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The Torah Learning Library of Yeshivat Chovevei Torah

Kiddushin: Ownership or Partnership? Part 1: Torah Laws

by Rabbi Dov Linzer (Posted on July 31, 2016)
Topics: Halakha & Modernity, Marriage & Family, Talmud, Nashim, Kiddushin

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Our concept of marriage is one of a mutually entered partnership between husband and wife.  But is this the Torah’s and halakha’s understanding of the institution?  In this lecture, we will look at how the legal/halakhic institution of marriage is conceptualized in the Torah and how that has evolved through Rabbinic times until today.  We will see that in Biblical times, marriage was understood more as a type of ownership, and how a purchase price – a mohar – was given from the groom to the father of the bride. However, other models existed alongside that of purchase/ownership even in Biblical times.  In Rabbinic times particularly with the introduction of the ketuvah and the transformation of the act of kiddushin to be a symbolic gift of some object of value (worth a mere perutah) directly to the bride, the institution of kiddushin became something different than ownership.  Over time, particularly in monogamous societies such as Eretz Yisrael and Ashkenaz, the institution began to approximate that of partnership.  Nevertheless, the ownership model has not totally disappeared – for some rishonim and achronim it is the primary model, and even for those who emphasize the model of partnership, the idea of ownership remains present in a number of sources and a number of halakhot.

 

Coveting {sources ‎1-‎3}

Let us begin by examining some of the Torah laws relating to the state of marriage.  Among the mitzvot of the Ten Commandments is a prohibition against a man coveting his neighbor’s wife or his neighbor’s property.  These mitzvot appear in a subtly different way in Devarim than they do in Shemot.  Look at the way these mitzvot appear in Shemot {source ‎1} and the relationship between the wife and the property of the man.  What verbs are used to refer to coveting?  How are they grouped in the sentence?   What general phrase is used to refer to them?  Now compare that verse to the verse in Devarim {source ‎2}.  Are there differences here between the verbs used or the way they are grouped?  What do you make of this?

  1. Shemot 20:14   |  שמות פרק כ:יד
לֹא תַחְמֹד בֵּית רֵעֶךָ ס לֹא תַחְמֹד אֵשֶׁת רֵעֶךָ וְעַבְדּוֹ וַאֲמָתוֹ וְשׁוֹרוֹ וַחֲמֹרוֹ וְכֹל אֲשֶׁר לְרֵעֶךָ: You shall not covet your neighbor’s house, you shall not covet your neighbor’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is your neighbor’s.

2. Devarim 5:17    |     דברים ה:יז

וְלֹא תַחְמֹד אֵשֶׁת רֵעֶךָ ס וְלֹא תִתְאַוֶּה בֵּית רֵעֶךָ שָׂדֵהוּ וְעַבְדּוֹ וַאֲמָתוֹ שׁוֹרוֹ וַחֲמֹרוֹ וְכֹל אֲשֶׁר לְרֵעֶךָ: Nor shall you desire your neighbor’s wife, nor shall you covet your neighbor’s house, his field, or his manservant, or his maidservant, his ox, or his ass, or any thing that is your neighbor’s.

In Shemot, the Torah uses the same verb to refer to coveting a man’s wife and coveting his property, suggesting a similar way of seeing these two – as possessions of a person that another man wants to make his own.  More significantly, the prohibition against coveting a man’s wife is part of a list which also includes his slaves, his ox and his donkey.  This list is generalized by the end of the verse “or anything which is of” – that is, which belongs to – “your neighbor”.  In fact, this list seems to be a clarification of the opening prohibition – “Do not covet your neighbor’s house” – so that everything in the list is part of your neighbor’s household, that is his possessions, broadly speaking.  The opening and closing phrases are a sort of klal-prat-u’klal, a general category, specific list, and then another general category, and all these things – wife, slaves, animals – are all examples of things which belong to your neighbor and are part of his household.

In contrast, in Devarim the coveting of the wife is treated very differently.  The verse singles her out as a separate prohibition: the two prohibitions are separated by a break in the verse (indicated by the “ס”); she does not appear in a list together with the man’s possessions; and a different verb is used to refer to desiring another man’s wife – לא תחמוד – than is used to refer to desiring his property – לא תתאוה.  Here, the wife is not seen as a possession, and desiring her does not mean a desire to possess her in the same way it does when referring to property (it should be noted that according to the Rabbis, the verb תחמוד refers to a more possessive desiring, taking steps to make something your own, whereas the verb תתאוה refers to a desire that is less actively possessive).   In general, scholars have noted that certain mitzvot when they are repeated in Devarim emphasize a more humanistic dimension, and that certainly seems to be the case here.

