Daily Rambam
Mishneh Torah, Marriage 5
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Sugya Map
- The Core Issue: The validity of Kiddushin (halachic betrothal) performed with items from which it is forbidden to derive benefit (Issurei Hana'ah). The inquiry splits into two main conceptual tracks:
- The Ontological Status of the Medium: Does a prohibition on deriving benefit (issur hana'ah) strip an object of its objective status as property (mamon), or does it merely impose a personal prohibition (issur gavra) on the owner, leaving the object's intrinsic value (cheftza) intact under Torah law?
- The Subjective Value (Shaveh Perutah) vs. Objective Value: Can a localized or subjective utility—such as atypical medical use (she-lo ke-derech hana'ato) for a non-dangerously ill patient (choleh she-ein bo sakanah)—satisfy the requirement of shaveh perutah (the value of a copper coin) required to effectuate Kiddushin?
- The Nafka Minot (Practical and Conceptual Ramifications):
- Rabbinic Prohibitions: If a man betroths a woman with an object forbidden only by Rabbinic decree (e.g., chametz during the sixth hour on the fourteenth of Nisan), is the Kiddushin valid mi-de'oraita (by Torah law)?
- Subjective Utility: If the woman is a choleh she-ein bo sakanah who can legally benefit from the issur hana'ah in an atypical manner, does her personal, permitted utility render the object "value" (mamon) relative to her?
- The Mechanism of Betrothal: Does Kiddushin operate through the husband's transfer of objective wealth (dideih), or does it depend entirely on the woman's subjective reception of benefit (dideha)?
- Primary Sources:
- Mishnah Kiddushin 2:9 — The foundational Mishnah listing items that cannot be used for Kiddushin (e.g., orlah, kil'ei hakerem).
- Kiddushin 56b — Gemara analyzing the textual derivations of these exclusions.
- Pesachim 6b and Pesachim 24b-25b — The loci classici for the permissibility of she-lo ke-derech hana'ato (atypical benefit) and the Rabbinic status of chametz in the sixth hour.
- Bechorot 10b — The discussion of peter chamor (firstborn donkey) and whether surplus value (maba d'beini beini) can effectuate Kiddushin.
- Rambam, Mishneh Torah, Hilchot Ishut 5:1.
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Text Snapshot
The Rambam in Hilchot Ishut 5:1 writes:
"המקדש בדבר שהוא אסור בהנאה--כגון כלאי הכרם, ובשר בחלב, או חמץ בפסח, או שאר דברים האסורים בהנאה--אינה מקודשת. ואפילו היה אסור בהנאה מדבריהם, כגון חמץ בשעה שישית מיום ארבעה עשר--אינה מקודשת."
Grammatical and Lexical Nuances
- "המקדש בדבר שהוא אסור בהנאה": Note the syntax. The Rambam does not write "המקדש בדבר שאין לו שווי" (one who betroths with something that has no value). He links the invalidity of the act directly to the halachic status of the object—it is "אסור בהנאה" (forbidden for benefit). This implies that the prohibition itself is the causa causans of the lack of monetary value. The cheftza (object) is halachically defined as non-existent in the realm of commerce.
- "ואפילו היה אסור בהנאה מדבריהם": The inclusion of the word "ואפילו" (and even) is a major conceptual assertion. It indicates that even when the Torah views the object as perfectly permissible and objectively valuable (since the Torah only forbids chametz from the seventh hour onward), the Rabbinic decree possesses the metaphysical power to dismantle the object's status as mamon (property) for the purposes of a Torah-level marriage.
- "אינה מקודשת": The Rambam rules absolutely: "she is not betrothed." He does not say "חוששין לקידושין" (we are concerned she might be betrothed) or that the status is doubtful (safek), which is his standard formulation when a Rabbinic intervention complicates a Torah mechanism. This absolute invalidity requires deep conceptual justification.
Readings
1. The Maggid Mishneh vs. The Kesef Mishneh: The Scope of Rabbinic Nullification
The commentaries grapple with the Rambam’s ruling that Rabbinic issurei hana'ah (like chametz in the sixth hour) completely invalidate Kiddushin.
The Maggid Mishneh[^1] and the Tur[^2] read the Rambam literally: any article forbidden to be used by Rabbinic decree cannot establish Kiddushin. The rationale is straightforward: since the Sages forbade deriving benefit from this object, it has been rendered practically worthless. Because a woman must receive an article worth at least a perutah to be betrothed, and this object cannot be traded or used, it fails the threshold of shaveh perutah.
