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Can the kinyan aspect of kiddushin exist separately from the issurim it creates? The Avnei Miluim holds these are distinct elements - the husband acquires the wife's ishus while separate prohibitions are placed upon her. The Pnei Yehoshua argues they're inseparable: either the kinyan enables placing issurim, or the Torah (תורה) automatically creates issurim from the kinyan.
This shiur presents a detailed analysis of a fundamental dispute between two major Acharonim - the Avnei Miluim and the Pnei Yehoshua - regarding the nature of kiddushin. The central question is whether the kinyan (acquisition) aspect of kiddushin is separable from the issurim (prohibitions) it creates. The Avnei Miluim holds that there are two distinct elements: a real kinyan where the husband acquires the wife's ishus (wifehood), and separately, issurim are placed upon her. These two aspects are not totally dependent on each other (zeh b'zeh) - one could theoretically exist without the other. This explains why we need a hekesh to teach that a second person cannot be mekadesh a married woman after someone else has already been mekadesh her. The shiur explores the Avnei Miluim's proof from the Rosh that kiddushin is kesef shivui (an exchange), where if one is mochel a debt used for kiddushin, he must return a pruta's worth to the woman. However, the shiur notes that what the husband acquires (the woman's ishus) has no inherent monetary value - the Torah (תורה) assigns it the value of a pruta to enable the kinyan to function. In contrast, the Pnei Yehoshua maintains that the kinyan and issurim are inseparable. According to one interpretation, the entire purpose of the kinyan is to enable the placing of issurim - one cannot put prohibitions on something unless one first owns it. According to another approach, the Torah automatically creates the issurim as a result of the kinyan. Either way, without the kinyan, no issurim can be created, and therefore a second person cannot be mekadesh her even m'svara (logically), without needing a special hekesh. The shiur addresses the Gemara (גמרא)'s question on the Pnei Yehoshua: if kiddushin doesn't work on a married woman due to the kinyan, why do we need a hekesh to exclude arayos when the same logic should apply to shifcha charufa? Various answers are explored, including that by arayos, the hekesh teaches us that kiddushin creates not just a kinyan but also a special zikah (connection) that cannot be transferred, which would apply equally to shifcha charufa.
Kiddushin
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