Kiddushin: Ownership or Partnership? Part 3: From Mohar to Ketuvah

In the previous lecture we saw how the institution of marriage in the Torah seems to be based on a concept of ownership, and that this is paralleled by the way in which the marriage is effectuate – the giving of a mohar or bride-price from the groom to the father of the bride.  We saw that in at least one society, the mohar functioned as a type of a ketuvah, money paid – here up front and to be held in escrow – to protect the interests of the wife, and how in this society women seemed to have had more rights and to be at least somewhat more involved in the decision of whom to marry.

We now turn to see how the mohar developed in the Talmudic period, eventually transforming into the Rabbinic ketuvah, and how parallel to this the act of kiddushin transferred from a purchase of the bride – kinyan – to a more ritual act – kiddushin.  Concomitant with this was a conceptualizing of marriage as something different than ownership, something which over time began to approximate partnership.  We will then see how these two models – ownership and partnership – remained competing models throughout the Rabbinic period, with some Rishonim and Achronim embracing one model, and others embracing the other.  Finally, we will see how the model of partnership actually goes as far back as the Geonic period, and how sources from that time reflect what we would consider to be a very modern sensibility towards the nature of marriage.

Here, in Section A, we look at the history of the ketuvah, how it evolved from the Biblical mohar.

The History of the Ketuvah {sources ‎1-‎4}

The mishna in Ketuvot {source ‎1} states that a person cannot prepay his wife’s ketuvah (“it is here on the table”), but must maintain it as an outstanding debt, with all of his property mortgaged for its payment.  The Tosefta, Yerushalmi and Bavli all describe a historical process of how the ketuvah evolved until it became the outstanding debt referred to in the mishna.

1. Mishna Ketuvot 8:8  |   משנה כתובות ח:ח 

The Tosefta {source ‎2} states that at an early period the ketuvah money was kept by the wife’s father on her behalf.  This is exactly the model we saw earlier of mohar functioning as ketuvah money and being paid to and held by the father.  However, while these funds would help protect the wife if she got divorced, the need to pay the ketuvah would not serve to prevent the husband from hastily divorcing his wife, since the money had already been paid out.  

To deal with this societal problem of over-hasty divorce, Shimon ben Shetach (approx.. 120-40 BCE, teacher of Shemayah and Avtalyon, who were in turn teachers of Hillel and Shammai) established that the ketuvah would be a debt, not money paid in escrow, and that the husband’s property would be mortgaged for its payment.  A husband would now think twice before divorcing his wife, because he may not have the money available to pay the ketuvah and would not want to have to liquidate his assets to do so.

2. Tosefta Ketuvot 12:1   |  ‘תוספתא כתובות (ליברמן) י”ב:א

The Yerushalmi {source ‎3} parallels the Tosefta, and adds additional interim stages in the development of the ketuvah.  After the monies were taken out of the control of the wife’s father, but before they became an outstanding debt, they had the husband hold onto the funds, hoping that he would hesitate before divorcing his wife and needing to pay out the funds.  This proved ineffective, presumably because once the money was out of his pocket and in escrow, he felt the money was already spent, and would not feel he was losing anything by paying it out.  The second interim stage was to use the monies to purchase durable household  items, with the hope that he would hesitate before divorcing his wife and having to give her these items.  This true proved ineffective.  Finally, they instituted that the ketuvah exist as an outstanding debt with liens on the husband’s property, and this proved an effective means of preventing overly hasty divorce.

3. Talmud of Eretz Yisrael, Ketuvot, 8:11   |   תלמוד ירושלמי מסכת כתובות ח:י”א

The Bavli’s version of the history of how we arrived at our current institution of the ketuvah {source ‎4} is similar in many ways to those of the Tosefta and the Yerushlami.  It differs, however, both it how it presents what the initial form that the ketuvah took, and in how it understands what motivated the Rabbis to institute various changes.  What are those differences and what, if any, is their significance?

4.  Bavli Ketuvot 82b   |   (:בבלי, כתובות (פב

According to the Bavli, the first form that the ketuvah took was not similar to the mohar; it was not money deposited in the trust of the bride’s father, but rather a debt incurred by the groom to the bride.  Seeing it this way creates a disconnect between the Rabbinic institution of the ketuvah and the Biblical mohar. [However, see Tosafot, Ketuvot 82b, s.v. Ba’techila, in the name of Rabbeinu Chananel, who explains that this first stage was not undertaking a debt, but rather the depositing of the money directly into the possession of the wife.]

If the ketuvah began as a debt, the innovation of Shimon ben Shetach was not in transforming it from money paid up front to a debt to be paid later, but rather was fully limited to adding liens to this debt – to allowing the wife to collect not only from all assets directly under the husband’s control, but even from assets that he had sold.   

