Kiddushin: Ownership or Partnership? Part 2: The Act of Marriage – Mohar and other Marriage-Monies

Part I – In the Torah

Section B – The Act of Marriage – Mohar and other Marriage-Monies

We now turn to look at not the state of marriage, but the act of effectuating marriage.  What act made an unmarried woman into an arusa, a betrothed woman?   In the Torah, there are two stages of marriage, eirusin and nissuin.  The first, eirusin, makes the woman legally married – and for another man to sleep with her would be an act of adultery – but at this stage the marriage has not been consummated and husband and wife are not living together in a sexual relationship and a shared household.  These two stages are juxtaposed in Devarim 22:22-23, which refers to the first stage me’orasah, betrothed, and the second stage as bi’ulat ba’al, a married woman or, more literally, a woman who has had sex with her husband.  The second, stage, then, is effectuated primarily through an act of sex (see also Devarim 22:13), and this is described in the Torah as when a man “takes” (lakach) a wife (see Devarim 20:7 and 24:5; this is in contrast to the Rabbinic understanding that lakach refers to the first stage).

However, the initial act that makes a woman legally married, the act of eirusin, is not described explicitly in the Torah.  What we do find is that when describing the act of marriage, the Torah regularly references the mohar.  This was money that was given from the groom to the bride’s father.  There is a broad consensus among Biblical scholars that the mohar is a “bridal price,” and it was the payment of the mohar that effectuated the marriage.  This would reflect an understanding of marriage as ownership, and this would be reinforced by the fact that the transaction would take place between the groom and the bride’s father.  The bride would be the object being transferred, and not a direct party to the transaction.  The two stages would then be: first the groom “buys” his wife from the girl’s father – eirusin – then he takes possession of her – lakach, bringing her home and having sex with her – ni’ssuin.  

It needs to be noted at this stage, that while in the Talmud the father’s right to marry his daughter off ends when the daughter reaches the age of legal majority – 12 ½ years old – there is no indication of this in the Torah.  In the Torah, we never find a woman marrying herself off to a man, and indeed, in the section in the Torah that discusses a woman making vows (Bamidbar 30:4-17), the only woman who is not under the control of a man – either her father or her husband – is a woman who has been widowed or divorced (verse 10).  While this may be because a daughter was always married off before she reached the age of majority, the fact remains that the Torah does not envision a woman (certainly a never-married woman) marrying herself off.   A woman is always married off to the groom by the father.  This is yet another fact that reinforces the ownership model of kiddushin.  

We begin by looking at the verses that support the understanding of mohar as bride-price, and note that many classical commentators did not interpret it this way.  We will then see how there seems to have been two institutions of mohar present – one a bride-price and the other perhaps a proto-ketuvah.  This will then take us to the rabbinic period and the institution of the ketuvah based on the model of the Biblical mohar.

Mohar in the Torah {sources ‎12-‎20}

The verse in Shemot describes the case of a man who seduces a virgin {source ‎12}.  Note that the verse states that she is not betrothed, lo orasah.  Notice the centrality of mohar in describing the man’s obligation to marry this woman.  What does the verse make clear is the nature of mohar? Does it make it sound like a gift or a price?  What indicates that it is central to the act of marriage?  What is significant about its use as a verb and not only as a noun?  Notice as well that it is the father who is choosing to give his daughter to this man.

12. Shemot 22:15-16   שמות פרק כב:ט”ו-ט”ז

As we will see below, the simple sense of Biblical verses seems to be that the mohar was a bride-price, money paid up front to the father that effectuated the kiddushin.  Not everyone, however, subscribes to this position.  Among the classical commentators, we find that both Rashi and Ramban offer different meanings to the term.  Rashi {source ‎13} states the mohar refers to the ketuvah, an institution familiar to us from the Talmud.  The ketuvah was a sum of money to be paid if the husband divorced or pre-deceased his wife, to provide her with a financial cushion when she no longer had a husband to provide for her (this was in a time when women were not substantial earners). [Regarding the statement in the Talmud that the ketuvah was to prevent easy divorce, see Part II.]  For Rashi, then, the mohar was not money paid before the marriage to the father, but a debt incurred at the beginning of the marriage to be paid to the wife at is termination.

