<br><div><span class="gmail_quote">On 10/22/07, <b class="gmail_sendername">Elazar M. Teitz</b> <<a href="mailto:remt@juno.com">remt@juno.com</a>> wrote:</span><blockquote class="gmail_quote" style="border-left: 1px solid rgb(204, 204, 204); margin: 0pt 0pt 0pt 0.8ex; padding-left: 1ex;">
<RRW's Hypothesis [caveat: this is probably based upon one of the Rishonim but I am not sure]:<br>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.>
<br><br> Afk'inhu is found in the g'mara in five cases:<br><br> 1. When a get was given al t'nai, and an oness prevented the condition from being fulfilled (K'subos 3a)<br><br> 2. When a get was sent by shaliach, and the husband nullified the shaliach, not in his presence (Gittin 33a)
<br><br> 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)<br><br> In these three cases, there is a defective get. However, we also have
<br><br> 4. When a man compels a woman to agree to kiddushin (Bava Basra 48b)<br><br> 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)
<br><br> In these two cases, there is no get, yet afk'inhu is applied.<br>(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.)
<br><br>EMT<br><br></blockquote></div><br>AISI, #5 is a special case because it is not a real marriage entered to by adults.<br>#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.
<br><br>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.<br><br>
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? <br><br>-- <br>Kol Tuv / Best Regards,
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