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

[Richard Wolpoe]

On 10/22/07, Elazar M. Teitz <remt at juno.com> wrote:
>
> <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
>
>
AISI, #5 is a special case because it is not a real marriage entered to by
adults.
#4 MIGHT be a close to a  mikach ta'us.  IOW jsut as a man COMPELS a
marriage, it it could be conceivealbe that if he DECEIVED A marriage would
be similar  Dochak no doubt.

At any rate, regardless of the hypothesis, the nature [tzad hashaveh] of all
5 cases is indeed pretty narrow.  There is little evidence that Hazal would
have gone along with a more liberal annulment policy.

OTOH, can a legitimate Takkanah - like a prozbol - be done to  help prevent
agunos by some means of a prenuptial agreeement that would be Halachically
solid and NOT based upon speuclation?

-- 
Kol Tuv / Best Regards,
RabbiRichWolpoe at Gmail.com
Please Visit:
http://nishmablog.blogspot.com/
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