Talmidav Shel Aharon
6-5769: Mitzvah N-42
December 9, 2008
Negative Mitzvah 42 – This is a negative commandment: Do not withhold “she’er”, “k’sut”, or “onah” from one’s wife.
Hafetz Hayim: for Scripture says, “her food, her raiment and her conjugal rights he shall not diminish.” (Exodus. 21:10) The term “she’er” denotes food, “k’sut” denotes clothing and this is the plain meaning of the words; “onah” denotes conjugal intimacy. Whoever withholds one of these three by his own will, in order to distress or pain her, violates this prohibition. By the law of the Sages he bears another seven obligations toward her, and these are: the principal payment of the marriage contract [in case of divorce or death], to cure her [if she becomes sick], to ransom her [if she is taken captive], to bury her [when she dies]; she is to stay in his house the entire time of her widowhood and is to be supported out of his property; her daughters are to be sustained out of his property after his death until they are married; and the right of her sons by him in the marriage contract [is to inherit the principal amount before equally dividing the remainder of the father’s inheritance with brothers of another mother]. By the law of the Sages, he has the right to the fruit of her handiwork, in exchange for her food; and the fruit or income from her property in her lifetime, in exchange for the duty of her redemption[from captivity if necessary]. He gains the right of whatever she finds, for the sake of [avoiding] enmity; and he becomes her heir, in exchange for the duty of providing for her burial. A man also has the duty of sustaining his small sons and daughters. It is in force everywhere and at all times.
Let us make the simple points first. When a man marries a woman, he takes on certain responsibilities. He has to allow her a monetary allowance she can spend on clothing. He can’t insist that she wear certain clothes or give her the clothing; she gets to buy what she desires. He has to also give her enough money to feed herself and the family. He cannot insist on a particular diet, but she has the right to choose what the family (and she herself) will eat. Finally, he cannot deny her sexual satisfaction. This has some far reaching implications. It implies first of all that she has sexual needs that he must fulfill. Since different occupations have different implications of his being home, he cannot change jobs if it will affect his conjugal duties. Businessmen are home every evening. If he decides to become a sailor and only be home once a month or once every six months, she can forbid him from being away so much or force him to pay off her Ketuba (more on this later) and divorce her. There is an assumption that the occupation he has when he marries her is known to her and she cannot force him into a new line of work, but if he wants to change and it will affect her conjugal rights, she can veto the change. The point here is that while Judaism says that a man “acquires” a woman, it is somewhat more complicated than that. She does not become his servant or slave and she has rights in his home that he is forbidden to deny. If, in any of these three areas, he limits her rights and causes her physical pain or mental anguish, he is forced to give her what she needs or pay her Ketuba and divorce her.
The Ketuba is central here. The Ketuba is the contract of marriage. It stipulates that the wife has these rights and that the man does not have to pay the “bride price” required in order to get married. The bride price becomes a primary mortgage on his estate. This means that when he dies, the wife is paid from the estate first, before any and all creditors. If the husband wants to divorce his wife, he can divorce her but the payment of the Ketuba is a heavy monetary debt that must be paid before he can send her away. Today the monetary amounts are symbolic but in ancient times, it could be used to convince angry husbands to fulfill their duties to their wives.
If you think this is a bit hard on husbands and wives, let me remind everyone that, even to this day, marriage is basically a monetary partnership in the eyes of the state. To get a marriage license you don’t have to profess love or devotion, only to let the state know who will be responsible for the family debts. Love and devotion are great, but marriage means responsibilities and the Ketuba spells them out.
The Sages expanded on the duties of a husband to prevent other abuses. He must pay the amount he owes on the Ketuba if he divorces her. If she dies, the debt is inherited by her children. If she gets sick, he must pay for her medical bills. If she is captured by brigands or pirates, he has to pay her ransom before he ransoms anyone else including children or his teacher. He has to pay for her funeral, give her the house to live in if he dies and leaves her a widow (the children can’t throw her out). If she has born him daughters, they are to be supported out of his estate until they are married even if his sons have to go begging to provide for them. The laws of inheritance do not apply to the Ketuba, its principal is paid to her sons that she bore to him (but not to sons from a previous marriage), and only then is the rest of the estate divided among all of his sons.
The Sages also provide the husband with some of her income to make sure that he will perform his duties. If she has a small business on the side he can claim her income as payment for the food he provides. If she owns property, he has the right to the income from that property or from the sale of that property (if sold in her lifetime) in exchange for the duty to ransom her from captivity. If she finds something of value, he can claim it. This is to prevent arguments between the two of them. He becomes her heir for the duty to bury her and if she leaves him with small children, he has to care for them and not treat them shabbily.
I suppose we could argue all day over these duties and whether they are fair to her and to him, but remember, like all laws, this applies only when there is trouble in the family. When couples love each other and are devoted to each other, these monetary issues are not a problem; they are often filled above and beyond the letter of the law. Wives and children are supported openly and lovingly. Only in cases of anger and discord do we find that couples argue over money and here the Sages have tried to spell out a fair way for the couple’s finances to be divided.
I should add here that in monetary cases, Jewish Law gives way to the law of the land. A Ketuba may be symbolic but to pay it out today, one would have to have a civil divorce and pay out all the financial details spelled out by the divorce court, only then could the Ketuba be paid (actually the symbolic amount is waived during the Jewish divorce (Get) process, since the money has already been allotted by civil courts). Judaism says that divorce is possible and sometimes necessary (even a Mitzvah) but it should not be so easy that a man would change wives as often as he changes a home or car.
The Sages did their best with the customs and traditions that were current in their day and age. Before we comment on the equality of the system or not, try and think how you might write this better. It is never as easy as it looks.