Contradiction: Shmuel ruled that if one was Makdish his wife's earnings, he cannot be Makdish Davar she'Lo Ba l'Olam!

4.

Answer (Rav Huna brei d'Rav Yehoshua): Here, she said 'my hands are Hekdesh to their Maker.' Her hands are in the world.

5.

Question: Her hands do not become Hekdesh. They are Meshubad to (obligated to work for) her husband!

6.

Answer (Rav Ashi): Konamos are like Kedushas ha'Guf (something used for Avodas ha'Mikdash), like Rava taught:

i.

(Rava): Hekdesh, the Isur of Chametz, and freeing a slave uproot liens.

7.

90b (Mishnah): At first, if a woman forbade Bi'ah 'with any Yisrael', we would force her husband to give her a Get and a Kesuvah (surely, Bi'ah is painful for her). This was revised, lest she do so in order to marry someone else. Rather, he annuls the part relevant to himself, and she is forbidden to all other men.

8.

81b: If a woman forbade to her husband Hana'ah of Bi'ah with her, why must he annul it? She is Meshubad to have Bi'ah with him!

(b)

Rishonim

1.

Rif and Rosh (11:1): One cannot be Makdish Davar she'Lo Ba l'Olam. She was Makdish her hands. Even though her hands are Meshubad to her husband, Konamos are like Kedushas ha'Guf, which uproots liens.

2.

The Rif and Rosh (11:7) bring the Mishnah (90b) verbatim.

3.

Rambam (Hilchos Nedarim 12:3): If a woman forbade Bi'ah with any Yisrael, her husband annuls the part of the vow relevant to himself, and she has Bi'ah with him. When he dies or divorces he, she is forbidden to all men.

4.

Rambam (10): If a woman was Makdish her hands, or forbade her husband to benefit from her earnings, he is permitted, because her hands are Meshubad to him. He should annul her vow, lest he divorce her and be unable to remarry her.

i.

Rebuttal (Ran Kesuvos 24a DH u'Parchinan): Why does the Rambam say that a vow that her husband not benefit from her earnings takes effect after divorce? It is Davar she'Lo Ba l'Olam, unless she is Makdish her hands!

ii.

Defense (Kesef Mishneh): Perhaps the Rambam's last words (he should annul, lest he divorce her...) apply only to when she was Makdish her hands. It is better to say that these words apply in both cases. We conclude that Konamos uproot liens, because they are Kedushas ha'Guf, i.e. one cannot redeem the Isur. Therefore, even when she forbids earnings, it takes effect for after divorce. We say that one cannot be Makdish Davar she'Lo Ba l'Olam only regarding Kedushas Damim.

iii.

Rebuttal (Nekudas ha'Kesef YD 234:4): The Gemara said only that Konamos are different like Rava taught, because they uproot Shibud. Rava himself (47a) agreed that one cannot forbid Davar she'Lo Ba l'Olam to someone else.

iv.

Ran (ibid.): Rashi says that Konamos, which forbid just to one person, are not like true Hekdesh, which has Pidyon (redemption). There is no Pidyon for Konamos; they are like Kedushas ha'Guf.

v.

Chelkas Mechokek (EH 81:5): The Ran holds that she was not Makdish her hands to Shamayim. That is like Hekdesh Damim, which has Pidyon and does not uproot liens. Since it does not take effect now, it would not take effect after divorce. Saying 'this field is Hekdesh when I will buy it' does not work, for it is not is his control. Similarly, she cannot force him to divorce her! Rather, she forbade only to her husband. It is like Kedushas ha'Guf, for there is no redemption. The Rambam holds that even Hekdesh to Shamayim takes effect.

vi.

Hagahos Ashri (Kesuvos 5:16): If she was Makdish what she will produce, this is Davar she'Lo Ba l'Olam. One can forbid Davar she'Lo Ba l'Olam to himself through Konam, but not to another

(c)

Poskim

1.

Shulchan Aruch (YD 234:67): If a woman forbade Hana'ah of her Bi'ah to her husband, he need not annul it, for she is Meshubad to him.

i.

Prishah (110) and Shach (82): He should annul lest he divorce her, and she would be forbidden to return to him, like in Sa'if 71.

ii.

Rebuttal (Taz 63): If she forbade her Bi'ah to her husband, there is no need to annul it (Nedarim 81b). Rather, a Konam takes effect after divorce only regarding earnings, since he does not own them. He has only rights of collection. She need not work for him if she pays him instead or exempts him from feeding her. Konam does not uproot Shibud for Bi'ah, which she cannot evade. Tosfos (Gitin 40b DH Hekdesh) says that since a Nizak need not accept money (he can demand the ox that gored), Hekdesh does not uproot the lien. Here, the Gemara did not mention Hafarah for after divorce. Since it does not forbid Bi'ah now, it never forbids.

iii.

Defense (Nekudas ha'Kesef): No Posek distinguishes earnings from washing (his hands, feet and face, even though she cannot evade the latter Shibud). The Gemara meant that there is no need to annul for during the marriage.

2.

Shulchan Aruch (YD 234:68): If a woman forbade Bi'ah with any Yisrael, her husband annuls the part relevant to himself, and she has Bi'ah with him. When he dies or divorces he, she is forbidden to all men.

i.

Question #1 (Beis Yosef DH umi'Kol): The Mishnah connotes that he must annul only because she forbade men to her, but not if she forbade herself to men, since she is Meshubad to him. Why does the Tur discuss one who forbade herself to men?

ii.

Question #2 (Beis Yosef, ibid.): Why does the Tur say that if he divorces her, she is forbidden to him? Even if the vow is Beino l'Veinah, Hafarah helps for after divorce, as long as she did not remarry!

iii.

Answer #1 to Question #2 (Maharshal): Since she forbade herself to all men, his Hafarah helps only for their marriage. Afterwards, he is like other men.

iv.

Answer #1 to Question #1 (Prishah 104): Since her vow is Kolel (includes) other men, it forbids him also, even though she is Meshubad to him.

v.

Rebuttal (Taz 59): Rav Huna brei d'Rav Yehoshua established the Mishnah (85a) to be when she made her hands Hekdesh. The Gemara asked that she is Meshubad to her husband, even though she forbade everyone! The Beis Yosef says that she forbade only him, but the Rambam holds that she forbade everyone. This is why the Maharshal answered only Question #2.

vi.

Defense (Nekudas ha'Kesef): The Rambam agrees that she forbade only him. He merely teaches that this is whether or not she said 'Hekdesh'.

vii.

Answer #2 (to Question #2 - Taz 59): The Tur merely teaches that she forbade Bi'ah with all men. He did not give the precise text she said.

viii.

Answer #2 (to Question #1 - Taz 61): The Mishnah could have said only 'he annuls his part.' It adds 'she has Bi'ah with him', i.e. while married to him, and 'she is forbidden to other men', i.e. after divorce he is like other men.

3.

Shulchan Aruch (71): If a woman told her husband 'what I produce is forbidden to your mouth', he should annul this. Even though she is obligated to work for him, perhaps he will divorce her and be unable to remarry her.

i.

Gra (129): Temurah 24b proves that Hekdesh ha'Guf takes effect on Davar she'Lo Ba l'Olam. A fetus is considered Lo Ba l'Olam, and R. Shimon ben Gamliel agrees that one can be Makdish a fetus in a Chatas, even though he holds that Vlados Kodshim are not Kodesh until they are born.

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