13. Rashi, Shemot 22:15     רש”י שמות פרק כב:ט”ו

Ramban {source ‎14} takes issue with Rashi, noting that the ketuvah is a rabbinic institution, not a Biblical one.  Ramban concludes that the mohar is a gift that was given before the wedding to the father of the bride.  Ramban, however, stops short from concluding that this was transactional in nature, and that it was this money or gift which effectuated the kiddushin.  For him, it is a standard practice of gift-giving, but not central to the act of the kiddushin itself.

14. Ramban, Shemot 22:15     רמב”ן שמות פרק כב:ט”ו

The pshat of the verses, however, is that the mohar was indeed a bride-price paid and not a gift.  The fact that there was a fixed price, and that the money was “weighed out” – the meaning of yishkol – and that it was a larger sum of money, suggests a transactional nature to the payment of the mohar.  This goes against Ramban’s argument that the mohar was a gift and not part of the very act of kiddushin.

We also must remember that it was the father who married off his daughter and the father who received, and was entitled to, the mohar, again indicating its role as bride-price.  It is implicit in these verses that when the father refuses to allow his daughter to marry the seducer, the man must pay the mohar to the father.  The fact that the father receives the mohar also emerges from the story of Shechem and Dinah, where Shechem offers a large mohar and gifts to Dina’s father (and brothers) {source ‎15}.   

15. Breishit 34:12   בראשית ל”ד:י”ב

The logic behind the payment of the seducer to the father is apparently this: The father would normally receive this payment when marrying off his daughter, and this man – by making his daughter no longer a virgin – has made it difficult for him to marry her off (and even if he succeeds in doing so, he won’t receive the “mohar of virgins” for her).  Therefore, the seducer must either marry her himself, and pay the mohar payment, or – if the father refuses the marriage – pay him the mohar payment without marrying the daughter.  Either way, the father will not have suffered a loss as a result of his actions.

In parallel, we find that when a man rapes an un-betrothed girl, he must marry her (the Rabbis state that the father can refuse here as well), and he must pay the father fifty shekels of silver {source ‎16}. The logic is the same – since the father won’t be able to get the mohar price by marrying her to someone else, this man must pay it to the father.  This source also indicates that the “mohar of virgins” was a significant amount – fifty shekels of silver.

16. Devarim 22:29     דברים פרק כב:כ”ט

Similarly, we a man slanders his wife, claiming falsely that she was not a virgin on the wedding night, he must pay the father of the bride 100 shekels of silver {source ‎17}.  The purpose of this seems to be to fine him double – he wanted to falsely demand back his 50 shekels – the mohar of virgins – and therefore he must pay double this amount.  Significantly, this text states that this amount is paid to the bride’s father – it is the father who was given the mohar and it was the father whom the husband was trying to rob.  It is also significant to note that the father is also presented front-and-center as the one who has married off his daughter to the man (verse 16).  The woman whose virtue was being slandered was not a party to her marriage to this man, and is not a party to this whole dispute – again a strong indication of the mohar as a bride-price that the father was entitled to for selling off his daughter as a wife.

17. Devarim 22     דברים כ”ב

Let us return to the case in Shemot {source ‎12}.  What is particularly significant is the fact that the act of marrying the girl is described by the word mohar.  Standard translations of the verse read “he shall surely pay a dowry for her (or “a bride price for her”) to become his wife, translating ma’hor yimharenah as “pay the mohar,” and lo li’isha, as “to become his wife.”  Even translated this way, it is clear that the mohar payment is central to the act of kiddushin – through this payment, she becomes his wife.  A more literal translation of the verse makes this point more emphatically.  A literal translation is “he shall surely mohar her to him as a wife” – using the word mohar as a verb to describe the act of eirusin.  [A possible non-Masoretic punctuation of the verse would be מַהֵר יִמְהָרֶנָּה לּוֹ לְאִשָּׁה – he shall quickly be mohar him to her as a wife – with a play on the word mohar.]  

