Mishneh Torah, Marriage 5-7

Sugya Map

• Core Issue: Does a cheftza (object) that is assur b’hana’ah (forbidden for benefit) possess the legal status of mamon (money/value) to effectuate kiddushin?
• Nafka Mina:
  • Prohibitions of Torah origin vs. Rabbinic origin.
  • The status of "potential value" (e.g., if the object is forbidden to the man but permitted to a sick person/non-Jew).
  • The distinction between the person's din (legal status) and the cheftza’s intrinsic value.
• Primary Sources: Kiddushin 56b, Mishneh Torah, Hilchot Ishut 5:1-3, Shulchan Aruch, Even HaEzer 28:21.

Text Snapshot

• Text: "When a man consecrates a woman with an object from which it is forbidden to derive benefit... she is not consecrated... [This ruling applies] even if the prohibition... is merely Rabbinic in origin." (MT, Ishut 5:1).
• Leshon Nuance: The Rambam uses the term einah mekudeshet (she is not consecrated). In dikduk, the passive construction implies a failure of the act of kinyan due to the absence of a legal medium (p'rutah), rather than a lack of intent. The Rambam’s focus is on the mamon status—if the law forbids benefit, the object is functionally null (hefker or efes) in the eyes of the Torah.

Readings

• Maggid Mishneh (5:1): Highlights the Rambam’s strict stance: even Rabbinic prohibitions negate kiddushin. He argues that if the Sages declared an object "forbidden," it lacks the market viability required for a kinyan. The kiddushin cannot be effective because the woman receives nothing of legal worth.
• Rabbenu Asher (Rosh, Kiddushin 2:1): Offers a critical chiddush. He distinguishes between issurei hana’ah of Torah origin and Rabbinic origin. For the Rosh, if the prohibition is solely Rabbinic, the object still retains its Torah-level mamon status. Thus, the kiddushin are a safek (doubtful), as the Sages' power to "uproot" Torah law (hafkacat kiddushin) is usually reserved for instances where the cheftza has legitimate value. The Rosh prioritizes the objective value of the object over the prohibition’s restriction on the specific user.

Friction

• Kushya: If kiddushin requires a p'rutah, why does the Rambam deny kiddushin for Rabbinic prohibitions? After all, the object exists, and it could be sold to a non-Jew or a sick person (where the prohibition might not apply). Isn't mamon defined by the object’s ability to be exchanged?
• Terutz: The Sha'ar HaMelekh explains that the Rambam views the kiddushin through the lens of the recipient. If the halacha dictates that for the woman the object is forbidden, she is receiving "nothing." Even if a third party could derive benefit, the kiddushin is a private transaction between two parties. If the woman cannot legally derive benefit from the object in that moment, the kinyan fails the p'rutah requirement. The focus is on the gavra (the woman's capacity to receive), not the cheftza's abstract value.

Intertext

• Parallel: Hilchot Me'ilah 1:3. The Rambam treats Temple property (dedicated items) with similar severity. If one uses hekdesh for kiddushin, it fails because hekdesh is legally "God’s property," not the man’s. The common denominator is that kiddushin requires clear, unencumbered ownership of a permitted object.
• Responsa: Noda Biy’hudah, Even HaEzer 77. Discusses the necessity of witnesses knowing about the status of stolen property. He bridges the Rambam’s rules on kiddushin with hilchot gezeilah (theft), noting that kiddushin is not merely a transfer of property but a public act requiring a baseline of legal transparency.

Psak/Practice

• Heuristics: In modern psak, we follow the stringency of the Beit Shmuel. If kiddushin is performed with an object of questionable hana’ah status, it is treated as a kiddushin d’safek (doubtful marriage). The practitioner must ensure the kiddushin object is universally permitted to avoid the Rambam/Rosh conflict.
• Meta-Psak: The lechat'hila (ideal) practice is to use a plain gold ring with no stones, avoiding any valuation debates (per Tosafot). If a status issue arises (e.g., using a chametz ring), the woman requires a get to avoid a life of safek ishut.

Takeaway

• Kiddushin is not just an exchange of value; it is a transfer of permissible value. If the Torah or Sages label an object "forbidden," they effectively remove its status as currency for the marriage bond.