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1. Where does the principle of halachic marriage annulment (afka'inhu) apply? There are five Talmudic cases where this principle is invoked: A man betrothed (eirusin) a minor (rabinically) and wa...
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#1: Post edited
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Monica Cellio
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2020-09-01T01:50:49Z (about 4 years ago)
fixed import glitches (copied whole body)
<p><strong>1. Where does the principle of <em>halachic</em> marriage annulment (<em>afka'inhu</em>) apply?</strong></p><p>There are five Talmudic cases where this principle is invoked:</p><ol><li><p>A man betrothed (<em>eirusin</em>) a minor (rabinically) and was attempting to finalize the marriage (<em>nissuin</em>) once she reached majority. Before he did so, a second man seized her, and seemingly betrothed her on a biblical level. The second man's actions are invalid, because of <em>afka'inhu</em> (according to Rav Ashi). (<a href="https://www.sefaria.org/Yevamot.110a.6?lang=bi" rel="nofollow noreferrer">Yevamot 110a</a>)</p></li><li><p>If a man coerces a woman to accept his betrothal, we invoke the principle of <em>afka'inhu</em> (according to Mar bar Rav Ashi) and the betrothal does not take effect. (<a href="https://www.sefaria.org/Bava_Batra.48b.5?lang=bi" rel="nofollow noreferrer">Bava Batra 48b</a>)</p></li><li><p>A man divorces his wife on condition that he does not return, and he is prevented from returning unavoidably (<em>b'oneis</em>). Biblically, the divorce does not take effect, but the Rabbis applied <em>afka'inhu</em> to retroactively annul the marriage. (<a href="https://www.sefaria.org/Ketubot.3a.3?lang=bi" rel="nofollow noreferrer">Ketubot 3a</a>)</p></li><li><p>A man sends an agent to divorce his wife, and then cancels the agency (under certain circumstances). Biblically, if the agent were to present his wife with the <em>get</em> she is not divorced, but the Rabbis applied <em>afka'inhu</em> to retroactively annul the marriage. (<a href="https://www.sefaria.org/Gittin.33a.9?lang=bi" rel="nofollow noreferrer">Gittin 33a</a>)</p></li><li><p>A man at death's door divorces his wife and then recovers. Biblically, she is not divorced, but (according to Rabbah and Rava) the Rabbis applied <em>afka'inhu</em> to retroactively annul the marriage. (<a href="https://www.sefaria.org/Gittin.73a.5?lang=bi" rel="nofollow noreferrer">Gittin 73a</a>)</p></li></ol><p>Can we apply it in other cases?</p><p>Rashba in <a href="http://hebrewbooks.org/pdfpager.aspx?req=1376&st=&pgnum=413" rel="nofollow noreferrer">Responsum 1185</a> writes that we cannot:</p><blockquote><p>×ין לך בכלל ×“×‘×¨×™× ×לו ××œ× ×ž×” שהתירו בהן בפירוש ש×× ×›×Ÿ ××£ ×× ×• × ×מר שכל שעשה ×©×œ× ×›×”×•×’×Ÿ בקידושיו ×œ× × ×™×—×•×© לקידושין</p><p>You only have in all these matters what they explicitly permitted. Otherwise, we could also say that in every case where one acts improperly in betrothal we can ignore it.</p></blockquote><p>Chacham Tzvi makes the same point in <a href="http://www.hebrewbooks.org/pdfpager.aspx?req=19566&st=&pgnum=199" rel="nofollow noreferrer">Responsum 124</a>, although he does note that Rivash in <a href="http://hebrewbooks.org/pdfpager.aspx?req=19989&st=&pgnum=264" rel="nofollow noreferrer">Responsum 399</a> thought that it may be possible for a community nowadays to legislate that any marriages performed against its own specific rules would be invalid.</p><p>(Parenthetically, the Rabbinical Assembly's Beit Din (Conservative Judaism) will annul marriages for reasons other than the Talmudic ones, normally in <em>agunah</em> cases where all other methods of resolution have failed - see e.g. <a href="https://books.google.com/books?id=vi9ZDwAAQBAJ&pg=PT239&lpg=PT239&dq=annulling%20marriage&source=bl&ots=RTxJUGyZFV&sig=gCf5n6CXH6Z-70a70OpMNM7Do94&hl=en&sa=X&ved=2ahUKEwj3-JjJ6vjdAhXMmOAKHTvPCJYQ6AEwBXoECAIQAQ#v=onepage&q=anuuling%20the%20marriage&f=false" rel="nofollow noreferrer">here</a>.)