Shabbat Parashat Metzora | 5768

Ownership on Foods That Are Assur B’hana’ah – part I (from Sha’arei Shaul, Pesachim 13)

Moreshet Shaul

The gemara (Pesachim 6b) cites R. Elazar’s statement that two things are not in a person’s reshut (possession), yet the Torah considered them as if they were: a pit [that he dug] in reshut harabbim and chametz on Pesach. Rashi says that when it says it is not in his possession, it actually means that it is not his (regarding ownership). The gemara later states that one who tries to marry a woman with chitei kord’naita is not married to her. Rashi explains that even though chitei kord’naita is only chametz on a rabbinic level, “whoever marries does so based on the intention of the Rabbis, and the hefker of beit din is hefker, and they were mafkir his money.” The Rashash explains that this works by the Rabbis creating an issur, as a result of which, the object is not worth a peruta, which is required for kiddushin.

Rashi says that the gemara refers to a time on Erev Pesach when chametz is assur only mid’rabbanan and that even though there are two reasons why the food is not assur b’hana’ah mid’orayta, the kiddushin is still invalid. The Rosh (Kiddushin 2:31) says it is talking about a time when chametz is assur mid’orayta, for if there were two reasons for being mid’rabbanan, the kiddushin would take effect. The Shulchan Aruch (Even Ha’ezer 28) accepts this distinction. The Beit Shmuel (28:52) asks: what difference does the level of the issur d’rabbanan make? Once it is assur, the chametz is not worth anything, so kiddushin cannot occur with it.

The Avnei Milu’im (28:54) answers the Beit Shmuel’s question by comparing this case to that of one who gives something for kiddushin on condition that it will return to him (matana al m’nat l’hachzir). Tosafot (Kiddushin 6b) says that the kiddushin should have worked from the Torah and was uprooted rabbinically. Fundamentally, it is considered that he gave her something, even though practically she is unable to use it. The important thing is to give something of intrinsic value when excluding technical, even religious considerations.

This comparison is apt only according to the Avnei Milu’im’s author (in K’tzot Hachoshen 241:4) that when returning a matana al m’nat l’hachzir, the original giver does not need a kinyan because the kinyan was temporary. Only in that way was the giving not of value, and one could learn the rule that when one gives something that the recipient is prevented from enjoying, it is still kiddushin. However, the Rosh holds that that there must be a kinyan back to the original giver, as there was a full kinyan that has to be reversed. Thus, it is different from the case of chametz that is practically assur b’hana’ah, and the reason for the lack of value becomes unimportant.

Tosafot (Pesachim 29b) deals with the gemara’s contention that one who eats chametz of hekdesh is not mo’el (misappropriate from hekdesh) because it is not worth anything. Tosafot asks that since it is permitted to benefit after burning from issurim that require burning, chametz should have value due to that prospect. They answer that there is no me’ila because at the critical moment, it is valueless. Tosafot says that such an object cannot effectuate kiddushin either due to this idea or that it may be referring to a case where the chametz is not worth a peruta after burning.

Tosafot’s first answer seems to assume that there are no acquisitions of issurei hana’ah, and it is thus irrelevant if the object has practical value. Otherwise, why does it matter that an action is needed before it becomes usable? Would we say that the raw meat is considered valueless because it first needs to be cooked? The second answer posits that there is ownership over issurei hana’ah and that the problem is technical: it is not worth enough. Tosafot in Kiddushin has another answer: if a bride receives something that is assur b’hana’ah, there is a mekach ta’ut.

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