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How does bari v'shema work when a husband claims his wife wasn't a virgin and she denies it? The analysis explores whether this is bari garuah (weak certainty) vs. shema tov, and how chazaka affects the din when combined with migul and various halachic positions.
This shiur analyzes a complex Tosafot on Kesubos 12b dealing with the halachic principle of bari v'shema (one who is certain vs. one who is uncertain) in the context of marriage disputes. The primary case involves a husband who claims he found evidence that his wife was not a virgin at marriage, while she claims ignorance of when any violation occurred. Rabbi Zweig begins by examining Tosafot's distinction between different types of bari v'shema cases. In the case of 'mi she'arastani nenasti' (when you betrothed me, I was violated), the question arises whether this constitutes bari garuah v'shema tov (weak certainty vs. good uncertainty) or bari tov v'shema garuah (strong certainty vs. weak uncertainty). The distinction is crucial because it affects whether bari v'shema bari yodat (the certain party wins) applies.
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Kesubos 12b
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Why does the Gemara present a kal v'chomer for chuppah making kiddushin based on kesef not being maichel b'terumah, only to reject it? The shiur reveals that even the rejected kal v'chomer establishes a fundamental yesod: kiddushin is a kinyan for ishus (marital relationship), not merely a kinyan in hilchos kinyanim. The second kal v'chomer—from chuppah being gomeres—raises Tosafos's famous question.
Is the kesef used in kiddushin a true kinyan (acquisition), or merely a symbolic means of establishing marriage? The shiur analyzes multiple interpretations of the Gemara's derivation from ki yikach ki'ach mi'Sayeffron, exploring whether marriage constitutes ownership, and develops three fundamental approaches: (1) The Gemara proves ishus is a kinyan, (2) ishus is not a kinyan but uses kinyan-like means, or (3) ishus is a kinyan but the kesef may not be a ma'aseh kinyan. The Rambam's position—calling kesef "midivrei sofrim"—is explained as distinguishing between cross-referencing concepts versus borrowing terminology.
Why does the Mishna alternate between the language of "kinyan" (acquisition) and "kiddushin" (sanctification) when describing marriage? The shiur develops a fundamental distinction: marriage has two separate aspects—a kinyan dimension (ownership) and a kedusha dimension (sanctified relationship). Either aspect can initiate the bond, and understanding this dual nature resolves multiple textual and halachic questions throughout the sugya.
Does kiddushei shetar require a shevah pruta? The Ran presents two approaches to the Rif's position. The shiur develops the Ran's second pshat that shetar kiddushin functions as a hachnah (exchange) rather than a mere kinyan nesina. This reading has profound implications for isuri hana'ah, mechubar, and the relationship between kesef and shetar.
