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How does the principle of davar she'ein miskavein apply when actions have unintended consequences? The shiur analyzes the Gemara (גמרא)'s two approaches to whether inadvertent actions are permitted, examining the interplay between intent, mekalkel (destructive acts), and issur d'rabanan.
This shiur provides an in-depth analysis of Kesubos 5a, focusing on the principle of davar she'ein miskavein (unintended consequences) and its halachic implications. The Gemara (גמרא) presents two distinct approaches (lashonos) to understanding when actions with unintended consequences are permitted. The first lashon deals with a case where someone intends one result (dam) but an unintended consequence (pesach (פסח)/opening) occurs. The Gemara explores whether this falls under the dispute between Rav Yehuda (who holds davar she'ein miskavein is assur) and Rav Shimon (who holds it's mutar). The analysis includes whether the unintended action constitutes a mekalkel (destructive act) which might be permitted even according to the stringent view.
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Kesubos 5a
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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.
