Bar-Ilan University's Parashat Hashavua Study Center

Parashat Hayyei Sarah 5770/ November 14, 2009

Lectures on the weekly Torah reading by the faculty of Bar- Ilan University in Ramat Gan, Israel. A project of the Faculty of Jewish Studies, Paul and Helene Shulman Basic Jewish Studies Center, and the Office of the Campus Rabbi. Published on the Internet under the sponsorship of Bar- Ilan University's International Center for Jewish Identity. Prepared for Internet Publication by the Computer Center Staff at Bar-Ilan University. Inquiries and comments to: Dr. Isaac Gottlieb, Department of Bible, gottlii@mail.biu.ac.il

 

On Marriage Contracts

(In View of Isaac’s Marriage to Rebekah)

Dr. Yoel Shiloh

Ashkelon College

When Isaac reached maturity, Abraham asserted that the time had come to find him a suitable mate.  To that end, he sent his senior servant to Haran.   The servant miraculously found Rebekah, and she brought the servant to her father’s house.  At this point negotiations began between the parties, ultimately leading to consent to marriage.   The following morning, negotiations were resumed, or reopened, and disagreements emerged regarding the time set for the marriage.  Rebekah was thereupon chosen as an arbitrator acceptable to both sides (Gen. 24:49-58).

There are many descriptions of marriages in Scripture, and occasionally also of the negotiations between the parties and the agreements reached thereby.   It appears that in every case of marriage there are preliminary negations between the families of the bride and the groom, while the couple themselves are not necessarily party to these negations.   The families of the patriarchs provide several examples:

·                 Prior to the marriage of Isaac and Rebekah, an agreement was reached between Abraham’s servant and Rebekah’s family. [1]

·                 Prior to Jacob’s marriages to Leah and Rachel a contract was made between the destined groom and the father of the bride.  “Jacob loved Rachel; so he answered, ‘I will serve you seven years for your younger daughter Rachel.’  Laban said, ‘Better that I give her to you than that I should give her to an outsider.   Stay with me’” (Gen. 29:18-19). Later another contract was made between Jacob and Laban, when the families parted ways:   “If you ill-treat my daughters or take other wives besides my daughters – though no one else be about, remember, G-d Himself will be witness between you and me” (Gen. 31:50).

·                 When Shechem, son of Hamor, was interested in marrying Jacob’s daughter Dinah, negotiations took place between the young man and his father and between the young woman’s father and her brothers (Gen. 34:8-18).   In this instance, the family of the young woman sought to sneak out of the agreement [2] by setting preconditions which in their eyes seemed impossible, namely that all the men of the city be circumcised.  Much to their surprise, even this condition was accepted, and the agreement reached the stage of implementation.

So we see that there is always an agreement made between the parties, even if it be an oral one. [3]

The Ketubbah

The Sages established a binding framework for marriage contracts by means of the ketubbah [or Jewish marriage contract], which contains certain obligatory clauses, such as the sum of money comprising the ketubbah [which the woman receives in the event that her husband divorces her], and the husband’s obligation to redeem his wife and to pay her medical expenses.   There is also room for negotiation in the ketubbah and for private agreements between the parties, such as additional sums of money which are stipulated in the marriage contract. [4]

Even in the time of the Sages, the clauses in Jewish marriage contracts differed from one locale to another. [5]   Among Jerusalemites it was customary for the husband to promise his wife that after his death his heirs would support her in her widowhood, and husbands in Judah customarily wrote explicitly that the heirs could decide themselves whether to support the widow or to pay her the sum stipulated in her ketubbah and thus free themselves of any further obligation to her.  In the time of Hillel the Elder it was customary in the Jewish community of Alexandria to write explicitly that kiddushin or marriage takes effect from the time of the marriage ceremony (nissuim) and not from the time of her engagement (erusin). [6]   The Sages attest by way of hyperbole that “there does not exist a ketubbah that does not have a quarrel in it,” i.e., that every ketubbah is the result of negotiations which ultimately form the marriage agreement between the families, and this contractual agreement is drafted as an integral part of the marriage document or ketubbah.

We have found that over the years there has hardly been a ketubbah that does not contain individually added clauses.   Radbaz was asked regarding a ketubbah in which the groom wrote to the bride as follows: [7]   “Henceforth, as an engagement sum, three hundred gold flower coins, one third as advance payment, one third as a gift from the groom to the bride, and one third to be given later.”