What we are seeing is a complicated picture – a society and a legal system – that can at times view a wife as a man’s property, but does not always or exclusively view her as such.

 

To see how the verse in Shemot echoes many, many generations later, it is instructive to look at a brief passage in Tosafot HaRosh (13th century, Spain), {source ‎3}.  Rosh is explaining a passage in Ketuvot which states that if after kiddushin has occurred, the nissuin (i.e., the chuppah) is delayed because of the groom, then he must pay for the bride’s room and board until the nissuin takes place, but he need not pay if the delay is on account of her.  What, asks the Gemara, would be the case if she got sick?  Is this on account of her, or can she say to him, “It is your field that got flooded”?  What does this mean – how could her getting sick be seen as being on account of him?   See how Tosafot Rosh explains this by alluding to the verse in Shemot.  

3. Tosafot HaRosh, Ketuvot (2a), s.v. Nistachfa   |   תוס’ הראש כתובות (ב.) ד”ה נסתחפה שדהו

האי דתלי במזלו ולא במזלה … משום דהאשה קנין כספו של האיש כמו עבדו שורו וחמורו ותלוי במזלו. The Talmud assumes that her illness is a result of his “luck” (mazal) and not her “luck”… because the wife is the property of purchase-money of the husband, like his slave, ox and donkey and her misfortune is a result of his bad luck.

According to Rosh, a wife is her husband’s property.  Although the nissuin has not yet taken place, the kiddushin has occurred.  This kiddushin is effected by the giving of an object of value to the woman.  This makes her the husband’s property – he has bought her with his money.  She is thus similar to other things that he has purchased – his slave, ox, and donkey – and it is here that Rosh alludes to the verse in Devarim.  Now, just as when a person’s car breaks down we don’t say it is the car’s bad luck, but rather that it is the person’s bad luck, so when his betrothed wife gets sick, this is not her bad luck, and on account of her, but his bad luck and on account of him.

It is somewhat shocking to read this blatant framing of the wife as property, especially when she is listed together with the slave, ox and donkey, but we need to realize that this is not coming out of nowhere.  It is an idea already present in the verse in  Shemot against coveting another man’s wife.

 

Adultery {sources ‎4-‎5}

Let us turn to another Torah law – the prohibition against adultery {source ‎4}.  What is significant about the Torah’s definition of adultery is that it is all in terms of the woman – it is about her being a married woman.  A man having sex with another man’s wife is adultery, but a married man having sex with an unmarried woman is not adultery.   In the context of a polygamous society, this is necessarily the case.  Since a man can have multiple wives, there is no transgression in him sleeping with a (unmarried) woman who is not his wife.  Or, if there is some sin, it is the sin of premarital sex, but it is not a betrayal of his wife, and not adultery, since his relationship with his wife is not one that requires fidelity on his part.  In contrast, a woman in such a society cannot have multiple husbands.  For her, her relationship with her husband is one of fidelity and exclusivity – once married, she cannot sleep with another man. Thus, sex with a married woman is adultery, but sex with a married man, if the woman is single, is not.

4. Leviticus 20:10  |  ויקרא פרק כ:י

איש אשר ינאף את אשת איש אשר ינאף את אשת רעהו מות יומת הנאף והנאפת And the man who commits adultery with another man’s wife, he who commits adultery with his neighbor’s wife, the adulterer and the adulteress shall surely be put to death.

While this asymmetry does not directly speak to the issue of marriage as possession, it is related.  A marriage that demands the fidelity of the wife and not of the husband is not one that suggests a sense of partnership or mutuality.  It more naturally suggests a sense of ownership.  A man’s wife is “his” – no other man can have her.  But a woman’s husband is not “hers,” and he remains available to other women.   Or, to say it another way, a one-to-many relationship suggests one of hierarchy and often of possession.  One person owns and collects many things. So a society where a man can have multiple wives, is a society which would be inclined to see a man’s wives as his possessions.  

This point is made explicitly by Sefer HaChinukh (13th century, Spain) {source ‎5}, who states that one of the reasons that the Torah forbids adultery, is because it is a form of stealing.  In other words, the wife is her husband’s property.

