OPINIONS: The Gemara cites a Machlokes Tana'im with regard to whether a Neder made in public ("Neder she'Hudar b'Rabim") may be repealed. The Gemara says that according to all opinions, a Neder made "Al Da'as Rabim" may not be repealed.

Why may a Neder made "Al Da'as Rabim" not be repealed?

(a) The RAN and RABEINU KRESKAS explain that the opinion that does not allow annulment for a Neder made in public maintains that when a Neder is made in the presence of a number of people, it carries more strength (see earlier, 33b, and RAN, beginning of Nedarim 7b). The other opinion maintains that a Neder does not become more severe when made in public because the people who were present had nothing to do with the actual Neder itself, and therefore they cannot serve to strengthen the Neder. However, when a Neder was made with the consent of the public ("Al Da'as Rabim"), the fact that a number of people were involved in the Neder makes the Neder stronger.

The Gemara later (46a) explains that a Neder is called "Hudar b'Rabim," made in public, only when made in front of at least three people. The Ran and Rabeinu Kreskas maintain, therefore, that a Neder made "Al Da'as Rabim" is more severe only when it was made with the consent ("Al Da'as") of at least three people. Since these people were involved in the Neder, the Neder is more severe.

The Gemara here continues and says that Beis Din may repeal a Neder made "Al Da'as Rabim" when it is necessary to do so in order to fulfill a Mitzvah. According to the Ran, the reason is that the importance of the Mitzvah overrides the severity of repealing the Neder. Although the Gemara's example is the Mitzvah of teaching children, the same applies to any Mitzvah.

(b) The RITVA (Kesav Yad) explains that when a Neder is made "Al Da'as Rabim," it may be repealed only with the consent of every person who was involved. Since Beis Din cannot determine that all of the people involved want to annul the Neder, it cannot be annulled. This also seems to be the opinion of TOSFOS (35b, DH Aval), who writes that if all of the people agree to annul the Neder, it may be annulled.

TOSFOS (beginning of 46b) asks that according to this reasoning, even a Neder made with the consent ("Al Da'as") of a single person should not be annullable until that person consents. Why, then, does the Gemara emphasize that a Neder is severe only when made "Al Da'as Rabim"? Tosfos answers that when a person makes a Neder "Al Da'as" a single person, he does not really mean to leave it in the hands of that person to decide whether he may repeal the Neder or not. However, when he makes it dependent upon the public, he submits himself to the decision of the public and he truly intends for the Neder to depend upon their will.

According to this reasoning, it seems that even if the Neder was made "Al Da'as" two people, it could be called "Al Da'as Rabim" and it cannot be repealed.

The Ritva adds that the Neder is irrevocable only when it is made in the presence of those people on whose will he made the Neder dependent. His reasoning seems to be that if the other people never knew that the Neder was made, there is no doubt that they certainly do not want to deny the person who made the Neder the right to repeal it. This seems to be the opinion of RASHI (DH Al Da'as Rabim) here, for he implies that the public (Rabim) must be present, and in Shevuos (39a, according to the text of Rashi cited by the Rashba here), where he implies that even two people are considered "Rabim."

When the annulment of the Neder is necessary for the sake of the fulfillment of a Mitzvah, there is no doubt that the other people do not want to deny the one who made the Neder the right to repeal the Neder, since they want him to be able to fulfill the Mitzvah. Therefore, in such a case even a Neder made "Al Da'as Rabim" may be repealed.

(c) The RASHBA writes that in order to repeal a Neder made "Al Da'as Rabim," it is not only necessary that every one of the members of the public agree to allow the one who made the Neder to repeal it, but each one must also have Charatah, regret, that the Neder was ever made in the first place. Since it is impossible for every member of the Rabim to have the same Charatah and to regret having agreed to the Neder for the same reason, the Chacham may not annul the Neder since he may annul a Neder only based on a single Charatah.

For this reason, the Rashba agrees with Tosfos that even if a Neder is made "Al Da'as" two people, it is considered a "Neder Al Da'as Rabim."

The Rashba writes that the only time the annulment of such a Neder is permitted is for a Mitzvah similar to the Mitzvah of teaching children, which the Gemara mentions. In the case of the Gemara, the Neder not to hire a certain teacher was made "Al Da'as" all of the parents of the children in the class. Since all of the parents had a personal involvement in that Neder, it is possible for all of them to regret having made the Neder for the same reason (i.e. so that their children will have a teacher who is very precise). Only for such a Mitzvah may a Neder made "Al Da'as Rabim" be repealed.

