[Avodah] Rav Schachter on Kiddushei Ta'us; and a hypothesis re: Annulment

[Elazar M. Teitz]

<RRW's Hypothesis [caveat: this is probably based upon one of the Rishonim but I am not sure]:
Hazal only use afk'inhu in the presence of a Defective Get. However, in the total absence of a Get, they do not use annulment.>

     Afk'inhu is found in the g'mara in five cases: 

       1. When a get was given al t'nai, and an oness prevented the condition from being fulfilled (K'subos 3a)

       2. When a get was sent by shaliach, and the husband nullified the shaliach, not in his presence (Gittin 33a)

       3. When a sh'chiv meira gave his wife a get and then recovered, in which case midin haTorah the get is no get since it was given only in anticipation of death (Gittin 73a)

     In these three cases, there is a defective get.  However, we also have

       4. When a man compels a woman to agree to kiddushin (Bava Basra 48b)

       5. When a man married a minor (kiddushin d'rabanan), and when she reaches maturity he prepares a chuppah to make his mariage d'oraisa, only to have someone else come and be m'kadesh her before the first one can (Y'vamos 110a)

       In these two cases, there is no get, yet afk'inhu is applied.
(These cases, however, are different in another regard as well: the hafka'ah is not a retroactive one, but is applied at the very beginning of what would otherwise be valid kiddushin.  Retroactive nullification is indeed only found in cases of a get with a defect.)

EMT