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When a married woman is found not to be a besula, how do we resolve conflicting chazakos? The shiur analyzes Tosafos (תוספות)' approach that cheskas haguf (presumption of physical status) can override cheskas heter l'bayla, but explores the deeper question of when chazaka can create a halachic status versus when conflicting chazakos cancel each other out.
This shiur presents an in-depth analysis of Gemara (גמרא) Kesubos 9a, focusing on the complex interplay of chazakos (presumptions) in cases where a woman's besula status comes into question. The central case involves a woman who was kiddushin as a ketana (minor) and is later found to be a beula (non-virgin) when examined. The Gemara presents a sfeik sfeika (double doubt): perhaps the biya occurred when she was still a ketana (in which case it would be considered onas/rape regardless of consent due to her age), or perhaps it occurred after she became a gedola, in which case there's a further safek whether it was onas or rotzon (consensual). Tosafos (תוספות) asks why this constitutes a sfeik sfeika when we should rely on cheskas heter l'bayla - the presumption that she was permitted to her husband until now.
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Kesubos 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.
