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Can despair (yiush) discharge a financial obligation? The shiur analyzes a case where a community lent money to a duke who defaulted, then his son began repaying—who gets the money? The Ramban (רמב"ן)'s revolutionary approach distinguishes between withholding an object (where yiush helps) versus owing money (where it doesn't), with major implications for understanding issur vs. maaseh gezeila.
This advanced shiur explores a complex sugya in Bava Kamma 56a regarding whether yiush (despair of recovery) can be effective on a chov (monetary obligation). The central case is a responsum from the Marik involving a community that lent money to a duke with an arrangement that he would reduce their taxes as repayment. When the duke failed to repay and the community gave up hope, his son later began making payments. The question arose: should the money go to the original lenders (the gabbaim who fronted the funds) or to the entire community (since everyone had despaired of recovery)? The shiur presents a fundamental machloket between the Marik (cited by the Rema) who holds that yiush works on a chov, and the Taz who brings the Chacham Tzvi arguing this makes no sense. The Taz's proof comes from the Gemara (גמרא)'s case of someone who picks up an aveida with intent to steal it (al menas legozla), then the owner is miyaesh, and then the finder decides to steal it. The Gemara rules he is still chayav in hashavat aveida—demonstrating that yiush doesn't help by gezeila even when the object is besuso liyado (in the thief's possession).
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Bava Kamma 56a
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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.
