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Can a woman set conditions on a man's giving, or a man on a woman's giving? The shiur analyzes the dispute between the Bahag, Rambam (רמב"ם), and Tur on nasan hu v'amar hi (he gave, she said the formula) versus nasan hi v'amar hu (she gave, he said it). Each position turns on whether the passive recipient can impose conditions on the giver's act, and whether shtika k'hoda (silence as consent) applies when the parties' actions and words don't align.
This shiur examines one of the core sugyos in Masechta Kiddushin regarding who must perform the act of giving and who may speak the formula of kiddushin. The Gemara (גמרא) on Kiddushin 5b discusses four possible scenarios: nasan hu v'amar hu (he gave and he said), nasan hu v'amar hi (he gave and she said), nasan hi v'amar hu (she gave and he said), and nasan hi v'amar hi (she gave and she said). The fundamental question is which combinations are valid. Rabbi Zweig begins by presenting a difficulty in the Rambam (רמב"ם)'s formulation. The Rambam rules that nasan hu v'amar hu is not valid, nosan hu v'amar hi is a safek (doubtful case), and nasan hi v'amar hi is also not valid. The question arises: if we already know that nasan hu v'amar hu is invalid, why does the Rambam need to tell us that nasan hi v'amar hi is also invalid? This suggests there might be independent reasons why each case fails, rather than one general principle that invalidates both.
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Kiddushin 5b
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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.