From this verse we see that when the father would marry off his daughter he would receive a mohar, a significant sum of money that was given in a transactional exchange, and for the loss of which the Torah found it necessary to ensure that the father would be compensated.  This, combined with the centrality of the mohar in the verse and the use of the word as a verb to describe the act of marriage, is clear evidence that the mohar was a significant, fixed sum of money given to the father for this daughter that effectuated the marriage, in other words, a bride-price.

Further evidence to this can be found in the story of David’s marriage to King Shaul’s daughter, Michal.  In I Shmuel, we see that Shaul demanded one hundred foreskins of the Philistines in place of the standard mohar, for Michal’s hand in marriage {source ‎18}.  The verse there makes it sound like David was betrothed to Michal immediately after David satisfied this arrangement (in excess).  However, we find later, in II Shmuel, that even by the time of Shaul’s death, Michal still had not been given to David {source ‎19}.  What is significant about this source is that it uses the word eiras, to betroth, in describing the giving of the mohar, the hundred foreskins of the Philistines. This narrative demonstrates that the giving of the mohar is the act of eirusin, effectuating the marriage.

18. I Shmuel 18:25-27     שמואל א פרק יח:כ”ה – כ”ז

19. II Shmuel 3:14     שמואל ב פרק ג:י”ד

As stated, the consensus of the Biblical scholars is that mohar was a bride-price, and this is where the weight of the evidence from the verses lies. However, even among modern scholars, there are those who reject or resist this conclusion.  In the source below {source ‎20}, Mordechai Friedman, a professor at Tel Aviv University and scholar of ketuvot from the Cairo Genizah, argues that the simple giving of money from one side to another is not in itself evidence that something is being purchased.  What counter-example does he give?  How relevant do you think this example is?

20. “Marriage as an Institution: Judaism Under Islam,” Mordechai A. Friedman in The Jewish Family, ed. David Kraemer, pp. 32-33.

Dr. Friedman is correct in arguing that not every time money is given does it mean that we are looking at a purchase.   Perhaps what we are looking at is a gift – as Ramban contended.  He argues that to assume that the mohar is a purchase price for the bride is a hasty conclusion; no one ever assumed that the dowry given to the groom or the groom’s family was a purchase price for the groom!  So yes, he is correct that sometimes money is given for purposes other than making a purchase.

The key is context.  His counter-example fails because men were never treated as commodities in society, whereas women were.  In addition, the groom is taking an active role in marrying himself off, whereas the bride is being married by the father, with seemingly no input or even need for agreement, on her part.  Evidence from the Biblical texts aside, in such a society, where a man can have multiple wives, and where money is given from the groom to the father of the bride to marry his daughter, without any input from the daughter herself, it is reasonable, if not highly likely, this money is a purchase price being paid to the father.  On the other hand, it is highly unlikely in such a society that money that the bride’s family gives to the groom is a purchase of the groom.  Context matters.

Other Forms of Marriage-Money in the Torah {sources ‎21-‎24}

As Dr. Friedman points out {source ‎20}, context matters, and there can be something other than purchase taking place when the groom gives money to the bride’s father.   And, in fact, although in most of the narrative and legal sections of the Torah, the marriage-money is a bride-price, as we have seen above, there is one narrative in the Torah where we find the money serving a different purpose, and that is in the story of Yaakov’s marriage to Rachel and Leah.

When Yaakov calls Rachel and Leah out to the field to inform them of his decision to return home to Canaan, they respond in a curious way {source ‎21}.  They tell him that they can expect no inheritance from their father’s estate since he treats them as strangers, as is evidenced from the fact that he has “sold them and devoured our money.”  What is strange about their assumption that they would normally expect to inherit their father?  To what are they referring when they say that he has “sold them”?

