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Does safek d'oraisa l'chumra mean we assume the stringent position is true, or merely that we cannot take a chance when in doubt? The shiur explores this fundamental chakira through the Gemara (גמרא) in Nedarim 7a, analyzing the Ran's position on safek stok and examining whether ein hekesh l'maase creates a true safek in the yud gimel midos or a safek in application.
This shiur on Nedarim 7a presents a fundamental chakira in understanding the principle of safek d'oraisa l'chumra. Rabbi Zweig challenges the Ran's approach to a case involving safek stok (doubtful vow), questioning whether the safek is truly a safek makom (uncertainty of fact) or a safek in the application of the yud gimel midos ha'Torah (תורה) (thirteen hermeneutical principles). The central question is whether safek d'oraisa l'chumra means the Torah mandates that we assume the stringent position is correct, or whether it merely means we are prohibited from taking a chance when uncertain. This distinction has major practical ramifications. If safek means we assume the chumra, then in cases of safek nedarim during bein hashemoshos (twilight), we would have to assume it is already the next day, potentially allowing a father to annul his daughter's vow even during the period of doubt. The Raavad's position on safek brachos (that one recites a blessing even in doubt because one must fulfill the mitzvah (מצוה)) reflects the assumption approach. However, if safek merely means we cannot take chances, then the doubt remains unresolved, and different consequences follow.
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Nedarim 7a
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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.
