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What is the nature of a mashkon (collateral)—does it transfer ownership (shavus) or merely create a right to withhold the object? The shiur works through the fundamental machlokes between the Ri Migash, Rosh, Ramban (רמב"ן), and Rashba on whether meshicha works on mashkon, and when mashkon can create a kiddushin obligation. Tosafos (תוספות)'s two-tier approach is unpacked: a standard mashkon is only a right to withhold (no kiddushin), while "hotzi leih mashkon" transfers the monetary value and can effect kiddushin.
This advanced Gemara (גמרא) shiur delves deeply into the sugya of mashkon (collateral) on Kiddushin 9a, examining when and how a mashkon can create a halachic obligation, particularly in the context of kiddushin. The core question is whether a mashkon given at the time of a loan (b'shaas halaavah) differs fundamentally from one given afterward (shelo b'shaas halaavah), and what precisely is being transferred when a mashkon changes hands. The shiur begins by exploring the asmachta problem: when someone says "I will give you a present," but does not yet have the money, there is insufficient gemirat daas (full intent) to create a binding obligation. The question is whether giving a mashkon on such a promise can create a chiyuv (obligation) despite the lack of gemirat daas. The speaker suggests that even after thirty days or at a theoretical "day of reckoning," if the underlying commitment lacked full intent, the mashkon itself cannot cure that deficiency.
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Kiddushin 9a
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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.
