"Parnasa": The Orphan Girl's Dowry

  • Rav Yair Kahn
Translated by David Silverberg
 
 
     According to Torah law, only sons inherit their father's property.  They must, however, care for the basic needs of the orphaned daughters and therefore bear the obligation to feed them.  This obligation constitutes one of the "tena'ei ketuba," the basic preconditions upon which a ketuba is written, by which a husband pledges, "Female children that you have from me shall reside in my home and feed off my property until they are married to men" (52b).  The term "parnasa," however, refers to a separate obligation, which entails transferring a percentage of the inheritance to the daughters for their dowry.  The distinction between the obligation to support the orphaned daughters and that of parnasa is explicitly drawn by Rav Huna, in the name of Rebbe, in the sixth perek (68b): "Parnasa is not among the tena'ei ketuba."  This difference finds practical expression in our sugya with regard to the daughters' collection of the funds due to them from metaltelin (mobile, as opposed to real, property).  Essentially, the daughters do not receive mezonot (basic support) from metaltelin, a law that Rashi (s.v. o dilma) attributes to the principle of "tena'ei ketuba ki-ketuba" – the tena'ei ketuba obligations have the same laws as the basic ketuba obligation itself.  Just as a divorced or widowed woman does not collect her ketuba payment from metaltelin (81b), so does an orphan girl receive her mezonot payments only from the estate's karka (land).  Parnasa, however, constitutes an independent obligation towards the daughters, separate and apart from the tena'ei ketuba, and may therefore be collected from metaltelin.  This halakha is stated explicitly later in the Gemara's discussion in the sixth perek: "Whereas she collects parnasa even from metaltelin; tena'ei ketuba she collects from real property, not from metaltelin."
 
     This distinction between mezonot and parnasa remains relevant even after Chazal's legislation that orphaned daughters receive mezonot from metaltelin. The Gemara (50b) records that Rav ordered that orphan girls be fed from the "chiti de-aliya" ("the grain of 'aliya'"), and the Gemara suggests two interpretations of this report.  According to the first possibility, Rav does not, in fact, refer to feeding orphan girls at all; rather, he speaks of the parnasa obligation, which Rav ordered should be given even from metaltelin.  The Gemara explains "chiti de-aliya" to mean "iluya de-av" – "the quality desired by the father," a reference to Shemuel's position that we grant the daughters a dowry based on our assessment of how much the father would be prepared to give ("le-parnasa shamin ba-av").  Alternatively, Rav in fact does refer to the daughters' mezonot; in a location called "Aliya," Chazal enacted that the daughters are fed even from the estate's metaltelin property.  It appears from the comments of Rashi that this enactment does not reflect the strict letter of the law, according to which the daughters are not fed from metaltelin, since, as mentioned, mezonot, as one of the tena'ei ketuba, follows the same guidelines as the ketuba payment itself. 
 
     One question, however, arises from this passage in the Gemara.  In presenting the first possible reading of Rav's ruling, that he ordered giving the daughters parnasa from metaltelin, why does the Gemara attribute this ruling to Shemuel's halakha, "le-parnasa shamin ba-av"?  After all, Shemuel on this issue follows the minority position of Rabbi Yehuda, which the Chakhamim dispute:
 
"Rabbi Yehuda says, if [the father] had [during his lifetime] married off the first [daughter], the second is given [a dowry] similar to what was given to the first.  The Chakhamim say, sometimes the poor becomes rich, and the rich becomes poor [and we therefore cannot assess the second daughter's dowry based on the first's].  Rather, we assess the property and give her [one-tenth of the estate, regardless of how much the first daughter received]." (Mishna, 68a)
 
By attributing Rav's halakha, that the daughters receive their parnasa from metaltelin, to Rabbi Yehuda's position, the Gemara indicates that according to the Chakhamim, we grant them parnasa only from karka.  This would appear to run counter to the Gemara's discussion of the debate between Rabbi Yehuda and the Chakhamim, which implies that they argue only as to whether or not we can give an dowry based on a speculative assessment of the father's wishes.  The Gemara there makes no mention at all of the issue of receiving parnasa from metaltelin as a further ramification of this debate between Rabbi Yehuda and the Chakhamim.  Indeed, Tosefot (68b s.v. kol) write that we give the daughter one-tenth of the estate according to the Chakhamim because we assess this percentage as the standard amount given as a dowry.  Seemingly, this debate has nothing at all to do with the essential nature of the parnasa obligation, and should not effect the question of receiving parnasa from metaltelin.
 
