One of the most fascinating concepts of Masechet Gittin is that of אפקעינהו רבנן לקדושיו מיניה. This is a case where the rabbis retroactively annul a קידושין (marriage) to enable the woman to remarry without a Get. Tosafot explains in many places that the rabbis have the right to do this based on the clause that is recited at every marriage: כדת משה וישראל, that every marriage must conform to Torah laws, and if it does not, then it can automatically be annulled.
There are three instances in the Gemara where a marriage is revoked. The first time is on Ketubot 3a, in a case where a man gives his wife a Get on the condition that he performs a specific action but then does not fulfill this stipulation due to circumstances beyond his control. Since this is a case of אונס , the Get should not be valid; however, the rabbis decreed that the Get should be valid. How could the rabbis do this against the rules of the Torah? Because they revoked the Kiddushin.
The second case is on Gittin 33a, where the Gemara questions Rabban Shimon ben Gamliel for maintaining that if a husband nullified a Get he had delivered in the absence of his wife (in direct violation of Rabban Gamliel Hazaken’s decree in the Mishna on 32a) the Get does not become void because otherwise, מה כח בית דין יפה, “What good is Bait Din’s power?” The Gemara asks: How can we allow the Get to remain valid based on מה כח בית דין יפה when the Get should be void based on the Halachot? The Gemara answers that the rabbis simply annul the original marriage, thereby allowing the wife to remarry.
The third case is on Gittin 73a, where the Gemara questions Rabbah and Rava for making a decree that if aשכיב מרע gives a Get but then recovers, the Get is still effective (in contrast to Rav Huna, who holds that the Get would become void) because otherwise people might say that the Get is valid even if the husband said that it should take effect after his death. The Gemara asks the same question as it did in the other two cases and gives the same answer:אפקעינהו רבנן לקדושין מיניה.
Although these are the only three cases quoted in the Gemara where the rabbis revoked קדושין, the Rishonim tell us that there might be other cases where they can do so. For example, if one witness testified that a husband died, the Chachamim would believe the witness, and the woman would be allowed to remarry. Even though two witnesses are required to enable the woman to remarry based on the rules of witnesses, the Rashba explains that the rabbis allowed the woman to remarry because they had actually revoked the original Kiddushin (שו"ת הרשב"א ח"א סי' אלף קתב). Similarly, Rashi posits that even the testimony of an עד מפי עד (one witness telling another) regarding the death of a husband is good enough to allow the woman to remarry based onאפקעינהו רבנן לקדושין מיניה.
Another possible case of אפקעינהו רבנן לקידושין מיניה is where a husband throws a Get to his wife and it lands within four Amot of her. Based on rabbinic laws of property acquisition, this suffices for her to acquire the Get and be divorced, but on a biblical level, she should still be married! After all, the Pasuk says ונתן בידה,”[the husband] gives the Get to her hand,” so how could the rabbis allow her to remarry? The Ramban explains that she is free to remarry because the rabbis revoked the original Kiddushin (Chiddushei HaRambam Gittin 78a s.v. ארבע אמות שלשה זהו קרוב לה).
A third possible use of אפקעינהו רבנן לקידושין מיניה is where a wife admits to her husband that she had an affair. On a biblical level, she should be forbidden from having relations with her husband, but the rabbis decreed that we do not believe her, and she is still permitted to live with him. How could this be if she is biblically forbidden from sleeping with him? (The Ran to Nedarim 90b explains that the rabbis could do this because they revoked the Kiddushin. The explanation of the Ran is extremely difficult to understand because once they are divorced they can no longer have marital relations.)
Tosafot (Gittin 33a s.v. אפקעינהו רבנן לקידושין מיניה) and the Rashba (ibid., s.v. (כל דמקדש אדעת דרבנן מקדש raise some fundamental problems with the concept ofאפקעינהו רבנן לקידושין מיניה. They both quote Rashbam, who asks about a case where a woman had an affair (thus making her liable for death). In such a case, annulling her marriage could save her life by simply sending her a Get and annulling it. That way she could escape her death sentence by claiming she was never married. In addition, any children that were born from her affair would no longer be ממזרים.
The Ri gives a rather shocking response to this question. He says that there is no problem with doing this! Since a man technically would not violate any prohibition by saving her life in such a manner, this can be considered a valid legal loophole. The Rashba and Rabbeinu Tam, though, reject this answer. They explain that in such a case, if the rabbis know that the husband and wife are specifically trying to have their marriage retroactively annulled in order to save her life and prevent her children from being ממזרים then the rabbis will not revoke the Kiddushin. However, if this were not the intention of the husband and wife, then the rabbis would revoke the Kiddushin.
Rashbam asks further: How, in general, can any married woman ever be sentenced to death for having relations with another man? Any warning (she can not be executed unless she was warned about what she was doing by witnesses) given to her would be a התראת ספק (a doubtful warning) because the husband could remedy the situation by sending her a Get and annulling it, thereby annulling the marriage!
