The Yerushalmi writes that neither issurei hana’ah d’oraysa or derabbanan can be used for kiddushei kesef. A shtar kiddushin, however, can be written on issurei hana’ah derabbanan but not issurei hana’ah d’oraysa. If a shtar must be written on something which has value, why are issurei hana’ah derabbanan acceptable? Why is there a difference between shtar and kesef?
As we learned in previous posts (see posts labeled KDS), R’ Elchanan suggested that there are two possible reasons why issurei hana’ah lack value: 1) metziyus - practically these items are worthless; 2) din – the halacha prohibits using these items. The difference between the two is with respect to issurei hana’ah derabbanan, which practically are off-limits, but on a d’oraysa level are halachically permissible to use.
With this distinction R’ Elchanan explains the Yerushalmi. Kiddushei kesef requires something that has real-world value, to the exclusion of even issurei hana’ah derabbanan. A shtar, however, does not have to be written on something that has value; it has to be written on something permissible to use. Since issurei hana’ah derabbanan are permitted to be used from a d’oraysa perspective, they are not disqualified.
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I assume the Yerushalmi is saying that issurei hanaah d'rabbanan cannot be used for kiddushei kesef even on a d'orayssa level, correct?
ReplyDeleteI believe that would be correct. Since the value is a function of metziyus, once it lacks value, the kiddushin is bateil on the d'oraysa level. You don't need to come on to the sevara of "afk'inhu l'kiddushin" that Rashi in Pesachim 7 says (however, chameitz may be different, but I don't want to get into it. See Sha'arei Yosher I:10).
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