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Can a person consecrate (be magdish) ownerless property (hefker) without first acquiring ownership? The shiur analyzes a Gemara (גמרא) in Nedarim where Rashi (רש"י) requires kinyan before hekdesh while the Ran holds magbi'ah matzil chaveiro koneh chaveiro applies. The Rambam (רמב"ם)'s psak, which appears to require neither kinyan nor dal amos, raises fundamental questions about whether hekdesh requires ownership or merely control.
This shiur examines a complex sugya dealing with consecrating ownerless property (hefker), focusing on a fundamental machloket among Rishonim regarding whether one must first acquire ownership before being magdish an object. The discussion centers on understanding three different approaches: Rashi (רש"י)'s requirement of kinyan, the Ran's novel application of magbi'ah matzil chaveiro koneh chaveiro, and the Rambam (רמב"ם)'s seemingly more lenient formulation. According to Rashi's interpretation of the Gemara (גמרא) in Nedarim, one must first be koneh (acquire) an ownerless object before consecrating it. Rashi explains "ki ve'shahechiziק bo" as requiring actual kinyan - the person must acquire the object for himself first, even if only momentarily, before the hekdesh can be chal (take effect). This ensures that the fundamental principle of "ki yakdish ish" - that something must belong to you in order to consecrate it - is satisfied. Without ownership, there can be no valid ma'aseh hekdesh (act of consecration).
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Nedarim 22b
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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.
