"Ola Imo Ve-eina Yoredet Imo"

  • Rav Yair Kahn
Translated by David Silverberg
 
 
     The mishna (46b) lists several obligations of a husband to his wife, including "kevurata" – the responsibility of providing for her burial.  Thereafter, the mishna cites the following remark of Rabbi Yehuda: "Even the poorest among Israel may not provide less than two flutes and a 'mekonenet' [woman hired to cry and wail to evoke anguish over the person's death]."  The mishna's presentation implies that Rabbi Yehuda argues on the tanna kama, such that according to the first view cited, a poor man need not pay for two flutes and a mekonenet for his wife's funeral.  The Gemara provides the following explanation for this debate:
 
"To what situation does this [discussion in the mishna] refer?  If she is accustomed to this standard, then what is the reason of the tanna kama that [the husband need] not [pay for this standard]?  And if she is not accustomed to this standard, what is the reason of Rabbi Yehuda?  Rather, [we deal here with a situation] where he is accustomed but she is not.  The tanna kama holds that when do we say 'ola imo ve-eina yoredet imo' [that if the husband and wife are accustomed to different standards, the husband must provide for his wife at the higher standard] – only during life, but not after death.  And Rabbi Yehuda holds [that this applies] even after death." (48a)
 
On the surface, Rabbi Yehuda's position appears more readily understandable.  Once halakha establishes "ola imo ve-eina yoredet" as the operative principle governing the standard a husband owes his wife, why should this rule not apply to the obligation of kevura?  We must therefore delve into the concept of "ola imo ve-eina yoredet imo" order to understand why the tanna kama limits this principle to the wife's lifetime.
 
     From a different sugya, in the fifth chapter, we see that the halakha of "ola imo" does not apply even in situations where the husband and wife no longer live together.  The Gemara there (65a) addresses the level of obligation upon a husband who charges a third party with the responsibility of caring for his wife.  In the course of this discussion the Gemara brings a beraita discussing this very question:
 
"She is not given a pillow or cushion.  It is said in the name of Rabbi Natan: she is given a pillow and cushion.  To what situation does this refer?  If she is accustomed to this standard, then what is the reason of the tanna kama?  If she is not accustomed to this standard, then what is the reason of Rabbi Natan?  Rather, [we deal here with a situation] where he is accustomed but she is not.  The tanna kama holds that he may say to her, 'When I go I take them, and when I come I bring them with me.'  And Rabbi Natan holds that she may say to him, 'It may happen [that you come] at twilight and you will not be able to bring them, so you will take mine and I will have to sleep on the ground.'" 
 
The discussion in this sugya would seem to indicate that a husband must see to it that his wife has a pillow and cushion in accordance with his standards only when the couple lives together.  So long as they live separately, he has no obligation to provide his wife with this level of comfort.  This conclusion, however, would directly contradict our sugya, which, later, obligates the husband to provide his wife's needs in accordance with his standards even when he travels abroad:
 
"Rav Huna said: One who traveled abroad and his wife died, the Bet Din takes from his estate to bury her in accordance with his stature.  [Only] according to his stature, and not according to her stature?  Rather, [Rav Huna meant] even according to his stature.  He comes to teach us that 'ola imo ve-eina yoredet imo' – even after death."
 
We must therefore understand how to sustain both these contradictory sugyot, and see if perhaps there is a third sugya that can shed light on this question.
 