The Kesef Mishneh[^3] (Rav Yosef Karo) strongly objects to this sweeping reading. He argues that if a Rabbinic prohibition has no root or structural anchor in Torah law, the Kiddushin must remain valid mi-de'oraita. Why? Because according to Scriptural law, the article possesses intrinsic monetary worth, and the woman willingly accepted it.
The Sages cannot simply strip an object of its ontological Torah value without a specific mechanism. Therefore, Rav Yosef Karo limits the Rambam's ruling: it applies only when the Rabbinic prohibition serves as a safeguard (seyag) for a Torah prohibition (such as the sixth hour of Erev Pesach, which protects the Torah-level prohibition of the seventh hour).
Where no such Torah anchor exists, the Kiddushin are at least of doubtful status (safek). In the Shulchan Aruch[^4], Rav Yosef Karo rules in accordance with the Rosh, holding that if the article is forbidden solely by Rabbinic decree with no Torah anchor, the Kiddushin are binding.
2. The Beit Shmuel vs. The Nachal Eitan: The "Atypical Benefit" Loophole
The Beit Shmuel[^5] introduces a brilliant, highly debated chiddush. He notes that according to the Gemara in Pesachim 24b, it is permitted to use issurei hana'ah "שלא כדרך הנאתו" (in an atypical manner, such as ointment for a sick person) for a choleh she-ein bo sakanah (a non-dangerously ill person). Based on this, the Beit Shmuel argues:
"If the woman is aware that the object is an issur hana'ah, and she is sick, she can legally derive benefit from it in an atypical manner. Alternatively, even if she is healthy, she can sell this object to a sick person who is permitted to use it. Therefore, the object does possess a functional monetary value of a perutah for her, and the Kiddushin should be valid!"
The Nachal Eitan[^6] mounts a devastating critique of the Beit Shmuel's thesis:
Can she use the Issur Hana'ah for Kiddushin?
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+-----------------+-----------------+
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[Can she sell it?] [Is she a choleh?]
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No! (Ritva/Radvaz/Nachal Eitan) No! Kiddushin requires
Selling issurei hana'ah "Dideih" (husband's value).
to a choleh is forbidden; Since husband is healthy,
the seller derives direct he cannot transfer what he
benefit. No value exists. cannot legally possess/use.
First, the Nachal Eitan argues that she cannot sell the item to a sick person. He quotes the Ritva[^7] and the Radvaz[^8], who rule that it is strictly forbidden to sell issurei hana'ah to a sick person. Although the sick person is permitted to use the item atypically, the healthy seller is forbidden to sell it because the act of sale constitutes a direct, typical financial benefit from the forbidden object. Thus, no market value can be realized.
Second, even if the woman herself is sick and can legally benefit from the item atypically, the Kiddushin remains invalid. Why? Because Kiddushin requires a transfer of value that originates from the husband's domain (dideih)[^9]. Since the husband is healthy, the object is completely worthless and forbidden to him. He cannot transfer a legal right or value that he does not possess.
The Nachal Eitan concludes that we follow the rule of the Mikneh[^10]: issurei hana'ah are completely excluded from the category of mamon (property). They cannot be owned, they cannot be inherited, and if stolen, there is no liability to pay restitution. Therefore, they are halachically non-existent as a medium of exchange.
3. The Ohr Sameach: Arev, "Zrok Maneh Le-Yam," and Ontological Value
The Ohr Sameach[^11] approaches the sugya through the lens of a classic query: What is the active mechanism of Kiddushin?
Is it the reception of wealth by the woman (matingei le-hana'ah), or is it the financial loss suffered by the man (chesron kis) at her request?
He analyzes a ruling in the Shulchan Aruch[^12]: if a woman makes a vow forbidding herself from deriving benefit from a specific man, and he subsequently betroths her with money, she is not betrothed. The Ohr Sameach asks: why should this be invalid?
Even if she cannot benefit from his money due to her vow, the husband has still suffered a financial loss (chesron kis) at her behest. This should be equivalent to the talmudic mechanism of "זרוק מנה לים ואתקדש אני לך" ("Throw a maneh into the sea and I will be betrothed to you"), where the Kiddushin is valid Kiddushin 7a. In that case, she receives no tangible benefit, yet she is betrothed because the husband relinquished his wealth based on her word (the mechanism of Arev / guarantor).