     We might explain that in truth, the Gemara does not associate the halakha of receiving parnasa from mataltelin with the debate between Rabbi Yehuda and the Chakhamim.  The Gemara invokes the halakha of "le-parnasa shamin ba-av" only to explain the term "aliya" used in the context of Rav's ruling.  Accordingly, the question of giving the daughter's dowry from metaltelin does not relate at all to the debate between Rabbi Yehuda and Chakhamim, and the the Gemara's final ruling that we do not give parnasa from metaltelin (51a) does not hinge on this dispute.  This is the implication of Rav Achai Gaon (Sheiltot 21):
 
"We must clarify: when she is fed, is she fed from only real property, or even from metaltelin?  Did the rabbis equate [this payment] with the ketuba [payment, which is only from karka], or not?  If you say that mezonot… is like the ketuba, what [is the halakha concerning] the one-tenth of the estate [allocated for parnasa]?  Since we assess the father['s wishes], we make no distinction between metaltelin and real property, or, perhaps, since the father did not issue an order on her behalf, this is like a rabbinic enactment, which the rabbis rendered similar to a tenai ketuba?  We may prove this from that which Rav said: 'The halakha is – from real property and not from metaltelin, both for mezonot or for parnasa.'  We see that since the father did not issue an order, then even though we assess the father['s] wishes, this is a rabbinic enactment, which the rabbis equated with the ketuba."
 
Rav Achai Gaon rules "shamin ba-av," that we determine the dowry amount based on our speculative assessment of the father's wishes, and yet he concludes that the parnasa is not collected from metaltelin.  The Ramban (68a) cites this position in the name of the Behag, and the Meiri detected this view from the comments of the Rambam, who likewise rules that we make an assessment of the father's wishes, and yet writes that it cannot be collected from metaltelin (Hilkhot Ishut 20:5).
 
     Tosefot (51a, s.v. mi-mekark'e), however, imply otherwise.  Commenting on Rava's ruling, that the daughters collect parnasa only from karka, Tosefot note that Rava appears to contradict his ruling later in the masekhet (68) following Rabbi Yehuda's opinion, that we determine the amount of the dowry based on the dowry given during the father's lifetime.  In light of the association drawn in the Gemara between Shemuel's ruling and Rabbi Yehuda, Tosefot claim, Rava, who accepts Rabbi Yehuda's position, must concur with Shemuel that parnasa may be collected from metaltelin.  This would then contradict his conclusion in our sugya, that parnasa, like mezonot, is collected only from karka.  Clearly, then, Tosefot extend the debate between Rabbi Yehuda and the Chakhamim to the issue of collecting from metaltelin: according to Rabbi Yehuda, the daughters receive parnasa from metaltelin, whereas according to the Chakhamim, they receive parnasa only from karka.
 
     Tosefot resolve their difficulty by distinguishing between a case where the court made an assessment of the father's wishes for his daughter's dowry, and when they did not.  Rava's ruling allowing the collection of parnasa from only karka applies when the court did not arrive at an assessment; when, however, the Bet-Din did make such an assessment, then he accepts the position of Rabbi Yehuda and Shemuel, that parnasa may be collected even from metaltelin.  This distinction is based on the discussion in the Gemara (68a):
 
"Rava said to Rav Chisda: They teach in your name that the halakha follows [the view of] Rabbi Yehuda.  He said to him: May it be His will that all great comments such as this you shall teach in my name.  Did Rava really say this?  Do we not learn [in a berayta]: 'Rebbe said, a daughter who is fed from the brothers receives one-tenth of the estate [for her dowry],' and Rava said that the halakha follows Rebbe?  This is no difficulty: one source refers to a case where they assessed [the father's wishes]; the other refers to a case where they did not assess.  This indeed stands to reason, for Rav Ada Bar Ahava said: It once happened that Rebbe granted her one-twelfth of the estate.  Do we not have here a contradiction?  Rather, we may derive from here that one refers to a case where they made an assessment, and the other refers to a case where they did not make an assessment."
 