     The halakha of "ola imo" is introduced in the fifth chapter (61a), where the Gemara suggests two different verses as allusions to this principle.  The first is the verse, "ve-hi be'ulat ba'al" ["and she is wed to a husband"] which we may read as, "ve-hi ba-aliyato shel ba'al" – she joins the high standard of the husband.  The second view finds a reference to this principle in the verse that describes Chava as "eim kol chai" ("mother of all life"), which the Gemara reads as, "she was given [to her husband] for life, and was not given [to him] for distress."  Meaning, marriage is intended to at least maintain, rather than lower, a woman's standard of living.  The "Mar'eh Panim" on the Yerushalmi (Ketubot 5:6) claims that there exists a fundamental difference between these two sources: "It would seem that there is a basic difference between these two derivations.  Based on the verse of Rav Huna ['be'ulat ba'al'], one could say that [the halakha applies] specifically in his lifetime, when it is relevant to speak of 'the high standard of the husband.'  From the verse of Rabbi Elazar ['eim kol chai,' the halakha would apply] even after death, for they were created for life and not for distress."  Meaning, if we extract the principle of "ola imo" from the verse of "be'ulat ba'al," it stands to reason that it applies only to those halakhot that reflect a husband's personal obligations to his wife.  The monetary obligations that Chazal cast upon the husband, however, would not be included.  By contrast, if we identify as the source of "ola imo" the verse "eim kol chai," then we do not restrict it to the realm of personal obligation, and we may expand the halakha of "ola imo" to the entire framework of marital obligations, including strictly financial responsibilities.  In this light, perhaps, we might explain the dispute between the tanna kama and Rabbi Yehuda.  According to the tanna kama, "ola imo" does not apply after death, because the personal obligations between husband and wife are relevant only during their lifetime.  After the wife's death, however, although the husband bears an obligation to tend to her burial, this obligation is of a different nature than his responsibilities to her during her lifetime, such as food and clothing; this obligation is a purely financial one.  Rabbi Yehuda disagrees with the tanna kama and maintains that the "ola imo" rule continues after the wife's death, because in his view, this obligation extends beyond the realm of personal obligations and applies to the husband's financial responsibilities towards his wife, as well.
 
     We may, however, explain Rabbi Yehuda's position differently, and claim that he accepts the tanna kama's limitation of "ola imo" to the husband's personal obligations.  He disagrees with the tanna kama, however, as to how we should perceive the obligation of kevura.  Whereas the tanna kama views kevura as a purely financial obligation, Rabbi Yehuda holds the even the wife's burial, despite the fact that it applies only after her death, is included under the husband's personal obligations towards his wife.
 
     We find a similar concept with regard to a widow.  This halakha does not appear in the Bavli, but in the Yerushalmi (5:6) we find, "A widow and her children go down [to the husband's standard of living] and do not go up [to his standard of living]."  Meaning, the halakha of "ola imo" does not apply to a husband's obligations towards his widow, such as support (from his estate).  But the Rambam (Hilkhot Ishut 18:3) rules against the Yerushalmi and holds that even a widow rises to the husband's standard of living and is not lowered to his standard.  One might suggest that the Rambam ruled against the Yerushalmi because we follow the position of Rabbi Yehuda, who applies "ola imo" even after death.  It therefore applies also to the husband's obligations towards his widow – which are purely financial, rather than personal, responsibilities.
 
     However, a closer examination of the Rambam's view reveals that he disagrees with the Yerushalmi regarding the very nature of the inheritors' obligations towards the widow.  In Hilkhot Ishut (18:4), he writes, "The leftovers of the widow's food and the leftovers of the widow's clothing go to the inheritors."  The Ra'avad disagrees, based on the Yerushalmi: "I, too, held that way, until I saw in the Yerushalmi… 'Rav Yehuda said in the name of Rav… her metzia belongs to her; if she leaves over food – the wife of a [living] man, whose metzia goes to him [the husband], her leftover food goes to him [as well], but a widow, whose metzia goes to herself, her leftover food [also] goes to herself'."  Perhaps this debate hinges on the nature of the obligations towards a widow.  According to the Yerushalmi, the mezonot obligation towards a widow constitutes a financial obligation cast upon the inheritors.  As such, a specified amount is earmarked for this purpose and if the widow uses a lesser amount and leaves over food, the leftovers are like a "metzia," which she keeps to herself.  But the Rambam disagrees and views a widow's mezonot not as a financial obligation, but rather a personal obligation the husbands bears towards his widow to feed her.  Therefore, anything she does not eat was never allocated and remains under the possession of the inheritors.
 
     In halakha 14, the Rambam writes: "If he left [behind at his death] many wives, then even though he married them one after the other, they are all given food equally, just as no law of precedence applies with regard to metaltelin [moveable property]."  Here, too, the Ra'avad objects: "[This is true] even if she is fed off real estate (where laws of precedence generally apply), because the mezonot obligation takes effect only after his death, so the moment of obligation arrives for all of them simultaneously.  It is like [a situation of] one who borrows and then borrows again and subsequently purchases [property] – that they [the lenders] all share equally in [the lien on the property]."  The Ra'avad claims that the obligation of a widow's mezonot falls upon the inheritors at the moment of the husband's death and hence affects all the husband's wives simultaneously.  We cannot, therefore, speak of any sequence of precedence.  We see clearly from this objection that according to the Rambam, the obligation of a widow's mezonot takes effect at the time of marriage, and not upon the husband's death.  It would appear that according to the Ra'avad, the halakha of a widow's mezonot is separate and apart from the standard obligation for a husband to support his wife.  The Rambam, by contrast, maintains that a widow's mezonot constitutes not a new obligation, but rather a continuation of the mezonot obligation that began at the time of marriage.
 