The Ohr Sameach resolves this with a profound distinction:
- In "Zrok Maneh" (Throwing Money): The object being destroyed is valid mamon (legal property). The husband's act of relinquishing actual wealth at her command constitutes a legally binding event.
- In Issurei Hana'ah: The object itself is ontologically devoid of value (ופקע ממנו שווי הממון). When the husband gives her an issur hana'ah, he is not giving up mamon, because the Torah has already declared the object worthless. There is no chesron kis of halachic property, and therefore the mechanism of Arev cannot be triggered.
4. Sha'ar HaMelekh: The Logic of Bechorot and the "Maba D'Beini Beini"
The Sha'ar HaMelekh[^13] conducts a brilliant investigation into the Gemara in Bechorot 10b. The Gemara there discusses the case of one who betroths a woman with a peter chamor (firstborn donkey) before it has been redeemed.
According to Rabbi Yehudah, who holds that a peter chamor is forbidden to derive benefit from (issur hana'ah) prior to redemption, the Gemara asks: "Why should she not be betrothed with the maba d'beini beini (the surplus value of the donkey over the cost of the redeeming lamb)?"
The Sha'ar HaMelekh uses this to challenge the Tosafot in Kiddushin 56b s.v. Hamikdash. Tosafot had argued that the reason orlah cannot be used for Kiddushin—despite being permitted for atypical use (she-lo ke-derech hana'ato)—is that if the woman does not know it is orlah, the betrothal is a mekach ta'ut (a mistaken transaction), as she assumes she is receiving a standard, fully permissible item.
The Sha'ar HaMelekh asks: if Tosafot's "mistake" rationale is correct, why does the Gemara in Bechorot assume she could be betrothed with the surplus value of a peter chamor? Surely she did not know it was a peter chamor, which should render it a mekach ta'ut!
To resolve this, the Sha'ar HaMelekh distinguishes between two types of issurei hana'ah:
- Inherent and Immutable Prohibitions (e.g., Orlah, Kil'ei HaKerem): These objects can never be redeemed or permitted. They are intrinsically worthless to a healthy person. Any atypical utility is highly localized and does not constitute standard commercial value. Therefore, they cannot serve as a medium of Kiddushin under any circumstances.
- Redeemable Prohibitions (e.g., Peter Chamor, Hekdesh): These objects possess an inherent path to permissibility. A peter chamor can be redeemed with a lamb; hekdesh can be redeemed with money. Because the owner has the legal power to redeem them, the "surplus value" is already considered a latent, real monetary asset (mamon). It is not a mekach ta'ut, because the latent value is real and accessible.
Friction
The Strongest Kushya: The Paradox of Rabbinic Nullification of a Torah Marriage
How can a Rabbinic prohibition of derivation of benefit (issur hana'ah de-rabbanan) nullify a Kiddushin that is valid by Torah law?
Consider the case of chametz in the sixth hour of Erev Pesach. By Torah law, this chametz is completely permitted. It is worth substantial money, and the woman accepts it.
According to Torah law, she is a fully married woman (eshet ish). If she then accepts Kiddushin from another man without a get (divorce document) from the first, she would biblically commit adultery, a capital offense.
How can the Sages, through a Rabbinic decree forbidding benefit from chametz in the sixth hour, retroactively dissolve a biblical marriage and permit her to marry another man without a get?
This appears to violate the fundamental principle: "אין כוח ביד חכמים לעקור דבר מן התורה בקום ועשה" — the Sages do not have the power to actively uproot a Torah law[^14].
Terutz A: The Mechanism of Afke'inhu (Retroactive Annulment)
The classic solution, proposed by the Ramban[^15] and the Rashba[^16], invokes the meta-halachic mechanism of Afke'inhu Rabbanan le-Kiddushin minei (the Sages retroactively annulled the marriage).
Under the principle of "כל המקדש, אדעתא דרבנן מקדש" ("anyone who betroths does so based on the conditions and authority of the Sages")[^17], the Sages reserve the right to retroactively invalidate the marriage contract if their decrees are violated.
When a man uses a Rabbinically forbidden object to betroth a woman, the Sages exercise this authority. They retroactively declare the initial money to be a mere gift, thereby dissolving the marriage ab initio.