5. Sefer HaChinukh, Mitzvah 35  | ספר החינוך מצוה לה

משרשי מצוה זו… מלבד שיש בענין הניאוף עם אשת איש צד גזל שהוא דבר ברור שהשכל מרחיקו… Not to commit adultery… Among the reasons for this mitzvah are … in addition to the fact that the act of adultery with a married woman has a dimension of stealing, and this is a self-evident thing that is unacceptable…

 

What Type of Ownership are we Talking About? {sources ‎6-‎7}

It is important at this stage to clarify what “ownership” would mean in this context.  We are not talking about the wife literally being considered a piece or property – that is something that only exists in halakha in the context of a Canaanite slave (and even there, his status as property does not negate his status as a human being; – if his master kills him, the master is put to death, see Shemot 21:21, Rambam, Laws of Murder 2:11-12).  Rather, we are talking about owning someone “for a particular purpose.”  For example, a person can own a tree “for its fruits”; he does not have title to the tree, but he also does not merely have fruit futures.  He has a right – or an ownership – in the tree itself which entitles him to its fruit.  Similarly, halakha considers a Hebrew slave’s body to be owned by his master, not completely, but in the sense that the master has a right to the slave’s labor and this right is expressed by type of ownership of the slave; he is owned “for his labor” (see Kiddushin 16a, Rashi, Tosafot, and Ramban ad. loc., and Baba Kamma 113b).

With this in mind, what would it mean for a woman to be property?  For what purpose would she be owned by the husband?

The obvious answer is – for the purpose of sex.  She is the husband’s sexual property.  He has the exclusive right to have sex with her, possibly even to demand from her that she has sex with him (more on this, in Part IIB), and therefore when someone else has sex with her, he is violating her husband’s rights and “stealing” her from her husband.

An interesting expression of this can be seen from a passage in Bavli Nedarim {source ‎4} and Ran’s commentary thereon {source ‎4}.  The Talmud Nedarim (20b) quotes Rabbi Yochanan as saying that there are no restrictions regarding how a man can have sex with his wife.  The Talmud then follows this with a story who complained to Rebbe (R. Yehudah HaNassi) that her husband had sex with her in a way that she was not happy with.  Rebbe responded  that he could not help her, since the Torah had permitted her to her husband {source 4}.  Ran explains that this is based on the concept of marriage.  A husband “takes” a wife, and this means that she is his to have sex with her in any way that he wants {source ‎5}.

6. Bavli, Nedarim (20b)   |   (:בבלי, נדרים (כ

ההיא דאתאי לקמיה דרבי, אמרה לו: רבי, ערכתי לו שלחן והפכו!

אמר לה: בתי, תורה התירתך, ואני מה אעשה ליך.

A certain woman can before Rebbe.  She said to him: “Rebbe, I laid the table before (i.e., prepared myself to have sex with) my husband, and he turned it upside down!” (a euphemism for sex from behind or anal sex).  

He responded to her: “My daughter, the Torah permitted you [to him] – what then can I do for you?”

7. Ran, Nedarim (20b), s.v. HaTorah Hitiratcha    |   ר”ן נדרים (כ:) ד”ה התורה התירתך

התורה התירתך – דכתיב כי יקח איש אשה שהיא לקוחה לו לעשות בה כל חפצו The Torah permitted you to him – as the verse states, “If a man takes a wife” – she is acquired by him to do with her all that he desires.

This passage is of course deeply disturbing, as it suggests that halakha would countenance marital rape. We will return to this point in Part II, and a number of Rishonim (e.g., Ra’avad) state emphatically that we are not talking about a man forcing his wife to have sex, but rather about a woman acquiesced to her husband’s desire, but was not happy with the situation.  Be that as it may, this passage is clear that a husband is not just permitted to have whatever sex he wants to with his wife, but that he has a right to do so, a right that he can exercise even against the preference of his wife, and a right that- according to Ran –  is based on a principle of ownership.  He has “taken” her as a wife, which means that he owns her for sexual purposes.

