Shabbat Parashat Acharei Mot | 5768

Ownership on Foods That Are Assur B’hana’ah – part II (from Sha’arei Shaul, Pesachim 13)

Moreshet Shaul

[We saw last time reasons why one cannot use things that are asur b’hana’ah for kiddushin even if it is theoretically possible to halachically benefit from them. They include the possibility that there is insufficient value, that a step is missing before it is permitted, and that it is a mekach ta’ut to receive only abnormal hana’ah for kiddushin.]

However, these technical answers do not explain the gemara in Pesachim, that once chametz is assur b’hana’ah, one cannot do bitul on it. After all, an owner can do bitul on something that is not worth a peruta. The matter of mekach ta’ut is certainly not related to the possibility of bitul.

The Sha’ar Hamelech deals with conflicting indications as to whether it is permitted mid’rabbanan to benefit from issurei hana’ah in an unusual manner. On one hand, Tosafot says that there is no kiddushin with issurei hana’ah even though one could use them in an unusual way but only when there is not a shaveh peruta of value. This indicates that it is permitted to receive whatever unusual benefit one can. On the other hand, the gemara (Pesachim 21b) says that one may not benefit from the burning of chametz even though it seems to be unusual benefit. The answer seems to be that since chametz requires burning, benefit that comes as a result of that burning is considered normal benefit under the circumstances. Most issurei hana’ah that require burning can have it done after time. Therefore, any unusual benefit in the meantime is considered halachically unusual and is permitted. However, regarding chametz, which requires immediate burning, any benefit that is received during that process is forbidden as usual hana’ah. What is usual benefit always depends on the present circumstances. That is why the gemara (Temurah 33b) says that the ashes of isurei hana’ah that are to be buried and do not need to be burnt are assur b’hana’ah. One can ask why we don’t consider benefit from ashes as unusual. The answer is that, focusing on something that is presently ashes, such benefit is normal (for ashes).

We now understand why Tosafot assumed that chametz is considered not of value despite the fact that one can burn it and then benefit from its ashes. The explanation is that at this time it is slated for burning and thus to be ashes, at which point unusual uses will be considered normal hana’ah. Therefore, it is immediately normal hana’ah to keep it for himself for that purpose. If we had said that one could get a peruta of hana’ah in this form, then it would have been possible to use the issur hana’ah for kiddushin.

The Ritva has a simple explanation as to why a woman is not married when she is given something that is assur b’hana’ah considering that she should be able to benefit in an unusual manner. He posits that it is forbidden rabbinically to benefit even in an unusual manner. That which the gemara (Pesachim 24b) allows people to smear the extract of oil of orlah on the body of someone who is sick, he explains, is only because of the needs of a sick person. (Tosafot apparently felt that it would be permitted for anyone.) Even if the bride were sick, in which case the issur hana’ah would be of value to her, the kiddushin would not work. This is because it would be forbidden for the groom to benefit even in an unusual way, and therefore it would be considered that he was giving something to her for his benefit. (It would work if he married her with the benefit he caused her by giving her the issur hana’ah but if he is marrying her with the object that is assur b’hana’ah, the object itself has to be considered of value to him, as well.) The Ritva says that the same is true when one gives an issur hana’ah to a cholah sheyeish ba sakanah. Specifically, although she may receive any type of hana’ah, it is not considered that the groom is giving anything of value from his perspective.

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