Individual changes

Individual changes in the formulation of the ketubbah are accepted practice, as Rav Hai Gaon attested: [8]

The law on ketubbot is that they should be written according to the practice of the place.  There are places where each and every item is listed according to its value, and nothing is added.  When she comes to claim compensation from him for what has worn out or been lost, or what he himself wrote into the contract in the event that he divorce her, or from his heirs who succeed him, she collects whatever has been written into the contract from the sum of money of the ketubbah.   In some places, even the smallest trifle worth ten [coins] is written into the contract as fifteen, and when she comes to collect, what had been added to the sum for embellishment is dropped off and only the principle is collected; everything that is listed as being worth three [coins], two is collected.  Elsewhere, anything of monetary value is listed as worth two monetary units.

Linked to Gold

Yemenite ketubbot generally had monetary values linked to the accepted appraisals in the silversmith’s market of Sanaa: [9]

If he so desired, he could stipulate and additional one hundred kapla of silver, after her mohar (bridal price), all the above-mentioned kaplas of silver consisting of such silver as there is in every hundred kapla, of which only twenty-two kapla are pure silver, according to the weights of the silversmiths in Sanaa, as silver is known to be in the city of Sanaa in the silversmith’s market.

Ketubbot in the Jewish community of Morocco generally had an additional provision that “the above-mentioned bridegroom undertake not to take an additional wife in her lifetime, unless according to the new takkanah.”   The “new takkanah” was enacted in 1593 by the Jewish exiles from Castile who came to Morocco.   The gist of this enactment was that despite the husband’s explicit undertaking not to marry another woman during his wife’s lifetime, he would be permitted to take another wife in the event that his wife was barren, or if his sister-in-law were widowed without children ( yibbum).  In Moroccan ketubbbot one finds yet another new takkanah, [10] enacted in the wake of a certain episode, namely to attach photos of the couple to the ketubbah:

It so happened the once a man from Casablanca fled from his wife and children, taking along with him a single woman and his wife’s ketubbah.   He came to Uzda, and appeared before the person who sent off immigrants to the land of Israel, and there he called the woman he was with by the name of his wife as in the ketubbah.  They received permission to immigrate to Israel and boarded the train via Algiers, along with the other immigrants.  His wife, divinely inspired to seek her husband, came to Uzda and immediately petitioned His Excellency, the ruler, who investigated the matter and found that he had boarded the train with the other woman.   They were taken off the train and brought to court to settle the matter; they were turned over to the authorities for the verdict and incarcerated in the great prison for fifteen days.   Afterwards they were taken from the authorities to be brought to trial in Casablanca, to do his wife justice.

In the state of Israel today it is customary to add certain clauses to the ketubbah, although most couples are not even aware of these additional provisions and view the ketubbah as a religious document, not a legal one.  It is customary for the ketubbah to contain a provision pertaining to the couple’s place of residence, and usually the rabbi who officiates at the wedding ceremony adds a general designation of their residence, such as “their apartment in the land of Israel.”   Many ketubbbot deal with laws of inheritance.  In Sephardic ketubbbot inheritance follows “the general agreement in the holy city of Jerusalem, may it be rebuilt and reestablished in its glory,” and in Ashkenazi ketubbbot the inheritance is “according to the practice in Ashkenaz, following the takkanot of Speyer, Worms and Mainz.”   In most Sephardic ketubbbot the groom promises the bride “not to leave the land of Israel except by her leave and consent,” and many Ashkenazi ketubbbot go even further, the groom promising “not to exit the borders of the country, and not to go beyond No-Amon, nor to travel by sea at all, unless he first provide her a get zman kritut (provisional writ of divorce) assuring her wife-support, as seen fit in the eyes of the Rabbinical Court.” [11]

In recent years, a proposal has been put before contemporary posekim to restore the significance of the ketubbah as a marriage contract by adding a prenuptial agreement stipulating financial terms in case of refusal to divorce.  This proposal was raised out of a desire to reduce the number of cases in the rabbinical courts where a husband refuses to give his wife a divorce, and because of the decline in the contractual significance of the ketubbah, which in the eyes of the public has become mere religious verbiage with no binding significance.   There is no consensus among the rabbis on the idea of the prenuptial agreement; some are in favor, while others are opposed. [12]   It seems the last word has not yet been said.  Perhaps we are witnessing a further stage of evolution in the history of the ketubbah, whose significance will only be evident when studied several years down the road from here.    



