IS AN ISUR HANA'AH WORTH MONEY DUE TO ABNORMAL HANA'AH? [Isurei Hana'ah: Lo k'Derech Hana'asah]
(Rava): All exempt one who benefited from Tamei meat of Kodshei Kodashim before Zerikah, or Eimurim of Kodshim Kalim after they were offered.
Objection: This is obvious. There is no loss (to Kohanim or Hekdesh)!
Answer: One might have thought that since there are Mitzvos to do with them, to burn the meat and flip over the Eimurim on the fire (to burn well), Me'ilah applies. Rava teaches that this is not so.
10b (Mishnah): The following Chata'os must die -- Vlad Chatas, Temuras Chatas, she'Mesu Ba'aleha (its owner died)...
One may not benefit from it, and Me'ilah does not apply to it.
11a (Mishnah - R. Shimon): At first Me'ilah does not apply to blood. After (Kaparah, after) it goes to Nachal Kidron (a river), Me'ilah applies to it.
12b (Rav): If one lets blood from a Kodshim animal, one may not benefit from the blood, and Me'ilah applies to it.
Makos 22a (Mishnah): One who cooks Gid ha'Nasheh in milk on Yom Tov, and eats it, is lashed five times - for eating Gid ha'Nasheh, for cooking unnecessarily on Yom Tov, for cooking meat and milk, for eating meat and milk, and for burning on Yom Tov.
Inference: He is lashed twice for Melachos on Yom Tov!
Rejection (Rav Acha brei d'Rava): No. The wood was Hekdesh. The fifth set of lashes are for "va'Ashereihem Tisrefun ba'Esh...; Lo Sa'asun Ken la'Shem."
Pesachim 22a: R. Shimon, who holds that Gidim have no taste, forbids benefit from the Gid ha'Nasheh.
Question: It says "Kol Nefesh Michem Lo Sochal Dam," yet one may benefit from blood!
(Mishnah): Leftover blood (of Chata'os) flows into Nachal Kidron. Gardeners buy it for fertilizer. Me'ilah applies to it.
Answer: Blood is different because it is equated to water - "Al ha'Aretz Tishpechenu ka'Mayim."
Chulin 89b: Our Tana holds that the Gid ha'Nasheh has no taste. In Kodshim, it is forbidden only due to the Isur of Gid ha'Nasheh, but the Isur of Kodshim does not apply to it.
Ritva (Makos 22a DH v'Azhartei): If he cooked Gid ha'Nasheh with Hekdesh wood, why isn't he lashed also for Me'ilah b'Mezid? The Ramah answered that since it is Isurei Hana'ah and he cannot benefit from it b'Heter, Me'ilah does not apply. Even though all Hekdesh is Asur b'Hana'ah and one may not benefit from it, one is liable for Me'ilah only when if not for the Isur Hekdesh, one could benefit from it. I answer say that one is liable for Hekdesh only for a Shaveh Perutah. The Tana taught that one is liable (for Lo Sa'asun Ken) even without a Perutah of Hana'ah from the wood.
Pnei Yehoshua (Pesachim 22a DH v'Harei): We hold that one is lashed for Isurei Hana'ah only in the normal way of benefit from them. If so, what was the question from the Heter to sell blood for fertilizer? This is not its normal Hana'ah! It is not difficult that they take money for the blood, for the money goes to Hekdesh. Any Isur Hana'ah of blood would not apply to Hekdesh. The Torah forbids "Kol Nefesh". The primary Hana'ah of blood is for (Avodas) Hash-m! Do not say that even though there are no lashes for abnormal Hana'ah, there is an Isur mid'Rabanan, and the Gemara asks why we sell it l'Chatchilah to (Yisrael) farmers. It is reasonable that to save Hekdesh from a loss, Chachamim did not forbid! Perhaps even so it is forbidden for the farmers, since what grows is Zeh v'Zeh Gorem (one cause of the growth was Isur), which is forbidden l'Chatchilah. It is better to say that even though there are no lashes for abnormal Hana'ah, the Torah forbids it. This is like Tosfos, who say that there can be lashes for normal Hana'ah, unlike the Rambam.
Tosfos (Yoma 59b DH Hu): Here we say that before Kaparah is like after Kaparah (there is no Me'ilah). However, if one let blood from a Korban, there is Me'ilah! It cannot be mid'Rabanan, for we say that there is Me'ilah only after it goes to Nachal Kidron. That Me'ilah is only mid'Rabanan so before that there is no Me'ilah at all! R. Tam answered that here 'before Kaparah' discusses after Shechitah, from when Kaparah applies (but in its lifetime, there is Me'ilah). R. Chaim says that the Me'ilah of Nachal Kidron is mid'Oraisa, for Beis Din are Makdish the blood.
Maharsham (1:59 DH u'Mah she'Chasav b'Shem): The Ritva (22a) said that there is no Me'ilah, because the Gid is Asur b'Hana'ah due to meat and milk. This implies that when there is Me'ilah, there is a Heter Hana'ah. The questioner said that the Torah obligates (for Me'ilah, even though it is Asur b'Hana'ah), like Tosfos says in Yoma. This is wrong. We hold that also before Kaparah there is no Me'ilah! According to R. Chaim Kohen, who says that there is Me'ilah in its lifetime, we can say that blood is Mutar b'Hana'ah! My son-in-law asked that since a verse teaches that there is no Me'ilah for blood (Yoma 60a), according to the Ritva we should infer that it is Mutar b'Hana'ah! However, if abnormal Hana'ah is permitted, we can say that Me'ilah is feasible if it would be sold for fertilizer. Tosfos (Pesachim 29a DH Ein) suggested that there should be Me'ilah for Pesulei ha'Mukdashim, for after it is burned, one may benefit from the ashes! Tosfos' answer (the ashes are not worth a Perutah) does not apply here. The Ritva discussed only Basar v'Chalav, for which the Torah forbids even abnormal Hana'ah. It is Nikbarim (buried; there is no Mitzvah to burn it, so its ashes are forbidden), and it is not Shaveh Perutah. In Me'ilah, we say that all exempt one who benefits from Tamei meat of Kodshei Kodoshim, for there is no loss. One might have thought that he is liable because Kohanim have a Mitzvah to burn it. Tosfos says that since it is destined to perish, there is no Me'ilah.
Maharsham: We say that the one who holds that Gidim have no taste holds that the Gid ha'Nasheh of Kodshim is forbidden only due to the Isur of Gid ha'Nasheh, but not due to Kodshim. The Pleisi (YD 65) says that even though there is no taste, there is Hana'ah. If so, Me'ilah should apply to the Gid of Kodshim! I answered like the Ritva, that Me'ilah does not apply to Isurei Hana'ah. It is clear from Pesachim and Tosfos that the one who holds that Gidim have no taste holds that the Gid ha'Nasheh is Asur b'Hana'ah. However, one can sell if for abnormal Hana'ah, and this is Shaveh Perutah! Perhaps since it has no taste, it is not worth a Perutah for abnormal Hana'ah. Or, we can say that we discuss a k'Zayis, which is not Shaveh Perutah.
Tosfos (10b DH Lo): Since Chata'os ha'Mesos are destined to perish, there is no Me'ilah. We do not call them "Kodshei Hash-m."
Tosfos (Kidushin 56b DH ha'Mekadesh): Why is Kidushin with Orlah invalid? She can benefit from it abnormally (Pesachim 24b)! I answer that we discuss Orlah that is Shaveh Perutah only for normal benefit. Alternatively, even if there is Shaveh Perutah for abnormal benefit, since she thinks that that she can benefit normally, it is a Mekach Ta'os (mistaken Kidushin).
Ritva (56b DH ha'Mekadesh): Even though the Torah permits abnormal Hana'ah from Isurei Hana'ah, mid'Rabanan it is forbidden, so she is not Mekudeshes. A Choleh (sick person) not in danger is permitted abnormal Hana'ah. However, one may not sell it to such a Choleh. A proof is that the Torah permits normal Hana'ah to a mortally sick person, yet one may not sell Isurim to him, for if it were permitted, the seller would benefit from a Torah Isur Hana'ah! Therefore, it is not considered property at all. Even if a woman was sick and may benefit from an Isur Hana'ah, Kidushin with it is void, unless he said 'be Mekudeshes to me with the Hana'ah that I gave this to you to cure yourself', and that Hana'ah is Shaveh Perutah.
Mishneh l'Melech (Hilchos Ishus 5:1): Rashi holds that Kidushin money need not be considered the man's property, as long as it is worth money to the woman. The Ritva holds that it must be worth money to both of them. If the Mekadesh may not sell it, even though it is worth money to the woman, she is not Mekudeshes. The Radvaz (7:37) was asked about such a case, and said that even though a Choleh may get abnormal benefit from Isurei Hana'ah, one may not sell it to him. Therefore, it is not considered money regarding Kidushin. He did not give anything to her. This is even if she is mortally sick, and even for an Isur Hana'ah mid'Rabanan.
Shulchan Aruch (EH 28:21): If he was Mekadesh with Isur Hana'ah that is totally mid'Oraisa, e.g. Chametz when the Torah forbids it, she is not Mekudeshes.
Bach (DH Kasvu): Tosfos is unsure about Kidushin with Orlah that is worth a Perutah for abnormal benefit. Therefore, we should require a Get.
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 abnormally from Isurei Hana'ah, 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.
Avnei Milu'im (55): The Mishneh l'Melech holds that according to Rashi, she is Mekudeshes, for it is worth money to her. I say that it is not considered money even for her. Even though she can benefit from it, it is no better than Ma'aser Sheni according to the opinion that it is Hash-m's. Even though she may eat it and benefit from it, she is not Mekudeshes, for it is not her property. She eats from Hash-m's table. Likewise, an Isur Hana'ah is not considered to have value. She may eat it due to "va'Chai Bahem." The Ritva and Radvaz say that if he was Mekadesh her 'with the Hana'ah that I gave this to you to cure yourself', if that Hana'ah is Shaveh Perutah, she is Mekudeshes. I say that it is not Vadai Kidushin. The Gemara did not settle the question of a man who threw a loaf to save a woman being chased by a dog (Kidushin 8b). Perhaps she can say 'the Torah obligated you to save me', i.e. and you will be compensated. Here, since he gave to her Isurei Hana'ah, she need not pay. However, perhaps it is a question only when she did not explicitly agree to Kidushin, but here she agreed. The Ritva and Radvaz are unlike the Beis Shmuel.