DAF DISCUSSIONS - YEVAMOS 113

Ben Berlin asked:

Throughout the 10, 11, 12, 13 chapters the gemorah seems to be concerned with people who are trapped by their life situation. In chapter 10 they talk about the Agunah and ways that Beis din can effectively open a marriage by refusing to recognize its validity from the beginning retroactively - either through Hefker Beid Din Hefker or Beilas Zenus.

However at later points it suggests that a woman whose husband has become "insane" is stuck seemingly because it is a marriage Deoraisah.

These two conflict. It seems that ALL marriage Deoraisah is dependent on Kados Moshe Veyisroel. Why can we not use the same method to de-recognize these marriages?

Ben Berlin, New York, NY

The Kollel replies:

Almost all marriage does involve Kiddushin d'Oraisa (besides for people who may not have the ability to effect a Kidushin d'Oraisa, such as a minor). Whenever the Gemara uses the concept of "Afkinhu" -- "they took it (the Kidushin) away," it takes away Kidushin d'Oraisa. However, as you point out, we see that the Gemara does not simply use Afkinhu whenever a person is in a difficult situation. Doing so would in fact cause a great amount of promiscuity and immorality, as a person could reckon that he/she could always get the marriage "Afkinhu'd" later. Accordingly, Chazal only applied Afkinhu in very few cases, such as a Get being invalidated after the husband already gave it to the messenger and in cases of "Hora'as Sha'ah" -- "ruling for a specific time" (see 90b and 110a respectively).

Due to the Gemara's clear refrain from generally using Afkinhu and a host of many other reasons (i.e. Tzitz Eliezer 15:88 for a list of many of these, including that we may not even rule that there is a "Halachah l'Ma'aseh" concept of Afkinhu), reliable Poskim have basically unanimously refrained from using Afkinhu in any form, even in difficult situations.

All the best,

Yaakov Montrose