The Weakness of Terutz A
If this is the mechanism, then the invalidity is not due to a lack of value in the object, but rather a punitive or regulatory annulment of the contract.
Yet, the Rambam does not group this under laws of Rabbinic annulment. He places it in Chapter 5, alongside laws of stolen property and debts—laws that deal directly with the monetary integrity of the transaction. This suggests the Rambam viewed the invalidity as an economic failure of the shaveh perutah requirement, not a retroactive annulment.
Terutz B: Sages as the Arbiters of "Mamon" (Kehillot Yaakov / R' Shimon Shkop)
A deeper, more elegant solution is formulated by Rav Shimon Shkop[^18] and elaborated in the Kehillot Yaakov[^19]. They argue that the Sages do not need to "uproot" the Torah's laws of marriage. Rather, they have the absolute authority to define the legal reality of property (mamon).
The Mechanics of Halachic Value
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+---------------------+---------------------+
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[Torah Legal Reality] [Rabbinic Authority]
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Kiddushin requires Sages have power of
"Mamon" (Shaveh Perutah). "Hefker Beit Din Hefker"
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+---------------------+---------------------+
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[The Synthesis (Psak)]
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Sages strip the object of
utility -> It ceases to be
"Mamon" -> Kiddushin fails
on its own Torah criteria.
The Torah's definition of Kiddushin is: "a transaction effected through mamon (value)." But what is mamon? Mamon is not a physical substance; it is a halachic construct representing commercial utility and ownership.
Under the rule of Hefker Beit Din Hefker (the property declared ownerless by the court is ownerless)[^20], the Sages possess the authority to strip any object of its legal value.
When the Sages declare an object to be an issur hana'ah, they do not merely forbid its use; they legally destroy its utility. An object with zero legal utility has a value of zero.
Therefore, when the husband presents chametz in the sixth hour, he is presenting an object that, in the Sages' legal framework, is worth absolutely nothing.
The Kiddushin fails not because the Sages uprooted a Torah law, but because the transaction failed to meet the Torah's own requirement of shaveh perutah. The Sages did not change the laws of marriage; they changed the legal status of the object.
Intertext
Shulchan Aruch: Even HaEzer 28:21
The Shulchan Aruch codifies the practical application of this debate:
"המקדש בדבר שאסור בהנאה, אפילו מדרבנן... אינה מקודשת. ואם היה איסורו מדבריהם, ואין לו עיקר מן התורה... יש אומרים שהיא מקודשת."
The Rama[^21] adds his crucial gloss:
"ויש אומרים שהיא ספק מקודשת... וכן עיקר, שכל דבר שהוא מדבריהם הוי ספק קידושין."
The Rama stakes out a middle ground. He does not accept the Rambam's absolute invalidation, nor does he accept the Rosh's view that the marriage is completely valid. Because of the conceptual doubt (safek) regarding the Sages' power to strip an object of its Torah-level mamon status, the woman is treated as safek mekudeshet (doubtfully betrothed) and requires a get to marry anyone else.
Torah Source: Deuteronomy 13:18 vs. Psalms 106:28
The Rambam derives the prohibition of using the exchange-money of an idol (dmei avodah zarah) from the verse in Deuteronomy 13:18:
"וְלֹא־יִדְבַּק בְּיָדְךָ מְאוּמָה מִן־הַחֵרֶם" "Let nothing of the condemned cling to your hand."
In contrast, the prohibition of Taqruvet Avodah Zarah (sacrifices offered to idols) is derived in the Gemara Avodah Zarah 29b from Psalms 106:28:
"וַיִּצָּמְדוּ לְבַעַל פְּעוֹר וַיֹּאכְלוּ זִבְחֵי מֵתִים" "They attached themselves to Baal Peor, and ate the sacrifices of the dead."
The Sha'ar HaMelekh[^22] notes a profound distinction between these two sources.
- The verse in Deuteronomy ("Let nothing cling") is a direct, negative commandment (lo ta'aseh) that actively forbids any benefit from the object or its monetary equivalent. It constitutes an inherent Torah-level exclusion of value.
- The verse in Psalms ("sacrifices of the dead") is a comparison (heikesh) to a corpse. Just as a corpse defiles and is forbidden for benefit, so is an idolatrous offering.
Tosafot in Bava Kamma 72b s.v. De-I suggests that this comparison only establishes a Torah-level prohibition for eating (achilah), while the prohibition on deriving benefit (hana'ah) is a Rabbinic law supported by the verse as an asmachta (homiletical support).
