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Kidushin, 56

KIDUSHIN 56-57 - sponsored by a generous grant from an anonymous donor. Kollel Iyun Hadaf is indebted to him for his encouragement and support and prays that Hashem will repay him in kind.


QUESTION: The Mishnah states that when a man is Mekadesh a woman with a fruit of Orlah (or with other types of items which are Asur b'Hana'ah), the Kidushin is not valid.

TOSFOS (DH ha'Mekadesh) asks that although there is an Isur to derive personal benefit (Hana'ah) from an item that is Asur b'Hana'ah, we know that it is *permitted* to derive benefit in an abnormal manner ("she'Lo k'Derech Hana'aso")! Why, then, is the Kidushin not valid, since being Mekadesh a woman with a fruit is an unusual use of a fruit?


(a) TOSFOS (DH ha'Mekadesh) answers first that the fruit is only worth a Shaveh Perutah when it is used in its normal manner. When it is used in an unusual manner (such as to be Mekadesh a woman with it), its value is not worth a Shaveh Perutah. According to this answer, the reason the Kidushin does not take effect is not directly due to of the Isur Hana'ah of the item, but because the item is not worth a Shaveh Perutah when used in an unusual way, "she'Lo k'Derech Hana'aso."

(b) In his second answer, TOSFOS says that even when the fruit is worth more than a Shaveh Perutah when it is used "she'Lo k'Derech Hana'aso," nevertheless the Kidushin does not take effect, because the woman only has intention to consent to the marriage if she can use the item being given to her in its normal manner of usage. Since it turns out that she cannot use the fruit that was given to her in its normal manner, the Kidushin is a Kidushei Ta'us and she is not Mekudeshes.

(c) The RITVA and RAN offer another answer. The allowance to derive Hana'ah in a manner that is "she'Lo k'Derech Hana'aso" is mid'Oraisa. The Chachamim, though, instituted that deriving Hana'ah in *any* manner is prohibited. Consequently, the fruit of Orlah which the man uses to be Mekadesh the woman has no monetary value and is considered to be worth less than a Shaveh Perutah even mid'Oraisa. Since the Chachamim instituted that it is Asur b'Hana'ah in all forms, it effectively has no worth, and there is no longer any distinction between the item's worth mid'Oraisa and its worth mid'Rabanan. Worth is a practical matter and is judged based on what the item can be sold for in the marketplace. If, for any reason, the item of value cannot be used, then it is a worthless item, even with regard to its status mid'Oraisa.

QUESTION: The Mishnah states that when a man is Mekadesh a woman with a fruit of Orlah (or with other types of items which are Asur b'Hana'ah), the Kidushin is not valid.

The Rishonim ask that there is a rule that it is permitted to use the ashes of an item which is Asur b'Hana'ah that has been completely burned. Accordingly, we should consider the item of Orlah to have value, since the woman will be able to use the remaining ashes (assuming they a worth at least a Perutah) after she has burned the fruit! The Kidushin, therefore, should be valid!


(a) The RASHBA answers that the ashes that remain after the item is burned are considered a new entity altogether. The fruits of Orlah that the man gives the woman has no value at the moment that he gives it to her. The ashes of those fruits are like a "Davar she'Lo Ba l'Olam," an item that has not yet come into the world, and thus they cannot be viewed as an inherent part of the fruits. Rather, the ashes are a separate, new entity that come into existence only after the act of Kidushin has been performed.

(b) The RITVA answers by clarifying the nature of an item that is Asur b'Hana'ah. There is a general question regarding all types of Isur Hana'ah. Does the owner retain any degree of ownership on the item, or is the item completely removed from his ownership? Do we say that the item is still his, but that there is no way for him to use it (since it is Asur b'Hana'ah), or do we say that since the object has no more use, his ownership of the object has been nullified as well, since ownership is a concept based on monetary value, and once the object has no value, the ownership becomes nullified? (See AVNEI MILU'IM 28:26.)

The Ritva maintains that there is no ownership at all on an item that is Asur b'Hana'ah, since the item has no worth. Therefore, he explains, even though the ashes of Orlah have value, that value cannot be attributed to the owner of the Orlah. The Orlah, by virtue of its state of being Asur, is not owned by anyone. When the ashes come into existence, it continues to be owned by no one and is considered Hefker (and even though the woman might now make a Kinyan on it, it was not given to her by the man and thus he cannot be Mekadesh her with it).

QUESTION: The Gemara teaches that a Shor that gored and is Chayav Sekilah (a "Shor ha'Niskal"), and was properly slaughtered with Shechitah after its verdict was issued (and before the verdict was carried out) is Asur b'Achilah and cannot be eaten, even though it was properly slaughtered. A Shor that was actually stoned is Asur b'Achilah because it is a Neveilah.

Mar Zutra asks that perhaps when the Shor was properly slaughtered after its verdict is *permitted* to be eaten. The verse is teaching instead that when the Shor was slaughtered with a *stone* after its verdict, it is nevertheless considered a Shor that was "stoned" and is therefore forbidden to be eaten, even though the Shechitah was valid and the animal is not a Neveilah.

At this point in the Gemara, we already know that Shechitah performed with a stone is a valid Shechitah, for otherwise the animal would be a Neveilah. Why, then, does the Gemara challenge this question by telling us that Shechitah done with any type of item is a valid Shechitah, when we already knew this in the Gemara's initial assumption?


(a) RASHI explains that in the Gemara's initial assumption, the term "Shechitah" applies only to Shechitah performed with a knife, and not to Shechitah performed with any other item. Even though the animal is not considered to be a Neveilah when any item performs a proper cutting of the two Simanim in the animal's neck, that act is not considered an act of "Shechitah" until it is done with a knife. The Gemara suggests that an act of cutting two Simanim with any item other than a knife is considered "Sekilah." If the cutting of two Simanim in such a manner is called "Sekilah," then it can be suggested that when this "Sekilah" is performed on a Shor ha'Niskal, the animal becomes Asur b'Hana'ah.

The Gemara then asks rhetorically, "Is [the requirement to use] a knife [for Shechitah] written in the Torah?" That is, the term "Shechitah" was never limited to an act of Shechitah that was done with a knife; it applies to Shechitah done by any item. Once that fact has been established, we no longer classify Shechitah performed with a stone as "Sekilah" but rather as "Shechitah."

(b) The RITVA understands the Gemara to be contrasting a *l'Chatchilah* form of Shechitah with a *b'Di'eved* form of Shechitah. The Gemara's initial assumption was that a stone is valid for Shechitah only b'Di'eved, while a knife is valid l'Chatchilah. If, on the other hand, both are valid l'Chatchilah, then there should be no difference between them.

The Gemara then proves that using a stone is an equal form of Shechitah as Shechitah done with a knife, and, therefore, it should be no different with regard to a Shor ha'Niskal.

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