 

A More Complicated Picture {sources ‎8-‎10}

While many of the Torah laws reflect an understanding of marriage as a form of ownership, the picture is actually more complicated than that.  The Torah, in one section in particular, specifies obligations that the husband has to his wife which cannot be shirked.   In Shemot, the Torah addresses a case of a man who sells his daughter as a Hebrew slave {source ‎8}.  The very fact that a father can both sell his daughter as a slave and marry his daughter off in marriage already suggests that these two transactions are similar and represent some form of sale (and, indeed, the Talmud Kiddushin (3b) derives many laws relating to the father’s right to marry his daughter from comparing it to the father’s right to sell his daughter as a slave).  At the same time, however, the Torah insists that the girl not be treated as mere property.  The purpose of the sale of her as a maidservant is to encourage the owner to marry her, and if he chooses not, he cannot dispose of her, selling her to an outside.  

8. Shemot 21   |  שמות פרק כא

(ז) וְכִי יִמְכֹּר אִישׁ אֶת בִּתּוֹ לְאָמָה לֹא תֵצֵא כְּצֵאת הָעֲבָדִים:

(ח) אִם רָעָה בְּעֵינֵי אֲדֹנֶיהָ אֲשֶׁר לא לוֹ יְעָדָהּ וְהֶפְדָּהּ לְעַם נָכְרִי לֹא יִמְשֹׁל לְמָכְרָהּ בְּבִגְדוֹ בָהּ:

(ט) וְאִם לִבְנוֹ יִיעָדֶנָּה כְּמִשְׁפַּט הַבָּנוֹת יַעֲשֶׂה לָּהּ:

(י) אִם אַחֶרֶת יִקַּח לוֹ שְׁאֵרָהּ כְּסוּתָהּ וְעֹנָתָהּ לֹא יִגְרָע:

(יא) וְאִם שְׁלָשׁ אֵלֶּה לֹא יַעֲשֶׂה לָהּ וְיָצְאָה חִנָּם אֵין כָּסֶף:

7 And if a man sells his daughter as a slave, she shall not go out as male slaves do.

8 If she please not her master, who designated her to himself, then shall he let her be redeemed: to sell her unto outsiders he shall have no power, seeing he has dealt deceitfully with her.

9. And if he designated her unto his son, he shall deal with her as is the practice for free women.

10 If he takes him another wife; her food, her raiment, and her conjugal rights, shall he not diminish.

11. If he fails her in these three ways, she shall go free, without payment.

More to the point, if and when he or his son chooses to marry her, she must be treated “as is the practice (or “law”) of free women,” that is, as wives have a right to be treated.  This is spelled out in the next verse – he is not allowed to withhold her she’er, kesut, and onah.  These three words are generally translated as clothing, food, and conjugal rights, and this is indeed the translation of Rashi {source ‎9}.  Ramban disagrees, arguing that the obligations to provide food and clothing are only Rabbinic in nature {source ‎10}.  Ramban explains that these three words refer to different aspects of the husband’s conjugal duties, and that the Torah is underscoring that although this wife was originally a slave and came from a lower class in society, once she has been taken as a wife, she cannot be treated as a concubine, to be used just to satisfy the husband’s sexual needs, but must be treated with the same respect as a free woman.  A husband cannot use his wife for sex; the act must be one of them coming together “as one flesh”.

9. Rashi, Shemot 21:10    |    רש”י שמות כ”א:י

שארה – מזונות:

כסותה – כמשמעו:

ענתה – תשמיש:

She’eirah – food.

Kesutah – this means what it sounds like [i.e., clothing].

Onatah – sex.

10. Ramban, Commentary to Exodus 21:9   |   רמב”ן שמות פרק כא פסוק ט

ופירש רש”י שארה מזונות, כסותה כמשמעה, עונתה תשמיש… והמובן בסוגית הגמרא שהם דברי יחיד, והלכה מזוני תקינו לה רבנן…

והנה שארה קרוב בשרה. וכסותה כסות מטתה, כמו שנאמר (להלן כב כו) כי היא כסותו לבדה במה ישכב. ועונתה הוא עונה שיבא אליה לעת דודים…

וענין הכתוב, שאם יקח אחרת, קרוב בשרה של זו וכסות מטתה ועת דודיה לא יגרע ממנה, כי כן משפט הבנות. והטעם, שלא תהיה האחרת יושבת לו על מטה כבודה והיו שם לבשר אחד, וזו עמו כפילגש ישכב עמה בדרך מקרה ועל הארץ כבא אל אשה זונה, ולכן מנעו הכתוב מזה. וכך אמרו חכמים (כתובות מח א) שארה זו קרוב בשר, שלא ינהג בה כמנהג פרסיים שמשמשין מטותיהן בלבושיהן.