21. Breishit 31:14-16     בראשית פרק לא:י”ד-ט”ז

When Rachel and Leah complain that their father  has sold them, they are obviously referring to the fact that he traded their hands in marriage for 14 years of Yaakov’s hard work.  But the question is: why are they outraged about this fact?  As we have seen, this was the standard practice – the father of the bride would receive a significant sum as a bride-price in exchange for giving his daughter to the man who wished to marry her!  

An answer begins to emerge when we note that they were also coming in with an unusual assumption – that under normal circumstances they should receive a portion in their father’s estate.  As we know, the Torah did not dictate that a daughter would receive a portion in her father’s estate until the event of the daughters of Tzelafched, and even then, only when there were no sons (Bamidbar 27:6-11).  And yet here they were expecting a portion hundreds of years beforehand, and this even though Lavan already had sons (Breishit 31:1)!

What we seem to be seeing here is that a different society, with different norms, existed Padan Aram from what existed in Canaan.  As I have explored at length elsewhere (here and here), a close read of the story of Rivka and Avraham’s servant and the stories of Lavan and Rachel and Leah, shows that Padan Aram was a matriarchy (the initial insight into this comes from the book Throughout your Generations Forever, by Nancy Jay).  

To be clear, a matriarchy is not a society in which women hold the political power, something that was extremely rare, if it ever occurred.  Rather, it is a society in which the family structure is built around the relationship to the mother, rather than the father.  This had the benefit of removing the anxiety that existed in a patriarchy regarding whether one could ever be certain who the true father actually was (see, for example, Rashi, Breishit 25:19). In a matriarchy, the household was defined as all those who shared the same mother, and the head of the household was the mother’s maternal brother, since men still held most of the power.  Nevertheless, due to the importance of the mother in such a society, women were less invisible and had more of a say and more power than they did in a patriarchy.  

A small example of this difference between the two societies can be seen in the report that Avraham received when returning from the akeida {source ‎22}.

22. Bresihit 22     בראשית פרק כ”ב:כ

On his return from the akeida, Avraham was told that “Milkah bore children to his brother Nachor”.  While describing the mother as the one who had given birth to the children seems natural to us, it is highly unusual in the Torah, which almost always talks about a father siring (holid, causing someone to give birth to) his son, for example, “These are the generations of Yitzchak the son of Avraham, Avraham sired Yitzchak” (Breishit 25:19).  Here however, the focus is on the mother, and her name and the fact of her having birthed the children is even repeated in verse 23, after all the children are listed (the verse even states, grammatically incorrectly, that Betuel bore – rather than sired! – Rivkah).

Further demonstration of this matriarchal structure can be seen in the story of Avraham’s servant and his interaction with Rivka and her family {source ‎23}. In these verses, not only does Rivka identify herself both by her father and her mother (verse 24), but also, and in responding to the servant’s question of whether there is lodging in her father’s house, she responds in the affirmative, but makes no mention of her father’s house – for the simple reason that the concept of a “father’s house,” that is, a household defined by the father, is foreign to her.  We now understand why she reports these events to “her mother’s house,” (verse 28) i.e., the maternal household, which was the definition of a household in that society.  It is for this reason that her brother, Lavan, takes a leading role in interacting with the servant (verse 29), since it was brothers, and not fathers, who spoke for the family.  Following this, the servant gives the gifts to Rivka’s mother and brother, ignoring the father (verse 53), and it is the brother and the mother – and not the father – that make the decision about whether to give Rivka to the man (verse 55), and who give Rivka a blessing that refers to her as their “sister” – not their daughter – and which blesses her with the type of blessing normally reserved for a man.

23.  Breishit 24       בראשית פרק כד

What is quite significant for our interests is that in this story, and nowhere else in the Torah, the woman who was to be given in marriage to a man was asked for her opinion and her agreement to the match.  In this society, women had a greater voice, and they were more participants in the act of marriage, and not mere objects to be married off by their father without their consent.

