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Why does bori v'shema work differently with chazaka than with rov? Tosafot struggles with whether bori garua v'shema tov follows the same rules as bori tov v'shema garua. The analysis reveals fundamental questions about when external proofs like eidim are required versus when baalei dinim can establish facts themselves.
The shiur analyzes complex Tosafot on Kesubos 12b dealing with the mechanics of bori v'shema (certain vs. uncertain claims) and when external verification is required. Rabbi Zweig begins by examining Tosafot's difficulty with the Gemara (גמרא)'s assertion that "lo ki" can only be used as a language of uncertainty (lemite) rather than certainty (bari). Tosafot brings Rabbeinu Chananel's position that by mukeses (hymen intact) versus d'ruzas ish (hymen torn), there are physiological differences that would make both parties certain of their positions, creating a case of bari v'bari rather than bari v'shema. The shiur then addresses a fundamental question about chazaka (presumptive status): if she wins because of her bari combined with chazaka, what exactly is her chazaka? The chazaka of betula indicates the violation happened after kiddushin rather than before, but this still leaves open whether it happened through ones (rape) or beratzon (willingly). Since the majority of such cases involve willing participation (rov beratzon), how can she collect her full kesubah payment?
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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.