QUESTION; The Gemara cites two verses to prove that "Hefker Beis Din" is Hefker. Rebbi Yitzchak cites the verse (Ezra 10:8) which relates that the Beis Din decreed that if the people do not fulfill the Beis Din's enactment, the Beis Din they will confiscate all of their property. Rebbi Elazar cites a verse (Yehoshua 19:51) which discusses the allocation of the land in Eretz Yisrael. The verse compares the community leaders to fathers, teaching that just as fathers may give their property to whichever children they want, so, too, Beis Din may give the property of one person to another person.

The RASHBA points out that the second verse implies that not only may Beis Din take away property from a person, but they may also give it to another person. It becomes the other person's property because of Beis Din's decree, even with no formal act of Kinyan. (See also YAM SHEL SHLOMO, Yevamos ch. 10; MAHARIT 1:7.)

This seems evident from many places in the Gemara, where the Gemara discusses the concept of making a Kinyan based on rabbinical decree. (See, for example, the Gemara earlier on 14a with regard to Ma'amad Sheloshtan, and on 20a, with regard to the Zuz which a woman pays to the scribe in order to write a Get, which the Rabanan gave to the husband.)

The ALIYOS D'RABEINU YONAH (cited by the Shitah Mekubetzes in Bava Basra 100a) seems to reject this basic premise. Rabeinu Yonah discusses a field through which the public became accustomed to walking. The Rabanan enacted that the owner of the field may not take away from the public the right to walk through his field. The Gemara asks in what way did the public make a Kinyan on that property.

Rabeinu Yonah is perplexed by the Gemara's question. If the Rabanan instituted that the public has the right to the property through which they became accustomed to walking, then the rule of "Hefker Beis Din Hefker" should make it theirs and they should need no Kinyan! Rabeinu Yonah answers that "Hefker Beis Din Hefker" does not empower the Beis Din with the authority to give the property to a recipient; it only empowers Beis Din to remove the property from the possession of the original owner. Therefore, until the people make a Kinyan on the property, it is not theirs. (Rabeinu Yonah makes a similar point earlier in Bava Basra, 54b-55a. See also NESIVOS HA'MISHPAT 235:13.)

Why does Rabeinu Yonah write that "Hefker Beis Din Hefker" does not make a Kinyan? The Gemaras cited above clearly show that a Kinyan d'Rabanan made through their power of "Hefker Beis Din" does grant ownership!

(a) The DEVAR AVRAHAM (1:1:15-16) explains that when the Rabanan institute that a certain act should accomplish a Kinyan, that act certainly is on par with any Kinyan d'Oraisa and is Makneh the object to the recipient. The only time that "Hefker Beis Din" cannot give an object to a recipient is when the "Hefker Beis Din" does not involve any act of Kinyan (for example, no act at all is involved, or one of the parties involved is a minor).

His reasoning is as follows. The Gemara in Bava Metzia (74a) teaches that any act which becomes generally accepted as an act that finalizes a sale ("Situmta") accomplishes a Kinyan d'Oraisa. A Kinyan that the Rabanan instituted is no less than the Kinyan of "Situmta." (This approach, however, does not seem to answer the question from the Gemara on 20a.)

(b) The Rashba may be referring only to the power of "Hefker Beis Din" which is used to penalize someone, or to cause someone a monetary loss, to which the person would not willingly agree on his own accord. When "Hefker Beis Din" is applied to take away money which the person would not be willing to give on his own, the Rabanan instituted only that the person loses the money, but not that it goes into the recipient's possession. However, when the person who is losing the money consents to having the money transferred, "Hefker Beis Din" enables the recipient to receive the money. (The Rabanan effected only a single change: either they took the money away from a person against his will, or they gave it to another person despite the lack of a formal Kinyan, but they did not do both.)

Therefore, Rabeinu Yonah, who is discussing the way the Rabanan confiscated a person's property and gave it to the public, says that the Rabanan did not effect a Kinyan for the public and place the property into their possession. In contrast, in the case of Ma'amad Sheloshtan or the Zuz that a woman pays to a scribe to write a Get, the person who makes the Kinyan certainly wants to part with his or her money (in the case of the Get, the woman certainly wants the Get to be a valid Get). Therefore, the Rabanan have the power to place the money into the other person's possession without a formal act of Kinyan.

