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When is bari v'shema (certain vs. uncertain claims) decided by superior evidence versus superior claims? The shiur develops two approaches in Rishonim - one where bari v'shema works through raaya (proof), another where it works through better ta'ana (claim). This distinction resolves contradictions between different sugyos and explains when migo works.
This shiur provides an extensive analysis of the fundamental machloket regarding bari v'shema (when one party claims certainty while another claims uncertainty) in Kesubos 12b. Rabbi Zweig develops two competing approaches found in the Rishonim to understand when and why the certain claimant wins. The first approach treats bari v'shema as a question of raaya (proof) - the bari wins because his certainty constitutes better evidence of what actually occurred. The second approach treats it as a matter of ta'ana (claims) - the bari wins not because we know the facts, but because he presents a superior claim that deserves recognition by beis din. The shiur demonstrates how this fundamental distinction resolves numerous apparent contradictions in the Gemara (גמרא). When our sugya says 'ukim mamon b'chezkas marei' (leave the money with its current holder), this reflects the ta'ana approach - beis din isn't determining facts but recognizing that the uncertain party lacks a real claim. By contrast, when Bava Kamma says 'hamotzi chaver al hara'aya,' this reflects the raaya approach where proof is required.
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Kesubos 12b
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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.
