Mishneh Torah, Marriage 5

Sugya Map

• Issue: Can Kiddushin (betrothal) be effected via an object forbidden for benefit (issur hana'ah)?
• Primary Sources: Kiddushin 56b, Mishneh Torah, Marriage 5:1.
• Nafka Mina: Whether the kinyan (acquisition) is defined by the cheftza (intrinsic value of the object) or the gavra (the woman's ability to derive utility).

Text Snapshot

Rambam states: "When a man consecrates a woman with an object from which it is forbidden to derive benefit... she is not consecrated" (Mishneh Torah, Marriage 5:1).

• Leshon Nuance: The phrasing "she is not consecrated" (einah mekudeshet) serves as a definitive psak that such objects are legally "worthless" (lav mamon) in the eyes of the law, regardless of their market price.

Readings

• Maggid Mishneh: Argues that because the object provides zero utility, it lacks the legal status of mamon (money/value). The kiddushin fails because the woman receives nothing.
• Rabbenu Asher (Rosh): Focuses on the objective value. If the object has market worth de-oraita, the prohibition is merely an external restriction on the owner's use, not a nullification of the object's essence. He would suggest that where the prohibition is only Rabbinic, the kiddushin might hold.

Friction

Kushya: If kiddushin requires a p'rutah (the smallest coin), why does market value not override issur hana'ah? Terutz: The Beit Shmuel (Even HaEzer 28:52) clarifies that kiddushin isn't just a sale; it is a transfer of status predicated on the woman receiving benefit. If the law renders the object "untouchable," the woman has not "received" anything—she has merely been given a legal liability. Thus, the transaction is void ab initio.

Intertext

• Deuteronomy 13:18: "Let nothing that is condemned cling to your hand"—the source for the exclusion of avodah zarah (idolatry) from the realm of personal property.
• Shulchan Aruch, Even HaEzer 28:21: Codifies the tension, noting that while Rabbinic prohibitions are generally treated stringently, there is significant debate regarding whether a purely Rabbinic prohibition voids the kiddushin entirely.

Psak/Practice

In practice, one never relies on issur hana'ah for kiddushin. If such a case occurs, it is a safek kiddushin (doubtful betrothal), and a get (divorce) is mandated to avoid the risk of eshet ish (adultery).

Takeaway

Kiddushin requires the transfer of mamon that the recipient can actually utilize; if the law forbids the benefit, the "gift" is a legal fiction, and the bond cannot form.