Kiddushin - Daf 56
- When prohibited transactions with maaser sheni money are voided
In a Baraisa it was taught: אין לוקחים בהמה במעות מעשר שני – One cannot buy an animal with maaser sheni funds outside Yerushalayim. If he did so unintentionally, יחזרו דמים למקומם – the money must be returned to its place (i.e., the buyer), because the purchase was in error. If he did so intentionally, תעלה ותאכל במקום – [the animal] must be brought up and eaten in Yerushalayim. Rebbe Yehudah says this is only if the animal was purchased to be a shelamim, i.e., to eat it in Yerushalayim. But if he bought it to use as chullin and eat it outside Yerushalayim, then the money must be returned and the sale is void, as a (Rabbinical) penalty to the seller. The Gemara asks that this contradicts Rebbe Yehudah’s ruling on Daf 52b, that kiddushin made intentionally with maaser sheni is valid!? It answers: אשה יודעת שאין מעות מעשר שני מתחללין על ידה – A woman knows that maaser sheni does not become chullin through her accepting it, ועולה ואוכלתו בירושלים – and will go up and eat it in Yerushalayim, so no penalty was necessary. In the Baraisa, the money’s maaser sheni status was transferred to the animal which will be eaten outside Yerushalayim. The Gemara clarifies that this is true for an אשה חבירה – learned woman, but ordinary people may not know this.
- לאו עכברא גנב אלא חורא גנב re: misappropriated maaser sheni funds
The previous Baraisa taught that where one used maaser sheni funds to buy something not to be eaten in Yerushalayim, the sale is voided, and the money must be returned (if the seller is accessible). The Gemara asks: ונקנסיה ללוקח – Let us instead penalize the buyer who illegally spent the funds and require him to consume food in Yerushalayim equal to the value he misappropriated. Why is the seller penalized by voiding the sale? It answers: לאו עכברא גנב אלא חורא גנב – The mouse is not the thief; the hole is the thief. Just as a mouse could not have stolen food if it lacked a hole in which to hide it, the buyer would not have misspent the funds if he did not find a seller to accept them. The Gemara persists, but if not for the mouse, what wrongdoing could the hole commit? The buyer is still the primary guilty party! The Gemara concludes: מסתברא כל היכא דאיכא איסורא – It is logical that wherever the prohibited item is, התם קנסינן – that is where we penalize. Since the seller is in possession of the misappropriated funds, we compel him return them.
- The source that שור נסקל is prohibited in benefit
The next Mishnah teaches that kiddushin made with any of a list of items which are prohibited in benefit, the kiddushin is invalid. The Gemara will provide sources for all of the items listed, among them שור נסקל – an ox condemned to stoning: a Baraisa explains that since the ox is stoned to death, it is obvious that it cannot be eaten (lacking shechitah), so why does the Torah need to write "לא יאכל את בשרו" – its flesh shall not be eaten? It teaches: שאם שחטו לאחר שנגמר דינו – if he shechted it after its sentence was finalized, but before it was stoned, אסור באכילה – it is forbidden in consumption. The prohibition in benefit is initially derived from the phrase "ובעל השור נקי" – and the owner of the ox is “clean,” which is interpreted as an expression, like one who says: יצא פלוני נקי מנכסיו – Ploni went out “clean” from his possessions, ואין לו בהם הנאה של כלום – and he has no benefit from them at all.
Later, the Gemara explains that since Rebbe Abahu taught that the phrase "לא יאכל" already includes a prohibition from benefit, the phrase "בעל השור נקי" instead teaches that its hide is also prohibited in benefit.
