Nedarim 44

Legal gymnastics.

Today’s daf continues the Talmud’s discussion of how declaring things ownerless works. We learned yesterday that the rabbis thought one could declare something ownerless and have it legally become ownerless, while Rabbi Yosei insisted that something cannot actually be ownerless. In his view, objects remain legally in the possession of their original owner until claimed by someone else. We ended yesterday’s daf with a beraita, an earlier tradition, which taught: 

One who declares his field ownerless, for three entire days he is able to retract. From then forward, he is unable to retract. 

If one said: This field will be ownerless for one day, for one week, for one month, for one year, or for one seven-year Sabbatical cycle, as long as no one took possession of it, neither him nor another, he is able to retract. Once one took possession, whether he or whether another, he is unable to retract.

The Gemara then tries to figure out who originally taught this beraita. This question is particularly important because it seems as in the first clause, ownerlessness is real (at least after three days). Regardless of whether the new object is claimed, after three days the original owner cannot retract their claim. But the second clause seems to suggest the property remains in the possession of the original owner until someone else takes ownership of it (or until he takes formal ownership again). So did the rabbis teach the first part and Rabbi Yosei teach the second? Or is something else going on? 

The Gemara first suggests that yes, the first part of the beraita is taught by the rabbis and the second part was taught by Rabbi Yosei. Easy enough. 

But then Ulla insists that both teachings follow the opinion of the rabbis. Ulla resolves the problem of the second clause by explaining that, for the rabbis, ownerlessness is usually real, but in this case, because the owner set a time limit on the ownerless status of the field, it in fact always remains in his possession, at least a little. 

Finally, Reish Lakish insists that both teachings actually follow Rabbi Yosei. But then how can we explain the fact that after three days, whether or not someone else claims the property, the original owner can’t retract his statement? Reish Lakish explains that Rabbi Yosei prohibited retraction in this case not because it doesn’t work, but as a continued reminder of the laws of ownerlessness. Rabbi Yosei wants the original owner to take declaring something ownerless seriously — so in this case, if you say something doesn’t belong to you, Rabbi Yosei says, it actually doesn’t. 

The Gemara is going to continue to analyze the beraita in intricate detail for the next few pages. But before you fall down the rabbit hole of their legal argumentation, it’s worth stepping back and asking: Why do Ulla and Reish Lakish assume that this beraita is taught by a single individual? Why couldn’t the first clause be taught by the rabbis and the second clause taught by Rabbi Yosei? After all, that is certainly the explanation that requires the fewest legal gymnastics. 

The Talmud doesn’t actually tell us what Ulla and Reish Lakish were thinking. But perhaps without an explicit change in speaker, they assume consistency. The Talmud famously offers multiple rabbinic opinions on almost every topic — and usually signals somehow when a new speaker is speaking. But we get no such signal here. So why assume two anonymous voices when one will do? Sometimes legal gymnastics make more sense — at least to the rabbis.

Read all of Nedarim 44 on Sefaria.

This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 8th, 2022. If you are interested in receiving the newsletter, sign up here.

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