     It stands to reason that according to the Rambam, that the obligation of a widow's mezonot continues the mezonot obligation during the husband's lifetime, this obligation is a personal, marital obligation like the standard halakha of mezonot.  Despite the husband's passing, and despite the fact that they no longer live together as a couple, the husband bears an obligation to concern himself with his wife's needs even after his death, so long as she maintains the household of her deceased mate.  According to the Rambam, therefore, feeding the widow constitutes not a new, financial obligation cast upon the orphans, but rather a marriage obligation to feed the widow just as the husband was required to feed her during his lifetime.  Consequently, any leftover food belongs to the inheritors.  According to the Ra'avad, however, that the obligation of a widow's mezonot is a separate obligation, this obligation differs from the standard mezonot obligation.  The widow's mezonot, which is merely a financial obligation, takes effect only once the husband dies.  Therefore, the Ra'avad believes that when food is leftover, the woman has privileges to it as a metzia, in accordance with the position of the Yerushalmi.
 
     It emerges, then, that the Rambam, who does not accept the Yerushalmi's understanding of the nature of a widow's mezonot, likewise disagrees with the Yerushalmi's stance concerning "ola imo."  Seeing the obligation of a widow's mezonot as a continuation of the obligation during marriage, the Rambam holds that "ola imo" applies even to a widow.  According to the Yerushalmi, however, which views a widow's mezonot as a financial obligation cast upon the orphans, "ola imo" will not apply. 
 
     If, as we suggest, "ola imo" takes effect only with regard to the personal obligations of marriage, we can explain why it does not apply in the case of one who charges a third party with the responsibility of caring for his wife.  Most Rishonim hold that it is forbidden for a husband to make such an arrangement without his wife's consent, as implied by the Yerushalmi (7:1).  Quite possibly, then, although a husband's obligations towards his wife are, in essence, personal, marital responsibilities towards her, Chazal lent them a monetary dimension and added an aspect of financial obligation.  When a woman agrees to the third-party arrangement, she foregoes on the personal relationship, such that her husband is obligated in only the purely monetary aspects.  In such a situation, therefore, the halakha of "ola imo" does not apply.  If, however, the couple does not live together for other reasons, such as if the husband traveled overseas, the marital, personal obligation remains.  Though the husband and wife are temporarily separated, their relationship fundamentally remains intact.  The husband is therefore obligated in the personal aspects, as well, and the halakha of "ola imo" remains in force.
 
     The Rashba (teshuvot, 1:523) maintains that a widow is not lowered to her husband's standards (if his were lower), but she does not ascend to his standards (if they were higher), either.  We see from this position a distinction between the two clauses of this halakha – "ola imo" and "eina yoredet."  As we saw earlier, the Gemara (48a) comments that if a wife dies while her husband is overseas, Bet Din dips into the husband's property to provide for the funeral "lefi kevodo" – in accordance with his standards.  The Gemara then asks, "In accordance with his standards, but not in accordance with her standards?"  Rashi explains: "She certainly does not go down to his standards, for even the view that does not apply 'ola imo' after death applies 'eina yoredet' [even after death]."  It appears that according to Rashi, only the halakha of "ola imo" is limited to a husband's personal, marital obligations to his wife.  But the obligation to ensure that the wife does not descend from her previous standard of living belongs to the general range of obligations.  Rashi therefore claims that even according to the position that after death a husband need not fulfill his obligations to her in accordance with his standards, he must do so in accordance with her previous standards.  On this basis, we may explain the Rashba's view concerning a widow.  The Rashba perhaps viewed the obligations to a widow as purely monetary obligations that are not included in the husband's marital obligations.  Therefore, even if the widow need not be treated at the higher standards of the husband, she may not be lowered from her standards.
 
