Ketuba (2)

  • Rav David Brofsky

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            Last week, we began our discussion of the ketuba, the third component of the Jewish wedding (along with the kiddushin and nisu’in). We noted that the Talmud (Ketubot 10a) cites a debate between R. Shimon ben Gamliel and R. Nachman regarding whether the origin of the ketuba is Biblical or Rabbinic. R. Shimon ben Gamliel apparently maintains that the basic obligation of the ketuba, at least regarding a betula, is mi-deoraita. R. Nachman maintains that the obligation of ketuba is Rabbinic, as the gemara (Yevamot 89a) says, “What is the reason that the Sages instituted a marriage contract in general, for an ordinary woman? So that she will not be demeaned in his eyes, such that he will easily divorce her.” The gemara and Rishonim explain that this debate may have numerous practical ramifications.

            Rabbeinu Tam (Tosafot, Ketubot 10a, s.v. amar) rules in accordance with R. Shimon ben Gamliel, noting that it is customary to write in the ketuba “which is rightfully yours from the Torah” (de-chazi likhi mi-deoraita). However, most Rishonim disagree with this view.

            We also noted the important position of the Rambam, who in a number of places rules in accordance with the opinion that maintains that the ketuba obligation is Rabbinic (Hilkhot Ishut 10:7; 11:14), but elsewhere  implies that the ketuba has a different, Biblical origin (see, for example, Sefer Ha-Mitzvot, neg. commandment 355). The Rambam seems to maintain that while the formal obligation of ketuba is Biblical, its form and details are Rabbinic. The Rambam appears to believe that the ketuba is not just a monetary obligation; it is a defining factor of the marriage. The Rambam views all relationships that are not first formalized by kiddushin and ketuba as by definition inappropriate, and therefore prohibited. In other words, kiddushin, and the ketuba, in its Biblical sense, are meant to transform a fleeting sexual relationship into a relationship that is based on obligation and responsibility.

            This week, we will briefly discuss the content of the ketuba.

Content of the Ketuba

The ketuba is made of up numerous sections. There are four financial obligations mentioned in the ketuba: the basic ketuba obligation (ikar ketuba), the tosefet ketuba (the additional obligation), the nedunia (dowry) that the woman brings into the marriage, and the husband’s commitment to be financially responsible for the nedunia (tosefet nedunia). In addition, the ketuba testifies to the marriage and the husband’s commitment to bear responsibility for the ketuba. Finally, the ketuba, like other legal documents (shetarot), includes the names of the bride and groom, the date, and the signatures of those who witnessed the groom’s acceptance of the ketuba obligations.

1. Testimony to the Marriage:

The ketuba begins with an account of the marriage and the marital obligations that the husband accepts upon himself:

…The bridegroom [...] son of [...] said to this [...] daughter of [...], “Be my wife according to the law of Moses and Israel. I will work honor, feed and support you in the custom of Jewish men, who work, honor, feed, and support their wives faithfully.”

The ketuba relates how the husband betroths his wife, and commits to “honor, feed, and support [her] in the custom of Jewish men.” 

            This part of the ketuba appears to testify to the marriage of the couple. Some Acharonim suggest that the ketuba may therefore not be written and signed the day before the wedding, as it would appear to be dishonest. Others insist that we should not relate to this section as if it were testimony. Indeed, at most weddings, the ketuba is signed and the husband accepts these obligations upon himself before the wedding.

2. The Basic sum of the Ketuba

The ketuba describes the basic obligation of the ketuba. The mishna (Ketubot 1:2) teaches that the ketuba of a betula (virgin) is 200 zuz. It is customary to write the ketuba for 200 zuz for almost all women who are married for the first time, although in certain circumstances some are accustomed to write “iteta” (woman) instead of “betulta” (virgin) in order to avoid blatant dishonesty. The ketuba for an almana, gerusha, or giyoret (widow, divorcee or convert) is 100 zuz.