This is why, according to Tosafot, the status of Kiddushin with Taqruvet Avodah Zarah is highly complex—it sits at the intersection of a Torah-level eating prohibition and a Rabbinic-level benefit prohibition.
Psak/Practice
Contemporary Halachic Application
In modern halachic practice, the resolution of these conceptual doubts is governed by the meta-halachic principle of Chumra de-Eshet Ish (the extreme stringency applied to the status of a married woman).
Because of the severe biblical prohibition of adultery, we cannot rely on a single lenient opinion when evaluating the validity of a marriage.
Halachic Resolution Flowchart
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Is the medium of Kiddushin an Issur?
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+-------------+-------------+
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[Torah Prohibition] [Rabbinic Prohibition]
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Kiddushin is completely Rama: Safek Mekudeshet.
void. No Get required. Requires a Get out of doubt.
(Chumra de-Eshet Ish)
- Torah-Level Issurei Hana'ah: If a man attempts to betroth a woman with actual orlah, kil'ei hakerem, or chametz on Pesach during the seventh hour, the Kiddushin is completely void. No get is required (though practically, Rabbinic courts will often issue a get לחומרא [out of extreme caution] if there is any factual dispute).
- Rabbinic-Level Issurei Hana'ah: If the betrothal was performed with chametz during the sixth hour on the fourteenth of Nisan, or with Rabbinically forbidden shevi'it (Sabbatical year) produce after the time of bi'ur (removal), we follow the Rama. The woman is ruled to be safek mekudeshet. She cannot marry another man without a get. If she does marry another man without a get, the second marriage is likewise invalid out of doubt, creating a severe state of personal status (aygun).
Meta-Psak Heuristics: The Reality of "Mamon" in the Modern Economy
This sugya provides a crucial meta-psak heuristic for modern financial instruments. When evaluating whether digital assets—such as cryptocurrency, intellectual property, or fiat currency (which has no intrinsic physical value but exists solely by government decree)—can serve as a medium for Kiddushin, halachic authorities refer directly to the debate between the Rambam and the Rosh:
- We see that intrinsic physical value is not required; what matters is legal utility and commercial exchangeability.
- Just as the Sages have the power to destroy value by declaring an object an issur hana'ah, they and society have the power to create value by declaring a non-physical entity to be valid currency (shaveh perutah).
- Therefore, contemporary authorities (such as Rav Asher Weiss[^23]) rule that any asset with recognized public purchasing power can legally effectuate Kiddushin.
Takeaway
Kiddushin is not merely a spiritual union, but a legal transaction requiring objective value (mamon). When Torah or Rabbinic law strips an object of its utility, it does not merely forbid its use—it dissolves its very existence as property, proving that in Halacha, value is defined not by physical reality, but by legal permission.
Footnotes
[^1]: Maggid Mishneh, Hilchot Ishut 5:1. [^2]: Tur, Even HaEzer 28. [^3]: Kesef Mishneh, Hilchot Ishut 5:1. [^4]: Shulchan Aruch, Even HaEzer 28:21. [^5]: Beit Shmuel 28:54. [^6]: Nachal Eitan, Hilchot Ishut 5:1:1. [^7]: Chiddushei HaRitva, Kiddushin 56b. [^8]: Shu"t HaRadvaz, Vol. 1, Sec. 2. [^9]: See Kiddushin 52b regarding the requirement of "dideih." [^10]: Sefer HaMikneh, Kiddushin 56b. [^11]: Ohr Sameach, Hilchot Ishut 5:1:1. [^12]: Shulchan Aruch, Even HaEzer 28:22, based on Shu"t HaRashba. [^13]: Sha'ar HaMelekh, Hilchot Ishut 5:1:1. [^14]: See Yevamot 90b for the parameters of this principle. [^15]: Chiddushei HaRamban, Kiddushin 56b. [^16]: Chiddushei HaRashba, Kiddushin 56b. [^17]: Ketubot 3a. [^18]: Sha'arei Yosher, Sha'ar 5. [^19]: Kehillot Yaakov, Kiddushin, Siman 24. [^20]: Gittin 36b. [^21]: Rama, Even HaEzer 28:21. [^22]: Sha'ar HaMelekh, Hilchot Ishut 5:1:2. [^23]: Minchat Asher, Vol. 1, Siman 84.
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