1)

KIDUSHIN WITH ISUREI HANA'AH [Kidushin: Isurei Hana'ah]

(a)

Gemara

1.

56b (Mishnah): If one was Mekadesh a woman with any of the following, she is not Mekudeshes: Orlah, ... Chulin that was slaughtered in the Mikdash.

2.

57b (Abaye): We learn that Chulin b'Azarah is forbidden from the repetition "he will slaughter it", "he will slaughter it", "he will slaughter it."

3.

58a (Beraisa - R. Shimon): If one was Mekadesh a woman with a firstborn donkey, with meat cooked with milk, or Chulin b'Azarah, she is Mekudeshes;

4.

Chachamim say, she is not Mekudeshes.

5.

Inference: R. Shimon forbids Chulin b'Azarah only mid'Rabanan.

6.

Pesachim 21b (Mishnah): After the time (that one may eat Chametz on Erev Pesach), Chametz is Asur b'Hana'ah.

7.

The Chidush is, it becomes Asur b'Hana'ah mid'Rabanan (while it is still permitted mid'Oraisa):

i.

(Rav Gidal): If one was Mekadesh with wheat of Kordenisa from six hours or later, we are not concerned for the Kidushin.

(b)

Rishonim

1.

Rif (Pesachim 3a): If one was Mekadesh with wheat of Kordenisa from six hours or later, we are not concerned for the Kidushin.

2.

Rambam (Hilchos Ishus 5:1): If one was Mekadesh a woman with something Asur b'Hana'ah, e.g. Chametz during Pesach, or meat and milk, she is not Mekudeshes. This is even if it is Asur b'Hana'ah mid'Rabanan, e.g. Chametz during the sixth hour on Erev Pesach.

3.

Rosh (Kidushin 2:31): The Gemara inferred that R. Shimon forbids Chulin b'Azarah only mid'Rabanan, because he holds that Kidushin with Chulin b'Azarah works. This shows that Kidushin with Isurei Hana'ah mid'Rabanan is valid. In Pesachim, we are not concerned for such Kidushin! We must say that we are stringent about Chametz, because it comes from an Isur Torah. According to R. Shimon, there is no Isur Torah of Chulin b'Azarah. Even regarding Chametz, we are concerned for Chametz mid'Rabanan, e.g. wheat of Kordenisa, at a time when Chametz is forbidden only mid'Rabanan (the sixth hour on Erev Pesach).

i.

Rebuttal (Ran Kidushin 23a DH uvi'Gemara): The Gemara means that R. Shimon forbids Chulin b'Azarah only mid'Rabanan, and he forbids only eating it, but one may benefit from it. Kidushin with Isurei Hana'ah, even mid'Rabanan, is invalid.

4.

Question (Tosfos Kidushin 56b DH ha'Mekadesh): One may benefit from Isurei Hana'ah in an abnormal way! She should be Mekudeshes!

5.

Answers #1,2 (Tosfos): She is Mekudeshes when it is not worth a Perutah to benefit from abnormally. Alternatively, even if it is worth a Perutah for abnormal benefit, she does not intend for this, so it is a Mekach Ta'os (mistaken sale).

6.

Answer #3 (Ran Kidushin 23a DH Masnisin): Only a Choleh (sick person) may benefit from Isurei Hana'ah abnormally. The case is, she is healthy. Even though it is Asur only mid'Rabanan, she is not Mekudeshes.

7.

Rashba (1185): If one was Mekadesh with witnesses who are Pasul mid'Rabanan, some Ge'onim consider it Safek Kidushin. Rav Acha compares this to one who destroyed a limb of his slave other than an eye or tooth. Since it is not explicit in the Torah, he needs a Get of freedom. The Rif disagrees. If so, we should require a Get when the Kidushin witnesses were relatives, for this is not explicit in the Torah! Rather, no Get is needed because everyone is Mekadesh Al Da'as Chachamim. They uprooted the Kidushin, even if the witnesses are Pasul mid'Rabanan. Surely, if a Get were needed, an Amora would have taught this.

8.

Rashba (1166): When Chachamim forbade Hana'ah from Chametz, they made it like Hefker. Everyone is Mekadesh Al Da'as Chachamim, and they uprooted the Kidushin.

(c)

Poskim

1.

Shulchan Aruch (EH 28:21): If one was Mekadesh a woman with an Isur Hana'ah that has no source in the Torah, she is Mekudeshes.

i.

Beis Yosef (DH veha'Rav): The Magid Mishneh and Tur understand that the Rambam disqualifies any Kidushin with Isurei Hana'ah, even if it has no source in Torah. I say that if so, the Rambam would not have given an example. Rather, he said 'like Chametz during the sixth hour' to teach that he discusses when Chametz or a time when the Isur is mid'Rabanan, but he is concerned for Chametz mid'Rabanan at a time mid'Rabanan.

ii.

Chelkas Mechokek (37): Chametz mid'Rabanan, e.g. wheat of Kordenisa, at a time when Chametz is forbidden only mid'Rabanan, is an Isur Hana'ah with no source in the Torah. However, it seems that the Rambam says that she is not Mekudeshes. The Shulchan Aruch should call this Safek Kidushin! Also the Rosh says we are concerned for Kidushin.

iii.

Beis Shmuel (52): It seems that Kidushin with an Isur Hana'ah that has no source in the Torah is invalid. Everyone is Mekadesh Al Da'as Chachamim, and mid'Rabanan he gives to her nothing! Shiltei ha'Giborim (23a:2) says so, and Teshuvas ha'Rif (brought in Teshuvas Rashba 1185) says that Chachamim uprooted Kidushin with witnesses Pasul mid'Rabanan. Just like a Kinyan mid'Rabanan makes Kidushin, like I wrote above (35), Chachamim's enactment can disqualify Kidushin.

iv.

Taz (41): If Levi was within four Amos of a Metzi'ah, he acquired mid'Rabanan. If David picked it up and Levi was Mekadesh a woman with it, we do not say that since David acquired mid'Oraisa, she is not Mekudeshes. Din Torah, it is Levi's due to Chachamim's enactment. Gitin work through the enactment of four Amos. Here also, the Kidushin should be void due to the Isurei Hana'ah mid'Rabanan. We find that Chachamim uprooted Kidushin through a gift on condition to return it. The Rashba (1166) connotes that no Isur mid'Rabanan can make Kidushin. This requires investigation.

v.

Gra (57): The Yerushalmi connotes that she is not Mekudeshes even if the Isur has no source in Torah. The Shulchan Aruch should not consider her Vadai Mekudeshes, unlike Rashi, the Ran and Tosfos (Chulin 4b DH Mutar).

2.

Shulchan Aruch (ibid.): If he was Mekadesh with an Isur Hana'ah that is totally mid'Oraisa, e.g. Chametz mid'Oraisa at a time when it is forbidden mid'Oraisa, she is not Mekudeshes.

i.

Beis Shmuel (54): If one is Mekadesh with other Isurei Hana'ah and she knows that it is Asur, she is Mekudeshes. Even though only a Choleh may benefit from Isurei Hana'ah abnormally, and she is healthy, she can sell it to a Choleh. The Ran says that if she is healthy, she is not Mekudeshes. Perhaps this is when she does not know that it is Asur b'Hana'ah.

See also: