Unnatural Benefit and Rabbinic Prohibitions

Kidushin (2:9) | Aron Rubin | 11 years ago

One who performs kiddushin with orlah, with kilei kerem, with an ox that must be stoned... she is not betrothed” 

Kiddushin (2:9)

The above Mishnah provides a list of different objects that one cannot perform kiddushin with, since they are objects that one is prohibited to derive benefit from (issurei hana’ah). The seeming explanation for this is that since one cannot derive benefit from these objects, they have no monetary value.

The Gemara in Pesachim (24b) states that one does not receive lashes for deriving benefit from an issur hana’ah in an unnatural way. An example of this brought by the Gemara is placing the fat of a Shor Haniskal upon one’s wound. Tosafot on our Mishnah (Kiddushin 56b) quotes this Gemara and asks why our Mishnah states that one cannot perform Kiddushin with an issur hana’ah, since the woman may still derive benefit from it in an unnatural manner. Tosafot answers that either we are discussing a case where the unnatural benefit derived is not worth a peruta or that it is worth a peruta but the woman does not have in mind that benefit and therefore the Kiddushin is invalid. Nevertheless, essentially in a situation where the benefit was worth a perutah and the woman had her mind upon it, she would be mekkudeshet.

The Ritva on the other hand, explains that although the Gemara in Pesachim says that one does not receive lashes for unnatural benefit, it is still prohibited on a rabbinic level. To answer Tosafot’s question, he quotes a different Gemara in Pesachim (7a) which says that one cannot perform Kiddushin with a rabbinic prohibition (chametz that is only derabanan.) and he explains that since the Rabbis prohibited unnatural benefit, it is not considered to be money and therefore one cannot perform Kiddushin with it. Since Tosafot cannot argue with the Gemara and would agree that one cannot perform Kiddushin with rabbinic prohibitions, it would seem that he must hold that unnatural benefit is not prohibited at all even on a rabbinic level.

There is a third opinion about unnatural benefit. The Rambam in Hilchot Ma’achlot Assurot (8:16) writes that any issur hana’ah that is edible, even though it is forbidden mideoraita to derive benefit from it, one does not receive lashes unless one eats it. The Magid Mishnah explains the Rambam based on the above-mentioned Gemara in Pesachim (24b) that one does not receive lashes for unnatural benefit and that the only way to naturally benefit from food is by eating it. He states that according to the Rambam, unnatural benefit is prohibited even mideoraita, just that one does not receive lashes for it; a similar case to eating less than the required amount of a prohibited food (chatzi shiur).

As mentioned above, the Gemara in Pesachim (7a) says that one cannot perform kiddushin with rabbinic prohibitions and the reason that the Ritva provided was that since the Rabbis prohibited an object, it is objectively not considered money. Rashi in Pesachim, on the other hand gives a different explanation. He says that the reason that kiddushin does not work here is because everyone that performs kiddushin does so with consent of the Rabbis (ada’ata de’rabbanan mekadesh) and that if someone transgresses their will, they have the power to uproot their kiddushin (Afke’inhu). According to Rashi, a rabbinic prohibition is objectively considered money, only that one cannot perform kiddushin with it because of the halacha of afke’inhu.

Perhaps the dispute of Rashi and Ritva can be explained based on the chakirah in how to understand rabbinic prohibitions. The Achronim (See Atvan Deoraita, Klal 10 for a discussion) have a discussion about whether rabbinic prohibitions occur on the object itself (issur cheftza) like biblical prohibitions or whether they do not occur on the object but are just a general prohibition of not transgressing the will of the Rabbis (lo tassur). According to the Ritva, it would seem that rabbinic prohibitions occur on the object itself, since he says that rabbinic prohibitions are objectively not considered money like Biblical prohibitions. On the other hand, according to Rashi, it would seem that Rabbinic prohibitions do not affect the object itself but they are just a prohibition of not transgressing the will of the Rabbis, since he says that they are objectively considered money, only that Kiddushin does not work because of afke’inhu. 

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