Mishneh Torah, Marriage 5

Sugya Map

• Core Issue: Does kiddushin require mamon (monetary value) or hana'ah (permissible benefit)?
• The Conflict: Whether an object forbidden for benefit (issur hana'ah) can serve as a valid kinyan for marriage.
• Nafka Mina:
  • Does the prohibition need to be de-oraita (Torah level) or de-rabbanan (Rabbinic level)?
  • Does the status of the object depend on the cheftza (the object's inherent nature) or the gavra (the specific recipient’s ability to benefit)?
• Primary Sources: Kiddushin 56b, Pesachim 21a, Mishneh Torah, Marriage 5:1.

Text Snapshot

Rambam, Hilchot Ishut 5:1: "המקדש אשה בדבר שהוא אסור בהנאה כגון תערובת חמץ בפסח... אינה מקודשת."

Nuance: Rambam emphasizes issur hana'ah as the disqualifier. The dikduk here suggests a categorical exclusion: if the object cannot be "enjoyed" or "used" by law, it lacks the ontological status of mamon required for the acquisition of a wife.

Readings

The Maggid Mishneh (on the Scope of Prohibition)

The Maggid Mishneh argues that Rambam’s ruling applies to all Rabbinic prohibitions. His logic is functional: if the Sages have rendered an object unusable, it ceases to function as currency or value within the legal framework of the Jewish community. Thus, the lack of hana'ah is an objective failure of the kinyan.

The Kessef Mishneh (Rav Yosef Karo)

Rav Karo pushes back, positing a nuanced distinction. He suggests that Rambam’s mention of chametz during the sixth hour is not a catch-all for all Rabbinic prohibitions, but an exemplar of those prohibitions rooted in Torah-level concerns. Where a prohibition is purely Rabbinic—lacking any Torah-based issur—the kiddushin might hold. He prioritizes the mamon status (the object is objectively valuable) over the Rabbinic restriction, arguing that unless the Torah strips the value, the kinyan is technically valid.

Friction

The Kushya: If a man uses an object that is issur hana'ah (like orlah or chametz), why is it not valid kiddushin? After all, the object has intrinsic value—it is still "money" in the marketplace; it is merely restricted from use. If the woman wants to be married to him, why should the state’s restriction on the object invalidate the intent of the act?

The Terutz: The Beit Shmuel Even HaEzer 28:52 resolves this by shifting the focus to the woman's acquisition. Kiddushin is not just a contract; it is a transfer of "value." If the woman cannot legally derive benefit from the item, she has received nothing of value in the eyes of the law. Therefore, the "transfer" is a nullity. The Kin'at Eliyahu adds that the kiddushin requires a "meeting of minds" over a "thing of worth." Because the item is legally "dead" for the purpose of benefit, it cannot serve as the vehicle for the kiddushin bond.

Intertext

• Leviticus 27:30: Regarding Ma'aser Sheni ("It is God's"), which Rambam cites as an example of property that cannot be used for kiddushin because it lacks the status of private property for the giver.
• Deuteronomy 13:18: "Let nothing that is condemned cling to your hand"—the classic source for the issur hana'ah regarding objects of idolatry, serving as the scriptural bedrock for the disqualification of such objects in marriage contracts.

Psak/Practice

In modern halacha, the heuristic remains strict: Kiddushin performed with items that are issur hana'ah are treated as safeik kiddushin (doubtful marriage). The Shulchan Aruch Even HaEzer 28:21 codifies the caution: because the status of the kinyan is debated, we assume a "status of doubt," meaning a get (divorce) is required to dissolve the potential bond, even if the marriage was technically invalid. This is a classic "meta-psak" of chumra—when in doubt regarding the sanctity of marriage, we act as if the marriage might exist to protect the woman’s legal status.

Takeaway

The validity of kiddushin is not merely about the market value of the object, but the legal permission to derive benefit from it; if the law restricts the utility, it destroys the kinyan.