The Language of Testimony in Kiddushin: Rashi, Rambam, and the Requirement of "BeZeh"

The shiur opens with a textual puzzle: Rashi (רש"י) introduces the phrase "bezeh" (with this) by biah in explaining the Mishna, and the Rambam (רמב"ם) introduces it by kesef in his halachic ruling, yet neither formulation appears in the Gemara (גמרא) on daf 5a-5b. The Gemara discusses only "noson v'amar" (he gave and said) for kesef kiddushin, without mentioning "bezeh" at all. Why would Rashi and the Rambam add language not found in the Gemara? Furthermore, the Rambam reverses the order from "noson v'amar" to "omer v'noson" (he says and then gives), stating first "omer lo harei at mekudeshes li" and then "v'nosno lo" (and then he gives it to her). This departure from the Gemara's language requires explanation, as the Rambam's methodology is to pasken halacha (הלכה) precisely as stated in the Gemara. The shiur proposes a fundamental distinction between two categories of law in kiddushin. The Mishna in the first perek discusses the three ways a woman is acquired—kesef, shtar, and biah—describing the kinyan itself, the action that creates the acquisition. The Gemara on daf heh elaborates on this, teaching that kesef requires both a maaseh nisina (act of giving) and a maaseh amira (act of verbal declaration). However, there is another dimension to kiddushin entirely separate from the kinyan: the requirement of eidim (witnesses). The Gemara in Sanhedrin 23b establishes that kiddushin uniquely requires eidei kiyum—witnesses who are not merely verifying what happened (lo ta'aneh ed shaker) but are actually necessary for the chalos, the halachic establishment of the marriage. Without witnesses, even if both parties admit they performed kiddushin, the marriage is not valid. This is unique to kiddushin; other kinyanim do not require witnesses as part of their chalos.