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

[Zev Sero]

Richard Wolpoe wrote:
> See Rav Schachter on Kiddushei Ta'us
> http://www.torahweb.org/torah/special/2001/rsch_nissuin.html
> In this posting I essentially concur with  Rav Schachter.
> 
> RRW's Hypothesis [caveta: 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.

Maybe so, but it's got nothing to do with RHS's article, which isn't
about afke'inhu at all, but about kidushei ta'ut.   The two concepts
have no connection whatsoever.

If there was indeed a ta'ut in the kiddushin then the marriage is void,
whether we recognise that fact or not. If we were to be "machmir" at
the poor woman's expense it won't change the fact that she's a single
woman, free to marry whomever she likes, even a kohen.  And if there
wasn't a ta'ut, no act of beit din will create one; if we were to give
her a heter nisuin and then discover our mistake, we would have no
choice but to declare her children mamzerim.

Afke'inhu, OTOH, is an act of beit din.  Yesh koach beyad chachamim.
And you are probably right that the chachamim used this power only in
very limited circumstances, which we have no right to extend, even if
we had the power, which we may well not have either.

In practise, I've never heard of a case of afke'inhu in modern times
(meaning the past 1500 years); while cases of annulment on grounds of
kidushei ta'ut do happen from time to time, and I'm sure RHS has no
problem with that.  (It wouldn't surprise me in the least if he's
personally participated in such a case.)

-- 
Zev Sero               Something has gone seriously awry with this Court's
zev at sero.name          interpretation of the Constitution.
                       	                          - Clarence Thomas