We now can understand Rachel and Leah’s response to Yaakov when he informed them of his desire to return to Canaan.  As women in a matriarchal society, they had had a right to expect to inherit a portion of their father’s estate, even if their father also had sons.  [It does seem like the society was undergoing some changes, perhaps becoming somewhat patriarchal, by this time, as here we see that it was their father who was the head of the household, and they spoke of inheriting from their father’s, and not their mother’s, household.]

Rachel and Leah also believed that they had a right to be treated like their aunt Rivka was treated – not to be sold to Yaakov and treated like property, but to be treated as a person and as an agent, and to participate in the decision to marry Yaakov.  And this brings us to the money that changed hands – the labor that was given for their hand in marriage.

Notice how Rachel and Leah say that Lavan sold them and “devoured our money.”  From context, this seems to refer to keeping the money of the sale to himself, and this in fact how it is translated by Targum Yerushalmi (Neofiti) {source ‎24}.  

24. Targum Yerushalmi (Neofiti) to Breishit 31:15       תרגום ירושלמי על בראשית ל”א:ט”ו

But what does this add to the point that he sold them?  Of course he kept the money of the sale to himself!  Here we return to the issue of context.  It is possible that the labor that Yaakov gave Lavan was not meant as a purchase of Rachel and Leah.  Money given from the groom to the father of the bride could serve another purpose.  What could that other purpose be?  It will be remembered that Rashi identified mohar as obligating oneself in a ketuvah obligation {source ‎13}.  Now, while money given up front cannot be the same as a ketuvah obligation to be paid later, it can serve the same purposes as the ketuvah.  This money could be held in escrow by the father of the bride, for the benefit of his daughter, in the event that she becomes divorced or widowed.  

How would we know if the money that was given to the bride’s father was a purchase price or was a ketuvah-type payment?  The answer is simple: we would see what he does with the money.  If he holds it in escrow, then it was serving the function of a ketuvah payment.  If he uses it for his own purposes, then it was a purchase price.

Rachel and Leah were saying to Yaakov – he has sold us, and the evidence is that he has kept the money for himself.  We had assumed that the money was a ketuvah payment, but we now see that it was a purchase price.  Another text of Targum Yerushalmi actually reads, “and he ate our ketuvah money,” that is, he has turned an act that was to be for our benefit – the giving of ketuvah money – into an act that treats us as mere property – a payment of a purchase price.

This reading of the narrative also helps explain another part of their response.  They say that their father is considering them as nakhriyot, a word usually translated as “strangers.”  But a better translation of that word would be “foreigners.”  What they are saying to Yaakov is simple – we had hoped to stay here in Padan Aram because we had privileges here that we don’t have in a patriarchal society such as Canaan.  However, we see now that our father has sold us into marriage, that is, that he is treating us as daughters are treated in patriarchal societies.  It is thus clear that we will not inherit him either, as is the norm in patriarchal societies.  If this is how we are being treated here, there is no point in us staying here rather than going elsewhere, and we might as well return to you to the land of Canaan!

Conclusion

For us, what we can learn from all of this is that there were some places where marriage was more based on a concept of ownership and the act of marriage, the giving of the mohar, was a purchase of the bride from the bride’s father.  And there were other places – notably, Padan Aram – where marriage was not based on ownership, and the woman participated in the choice to enter into marriage.  In these societies, the money paid up front was not a mohar/purchase-price but rather a proto-ketuvah, money to be held by the bride’s father on her behalf.

We now turn to the Rabbinic period, where we will see how the mohar transformed from purchase price to a proto-ketuvah, to our current ketuvah.  We will further see how that transformation was instrumental in transforming the act of marriage from a purchase to a different type of act, and in transforming the marriage itself from an institution based on ownership to an institution that would begin to approximate one of partnership.