QUESTION: The Mishnah states that when a man is Mekadesh a woman with a fruit of Orlah (or with any other type of object which is Asur b'Hana'ah), the Kidushin is not valid.

TOSFOS (DH ha'Mekadesh) asks that when the Torah forbids one from deriving benefit from an object which is Asur b'Hana'ah, it forbids only normal forms of benefit. The Torah does not forbid abnormal forms of benefit ("she'Lo k'Derech Hana'aso"). Giving a woman a fruit in order to be Mekadesh her certainly is an unusual form of use of the fruit. Why does the Mishnah rule that the Kidushin is not valid?

(a) TOSFOS (DH ha'Mekadesh), in his first answer, explains that a fruit is worth a Shaveh Perutah only when it is used in its normal manner. When it is used in an unusual manner (such as for Kidushin), its value is not a Shaveh Perutah. Accordingly, the fact that the object is Asur b'Hana'ah is not the direct cause for the Kidushin's inability to take effect. Rather, the Kidushin does not take effect because the object is not worth a Shaveh Perutah when it is used in an unusual way ("she'Lo k'Derech Hana'aso").

(b) In his second answer, TOSFOS explains that even when the fruit is worth more than a Shaveh Perutah when it is used "she'Lo k'Derech Hana'aso," nevertheless the Kidushin does not take effect because the woman consents to the marriage only when she can use the object in its normal manner of usage. Since she cannot use the fruit of Orlah in its normal manner of usage, the Kidushin is a Kidushei Ta'us and does not take effect.

(c) The RITVA and RAN suggest another answer. The allowance to derive Hana'ah in a manner which is "she'Lo k'Derech Hana'aso" is mid'Oraisa. The Chachamim, however, prohibited one from deriving Hana'ah in any manner. Consequently, the fruit of Orlah which the man uses to be Mekadesh the woman has no monetary value and is considered worth less than a Shaveh Perutah even mid'Oraisa. Since the Chachamim instituted that it is Asur b'Hana'ah in all forms, it effectively has no worth and there is no distinction between the item's worth mid'Oraisa and its worth mid'Rabanan. An object's worth is subject to its ability to be utilized in a practical manner, and is judged based on what buyers would pay for the object in the marketplace. If an object of value cannot be used for any reason, it is worthless, even with regard to its status mid'Oraisa.

QUESTION: The Mishnah states that when a man is Mekadesh a woman with a fruit of Orlah (or with any other type of object which is Asur b'Hana'ah), the Kidushin is not valid.

The Rishonim ask that the Torah permits a person to benefit from the ashes of an object which was Asur b'Hana'ah and was completely burned. Accordingly, the fruit of Orlah should be considered as though it has value, since the woman can use its ashes once it is burned (assuming the ashes are worth at least a Perutah). Why does the Mishnah rule that the Kidushin is not valid?

(a) The RASHBA answers that the ashes which remain after the object has been burned are considered a new entity altogether. The fruit of Orlah which the man gives the woman has no value at the moment he gives it to her. The ashes of that fruit are like a "Davar she'Lo Ba l'Olam," an object which has not yet come into the world, and thus they cannot be viewed as an inherent (and valuable) part of the fruit. The ashes are a separate, new entity that comes into existence only after the act of Kidushin has been performed.

(b) The RITVA answers with a clarification of the nature of an object which is Asur b'Hana'ah. A general question which applies to all types of Isur Hana'ah is: Does the owner retain any degree of ownership of the item, or is the item completely removed from his ownership? Perhaps the object remains in his possession but he has no way to use it (since it is Asur b'Hana'ah). On the other hand, perhaps his ownership of the object has been annulled since he cannot use the object; ownership is a legal concept based on monetary value, and if the object has no value it cannot be "owned." (See AVNEI MILU'IM 28:26.)

The Ritva maintains that one has no ownership at all of an object which is Asur b'Hana'ah since the object has no value. Therefore, although the ashes of Orlah may have value, that value cannot be ascribed to the owner of the Orlah. The fruit of Orlah is owned by no one, due to the fact that it is Asur b'Hana'ah. When the ashes come into existence, they continue to be owned by no one and are considered Hefker. (Although the woman may make a Kinyan on the ashes now and acquire them, the Kidushin does not take effect because the man did not give her an object of value which he owned.)

QUESTION: The Gemara discusses the status of a Shor ha'Niskal that was put to death. A bull that gored a person and was put to death with Sekilah in accordance with its verdict is forbidden to be eaten (Asur b'Achilah) because it is a Neveilah (an animal that was not properly slaughtered). A bull that was sentenced to death with Sekilah but instead was slaughtered with a proper Shechitah after its verdict was issued is Asur b'Achilah even though it was properly slaughtered, as derived from the verse.

Mar Zutra asks that perhaps the verse does not mean that a Shor ha'Niskal that was properly slaughtered after its verdict is forbidden to be eaten. Rather, perhaps the verse means that when the bull was slaughtered with a stone after its verdict, it is considered a Shor that was "stoned" and not slaughtered and thus is forbidden to be eaten, even though the Shechitah was valid and the animal is not a Neveilah.

The Gemara challenges Mar Zutra's question and says that Shechitah performed with any type of instrument is a valid Shechitah.

The Gemara's intention is unclear. Mar Zutra himself agrees that Shechitah with a stone is a valid form of Shechitah, for otherwise the animal would be a Neveilah. How does the Gemara intend to refute Mar Zutra's question by saying that Shechitah performed with a stone is a valid Shechitah?

(a) RASHI explains that in the Gemara's initial assumption, the term "Shechitah" applies only to Shechitah performed with a knife and not to Shechitah performed with any other instrument. Although the animal is not considered a Neveilah as long as any instrument properly severs the two Simanim in its neck, that act is not considered an act of "Shechitah" unless it is performed with a knife. Mar Zutra suggests that an act of cutting two Simanim with any instrument other than a knife is considered "Sekilah." If the cutting of two Simanim in such a manner is called "Sekilah," perhaps when this form of "Sekilah" is performed on a Shor ha'Niskal the animal becomes Asur b'Hana'ah.

The Gemara then asks rhetorically, "Is [the requirement to use] a knife [for Shechitah] written in the Torah?" That is, the term "Shechitah" is not limited to an act of Shechitah performed with a knife. It applies to Shechitah performed with any instrument. Once the Gemara has established that fact, Shechitah performed with a stone is not classified as "Sekilah" but rather as "Shechitah."

(b) The RITVA understands that the Gemara is contrasting a l'Chatchilah form of Shechitah with a b'Di'eved form of Shechitah. The Gemara's initial assumption was that a stone is valid for Shechitah only b'Di'eved, while a knife is valid l'Chatchilah. If, on the other hand, both are valid l'Chatchilah, then there should be no difference between them.

The Gemara proves that Shechitah with a stone is an equally valid form of Shechitah as Shechitah with a knife. Therefore, the status of a bull slaughtered with a stone should be no different from the status of a bull slaughtered with a knife.