</p><p><strong>2. Does <em>afka'inhu</em> make them liable for the prohibitions involved in engaging in sex outside of marriage?</strong></p><p>This question is a little difficult to answer. There will certainly be no earthly consequences. Even <a href="http://www.hebrewbooks.org/rambam.aspx?sefer=4&hilchos=25&perek=2&halocha=17&hilite=" rel="nofollow noreferrer">Rambam</a> who believes that there is a biblical prohibition couldn't prescribe any punishment here, as they were not 'warned' (<em>hatra'ah</em>) before the act.</p><p>Is G-d going to punish them? Presumably not, as they are now following Rabbinic legislation as they were <a href="https://www.sefaria.org/Deuteronomy.17.11?lang=bi&aliyot=0" rel="nofollow noreferrer">commanded to</a>, but (not being privy to G-d's point-scoring system) I don't say this with any great confidence.</p><p><strong>3. What is the status of the children of an annulled marriage?</strong></p><p>The children have the status of any other child born from unmarried parents i.e. they are completely normal Jews. They are not <em>mamzerim</em>, who are only formed from the product of adulterous or incestuous unions (<a href="https://www.sefaria.org/Mishneh_Torah%2C_Forbidden_Intercourse.15.1?lang=bi" rel="nofollow noreferrer">Rambam, Hilchot Issurei Bi'ah 15:1</a>). If he is a <em>kohein</em>, she does not become a <em>zonah</em> (<a href="https://www.sefaria.org/Mishneh_Torah%2C_Forbidden_Intercourse.18.2?lang=bi" rel="nofollow noreferrer">Rambam, Hilchot Issurei Bi'ah 18:2</a>), and thus the children are not <em>challalim</em> (<a href="https://www.sefaria.org/Mishneh_Torah%2C_Forbidden_Intercourse.19.1?lang=bi" rel="nofollow noreferrer">Rambam, Hilchot Issurei Bi'ah 19:1</a>).</p><p><strong>4. Can <em>afka'inhu</em> revoke the status of a <em>mamzer</em>?</strong></p><p>In theory, it appears that applying <em>afka'inhu</em> would allow a <em>mamzer</em> to lose his stigma.</p><p>However, R. Tam held that if it is obvious that someone is doing something in order to activate <em>afka'inhu</em> and thus 'purify' a <em>mamzer</em>, then the Rabbis would not apply <em>afka'inhu</em> in such a case. If, however, it's clear to us that such is not his intent, then applying <em>afka'inhu</em> would indeed 'purify' the <em>mamzer</em>. (<a href="https://www.sefaria.org/Tosafot_on_Gittin.33a.9.2?lang=bi" rel="nofollow noreferrer">Tosafot Gittin 33a s.v. <em>ve'afka'inhu</em></a>)</p>
- **1. Where does the principle of *halachic* marriage annulment (*afka'inhu*) apply?**
- There are five Talmudic cases where this principle is invoked:
- 1. A man betrothed (*eirusin*) a minor (rabinically) and was attempting to finalize the marriage (*nissuin*) once she reached majority. Before he did so, a second man seized her, and seemingly betrothed her on a biblical level. The second man's actions are invalid, because of *afka'inhu* (according to Rav Ashi). ([Yevamot 110a][1])
- 2. If a man coerces a woman to accept his betrothal, we invoke the principle of *afka'inhu* (according to Mar bar Rav Ashi) and the betrothal does not take effect. ([Bava Batra 48b][2])
- 3. A man divorces his wife on condition that he does not return, and he is prevented from returning unavoidably (*b'oneis*). Biblically, the divorce does not take effect, but the Rabbis applied *afka'inhu* to retroactively annul the marriage. ([Ketubot 3a][3])
- 4. A man sends an agent to divorce his wife, and then cancels the agency (under certain circumstances). Biblically, if the agent were to present his wife with the *get* she is not divorced, but the Rabbis applied *afka'inhu* to retroactively annul the marriage. ([Gittin 33a][4])
- 5. A man at death's door divorces his wife and then recovers. Biblically, she is not divorced, but (according to Rabbah and Rava) the Rabbis applied *afka'inhu* to retroactively annul the marriage. ([Gittin 73a][5])
- Can we apply it in other cases?
