Non-Conventional Forms of Benefit from Issurei Hana’ah
IN LOVING MEMORY OF
Jeffrey Paul Friedman z"l
August 15, 1968 – July 29, 2012
יהודה פנחס בן הרב שרגא פייוועל ז"ל
כ"ב אב תשכ"ח – י' אב תשע"ב
The gemara in Pesachim (24b) cites two opinions regarding deriving hana’ah in a non-conventional fashion or “she-lo ke-derech hana’ah.”
While it is clear that eating forbidden items in a non-conventional fashion is not punishable by malkot, hana’ah may be different from akhila. Eating is a precise and defined act that is governed by various halakhic parameters, such as time (kedei akhilat perat) and volume (ke-zayit). If the formal act is not performed, the violation is diminished and no malkot are delivered. Thus, a non-conventional form of eating does not yield malkot, as a formal act of eating has not occurred. By contrast, the prohibition of deriving hana’ah is not defined by a particular act. There are many diverse forms of forbidden hana’ah, including passive forms of benefit, such as selling an item for financial gain. Presumably, the prohibition of deriving benefit from a forbidden item is not tethered to the performance of a formal act. Hence – as the first approach of this gemara suggests – hana’ah is forbidden even she-lo ke-derech hana’atan. Even without a classic ma’aseh or act hana’ah should be forbidden.
However, the gemara cites a second opinion, which disqualifies hana’ah she-lo ke-darko from malkot. There are two different strategies toward understanding this second opinion.
One approach concedes that hana’ah, like akhila, is only forbidden if a formal action is performed. Any flaw – such as deviance from conventional forms of benefit – ruins the action and diminishes the severity of the prohibition, thereby eliminating malkot. Rabbeinu Dovid pursues this approach, based on the fact that the prohibition to benefit from items is derived from the term akhila, which classically refers to eating. By subsuming prohibited hana’ah under the term akhila, the Torah may be stressing that just as eating is only forbidden if an action is performed, hana’ah is similarly only malkot-deserving if an action of deriving benefit is performed. Essentially, by diminishing malkot for hana’ah shelo k’darkho, the Torah is equating the prohibition of benefit-derivation and the prohibition of eating. They each require a halakhic formal act, and when that act is disrupted by a deviance, the complete issur has not been perpetrated.
Alternatively, by diminishing the prohibition of hana’ah in an instance of she-lo ke-darko, the gemara may be redefining the nature of hana’ah. If the benefit derived was not the classic and maximal benefit, perhaps the Torah doesn’t define it as hana’ah. An issur hana’ah forbids benefit, but only the maximal and classic form. Accordingly, hana’ah she-lo ke-darko is not exempt from malkot because of the absence of a ma’aseh hana’ah, but rather because the benefit-yield is not considered legally prohibited benefit.
The most immediate nafka mina of this question pertains to the question of whether hana’ah she-lo ke-darko is merely exempt from malkot or is also permitted le-khatchila. Many Rishonim (see the Ritva and Maharam Chalava in Pesachim) claim that mi-d’oraita, hana’ah she-lo ke-darko is completely permissible; only a Rabbinic prohibition bans this practice. More radically, the Mordechai (Pesachim 545) claims that this behavior is completely permissible even le-khatchila, without any de-rabbanan prohibition. By contrast, the Lechem Mishnah (Hilkhot Ma’achalot Assurot, ch. 10) claims that although malkot do not apply, even non-conventional forms of hana’ah are Biblically forbidden.
Presumably, the machloket may be traced to the aforementioned question. If hana’ah she-lo ke-darko is considered halakhic benefit but the act of deriving hana’ah is flawed if, we would expect the practice to be forbidden but without malkot. Legally prohibited hana’ah has been experienced, but a classic action has not been performed, and therefore no malkot can be applied. However, if deviant hana’ah is not considered legally forbidden or halakhic hana’ah, since benefit has not been maximized, we may expect this practice to be completely permissible, at least on the d’oraita level.
A second question surrounds the extent of she-lo ke-darko. What types of deviant behavior would classify as shelo ke-darko? Typically, akhila she-lo ke-darko pertains to eating the item in an atypical fashion - either an atypical mechanic of eating or by eating food that has not been prepared for normal human consumption (such as raw animal fat that has not been cooked or processed). We would expect hana’ah she-lo ke-darko to be similarly classified: deriving pleasure in a strange manner or utilizing an item that has not been processed to the point of typical human benefit. However, Rashi (Pesachim 24b) describes a situation of underusing an item, a case in which a person uses prohibited animal fat to heal a wound instead of manufacturing and lubricating hides. Even though the item is ready for classic utility and he has utilized it in a normal fashion, he is exempt because he did not maximize the utility. The financial benefit of processing hides far exceeds the minimal benefit of healing a wound. Thus, this activity is considered an underuse and she-lo ke-derech hana’ah. It seems that Rashi defines she-lo ke-darko as a lack of halakhic hana’ah. Though the action performed is not deviant, since the benefit derived is not maximal, no forbidden hana’ah has been experienced.
It appears that the Rambam (Ma’achalot Assurot 14:11) agrees with this definition, as he includes very provocative situations of she-lo ke-derech hana’ah, such as the case of one who eats food that is too hot and thus burns his palette. This person has performed a completely normal act of eating (everyone eats hot food), but his benefit is tainted by the burn effect. The Rambam lists another instance in which a person eats completely normal and processed food but flavors it with a bitter tasting item. Even though he has performed a fully normal activity of eating, he is exempt because his benefit level has been severely reduced.
Of course, the Rambam is discussing forms of akhila she-lo ke-darko, not hana’ah she-lo ke-darko. However, the exemption of hana’ah may deeply impact the exemption of akhila. If hana’ah she-lo ke-darko is defined as non-prohibited hana’ah, we may similarly explain the exemption of akhila she-lo ke-darko: Since the person has not received benefit, he has not violated the prohibition. This, of course, depends of how we define the prohibition of eating forbidden foods. Is eating so different that it is forbidden even without classically forbidden hana’ah? Or is eating only forbidden if it mediates classically forbidden hana’ah?
A final nafka mina concerns the application of this rule to disqualify mitzva performance when the food is eaten she-lo ke-darko. The Minchat Chinuch (430) explores this issue and posits that a person is not obligated to recite Birkhat Ha-Mazon after eating in a non-conventional manner. Clearly, the Minchat Chinuch views she-lo ke-darko as a breakdown in the action of eating. When actions of eating are necessary for the execution of a mitzva or to launch an obligation for Birkhat Ha-Mazon, shelo ke-darko is not sufficient. Had she-lo ke-darko been an exemption based on the lack of halakhically forbidden hana’ah, it would have no relevance to the performance of mitzvot that are not contingent upon hana’ah!