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What constitutes the essential act of kiddushin—the verbal declaration (amira) or the physical transfer (nasinah)? The shiur develops a fundamental machloket between the Rambam (רמב"ם) and other Rishonim: the Rambam holds the ma'aseh nasinah is the essence of kiddushin (amira merely defines the nasinah), while the Tur/Shulchan Aruch require amira as an integral component. This dispute yields critical nafka minas in safek/mekudeshes misafek cases.
This shiur continues a detailed analysis of Kiddushin 5b, exploring the fundamental nature of the ma'aseh kiddushin—the act that creates the marital bond. The central question is whether kiddushin requires both a verbal declaration (amira) and a physical transfer of value (nasinah), or whether the nasinah alone constitutes the essential act. The Gemara (גמרא) discusses a case where a man says "Harei at mekudeshes li" to one woman and adds "ve'at" to her friend. If he says "ve'at nami" (you too), both women are potentially mekudeshes through the principle of yad (completing language). But if he merely says "ve'at," there's a safek: does this mean "ve'at nami" (you too) or "ve'at chazoi" (you be a witness)? The Gemara concludes there is no yad by kiddushin—we don't complete incomplete language—so the second woman is not mekudeshes.
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Kiddushin 5b
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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.
