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Nedarim 048: Whether or not people of a community own a Shul
Yossie Levitin asked:
This morning I was learning the mishnah on daf 47b and 48a which says that if
two people forbid each other to derive benefit one from the other, neither of
them can have benefit from items that are specific to their town, such as the
town shul. The Mefaresh explains that since both of them have a chelek in the
shul, therefore, if one of them uses it, it is as if he benefited from the
other's property. The Ran adds that it belongs to them since members of
another city do not own a portion of the shul in the city in which these two
people live.
However, this evening I was learning Chulin with my chavrusa, and the gemorah
on daf 136a says that we learn from the pasuk "V'Asisa Maakeh L'gagecha (and
you should make a fence for yourself)" that one is not obligated to build a
maakeh for a shul. Rashi explains that since no one has a chelek in a shul and
it even belongs to people from overseas, therefore, there is no obligation upon
anyone to build a fence for a shul.
This Rashi seems to contradict both the mefaresh in Nedarim who holds that the
members of a community have a chelek in the shul and the Ran in Nedarim who
holds that people of another city do not have a chelek in the shul?!
Yossie Levitin, Monsey, New York
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The Kollel replies:
(1) The key lies in the Gemara Megilah 26a. The Mishnah there 25b states that
if one sells a Shul one may buy an Aron ha'Kodesh with the proceeds. The Gemara
26a says that it is only in villages that one may sell a Shul, while a Shul in
"Krachin" - large cities - cannot be sold because since people come there from
outside and use them, they are considered Shuls that belong to the public.
Rashi DH Aval writes that the Shuls in the Krachin belong to everyone and the
inhabitants of the city are not the sole owners.
(2) So Rashi in Chulin 136a DH Batei - who writes that the Shuls do not belong
to anyone because people who come from overseas also have a Chelek in them and
therefore are exempt from Ma'akeh - must be referring to the Shuls of the
Krachin. In contrast the Ran in Nedarim 48a DH v'Asurin must be talking about a
village Shul because since no one else has a Chelek in the Shul the 7 leading
officers can sell the Shul in the presence of the people in town. The idea of
the "7 best people in town" is mentioned in Megilah end 26a. However this sale
only works for the Shuls in the villages (see Shulchan Arukh OC 153:7).
(3) Similarly the Mefaresh Nedarim 48a DH b'Davar, who writes that the Shul
belongs to both of them, must also be referring to a Shul in a village.
(4) The Nafka Mina from the above is that if the 2 people took a Neder not to
have benefit from each other and they happen to live in a big city, then they
would be allowed to use the Shul because since such a Shul belongs to the whole
world this also means it does not belong to anyone in particular - even in
partnership - so the 2 people would not be considered as having Hana'ah from
each other when they use the Shul.
(5) You might ask on me that our Mishnah does not say it is discussing the Shul
of a village, but rather of an "Ir" - a town? However I can answer with the
Mishneh Berurah 153:25 that any place where there are not a lot of people
coming from outside, is called a village. Even though there are a lot of people
passing through periodically, nevertheless since these people are not fixed in
the city, but just pass through temporarily, this is still considered a
village. So therefore even though our Mishnah does not say "Kfar", but it does
not say "Krach" either, so we can say that our Mishnah refers to a town where
there are not many visitors who come for a fixed period of time and use the
local Shul.
[See also Rashi Yoma 12a DH Krachim who writes that a Shul in a large city does
not become Tamei if it receives Nega'im, because it does not belong to anyone
specific. Rashi there is discussing a similar scenario as Rashi in Chulin).
Behatzlocho Rabah (wonderful to hear from you, Yossi!)
Dovid Bloom
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