Thus, if we have made an assessment of the father's tendencies, then we assign the daughter a dowry based on this assessment, even from metaltelin.  Without such an assessment, the amount allocated from the estate for parnasa is ten percent, which she collects only from karka.  But if so, then our original difficulty arises once again: wherein lies the connection between the assessment of the father's wishes and the ability to collect from metaltelin?
 
     In order to appreciate this position let us go back to the origin of the obligation of parnasa.  We find the following discussion in the Gemara (52b):
 
"Rabbi Yochanan said in the name of Rabbi Shimon Bar Yochai: Why did they establish 'ketubat benin dikhrin' [the provision by which one's sons from a certain wife receive her ketuba in addition to their share in the inheritance]?  In order that a person be willing to write for his daughter [a respectable dowry] like his son [knowing that her sons will inherit it].  Is it possible that the Torah says that the son should inherit, and the rabbis came along and instituted that the daughter should inherit [by encouraging fathers to give large dowries]?  This, too, is from the Torah, as it says, 'Take wives and beget sons and daughters; take wives for your sons and give your daughters to men.'  We can understand [an instruction to marry off] sons, for they are in one's hands; but one's daughter – are they are in his hand?  This is what it teaches – that we clothe her and give her enough that people become interested in her and marry her.  How much?  Abayei and Rava both say: as much as one-tenth of one's possessions."
 
Thus, a father bears an obligation to provide for his daughter so that she can marry.  Although the Rambam's formulation of this obligation implies that it is rabbinic in origin, the straightforward reading of the Gemara suggests that this constitutes a Torah obligation, as the Ritva explicitly writes: "Meaning, it is a mitzva from the Torah, from divrei kabbala [the prophets]."  The Ritva does, however, emphasize that this is but a "mitzva," rather than an outright obligation.
 
     All this applies to the father's obligation to his daughter.  Once he passes away, halakha requires the brothers to support their sister out of the inheritance money.  The Gemara (69a) records that Ameimar considered the possibility that a daughter actually inherits a certain percentage of the inheritance due to the halakha of parnasa.  In conclusion, however, she does not receive the parnasa directly as inheritance, but rather has the status of a ba'al chov – a creditor, owed money by the brothers.  (Therefore, she cannot demand the property itself; the brothers may first exchange her share of the property for money and give her the given sum of money.)  If, indeed, the daughter receives her parnasa as an inheritance, then clearly the halakha of parnasa after the father's death evolves from the father's obligation to provide for his daughter and enable her to marry.  However, according to the Gemara's conclusion, that a daughter must claim her parnasa money from the brothers, it would appear that Chazal cast a new obligation upon the inheritors.  The Gemara there inquires as to whether we should view the daughter as the creditor of the father, and the inheritors must merely pay their father's debt, or if the daughter is the creditor of the brothers themselves: "Now that you said that she is a creditor – of the father or the brothers?"  The Gemara there concludes that we view the daughter as the creditor of the brothers, seemingly allowing us to conclude that the halakha of parnasa imposes a new obligation upon the inheritors. 
 
     Before reaching such a conclusion, however, we must consider an additional Gemara, as well (68b):
 
"Parnasa is not considered a tenai ketuba with respect to that which we learned [in a berayta]: One who says that his daughters should not be fed from his property – we do not listen to him; that his daughter shall not get parnasa from his property – we listen to him, for parnasa is not considered a tenai ketuba."
 