Rashi explains: “She’eirah – food. Kesutah – this means what it sounds like [i.e., clothing]. Onatah – sex.”… But what can emerges from the Talmudic discussions is that is a minority opinion, and the halakha is that “the obligation to provide food is from the Rabbis.”…

Thus, sh’erah means the closeness of her flesh, and kesutah means her bedclothes, as it says, “Because that is his only ksut– garment – with what shall he sleep?” (Deut. 22:26).  And onatah refers to time, that he shall come onto her at the time of lovemaking…

The sense of the verse if that if he takes another wife, the closeness of her flesh and her bedclothes and her time of lovemaking he should not withhold from her, because that is the statute of women (lit. daughters).  And the reason for this prohibition is that the new wife should not be sitting on a honorable bed, where they will be there as one flesh, and the first wife will be treated as a concubine, sleeping with him only casually (lit. by chance) and on the floor, like one who comes onto a prostitute.  Thus the verse prohibits this.  And so our Sages have explained, “She’erah implies closeness of the flesh, viz., that he must not treat her in the manner of the Persians who perform their conjugal duties in their clothes.”

Both for Rashi and Ramban, the wife – even a wife that was originally the man’s slave – is not mere property to be used by her husband.  The husband has obligations and responsibilities to her, recognizing her as a person in this relationship.  For Ramban, it goes even further – while the financial obligations to her are fewer (actually, non-existent), the personal obligations to her are greater.  She must not just be provided for, but she must be treated with respect; and the husband’s obligations around marital sex reflect an understanding of marriage as the union of two persons, of two bodies becoming one, that is, something much closer to partnership than to ownership.

To be sure, these obligations can exist side-by-side with the concept of marriage as ownership, just as a man can have obligations to his Hebrew and Canaanite slaves that coexist with his ownership of them in part or in full.  

These verses, then, yield a more complicated picture of marriage.  Marriage may be an institution that is based on, or that contains elements of, ownership, and yet one that at the same time recognizes the woman as a person with rights in the relationship, a person to whom the husband has obligations, and a person who is entitled to be treated with respect.  

 

Divorce {source 11}

The last Biblical law that we need to address is divorce.  As is well known, the Torah gives the husband the unilateral power to divorce his wife {source ‎11}.  It is not only the husband who issues the divorce.  Although Talmudic and post-Talmudic law would modify this somewhat, according to the Torah, the husband is the only one who can initiate divorce, and he can divorce his wife against her will.  Such unilateral power is completely consistent with the idea of wife as property.  As his property, he can decide when to dispose of her.  The reverse – her deciding to dispose of, or even just to leave him – would be nonsensical according to this model.  As we shall see, steps that the Rabbis took to prevent the husband from capriciously divorcing his wife, such as making the ketuvah a debt to be paid at the time of divorce, helped to raise the wife’s status in the marriage, to make her status that much less as property and that much more as a person.

11. Devarim 24:1   |   דברים כ”ד:א

כִּי יִקַּח אִישׁ אִשָּׁה וּבְעָלָהּ וְהָיָה אִם לֹא תִמְצָא חֵן בְּעֵינָיו כִּי מָצָא בָהּ עֶרְוַת דָּבָר וְכָתַב לָהּ סֵפֶר כְּרִיתֻת וְנָתַן בְּיָדָהּ וְשִׁלְּחָהּ מִבֵּיתוֹ: When a man has taken a wife, and married her, and it come to pass that she find no favor in his eyes, because he has found some uncleanness in her: then let him write her a bill of divorce, and give it in her hand, and send her out of his house.

 

Conclusion

We have seen that many of the Torah laws indicate that marriage was seen of as a type of ownership, where the husband had exclusive ownership in his wife for the purposes of sex. There are many implications to this, including the definition of adultery as focusing on the married status of the woman, the question of the husband’s right to demand sex against the preference or desire of his wife, and the husband’s unilateral right to initiate and grant divorce even against the will of his wife.  At the same time, we saw that the picture was not so simple, and that there are ways in which a wife is seen as a partner, or at least as more than property, in the marriage – as a person who has rights and is entitled to respect.  We now turn to look the role of the Biblical mohar to see what understanding of marriage is reflected in the act of marriage itself.