This understanding also requires a different explanation of why a change was needed in the first place.  If the ketuvah began as a debt, then there was already a disincentive for the husband to divorce his wife – the need to pay her money that was currently his own.  Thus, the Bavli states that the reason for the initial change was because “they would grow old and not marry,” that is, the situation was disadvantageous for women – there would be a risk that they would not be able to collect payment the ketuvah when the time came – and they would choose not to marry (or be a lot pickier).  A change was thus needed to incentivize women to marry.  The interim stages also proved unsatisfactory, because it became too easy for the husband to divorce his wife, but this was not the initial reason that changes were made introduced.

The significance of this version of the events is twofold.  First, as mentioned, it severs the direct connection between the ketuvah and the mohar; from this perspective the ketuvah began as a debt and ended as a debt. More importantly, it forces us to rethink what was behind these changes – was it to protect the wives (against easy divorce) or to protect the interests of the men (to ensure that they could get married)?

Ketuvah and the Woman’s Status in Marriage {source ‎5}

A major factor in how the institution of marriage evolved was the ketuvah.  The ketuvah raised the woman’s status within marriage.  As we have seen, it provided the wife with a financial cushion if the marriage in cases of divorce or widowhood.  Beyond this, and building on the Torah’s obligations of she’er, k’sut and onah, the ketuvah also provided the wife with a range of support during the marriage, including clothing, food, boarding and health care, as briefly referred to in the text of the ketuvah {source 22}, and as detailed at length in the Talmud.  The Talmud makes it clear that these provisions of the ketuvah, what were known as tnaei ketuvah, were instituted to protect the interests of the wife, and could be waived by the wife if they were no longer serving her interests (Ketuvot 58b). The net effect of the ketuvah and its provisions was to make her more of a partner, a person towards who the husband had not only rights, but also obligations.

5.  Ketuvah text    |   נוסח הכתובה

Given this context, when we read that the Rabbis instituted various changes to prevent the husband from too easily divorcing his wife, it is attractive to think that they were motivated to further protect her status, to ensure that she was treated more as a person and subject, and less as property and as an object to be discarded at will.  Although this was undoubtedly the effect of this legislation, we need to be cautious before assuming that it was its motivation.  There could be many reasons that the Rabbis did not want husband’s divorcing their wives too easily which have nothing to do with concern for the wife or the wife’s status per se.  It could be that too much divorce was not good for society, or for the children, or would make life difficult on Kohanim who would regret their decisions and could then not remarry their wives.  Or, as we see in the Bavli, it could be the concern for wive’s being disadvantaged was that it had the effect of making it more difficult for men to get married!  The Rabbis may not have been proto-feminists, and we need to be cautious before ascribing motives to their innovations and legislations; but we can at the same time note the effect of these changes.  And there is no question that the ketuvah as a whole, and its payment the end, rather than the beginning of the marriage, went a long way to raising the wife’s status in marriage, to making her more of a person of equal standing and respect, and to making the institution of marriage more less about ownership and more about something beginning to approximate partnership.

Ketuvah – Biblical or Rabbinic? {sources ‎6-‎9}

We end this section by returning to the relationship between mohar and ketuvah.  As we have seen, it seems from most of the versions of how ketuvah evolved, that it began as money paid up front to the father of the bride, that is, a type of a mohar payment.   In fact, the language of the ketuvah itself refers to the ketuvah payment as מוהר בתולייכי, the mohar of your virginity.

This connection is reinforced by the fact that the Biblical mohar for virgins was 50 shekel of silver, which is equivalent to 200 zuz, the same value of the Rabbinic ketuvah.  This connection is made explicitly in Bavli, Ketuvot {source ‎6}, which records a debate between Rabban Shimon ben Gamliel and the Sages as to whether the ketuvah is a Biblical institution, or only a Rabbinic one.

 6.  Bavli, Ketuvot 10a   |   (.בבלי כתובות (י

The Sages, who state that the ketuvah is Biblical in nature, base it on the Torah’s verses regarding the mohar of virgins (and since the Torah does not record a mohar for non-virgins, the claim is that only the ketuvah for virgins is Biblical).  At the same time, there is an implicit recognition that the Rabbinic ketuvah is not exactly the same as the Biblical mohar.  Notice the phrase “from here the Sages found support for the rule that the ketuvah is from the Torah.”  This is because, as we have seen, the institution has changed – from bride-price, to money held in escrow, to finally a debt to be paid at the end of the marriage.  [However, see Mechilta of R. Yishmael on Shemot 22:15, which understands the Biblical mohar as money to be paid at the end of marriage.  See also Mechilta of R. Shimon bar Yochai on Shemot 22:16, where even R. Shimon ben Gamliel is quoted as saying that the ketuvah is Biblical in nature.]