Rabbeinu Tam and Rashbam each give an answer. Rabbeinu Tam explains that we need not worry about such a thing because such problems do not occur often. Rashbam, however, explains that the concept of אפקעינהו רבנן לקידושין מיניה does not exist! Why? The rabbis assumed that no husband would ever want to have his marriage retroactively annulled because all the times that he had relations with his wife would be considered בעילת זנות (a promiscuous relationship). Therefore, even if he were to annul the Get after he had already sent it, thereby revoking the Kiddushin, we assume that he really did not mean to do so.
Rabbeinu Tam challenges Rashbam. What would happen if the husband and wife had not engaged in נישואין yet but only Kiddushin? In such a case, although they are technically married and require a Get to divorce, they still are not allowed to live together and therefore could not have had any relations. As a result, there would not be any reason for the husband to feel uneasy about revoking the Kiddushin! Consequently, the original question returns: How could any married woman ever be sentenced to death for having relations with another man?
Rabbeinu Tam answers that in such a case we assume that the woman is married at the time of the sin. We do not worry about what could retroactively change her status. The fact that the Kiddushin could retroactively be annulled is irrelevant and inconsequential to this case. When the witnesses give a warning to the woman, they do so under the assumption that she is currently married. Therefore, it is not a התראת ספק but rather a התראת ודאי. Rabbeinu Tam buttresses this point by quoting a Mishna (Nazir 42a), which states that if a Nazir is warned not to drink wine or touch a dead person, things that are not permitted for a Nazir to do, and he does so anyway, he receives lashes. Why, one might ask, should he receive lashes? Perhaps the warning was only a התראת ספק because it is always possible that התרת נדרים could cancel the original vow of Nezirut. Thus, Rabbeinu Tam concludes that we always operate under the assumption that he is currently a Nazir. As a result, the possibility of a married woman being sentenced to death for having an affair and the possibility of a Nazir receiving lashes for drinking wine or touching a corpse always exist.
A fundamental problem with the rabbis’ revoking the Kiddushin still remains: What Halachic mechanism allows them to simply declare a marriage null and void? What right do the rabbis have to take such a drastic step?
Rashi (Yevamot 90b s.v. ואפקעינהו רבנן) and Tosafot (Ketubot 3a s.v. תינח דקדיש בכספא) explain that the rabbis revoke the Kiddushin through the mechanism of הפקר בית דין הפקר (Bait Din can take property from individuals). They simply revoked the כסף
הקידושין and gave over that money to the wife as a gift. The Shita Mekubetzet (Ketubot 3a) adds, though, that according to Rashi the rabbis still need some reason to declare the כסף הקידושין ownerless. He therefore explains that they have the right to do so based on the fact that the Kiddushin was done כדת משה וישראל: if it no longer conforms to Torah law, they can annul the marriage. As a result, the mechanism of הפקר בית דין הפקר and the principle of כדת משה
וישראל are both required to revoke the Kiddushin. Others, however, disagree with this. The Shita Mekubetzet quotes the Ra’ah and the Ramban, who maintain that the mechanism of הפקר בית דין הפקר is not needed for the rabbis to retroactively annul the marriage. Rather, the fact that the marriage is done כדת משה וישראל constitutes sufficient basis for the rabbis to annul it.
One question that remains is whether the rabbis today have the authority to annul a marriage. This matter is fiercely debated among the Geonim and Rishonim. Rav Hai Gaon says in the name of Rav Yehuda Gaon (אוצר הגאונים כתובות תשובות ס) that nowadays, assuming the citizens and the Bait Din all agree, the rabbis can revoke an improperly conducted Kiddushin through הפקר בית דין הפקר. The Gemara even goes so far as to say that if a couple got married through relations, the rabbis have the right to declare this act בעילת
זנות in order to revoke the Kiddushin.
The Rashba שו"ת הרשב"א ח"א סי' אלף קפה)) and רב יעקב בי רב
(שו"ת הר"י בי רב סי' מב) also agree that a Bait Din today is authorized to annul improperly conducted marriages. However, they disagree as to when a Bait Din can do so. According to the Rashba, the Bait Din may revoke the Kiddushin only in those specific cases mentioned in the Gemara
Despite these apparent leniencies, the Rashba does add that nowadays, since we are dealing with such a serious issue and because we are not nearly as wise as the rabbis in the time of the Gemara, we should be stringent and always require a Get to effect divorce (שו"ת הרשב"א סי' אלף רו). Furthermore, the Chatam Sofer (Even Haezer 105) says that nowadays the whole institution of הפקר
בית דין הפקר is only a rabbinical one; therefore, Bait Din cannot use this to help overcome the biblical obstacles. The Rama rules that we may not even annul a marriage that was conducted in an inappropriate manner.
For a discussion of why rabbis today do not implement this concept, see Rabbi Howard Jachter and Ezra Frazer’s forthcoming book, Grey Matter.