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When does an asei override a lo taaseh v'asei? The shiur distinguishes between issur asei (passive obligation) and mitzvas asei (active obligation), showing that the principle of asei docheh lo taaseh applies differently to each. The Rambam (רמב"ם)'s divergent psakim in Hilchos Shabbos (שבת) and Hilchos Yom Tov reflect this fundamental chakira.
This shiur presents a comprehensive analysis of the fundamental principle of asei docheh lo taaseh (a positive commandment overrides a negative commandment), with particular focus on when this principle applies when the negative commandment is itself coupled with a positive obligation (lo taaseh v'asei). The shiur opens by examining a difficulty in Rashi (רש"י)'s commentary on Yevamos 3b. Rashi explains that the Gemara (גמרא)'s original question was how an asei could override a lo taaseh sheyesh bo kares (a prohibition carrying the penalty of kares). According to Rashi, the Gemara initially assumed that asei docheh lo taaseh applies broadly, but was troubled by the severity of kares. However, this reading creates problems: why didn't the Gemara first address the simpler issue of asei docheh lo taaseh v'asei before tackling the kares dimension? Additionally, if the principle of asei docheh lo taaseh without a positive commandment is already well-established, the Gemara's flow seems disrupted.
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Yevamos 3b
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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.
