Responsa for Nedarim 88:5
אמר לך כי אמרי אנא לר' יוסי הא רבנן היא
But on the view of Resh Lakish, why is he free from tithe?<span class="x" onmousemove="('comment',' Since he maintains that within the first three days it is not hefker even by Biblical law, and hence subject to tithes, and even after that it is hefker only by Rabbinical law, why is it taught here that on the very next day it is free from tithe? ');"><sup>9</sup></span> — He answers you thus: My statement is based on R. Jose; whilst this accords with the Rabbis.<span class="x" onmousemove="('comment',' Who maintain in the Mishnah that it is hefker immediately, hence free from tithe. ');"><sup>10</sup></span>
Teshuvot Maharam
Q. A sold his house to B and undertook to settle with the abutter so that the latter would not take the house away from B. The abutter, also, told B that having no money he did not want to buy the house. B, however, failed to bind the abutter by a kinyan. A borrowed jewelry from his wife and deposited it with C stating: take formal possession of this jewelry on condition that if I fail to settle with the abutter it will belong to B from now on. B, on the other hand, deposited twenty*Cr. reads: “two;” Mord. reads: “four;” L. and Tesh. Maim. read: “twenty.” marks with C as a guaranty that he would pay the price of the house and that he would not change his mind. After the transaction was concluded, however, the abutter obtained money, paid off B, and took away the house; B, therefore, demanded of C that he turn over to him the valuables A had deposited with him. C told A in the presence of witnesses of B's demand and A replied that he should give the valuables to B "since it is legally coming to him". Is B entitled to the valuables?
A. A gave the valuables to C in order that he deliver them to B should a certain condition not be fulfilled. Such a transaction is called asmakhta and is not binding since it was not made before an authoritative court. When A finally told C to deliver the valuables to B, he was acting under misapprehension that they were due him legally, as his statement indicates. His order, therefore, was not binding and B should return the valuables to A.
SOURCES: Cr. 290; L. 309; Mord. B. B. 324; Tesh. Maim to Kinyan, 3.
A. A gave the valuables to C in order that he deliver them to B should a certain condition not be fulfilled. Such a transaction is called asmakhta and is not binding since it was not made before an authoritative court. When A finally told C to deliver the valuables to B, he was acting under misapprehension that they were due him legally, as his statement indicates. His order, therefore, was not binding and B should return the valuables to A.
SOURCES: Cr. 290; L. 309; Mord. B. B. 324; Tesh. Maim to Kinyan, 3.
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