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Does kiddushin involve the father selling his daughter, or merely granting consent? The shiur unpacks a fundamental dispute between Rashi (רש"י) and Tosafos (תוספות) on "ha'av zakai b'bito." Tosafos views the father as possessing ownership rights and setting a purchase price; Rashi sees the father as a guardian whose consent is required but who cannot charge for it.
This shiur explores a foundational disagreement between Rashi (רש"י) and Tosafos (תוספות) regarding the nature of kiddushin and the father's role. The starting point is the Gemara (גמרא)'s statement "ha'av zakai b'bito b'kesef shtar u'biah" — the father has rights over his daughter regarding kiddushin through money, document, or relations. The core question is what exactly this "zakah" (entitlement) means and what it teaches us about the structure of kiddushin. Tosafos holds that when kiddushin is performed through biah with the father's consent, any money given goes to the father. This position assumes the father actually owns his daughter in some sense and can place a purchase price on her. When someone marries the daughter, he is acquiring an object from the father, and the father is entitled to set terms and collect payment. According to Tosafos, kiddushin is fundamentally a form of sale or kinyan — the groom is buying something from the father. The Gemara's teaching that the father is "zakai" proves there is an ownership element. Without ownership, there would be no basis to obligate payment; one cannot charge for mere consent.
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Kiddushin 3b
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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.