[1] Bethuel, the father of the bride, is mentioned in verse 50, at the beginning of the negotiations, but then disappears from the scene.   Rashi comments on verse 55:  “And where was Bethuel?  He would have liked to thwart the marriage, so an angel came and put him to death.”

[2] Note verse 13:  “Jacob’s sons answered … speaking with guile,” i.e., they tried to devise a scheme to foil the marriage.  It appears that Shechem and Hamor were so powerful that Jacob’s family could not refuse the offer outright.   Further proof of their might is that even the residents of Shechem themselves did not dare oppose the demand that they be circumcised.

[3] Scripture makes no mention of writing with reference to marriage agreements.  Although one cannot argue from silence, nevertheless one should consider the references that we do find in Scripture to other legal documents that exist in written form, such as a “bill of divorcement” (Deut. 24:1), or the “deed of purchase” (Jer. 32:11).

[4] Mishnah Ketubbot 4.7ff., 5.1.

[5] Many studies have been written about the evolution of ketubbot and the significance of the ketubbah as a marriage contract.  For example, cf. M. Gastner, Ha-Ketubbah be- Hishtalshelutah ha-Historit, Berlin-London 1924; Aaron Freimann, Seder Kiddushin we-Nesuin, Jerusalem 1945; L.M. Epstein, The Jewish Marriage Contract, New York 1927; Y. Kalmar, Sefer Tosefet Ketubbah, Jerusalem 1990; Z. Kadosh, Yesod Tziyyon, Part II, 2003; and many others.

[6] Mishnah Ketubbot 4.12, Bava Metzia 104a, Shabbat 130a.   Until about a millennium ago two separate and binding official ceremonies were performed when a couple married:   erusin (betrothal) and kenisah (taking in one’s wife, i.e, the wedding or nesuin).   Generally the period of time between these two ceremonies was twelve months.  See Mishnah Ketubbot 5.2.   On uniting these two ceremonies into a single rite, as is performed today, see Freiman, note 5 above, p. 41.

[7] Resp. Radbaz, Part I, par. 369.   There was a coin known as a “flower,” apparently after the figure of a flower that was imprinted on it.   Similarly, until a few years ago, there was a Dutch coin known as a florin, i.e. a flower.

[8] Sefer ha-Shtarot by Rav Hai Gaon, par. 1.

[9] The original is in Jewish Arabic.  Translated by Rabbi Y. Kafih, Halikhot Teiman, Jerusalem 1987, p. 141, note 9.

[10] Sefer ha-Takkanot Kerem Hemed, regulation 36.  On the husband’s undertaking not to marry another wife, see Epstein, note 5 above, p.174.   The regulation regarding photographs was enacted by the Third Rabbinical Council of the Moroccan Rabbinate in 1940.   See Rabbi M. Amar, Ha- Mishpat ha-Ivri be- Kehilot Morocco, Jerusalem 1977, p. 265.

[11] “The country” refers to Aram-Zova, which is the same as the city of Aleppo in northern Syria.   No-Amon is Alexandria, Egypt.   A get zman kritut is a provisional get stipulating that if after a certain stated length of time the husband not return home, the get will become valid and the wife will have a divorce.   The get zman kritut was devised by the Sages in order to prevent a woman being agunah (without a husband but not able to obtain a divorce and remarry).  On provisions pertaining to matters of inheritance between spouses, see Rabbi S. Asaf, “Ha-Takanot ve-ha-Minhagim ha- Shonim be-Yerushat ha- Ba‘al et Ishto,” Mad‘ei ha-Yahadut, Vol. 1, Jerusalem 1926; Rabbi Rodner, Mishpetai Ishut, Jerusalem 1949, pp. 73-77.  For further reading on the evolution of additional provisions in ketubbbot in modern times, see Y. Z. Gilat, Halakhah u-Minhag ba-Ketubbah be- Yameinu, Yad le- Gilat, Jerusalem 2002, pp. 50-59.

[12] D. Mescheloff, “Heskemim kedam-Nisuin,” Tehumin 21 (2001), pp. 288-323. Rabbi S. Dikhovsky, “ Heskemei Mamon kedam-Nisuin,” ibid.¸pp. 279-287; Rabbi A. Knohl, “Ha-Ketubbah ve-Heskemei Mamon be- Nisuin,” ibid., pp. 324-339.,