This explains why the Gemara here cites two separate verses. The first verse teaches that the Rabanan have the right to confiscate property through "Hefker Beis Din," but that property remains Hefker. The second verse teaches that when a person wants the Rabanan to transfer his property (such as when Eretz Yisrael was divided up, and each person wanted himself and others to receive a proper portion), "Hefker Beis Din" may be used to make the second person acquire the object even without a formal act of Kinyan.

QUESTION: The Gemara discusses whether Hillel's enactment of Pruzbul was only for his generation, or whether it was an everlasting enactment that applies even to subsequent generations. The Gemara says that the practical difference between these two possibilities is whether a later generation may annul the enactment (in a generation in which people are willing to lend money despite the fact that Shemitah will cancel their loans).

The Gemara cites proof from Shmuel that Pruzbul was instituted only for Hillel's generation. Shmuel said, "If I would have the power, I would annul the Takanah of Pruzbul!" If Hillel had instituted Pruzbul even for future generations, Shmuel would not be able to annul the enactment because of the rule that one Beis Din may annul a decree which another Beis Din instituted only when it is greater in Chochmah and Minyan (wisdom and numbers) than the original Beis Din.

If Hillel instituted Pruzbul only for his generation, why should it be necessary to annul the enactment of Pruzbul after his generation has passed? It should automatically become annulled since it was made only to take effect during Hillel's lifetime. (RAMBAN)

(a) The RAMBAN explains that once Hillel enacted Pruzbul for his generation, he set a precedent for any powerful Beis Din to institute Pruzbul for its generation where deemed necessary. When the Gemara says that Shmuel wanted to annul the enactment of Pruzbul, it means that he wanted to prevent Pruzbul from being re-enacted at any time, even by a future Beis Din.

(b) The RAN explains that Hillel's enactment of Pruzbul was not limited to his generation. Rather, he enacted it for any generation which is similar to his generation insofar that people are unwilling to lend money because Shemitah will cancel their loans. Although Hillel's enactment did not apply to generations in which people are willing to lend money, the enactment remains in force until Beis Din determines the prevailing societal attitude towards lending, since we are unable to determine whether the generation has improved and that people are willing to lend money.

This is what Shmuel means when he says that he would annul the decree of Hillel: he would not literally annul it; rather, he would reveal that the decree does not apply to his generation.

(c) The CHASAM SOFER points out that according to TOSFOS (36a, DH Mi Ika), Hillel did not actually institute a new way to prevent Shemitah from canceling a debt. Rather, when a person makes a Pruzbul, mid'Oraisa his debt will not be canceled by Shemitah since he has given his loans to Beis Din. Hillel's enactment was simply to encourage people to write a Pruzbul and thereby prevent Shemitah from canceling their loans.

According to this explanation, Shmuel does not mean that it is necessary to annul Hillel's enactment, but that he wants to prevent people from continuing the practice of giving their loans to Beis Din so that Shemitah will be able to cancel their loans.

(d) The MOSHAV ZEKENIM (Parshas Vayigash) and SHIBOLEI HA'LEKET (2:49) cite the Gemara in Beitzah (5a) which says that if an enactment was made for a certain purpose, even if the purpose no longer applies the enactment remains in force until Beis Din repeals it.

They point out that when a later Beis Din repeals an enactment which no longer applies, it is not necessary for that Beis Din to be greater than the original Beis Din in Chochmah and Minyan. Hence, the later annulment of the enactment of Pruzbul -- although it was originally made only for Hillel's generation -- needs a Beis Din, but since it no longer applies it does not need a Beis Din which is greater in Chochmah and Minyan than the original Beis Din which instituted the enactment.

The Shibolei ha'Leket points out that this Gemara proves that even an enactment which was enacted originally with a specific time limit cannot be repealed unless Beis Din actually convenes and repeals it. This is in contrast to the opinion of most Rishonim (see TOSFOS to Beitzah 5a and Sanhedrin 69b, and see Insights to Beitzah 5:2).

Perhaps even according to the other Rishonim, Hillel did not specify that the enactment should be revoked when his generation passes. Rather, the Gemara means that Hillel specified that the enactment was made only because people were not lending money. Since he did not give the enactment a set amount of time, many Rishonim agree that a second Beis Din must convene and formally repeal it.