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When does an asei override a lo taaseh? The shiur analyzes whether asei docheh lo taaseh means the asei remains obligatory but circumstances prevent fulfillment, whether it's a psak halacha (הלכה) of shev ve'al taaseh, or whether the asei was never given where the lo taaseh applies. The Rivvo and Rabbeinu Nissim's positions are explored through Yevamos 5a and parallel sugyos in Shabbos (שבת), Chulin, and Zevachim.
This advanced shiur provides a deep analysis of the principle of asei docheh lo taaseh (a positive commandment overrides a negative one), focusing primarily on Yevamos 5a and exploring when this principle applies and its underlying conceptual framework. The shiur opens by examining the Gemara (גמרא)'s distinction between lo taaseh she'eino shoveh bakol (a prohibition that doesn't apply equally to all) and lo taaseh hashoveh bakol (one that does apply equally). The fundamental question is why an asei can override the former but not the latter when combined with an issur asei (a positive prohibition). The challenge is conceptual: if an asei can override one lav, it should override multiple lavin; adding an issur asei should make no difference since it's merely additional stringency, not a different category of prohibition. The Rambam (רמב"ם) in Mishneh Torah (תורה) demonstrates this by not counting an issur asei as a separate mitzvah (מצוה) when it accompanies a lo taaseh.
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Yevamos 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.