I will give you the settlement of 200/100 silver zuzim, which is due you according to [Biblical]  law, as well as your food, clothing, necessities of life, and conjugal needs, according to the universal custom.

The value of 100 or 200 zuz in modern currency is the subject of great debate. The Shulchan Arukh (EH 66:6) rules that 200 zuz is approximately 120 grams of silver, while the Rema rules that is equals 960 grams.

3. Dowry (Nedunia) and Tosefet Nedunia

The Rambam (Hilkhot Ishut 16:1) describes two types of dowry, the property that the woman brings into the marriage. One type, known as nikhsei tzon barzel, is recorded in the ketuba. The husband has full use of this property, but also takes full responsibility for it in the case of loss. Another type, nikhsei melug, is not recorded in the ketuba. Although the husband benefits from the profits of nikhsei melug, it belongs to the wife and remains her sole responsibility.

In the Middle Ages, Ashkenazic communities began writing a uniform amount as the nedunia, so as not to embarrass those who did not have a lot of property to bring into a marriage (Raavan, Hilkhot Ketubot, s.v. af al pi; Maharam of Rothenburg 4:673): 

Ms. [...] agreed, and became his wife. This dowry that she brought from her father’s house, whether in silver, gold, jewelry, clothing, home furnishings, or bedding, Mr. [...], our bridegroom, accepts as being worth [...] silver pieces (zekukim).

The groom commits to an additional sum of money, which covers his responsibility for the dowry.

4. Tosefet Ketuba

It is customary for the groom to commit to an additional sum, known as the “tosefet ketuba.” In diaspora communities, the tosefet usually appears as “100 zekukin kesef.” In many communities in Israel, it is customary to write a specific shekel amount, often corresponding to a year’s salary. Many authorities caution against writing an exorbitant sum, which may be viewed as an asmakhta and not an honest commitment.

Our bridegroom, Mr. [...] agreed, and of his own accord, added an additional [...] silver pieces (zekukim) paralleling the above. The entire amount is then [...] silver pieces (zekukim).

The groom then summarizes the total amount that the groom accepts upon himself.

5. At the end of the ketuba, the groom backs up his commitment with financial insurances.

Mr. [...] our bridegroom made this declaration: “The obligation of this marriage contract (ketuba), this dowry, and this additional amount, I accept upon myself and upon my heirs after me. It can be paid from the entire best part of the property and possessions that I own under all the heavens, whether I own [this property] already, or will own it in the future. [It includes] both mortgageable property and non-mortgageable property. All of it shall be mortgaged and bound as security to pay this marriage contract, this dowry, and this additional amount. [It can be taken] from me, even from the shirt on my back, during my lifetime, and after my lifetime, from this day and forever.”

If necessary, the ketuba may be collected from the groom’s property, and even from property that he will acquire in the future.

6. Finally, the witnesses testify that the groom performed a kinyan, through which he commits to the obligations that appear in the ketuba.

This kinyan, known as a kinyan sudar, is a form of a kinyan chlipin. In a traditional kinyan chalipin, the mokher and loke’ach (seller and buyer) perform a trade; the loke’ach gives a keli (vessel/object) to the mokher, and the mokher transfers ownership of the object/property. The Rema (see Shulchan Arukh, CM, Hilkhot Mekach U-Memkar 195:3) writes that in the case of matanot (gifts), it is common for the witnesses to give the keli to the mokher, and for the mokher to then give the gift, legally, to the recipient.

In the case of the ketuba, the rabbi, serving as the agent of the bride, gives the keli (often a cloth, or pen) to the groom, who thereby legally commits to that which is written in the ketuba. The witnesses observe this kinyan and then sign the ketuba.

The witnesses sign their names, testifying that they witnessed the proper execution of the ketuba.

And we have completed the act of acquisition from Mr.[...] son of [...] our bridegroom, to Ms. [...] daughter of [...], regarding everything written and stated above, with an article that is fit for such a kinyan. And everything is valid and confirmed.

We will discuss the details of filling out the ketuba and performing the kinyan in a future shiur.