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When convicted criminals with different death penalties get mixed up, why does the Mishna rule they all get the lighter punishment? Tosafos (תוספות) holds Beis Din can actually execute anyone with any of the four death penalties when necessary. The chiddush is that the Mishna teaches the optimal approach for giving proper atonement.
This shiur analyzes the fundamental dispute in Tosafos (תוספות) regarding the four methods of Beis Din execution (arba misos Beis Din) when dealing with mixed-up cases. The Gemara (גמרא) in Makkos 2a discusses what happens when people sentenced to different death penalties become confused - the Mishna rules they all receive the lighter punishment. Tosafos asks a fundamental question: if Beis Din has flexibility in execution methods, what's the proof that a lenient warning (hasra) can suffice for a stricter penalty? The shiur presents Tosafos's revolutionary position that Beis Din fundamentally operates under the principle of "bi'arta ra mi'kirbecha" (removing evil from your midst). This means the primary obligation is simply to execute the person in one of the four prescribed ways - not necessarily the specific method mentioned for each crime. The particular method of execution serves to give the condemned person proper atonement (kapara), but if circumstances require, any of the four methods can be used.
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Makkos 2a
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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.
