OPINIONS: The RAN quotes the RASHBA who says that when one who makes a Neder
to prohibit an article of his own upon himself, anyone may come and take
that article. The Rashba adds that even though the original owner may go to
a Chacham and have his Neder repealed, thus causing the article to revert
back into his domain, as long as he has not done so, it is permissible for
anyone else to take the article.
The Ran questions the premise of the Rashba, that the article reverts to the
original owner after the Neder is repealed. By making the Neder to prohibit
the article upon himself, it is as if the owner made the article Hefker.
Although he subsequently rescinds the Neder, he is not empowered to rescind
the implied Hefker, and therefore the article cannot revert to his
ownership.
Obviously, the Rashba does not agree to the Ran's assumption of implied
Hefker, for if so he would admit to the reasoning of the Ran that the
implied Hefker is independent of the Neder, and even if the Neder is
rescinded the Hefker would remain. It is generally accepted that the Rashba
is of the opinion that anything which is Asur b'Hana'ah automatically leaves
the domain of its owner. This opinion is seemingly inconsistent with the
Ran's opinion (42b and 47a) that a son inherits his father's property even
if the father had previously prohibited his possessions to his son. We see
in that case that not only does one not relinquish ownership on something
which is Asur b'Hana'ah, but that he can even assume possession.
The question of ownership of an item that is Asur b'Hana'ah arises many
times throughout Shas and the Rishonim, and there are many differences of
opinion regarding the matter. We shall list some of the different opinions
and some of the major proofs to support those opinions.
(a) TOSFOS in Kidushin (56b) quotes the Mishnah that states that when one is
Mekadesh a woman with a fruit of Orlah (which is Asur b'Hana'ah) the
Kidushin is invalid. Tosfos assumes that the reasoning is that the Orlah is
worthless and therefore the Kidushin is invalid. Tosfos asks that the
Kidushin should not be invalid, because although one may not benefit from
Orlah in the regular manner, one may derive benefit from Orlah in an
unconventional way ("she'Lo k'Derech Hana'aso"), and thus the Orlah is *not*
worthless and the Kidushin should be valid!
It is clear from Tosfos that there *does* exist a quality of ownership of an
item that is Asur b'Hana'ah, because if the man does not own the fruit of
Orlah, he surely could not use it for Kidushin, for even if it has value, it
is not his.
Some Rishonim attempt to qualify the opinion of Tosfos and restrict it to
only such Isurei Hana'ah which have a potential value, while those which are
utterly worthless cannot be said to be owned at all. This restriction seems
to be supported by the RAN in Avodah Zarah (41a) who writes that although an
item of Avodah Zarah is Asur b'Hana'ah and defies ownership, one may assume
ownership of the Avodah Zarah of a Nochri, for potentially a Nochri could be
Mevatel the Avodah Zarah, rendering it permissible. This supports the
opinion that potential value suffices to allow ownwership.
(b) The RITVA in Sukah (35a) quotes an opinion that an Esrog of Orlah is
disqualified and may not be used for the Mitzvah, since it is not considered
his, and the Mitzvah of Esrog requires that it belong to him ("Lachem"). The
Ritva disagrees with this opinion, stating that since others cannot claim
ownership on it, it is considered his and offers a different reason for its
disqualification. Clearly, the Ritva is of the opinion that Isurei Hana'ah
may be owned.
(c) However, the prevalent opinion is that Isurei Hana'ah defies ownership.
RASHI in Pesachim (6a), explaining the statement of the Gemara that Chametz
on Pesach is not in the domain of its owner, writes that "it does not belong
to him." RASHI in Eruvin (30a) writes that a bread of Isurei Hana'ah may not
be used to make an Eruv, and it is commonly understood that the reason is
because such bread cannot be considered to be owned by him since it is Asur
b'Hana'ah. (For a further discussion of this subject, see BEIS HA'LEVI 1:48
and MARCHESHES 1.)