     The Rashba draws a distinction between "ola imo" and "eina yoredet" elsewhere in his writings, as well, in his chiddushim to Ketubot (65a).  He writes, "If he is poor, we do not require him to go around [begging] to give her a pillow and cushion.  For if this were her practice, we would obligate him, because she never descends to his standard – he must rather go around the city and make the effort to bring it to her.  But when only rising to the husband's standards is involved, we do not obligate him if he is poor."  The Rashba appears to draw a fundamental distinction between "ola imo" and "eina yoredet."  "Eina yoredet" means that a husband must provide his wife's needs at the level to which she is accustomed, and defines the amount of the obligation in question.  It therefore applies even to a poor man.  "Ola imo," by contrast, relates not to the husband's obligation, but to a separate requirement demanding that the couple share an equal standard of living.  It is inappropriate for the husband to enjoy a higher standard while the woman is compelled to settle for a lower standard.  The husband must therefore see to it that her standard remains on par with his.  But this is not part of the husband's essential obligation and therefore does not apply to a person who is short on cash.
 
     The Rishonim debate the precise definition of "ola imo."  The Ramban (65a) asserts that the wife rises to the standard enjoyed by women in the husband's family, whereas according to Rabbenu Tam, she rises to the standards of the husband himself, rather than those of the women in his family (48a, Tosefot s.v. de-orchei).  It would seem that according to the Ramban, the halakha of "ola imo" resembles that of "eina yoredet"; both determine the level of the husband's obligation since both correspond to living standards enjoyed by women.  According to Rabbenu Tam, however, we might distinguish between the two, since "ola imo" exceeds the standard of women and reflects purity between the husband and wife (as we suggested within the position of the Rashba.  We should point out, however, that the Rashba follows the Ramban's view, thus compelling us to conclude that this distinction is possible even according to the Ramban.)
 
     Rashi appears to contradict himself with regard to the definition of "ola imo."  In our sugya, Rashi follows the Ramban's definition: "His practice – they do this for the women in his family."  On 65a, however, Rashi explains, "His practice – he is accustomed to sleeping on pillows and cushions, and we hold that she rises to his standard."  It would seem that according to Rashi, there exist two distinct halakhot within the principle of "ola imo."  One halakha requires equality between husband and wife and applies only when they live together.  This halakha requires the husband to avoid a situation of different standards, and to give his wife whatever he himself enjoys.  The second halakha is a detail within the husband's obligations to his wife, requiring him to provide his wife's needs at least on par with the standards of women in his family.  This is a general halakha that applies even when the couple does not live together.  In our sugya, therefore, where Rashi comes to explain Rabbi Yehuda's view, whereby "ola imo" remains in force even after the husband's death, Rashi explains "his practice – for the women in his family," because here the obligation of equality is not applicable after the wife's death.  On 65a, however, where the Gemara deals with the "ola imo" obligation as it applies specifically when the husband and wife live together, Rashi explains it as referring to his own standard, because only this halakha disappears when the couple agrees to live separately.
 
     Finally, we should note that the husband's obligation to provide his wife's needs according to the standards of women in her family can itself result in inequality between husband and wife.  Indeed we find that when the women in the wife's family live at a higher standard than those in the husband's family, the woman may likely forego on the "eina yoredet" provision.  The Gemara (70b) states: "She was accustomed in her father's home but went along with him [= his standards], and so she says to him: Until now, when you did not make a vow on me, I went along with you, but now that you made a vow on me, I do not want to go along with you."  From this sugya it appears that a wife foregoes on the halakha of "eina yoredet" so long as the marriage is stable.  Only after the marriage begins to destabilize does the woman demand her right to have her needs provided at her family's standards.
 
Sources and Question for next week's shiur:
 
1.  48a-49a ..."le-olam ... shema mina"
2.  Yerushalmi chapter 4:7
3.  Tosefot s.v. ve-Shemuel, Tosefot ha-Rosh s.v. Shemuel.
4.  Ritva s.v. ve-Shemuel, Shita Mekubetzet s.v. tanna masar.
 
Questions:
 
1.  The Amoraim debate the status of a na'ara me'urasa who was delivered by her father to the husband.  Which Amoraim define her a nesua and which as an arusa?
2.  Is it possible to claim that she remains an arusa regarding certain laws, while for others she is considered a nesua?
3.  What additional compromise regarding her status is indicated by the comments found in the Yerushalmi?