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When a woman's marital status is uncertain, does chezkas pnuya mean the halacha (הלכה) definitively rules she remains unmarried, or merely that we leave her in limbo? The shiur distinguishes between safek b'metzius (doubt if the parties intended marriage) which produces a psak din midoraisa she's a pnuya, and safek b'halacha (the parties intended marriage but a halachic element is uncertain) which leaves her in a state of safek requiring a get midoraisa.
This shiur delivers a comprehensive analysis of Kiddushin 5b, focusing on the Rif's position regarding safek kiddushin and the concept of chezkas pnuya. Rabbi Zweig opens by presenting the Ran's fundamental question on the Rif: in our sugya, when a man gives a woman money (nasan hu) and she declares herself betrothed (ve'amra hi), the Rif rules it is a safek kiddushin requiring only a get miderabanan. This implies that midoraisa she is considered single (pnuya). Yet later, in discussing cases on daf 8b—where there is uncertainty about whether money was given on her rock, his rock, or a jointly owned rock (sela shel shnayim), or where a dog is chasing her—the Rif rules that these are safek kiddushin requiring a get midoraisa. The Ran finds this contradictory: if safek kiddushin means we apply chezkas pnuya as a safek issur lechumra derabbanan, why in the later cases does the Rif treat it as a safek midoraisa? Rabbi Zweig proposes a sophisticated solution rooted in distinguishing two fundamentally different types of doubt. He explains that nasan hu ve'amra hi, as understood by the Bahag, represents a safek b'metzius—a factual uncertainty about the man's intent. When a man gives a woman money without declaring it is for kiddushin, and she unilaterally declares herself mekudeshes, we genuinely do not know whether he intended marriage or merely a gift. His silence (shtika) does not constitute agreement (shtika k'hoda'ah) because she is attempting to define his action; he has no obligation to respond to her interpretation of what he is doing. This is a true doubt about whether a maaseh kiddushin ever took place—whether the parties meant to effect a marriage at all.
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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.
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