HOW TO GIVE TO A MUDAR HANA'AH [Mudar Hana'ah: Matanas Beis Choron]
(Mishnah): If Reuven was Mudar Hana'ah from Shimon, and Reuven has nothing to eat, Shimon may tell a grocer 'Reuven is Mudar Hana'ah from me. What will I do?' The grocer supplies Reuven, and Shimon pays for it.
If Reuven and Shimon were on the road, and Reuven has nothing to eat, Shimon may give a gift of food to a third party, who then gives it to Reuven.
If no one else is around, Shimon leaves the food on a rock or on the fence and declares it Hefker (ownerless). Reuven may take it;
R. Yosi forbids this.
Question: Why does R. Yosi forbid?
Answer #1 (R. Yochanan): He holds that just like one may retract from a gift until the recipient gets it, one may retract from Hefker until someone takes it.
Answer #2 (Rava): R. Yosi decrees to forbid, due to a gift like the case in Beis Choron (brought below).
48a (Mishnah): If Reuven was Mudar Hana'ah from Shimon, and Reuven has nothing to eat, Shimon may give a gift to Levi, and Reuven may eat it.
A case occurred in Beis Choron in which Yakov was Mudar Hana'ah from his son Reuven. Reuven was marrying off his son. He told a friend David 'the courtyard and the banquet are yours, only in order that my father can eat with us.'
David: If they are mine, I make them Hekdesh!
Reuven: I did not give them to you to make them Hekdesh!
David: You gave them to me in order that you and your father will eat together, and I will bear the sin!
Chachamim: If the recipient of a gift cannot make it Hekdesh, it is not a gift.
Question: The case brought does not support the law taught!
Answer: The Mishnah is abbreviated. It means, if it later becomes evident that the gift was insincere, it is forbidden. Such a case occurred in Beis Choron.
Version #1 (Rava): This is when he said 'they are yours only in order that father will come.' If he said 'they are yours, so father will come', he means 'if you want.' (This is permitted, for the gift was unconditional.)
Version #2 (Rava): Do not think that we forbid only when he said 'they are not yours (except for father to come).' Rather, even if he said 'they are yours so father will come' it is forbidden, because the banquet proves what his intention is. (It was not an unconditional gift.)
88a (Mishnah): If Shimon vowed not to benefit his son-in-law, he can give money to his daughter and say 'this is a gift, on condition that your husband has no authority over it. It is only for you to buy food with it and to eat the food.'
(Rav): This works only if he says 'it is only for you to buy food with it and to eat it.' If he says 'do like you want with it', her husband acquires the money.
The Rif and Rosh (5:4) bring Version #2 of Rava.
Rosh: The Yerushalmi asks, will we say that one cannot give a gift on condition that the recipient does not make it Hekdesh?! It answers that the Mishnah means that if a gift is like that in Beis Choron, i.e. a mere scheme in which the recipient cannot make it Hekdesh, it is not a gift.
Ran (48a DH Lishna): Normally, 'he will come (and eat)' is not a Tanai. Here is different, for we know that one does not prepare a feast for his son's wedding and give it to someone else. This shows that 'he will come' was an absolute Tanai. However, the Rashba says that this is only if he said so at the time of the gift, but not if he said so afterwards. The Rambam holds that even if he said so afterwards, it is not a gift.
Rambam (Hilchos Nedarim 7:14): If Reuven was Mudar Hana'ah from Shimon and they were on the road, and Reuven has nothing to eat, Shimon may give a gift of food to Levi, and Reuven may eat it. If no one else is around, Shimon leaves the food on a rock and declares it Hefker to all. Reuven may take it.
Rambam (15): If Shimon told Levi 'this feast is a gift to you. Ploni, who is Mudar Hana'ah from me, will come and eat with us', it is forbidden. Even if he gave Stam, and then said 'do you want Ploni to come and eat with us?', if the end reveals that from the beginning he intended only in order that Ploni eat, it is forbidden. E.g. it was a big feast, and his father or Rebbi was Mudar, and he wanted him to eat. The meal proves that he did not intend to transfer ownership. The same applies to all similar cases.
