Shabbat Parashat Kedoshim | 5768
Ownership on Foods That Are Assur B’hana’ah – part III (from Sha’arei Shaul, Pesachim 13)
[In analyzing why one cannot create kiddushin with something that is asur b’hana’ah, we saw Tosafot’s view that for different reasons it is not considered something of value. We ended off with the Ritva’s claim that even when there is indirect hana’ah that comes to the recipient, it is not considered to have been provided by the apparent owner.]
The Ritva points out that the owner of the issur hana’ah may not sell it even to one who is permitted to use it. He also discusses the fact that one can get hana’ah after the chametz is turned into ashes and explains that this is not cause for kiddushin because the ashes are ownerless. Tosafot (2nd answer), who says that it is talking about a case where there is not a shaveh peruta of hana’ah from the ashes assumes that there is ownership over the ashes.
Tosafot and the Ritva are consistent. The Ritva holds that one cannot have hana’ah even in an unusual way. The question is only in regard to the ashes and even there he says that there is no ownership. According to Tosafot, it is permitted to benefit in an unusual manner and therefore even when there is not a peruta worth of value, ownership is still possible. If by burning there will be a shaveh peruta, the remaining ownership will allow for kiddushin.
According to Tosafot, the potential shaveh peruta is significant regarding issurei hana’ah that it is permitted to possess until some future moment when he will destroy them. Regarding chametz, though, since he has an obligation to destroy it as soon as possible, the burning is considered in the manner of hana’ah and, therefore, the theoretical possibility of hana’ah is irrelevant. It was in regard to orlah that Tosafot (Kiddushin 56b) needed to raise the possibility of it not being shaveh peruta or the element of mekach ta’ut to explain why there was no kiddushin.
That which the Rosh distinguishes between strong and weak issurei hana’ah, which bothered the Beit Shmuel since the important thing is whether practically it is assur or not, can be explained as follows. It is possible to get practical benefit if one waits until it is ashes before getting hana’ah. However, if the prohibition is a serious one, we cannot consider this because we may not allow selling of the issur to be used for its ashes.
We also understand why Rashi has to use the concept of hefker beit din in order to explain why there is no kiddushin considering there should not be kiddushin simply because it is not worth anything. The answer is that if it is talking about a trei d’rabbanan (two reasons why it not d’orayta), then there is value because the Rabbis did not forbid benefiting from it in an unusual manner or to use it after it is turned into ashes. This was forbidden only when the chametz is prohibited from the Torah. Rashi, though, says that even so the Rabbis made the ownership of the chametz lacking. While the bride can acquire the chametz from hefker and can get benefit from it, she is not considered to have received it from the groom.
Rashi’s source that the chametz is not owned by its apparent owner is the statement of R. Elazar that chametz is one of two things that are not in a person’s possession and are only treated as such in regard to obligating him. If he owned the chametz, it would not be a chiddush that the Torah obligated him. The reason it leaves his possession from the Torah could not be its lack of usefulness because Torah law allows its use in an unusual manner. There must be, therefore, some sort of halachic rule that the prohibition removes the status of ownership. This is different from the Ritva’s approach. Although he considers it not owned by its apparent owner, according to the Ritva it is because he is unable to receive benefit from it, not due to a g’zeirat hakatuv, as Rashi posits.
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This edition of Hemdat Yamim is dedicated in loving memory of
R ' Meir ben Yechezkel Shraga Brachfeld
Hemdat Yamim is endowed by Les & Ethel Sutker of
Max and Mary Sutker
and Louis and Lillian Klein, z”l.