This passage reveals two relevant points for our discussion.  First, a father can exempt himself from his obligation to support his daughter.  Secondly, in such a situation, the obligation of parnasa cannot then be cast upon the inheritors.  We have already encountered the first point in the aforementioned comments of the Ritva, where he refers to the father's support of his daughter as a "mitzva," rather than an obligation.  Indeed, he cites this Gemara as proof for his position.  The second point, however, appears to contradict the conclusion we reached earlier, that we must view parnasa as an independent obligation cast upon the inheritors.  (It should be noted that the Geonim's text of the Gemara is reversed; according to their version, we do not accept a father's refusal to support his daughter from his property.  This version of the text indeed accommodates our understanding of the inheritors' obligation as a new, independent obligation towards their sister, rather than a natural extension of the father's obligation.)
 
     To resolve this difficulty, we may suggest that in fact two, concurrent paths exist by which the inheritors can support their sister to prepare her for marriage.  On the one hand, we saw that the inheritors bear a new obligation requiring them to support their sister.  But there exists the possibility of exempting themselves from this obligation if they choose the second path, which is based upon the notion known in the Talmud as, "A son is his father's leg."  Children can fulfill their father's mitzva and support his daughter in his place, in fulfillment of verse, "give your daughters to men."  Only when they do not assume their father's place and the father's mitzva is pending does a new obligation of parnasa fall upon the inheritors themselves.  But if the inheritors already fulfilled their father's mitzva, this obligation can never take effect.  We see that although parnasa constitutes an independent obligation, it hinges upon the father's mitzva; it falls upon the sons only in those situations where the sons are enjoined to fulfill their father's mitzva.  Therefore, when the father declares his unwillingness to support his daughter from his property, the inheritors have no independent responsibility to fulfill a mitzva which the father himself violated, and thus the obligation will never fall upon their shoulders. 
 
     If we are correct, then it would seem that herein lies the distinction between issur nekhasim – the ten percent of the estate allocated for parnasa – and a speculative assessment of the father's actual wishes.  True, the ten-percent figure evolves from a general estimate that most fathers give this amount for their daughters, as Tosefot explain.  This is, indeed, the implication of the Gemara: "This is what it teaches – that we clothe her and give her enough that people become interested in her and marry her.  How much?  Abayei and Rava both say: as much as one-tenth of one's possessions" (52b).  Nevertheless, the fixed amount of one-tenth, which ignores the specific tendencies and subjective wishes of the father, is simply the amount of the debt cast upon the inheritors, albeit an amount established based on accepted norms.  But if the inheritors make an assessment of the father's wishes, then they are not coming to pay the debt of parnasa established by halakha, but rather to fulfill their father's mitzva.  They therefore assess his tendencies in order to fulfill the mitzva cast upon him.
 
     We can now readily understand why the daughter receives parnasa from metaltelin only when an assessment is made of the father's wishes.  The father's mitzva includes all his property, without any distinction whatsoever between karka and metaltelin.  Therefore, when the sons assume their father's place and prepare to fulfill his mitzva, they give parnasa from all his property.  If, however, they assign parnasa without making an assessment of their father's wishes, and they instead seek to pay the parnasa debt enacted by Chazal, we do not take into account how much the father would give.  The brothers pay instead in accordance with the particular guidelines of this new halakha requiring inheritors to support their sister, and this enactment requires paying only from the land that they inherited, not from the metaltelin, similar to the parallel laws governing ketuba payment.
 
Sources and questions for the next shiur:
 
1.  Mishna 51a, gemara until "hamechurarin" (51b).
2.  Mishna 54b, gemara 56a "ta-ama de katva ... ketuba de-oraita" (56b).
3.  Tosefot 51a s.v. mani, Toesefot Rid 51a.
4.  82b, "Amar Rav Yehuda ..."
5.  Ramban 51a s.v. atan, Rambam Ishut 16:10.
 
Questions:
 
1.  What is the difference between the case in our mishna and the debate of R. Meir and R. Yehuda recorded  in the fifth perek?
2.  How can the gemara compare these two cases and conclude that the beginning of our mishna corresponds to R. Meir's opinion?
3.  What is the difficulty with the gemara's assertion that the second clause in the mishna corresponds with R. Yehuda's opinion regarding liens?