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When a woman's kiddushin status is uncertain, does chazakah rule she owns herself (vadai penuya) or leave her a safek eishes ish? The shiur analyzes the Rif/Rambam (רמב"ם) machlokes, distinguishing between safek da'as (did he intend to marry?) versus safek halacha (הלכה) (was the kiddushin act technically valid). A second chiddush: the Rambam holds edim are required only on nasinah, not on the amirah—unlike the Tur and Shulchan Aruch.
This shiur tackles a fundamental question in hilchos kiddushin: when a woman's marital status is uncertain, under what circumstances do we rely on chazakah to rule she remains a penuya (unmarried), and when does she remain a safek mekudeshes? The discussion centers on the apparent contradiction between the Rif's ruling in Kiddushin 5b—where he holds she is placed on chezkas penuya and is vadai not married midoraisa—and the Rif's own ruling elsewhere that such a woman is safek mekudeshes. The Ran poses a strong difficulty: why the inconsistency? Rabbi Zweig resolves the Rif's shitah by introducing a conceptual distinction between two types of chazakah. Every unmarried woman has two chazakos: (1) a chazakah of ownership—she owns herself (chezkas mamon), and (2) a chazakah of heter—she is muteres (chezkas issur). The key question is: what is the nature of the safek? If the safek concerns whether the man or woman intended to create a kinyan at all (safek da'as haknah)—i.e., did he mean to marry her, did she intend to sell herself—then we apply the strong chazakah of ownership. The woman owns herself, and absent clear evidence of intent to transfer that ownership, she remains vadai a penuya. This is comparable to motzi mechavero alav hara'ayah in monetary disputes—she is muchzak in herself.
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Kiddushin 5b
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