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How does safek safeka work when one safek is created by smoch miut l'chazakah? Tosafot disagrees whether this constitutes a real safek safeka misapach, with major implications for when a wife can collect her kesuva against competing chazakos.
The shiur provides an in-depth analysis of Tosafot's commentary on Kesubos 9b, focusing on a complex case involving safek safeka (double doubt) regarding a wife's kesuva payment. The central issue revolves around whether a husband is expert in pesach (פסח) pasuach (intact hymen) and the halachic implications when this expertise is in doubt. The Gemara (גמרא) presents a case where there's uncertainty about the husband's expertise, and even if he is expert, there's a further doubt about whether relations were forced or consensual. Tosafot raises several fundamental questions about this safek safeka structure. The Pnei Yehoshua asks why we don't apply the principle that 'mamon ain hochana aharov' - why can a safek safeka overcome the normal rule that money stays where it is.
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Kesubos 9b
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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.
