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How can bori v'shem work in our sugya when Rav Yehuda holds it doesn't work in Bava Kamma? The key distinction: when there's a shtar, the husband becomes only a tofes (holder) rather than an owner. A migo can extract money from a tofes, unlike from a true owner.
The shiur addresses a fundamental question raised by the Tosafos (תוספות): how can our Gemara (גמרא) apply the principle of bori v'shem (one who is certain vs. one who is uncertain) when Rav Yehuda explicitly holds in Bava Kamma that bori v'shem lo bori yadaf (the certain one does not prevail)? The apparent contradiction seems insurmountable since both cases involve a shem tov (reasonable uncertainty). Rabbi Zweig develops a comprehensive framework distinguishing between different types of monetary possession. In Bava Kamma, the defendant is considered a true owner (mochzik) of his money. The principle 'chazakas kol mah shetoach yado shel adam shelo hu' - we assume whatever is in a person's possession belongs to him - creates a strong presumption of ownership. Against such ownership, one cannot extract money with mere bori v'shem; formal proof (rayah) is required through the principle 'hamotzi m'chavero alav harayah.'
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Kesubos 12b
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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.