- Rashba in [Responsum 1185][6] writes that we cannot:
- > אין לך בכלל דברים אלו אלא מה שהתירו בהן בפירוש שאם כן אף אנו נאמר שכל שעשה שלא כהוגן בקידושיו לא ניחוש לקידושין
- >
- >You only have in all these matters what they explicitly permitted. Otherwise, we could also say that in every case where one acts improperly in betrothal we can ignore it.
- Chacham Tzvi makes the same point in [Responsum 124][7], although he does note that Rivash in [Responsum 399][8] thought that it may be possible for a community nowadays to legislate that any marriages performed against its own specific rules would be invalid.
- (Parenthetically, the Rabbinical Assembly's Beit Din (Conservative Judaism) will annul marriages for reasons other than the Talmudic ones, normally in *agunah* cases where all other methods of resolution have failed - see e.g. [here][9].)
- **2. Does *afka'inhu* make them liable for the prohibitions involved in engaging in sex outside of marriage?**
- This question is a little difficult to answer. There will certainly be no earthly consequences. Even [Rambam][10] who believes that there is a biblical prohibition couldn't prescribe any punishment here, as they were not 'warned' (*hatra'ah*) before the act.
- Is G-d going to punish them? Presumably not, as they are now following Rabbinic legislation as they were [commanded to][11], but (not being privy to G-d's point-scoring system) I don't say this with any great confidence.
- **3. What is the status of the children of an annulled marriage?**
- The children have the status of any other child born from unmarried parents i.e. they are completely normal Jews. They are not *mamzerim*, who are only formed from the product of adulterous or incestuous unions ([Rambam, Hilchot Issurei Bi'ah 15:1][12]). If he is a *kohein*, she does not become a *zonah* ([Rambam, Hilchot Issurei Bi'ah 18:2][13]), and thus the children are not *challalim* ([Rambam, Hilchot Issurei Bi'ah 19:1][14]).
- **4. Can *afka'inhu* revoke the status of a *mamzer*?**
- In theory, it appears that applying *afka'inhu* would allow a *mamzer* to lose his stigma.
- However, R. Tam held that if it is obvious that someone is doing something in order to activate *afka'inhu* and thus 'purify' a *mamzer*, then the Rabbis would not apply *afka'inhu* in such a case. If, however, it's clear to us that such is not his intent, then applying *afka'inhu* would indeed 'purify' the *mamzer*. ([Tosafot Gittin 33a s.v. *ve'afka'inhu*][15])
- [1]: https://www.sefaria.org/Yevamot.110a.6?lang=bi
- [2]: https://www.sefaria.org/Bava_Batra.48b.5?lang=bi
- [3]: https://www.sefaria.org/Ketubot.3a.3?lang=bi
- [4]: https://www.sefaria.org/Gittin.33a.9?lang=bi
- [5]: https://www.sefaria.org/Gittin.73a.5?lang=bi
- [6]: http://hebrewbooks.org/pdfpager.aspx?req=1376&st=&pgnum=413
- [7]: http://www.hebrewbooks.org/pdfpager.aspx?req=19566&st=&pgnum=199
- [8]: http://hebrewbooks.org/pdfpager.aspx?req=19989&st=&pgnum=264
- [9]: https://books.google.com/books?id=vi9ZDwAAQBAJ&pg=PT239&lpg=PT239&dq=annulling%20marriage&source=bl&ots=RTxJUGyZFV&sig=gCf5n6CXH6Z-70a70OpMNM7Do94&hl=en&sa=X&ved=2ahUKEwj3-JjJ6vjdAhXMmOAKHTvPCJYQ6AEwBXoECAIQAQ#v=onepage&q=anuuling%20the%20marriage&f=false
- [10]: http://www.hebrewbooks.org/rambam.aspx?sefer=4&hilchos=25&perek=2&halocha=17&hilite=
- [11]: https://www.sefaria.org/Deuteronomy.17.11?lang=bi&aliyot=0
- [12]: https://www.sefaria.org/Mishneh_Torah%2C_Forbidden_Intercourse.15.1?lang=bi
- [13]: https://www.sefaria.org/Mishneh_Torah%2C_Forbidden_Intercourse.18.2?lang=bi
- [14]: https://www.sefaria.org/Mishneh_Torah%2C_Forbidden_Intercourse.19.1?lang=bi
- [15]: https://www.sefaria.org/Tosafot_on_Gittin.33a.9.2?lang=bi