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Can kal vachomer arguments prove that a woman can be acquired through shtar (writ) just as she can through kesef (money)? The shiur analyzes Tosafot's approach to the Gemara (גמרא)'s failed kal vachomer attempts from amah ivriah and from get, distinguishing between logical chumros and halakhic chumros, and explaining why the Torah (תורה)'s explicit chumros carry more weight in determining kinyan mechanisms than speculative logic.
This shiur presents an in-depth analysis of Tosafot on Kiddushin 5a, focusing on the Gemara (גמרא)'s attempts to prove through kal vachomer that a woman can be acquired (mekudeshes) with a shtar, just as she can be acquired with kesef. The Gemara explores multiple potential kal vachomer arguments, each of which encounters significant objections. The first major section examines Tosafot's suggestion of an alternative kal vachomer from amah ivriah (a Jewish maidservant). Tosafot proposes: just as an amah ivriah is not released through biah (marital relations) yet is released through shtar, so too a woman who is acquired through biah should certainly be able to be acquired through shtar. The Gemara's objection—"sheken yotzei bekesef" (that the amah has the additional stringency of being released through money)—appears initially puzzling when applied to this formulation, since the kal vachomer concerns shtar, not kesef.
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Kiddushin 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.
