Mishneh Torah, Marriage 5-7

Sugya Map

• The Core Issue: Does the halakhic status of "prohibition of benefit" (issur hana'ah) render an object legally "non-existent" for the purpose of kiddushin (betrothal), which requires the transfer of a p'rutah of value?
• The Nafka Mina:
  • Torah vs. Rabbinic: Does the issur (prohibition) need to be de-oraita (Scriptural) to invalidate the transaction?
  • The Subjective/Objective Split: Does the validity depend on the cheftza (the object's objective value) or the gavra (the woman's ability to derive personal utility from it)?
  • Potential Utility: What if the woman can derive benefit (e.g., as fuel or by selling to one for whom it is permitted)?
• Primary Sources: Kiddushin 56b–58a; Mishneh Torah, Hilchot Ishut 5:1–7; Shulchan Aruch, Even HaEzer 28:21.

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Text Snapshot

MT, Marriage 5:1: "When a man consecrates a woman with an object from which it is forbidden to derive benefit—e.g., a mixture of milk and meat, chametz on Pesach... she is not consecrated."

• Leshon Nuance: Rambam uses the phrasing einah mequdeshet (she is not consecrated) absolutely. The dikduk (grammar) here suggests an ontological failure of the act—the kiddushin never occurred because the p'rutah requirement was not met. The Maggid Mishneh notes that even if the issur is merely Rabbinic, the Rambam maintains the invalidity, a point of significant machloket (dispute) with the Tur and Rosh.

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Readings

1. The Maggid Mishneh (on MT 5:1)

The Maggid Mishneh posits that the Rambam’s ruling is categorical. Even if the issur is only Rabbinic, the kiddushin are invalid. His chiddush is that the "value" (mamon) required for kiddushin must be mamon that is legally accessible. If the Sages decreed that an object cannot be utilized, it ceases to be "property" in the eyes of the law, regardless of its market price. The value is effectively "nullified" (batel) by the decree, rendering the kiddushin an act of giving "nothing."

2. The Sha'ar HaMelekh (Commentary on MT 5:1)

The Sha'ar HaMelekh engages in a dense dialectic regarding whether issur hana'ah is an objective quality of the object or a relational status. He challenges the Tosafot (at Kiddushin 56b) who asked: if the woman could sell the item to a non-Jew or use it for non-edible purposes (where permitted), why does the kiddushin fail? The Sha'ar HaMelekh argues that we must look at the gavra (the man) who gives the item. If the item is forbidden to him, he is giving something that—from his perspective—is not property, and thus he cannot transfer it to her. This "relational ownership" theory is a massive chiddush, shifting the focus from the woman's utility to the man's inability to effectuate a transfer of prohibited cheftza.

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Friction

The Strongest Kushya: If an object is forbidden de-rabbanan (Rabbinically), why does it invalidate kiddushin? The Tur and Rosh argue that if the object has intrinsic market value, the Rabbinic prohibition is merely an external "block" that doesn't reach the essence of the mamon. If I give a woman chametz during the sixth hour (forbidden only by Rabbinic decree), she has received value; she can sell it to a non-Jew or use it after Pesach. Why should the kiddushin be void?

The Terutz: The Beit Shmuel (28:52) defends the Rambam by invoking the principle of kinyan. For a transaction to be valid, the transfer must be "legitimate." When the Rabbis prohibit the benefit of an object, they effectively remove the object from the realm of mamon (money/value). It becomes a "non-thing." Therefore, the man is not transferring a p'rutah; he is transferring a legal vacuum. Even if the object has "value" in a secular sense, it lacks "legal value" within the system of halakhic exchange.

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Intertext

• SA, Even HaEzer 28:21: The Shulchan Aruch codifies a split: if the prohibition is de-oraita, everyone agrees kiddushin are void. If it is de-rabbanan, there is a safek (doubt). This reflects the influence of the Rosh over the strict categorical view of the Rambam.
• Bava Metzia 44b: The concept of "money" (mamon) is fundamentally linked to utility. If an object cannot be used, it cannot be "money." This cross-ref highlights that kiddushin is not just a contract, but a kinyan of property, subject to the same strict definitions of mamon as any commercial transaction.

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Psak/Practice

In modern practice, this serves as a critical heuristic for Gittin (divorce) and Kiddushin. If a marriage was initiated using an object that was later discovered to be assur be-hana'ah (e.g., an item stolen or one that was hekdesh), the validity of the marriage is immediately called into question. The meta-psak is: Kiddushin requires clear, unencumbered value. Ambiguity in the cheftza creates immediate safek kiddushin, necessitating a get out of an abundance of caution (chumra).

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Takeaway

The validity of kiddushin is not merely about the market price of the ring, but about the legal status of the object transferred; if the law strips the object of its benefit, it strips it of its power to bind two souls together.