It is worth noting that there is significant debate in later halakha as to whether we rule that the ketuvah is Biblical or Rabbinic in nature, and at times we even seem to adopt contradictory positions in this matter (see Tosafot, Ketuvot 10a, s.v.Amar Rav Nachman).  This confusion and even seemingly contradictory rulings is to be expected inasmuch as the ketuvah is both Biblical and Rabbinic.  It is based on the Biblical mohar, but in its current form, it is a Rabbinic institution.  

As articulated in the Tosefta and Yerushalmi {sources ‎2 and ‎3}, what motivated the move of the payment of the mohar/proto-ketuvah from the beginning of the marriage to its end was their desire to prevent over-hasty divorce – שלא תהא קלה בעיניו להוציאה.  This concern, which was not stated explicitly in the Bavli’s version of the history of the ketuvah {source ‎4}, is stated explicitly elsewhere in the Bavli as the reason why the Rabbis instituted ketuvah in the first place {source ‎7}.  

7.  Bavli, Ketuvot 39b   |   (:בבלי כתובות (לט

This passage, and others like it, gives the impression that this is the entire purpose that the ketuvah is meant to serve – to prevent divorce.  This leads Tosafot to ask why the Rabbis instituted a ketuvah payment for a woman who became widowed, a fact which would indicate that the purpose of the ketuvah is primarily to provide for the wife when she is left without a husband, and not to prevent hasty divorce {source ‎8}.    Tosafot’s answer is indeed the primary purpose of the ketuvah is to prevent divorce, and logically the Rabbis should have limited the payment of it to cases of divorce.  However, once they were instituting the ketuvah, they incorporated other considerations, and also had it cover cases of widowhood.

Given our discussion above, what is a better way to answer Tosafot’s question?  [Notice, also, how in the passage below, Tosafot refers to this other consideration as cheena, “favor.”  What do you think is meant by that?]

8.  Tosafot Ketuvot (39b), s.v. Taama   |   תוספות כתובות (לט:) ד”ה טעמא

Tosafot’s question is based on the assumption that the entire institution of ketuvah was established to prevent easy divorce.  However, as we have seen, the actual institution of ketuvah began prior to the Rabbis.  It had evolved from the Biblical mohar and was serving the purpose to protect the interests of the woman if she were left without a husband.  It is for that reason that it was paid out both in a case of divorce and a case of widowhood.  The reason “that it should not be easy to divorce her” referred to in the Gemara, only refers to why the ketuvah took its current form, as money paid out at the end of marriage rather than held in escrow.  This solution to Tosafot’s problem is given by P’nei Yehoshua {source ‎9}, who points out the this reason “that it should not be easy to divorce her,” also motivated the Rabbis to add other legislation around the ketuvah, for example, to forbid the husband to pre-pay the ketuvah or to not have the debt in writing (see Baba Kamma 89b).

9. Pnei Yehoshua, Ketuvot (39b), on Tosafot, s.v. Taama   |   פני יהושע כתובות (לט:) על תוס’ ד”ה טעמא

(R. Jacob Joshua ben R. Tzvi Hirsh Falk, 1680-1756, Lvov)

Finally, we note that Tosafot gives the reason for the ketuvah payment in the case of widowhood as cheena, “favor.”  This is a term that appears in multiple places in the Gemara and is explained by the Rishonim to mean either that this would serve the purpose of encouraging women to marry – knowing that their interests were now protected – or that encouraging men to marry, who would know hold women in higher esteem, seeing how they were given these protections by the law (see Tosafot Gittin 49b, s.v. Ketuvat).  These explanations remind us that while many of the Rabbinic enactments around ketuvah have the effect of raising the status of women in marriage, the motivation for these enactments may have had less to do with the Rabbis’ concern for women per se, and more for broader societal concerns – they wanted to encourage marriage and discourage divorce.

Conclusion

We have seen how the Biblical mohar evolved into the Rabbinic ketuvah, becoming money paid at the end of the marriage rather than at the beginning.  We likewise saw how this shift was motivated by a desire to prevent easy divorce, and we can readily surmise that this protection, together with the rights and protections afforded by the ketuvah itself during and after marriage, went a long way to raising the woman’s status in marriage, and making her more of a side in a contractual agreement, and hence more of a partner, to her husband.  We now turn to see how this shift of the ketuvah money to the end of the marriage also transformed the nature of the act of kiddushin itself, neutralizing its transactional and acquisitional nature, and turning into a symbolic and ritual act, that is, changing it from an act of kinyan to an act of kiddushin .