R. Yerucham (Toldos Adam v'Chavah 14:5, cited in Beis Yosef YD 221 DH v'Zeh): The Rambam holds that when it is clear that the gift was in order to permit the Mudar it is forbidden, even if the giver did not mention the Mudar.
Rosh (Nedarim 4:9): If Shimon told a grocer 'I do not know how to help Ploni' and the grocer fed Ploni, Shimon repays him if he wants. If he were obligated, the grocer was his Shali'ach, and it would be forbidden. The Mishnah said that Ploni has no food, for this is a typical case. It is permitted even if he has food.
Tosfos (Bava Kama 109a DH Ba'alei): It is permitted only when Ploni has no food.
Question (Perush ha'Rosh 88a DH u'Bilvad): Why must Shimon stipulate that his son-in-law gets no authority over the gift? Above (43a), we allow Reuven to benefit from what Shimon gave to Levi!
Answer (Rosh): Here is different, for a husband directly gets Peros of what his wife receives.
Shulchan Aruch (YD 221:9): If Reuven was Mudar Hana'ah from Shimon and they were on the road and Reuven has no food, Shimon may give a gift to Levi, and it is permitted to Reuven. If no one else is around, Shimon leaves the food on a rock and declares it Hefker to whoever wants. Reuven may take it.
Shach (52): Chachamim permit this only when Reuven has nothing to eat (Perush ha'Rosh 43a DH Nosen).
Yad Avraham: Tosfos (Kesuvos 70b DH Tfei) proves that it is permitted even if Reuven has food. It seems that the Ran (Nedarim 48a DH veha'Kosev) agrees. The Yam Shel Shlomo (Bava Kama 9:60) says that the Mishnah merely gives a typical case. Even if Reuven has food, once Shimon gives a gift it is not his, so Reuven is permitted. We do not forbid due to schemers.
Note: Tosfos says that the gift in Beis Choron would have worked had it been sincere. Perhaps the Rosh holds that after this episode, Chachamim forbade even a sincere gift, unless the Mudar has no food. Tosfos agrees that we permit through Hefker only if Reuven has no food. Yad Avraham understands (simply) that the Rosh and Shach permit, even through Levi, only when Reuven has no food. Korban Nesan'el (10) says that Perush ha'Rosh says so explicitly. However, the Yam Shel Shlomo holds like Tosfos in Kesuvos, and he learns from the Rosh! He must say that Perush ha'Rosh (that permits only when Reuven has no food) refers to 'etc.', i.e. Hefker, but not when he gives to Levi. Perush ha'Rosh (88a) supports this. He asks why Shimon must stipulate that his son-in-law gets no authority over the gift to his daughter. A Mudar Hana'ah may benefit from what was given to another (43a)! If we permit only for a Mudar with no food, this is no question! (If he asks why the Mishnah always requires stipulating, even when the son-in-law has no food, he should have specified.) If also the Shach explains like this, that in any case Reuven may benefit from what was give to Levi, there is no argument!
Yad Avraham: From here we may learn that one may sell animals to Nochrim, in order that the Nochrim will feed to them Chametz during Pesach. Mekor Chayim (448 Sof Siman 11) forbids, because he holds like the Rosh. Even the stringent opinion forbids only due to scheming (Tosfos Nedarim 43a DH Nosen). Therefore, it is forbidden only if he gave for the sake of the Mudar. Nedarim 88a and the Rosh (DH u'Bilvad) support this.
Question: Hefker must be in front of three (CM 273:7)!
Answers (Shach 53): The Bach (DH Ika) says that Chachamim left Torah law in place for one who has nothing to eat. Alternatively, even mid'Rabanan three are required only to prevent him from retracting his Hefker. Here, he wants Reuven to take it! Tosfos (45a DH Rebbi) requires three only for land, but not for Metaltelim.
Shulchan Aruch (ibid.): This is when he gave to Levi Stam. If he said 'the meal is given to you for a gift, and Reuven, who is Mudar from me, will eat the meal with you, it is forbidden. Further, even if he gave Stam, and afterwards he said 'do you want Reuven to come and eat with you', if the end reveals that from the beginning he intended only in order that Reuven eat, it is forbidden. E.g. it was a big feast, and his father or Rebbi was Mudar, and he wanted him to eat. The meal proves that he did not intend to transfer ownership. The same applies to all similar cases.