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“The books, the compositions, and the commentaries are our teachers, and all is according to the understanding of the intellect and reason.” R. Sh’muel ben Moshe di Modina

Monday, May 13, 2013

The ketuba, asmakhta, and the Merchant of Venice

At most Orthodox weddings (and many Conservative ones), between the qiddushin, which is actually the betrothal - when the groom gives the bride the ring - and the nissuin, the marriage itself, the ketuba is read.  (Once upon a time there was a real time lapse, like a year, between qiddushin and nissuin.) Most people are fairly bored, because they've heard it before and they didn't understand it then, and they don't understand it now either.  But then the reader gets to the point where the amounts of money are read.  

Have you ever been to a wedding where the reader says that the groom promises some huge amount (this is the tosefet ketuba, in addition to the base amount), like one million shekels, and everyone who was paying attention at all and understands the Hebrew (the amount is in Hebrew and not Aramaic) goes psssss!  Wow!  They are so impressed!  How romantic!  He must really love her to promise so much money!  He must think she is worth everything in the world!  I'm not sure, actually, what people are thinking (you can tell me in the comments), but I sure get the impression that they think it is romantic.

Well, in the event that the wife is widowed, say when the couple is married 75 happy years, a lot of money might really be important (assuming for the moment, that they are operating under Jewish law, and there is no inheritance for her - you do know that under Jewish law, a wife doesn't inherit her husband, but a husband does inherit his wife?)

But clearly I must have an agenda here.  There must be a problem, if I'm bringing up the subject of exorbitant ketubot.  And, yes, there is.  It is a problem of asmakhta.  And that's where the Merchant of Venice comes in.
Act I Scene III

Shylock            This kindness will I show.
Go with me to a notary, seal me there
Your single bond; and, in a merry sport,
If you repay me not on such a day,
In such a place, such sum or sums as are
Express'd in the condition, let the forfeit
Be nominated for an equal pound
Of your fair flesh, to be cut off and taken
In what part of your body pleaseth me.

Antonio            Content, i' faith: I'll seal to such a bond
And say there is much kindness in the Jew.

Bassanio     You shall not seal to such a bond for me:
I'll rather dwell in my necessity.

Antonio            Why, fear not, man; I will not forfeit it:
Within these two months, that's a month before
This bond expires, I do expect return
Of thrice three times the value of this bond.

But Antonio’s ships are lost at sea.  He writes to Bassanio:  
“Sweet Bassanio, my ships have all miscarried, my creditors grow cruel, my estate is very low, my bond to the Jew is forfeit.”

Act III Scene III

Salarino           I am sure the duke
                        Will never grant this forfeiture to hold.
Antonio           The duke cannot deny the course of law:
For the commodity that strangers have
With us in Venice, if it be denied,
Will much impeach the justice of his state;
Since that the trade and profit of the city
                        Consisteth of all nations.

Indeed, Antonio is correct – the duke will not set a legal precedent and nullify the contract.  The duke refers the case to a lawyer, Balthazar, who is actually Portia in disguise.  She couldn’t agree with Antonio more:

Act IV Scene I
Bassanio          … And, I beseech you, 
Wrest once the law to your authority: 
To do a great right, do a little wrong, 
And curb this cruel devil of his will.

Portia              It must not be. There is no power in
Can alter a decree established: 
’T will be recorded for a precedent, 
And many an error by the same example 
                        Will rush into the state. It cannot be.

If this case were to come before a beit din rather than the duke of Venice and Venetian law, this surely would be a case of asmakhta.  Antonio had every confidence that he would be able to pay the bond.  In no way did he seriously consider that his flesh would be cut out.

Rashba"m defines asmakhta as follows (Bava Batra 168a at the incipit asmakhta - in Bava Batra, the commentary that appears where Rashi’s commentary usually appears in the printed editions of the Talmud is in fact Rashba”m’s commentary):

רשב"ם בבא בתרא קס"ח א
אסמכתא - המבטיח לחבירו דבר על מנת שיעשה דבר לעתיד וסומך בלבו בשעת התנאי שיוכל לקיים הדבר כשיגיע זמן וכשיגיע הזמן יאנס ולא יוכל לקיים.
[A situation where someone] promises his fellow [to pay or forfeit] something unless he performs some act in the future.  He relies on his assumption, made at the time of agreement to the condition, that he will be able to perform the act, but due to unforeseen and uncontrollable circumstances at the time by which he must perform it, he could not uphold the promised action.

Now consider the following case (588903/1; pesak dated 10 April 2013) before a beit din  (Haifa) regarding a large sum in a ketuba.  I won't go into the details of the marital problems.  The husband is the one who first opened the case, with the wife first refusing, and requesting shalom bayit (reconciliation).  At some point, though, the husband said "shalom, bayit" (farewell, home) and the wife agreed to be divorced (each accusing the other of all sorts of nasty behavior).  Here is a summarizing paragraph from the pesak:

במקרה שלפנינו הבעל תובע גירושין. האישה בתחילה בקשה שלום בית אולם בסופו של דבר הסכימה להתגרש. לכאורה, בעל המבקש לגרש את אשתו חייב בכתובתה, אלא אם יוכיח שאינה זכאית לכתובה. בנדון זה אין לבעל עילה לגירושין. טענותיו לחוסר התאמה אינן פוטרות מכתובה, את טענתו בדבר הרומן עם גיסו לא הוכיח, וגם בשאר טענותיו – בדבר התכתבויות בפייסבוק – אין ממש.
In the case before us, the husband sues for divorce.  At first, the wife asked for reconciliation, but she did eventually agree to divorce.  A husband who requests to divorce his wife is obligated to pay her ketuba, unless he can prove that she is not entitled to it [because of wrongdoing on her part - remember, it is NOT "no-fault" divorce].  In this case, the husband has no grounds for divorce.  His claim of "incompatibility" does not absolve him from [paying] the ketuba; the claim of an affair [between his wife and] his brother-in-law was not proven; nor did any of his other claims - correspondence [with men] on Facebook - have substance.

The husband also made various claims about illnesses, such as epilepsy, that the wife has.  (For example, some illnesses might be considered a case of mekah ta'ut - an acquisition under false pretenses.)  Summarizing the ruling of the beit din on these claims: none of them are justification for her to lose her ketuba, with reference to the relevant paragraph in the Shulhan Arukh.
נמצא שלבעל אין עילה לגירושין, והואיל והוא חפץ בגירושין הרי שהוא חייב בכתובה.
It is determined that the husband has no grounds for divorce, and since he is the one who wants the divorce, he is obligated [to pay] the ketuba.

Before we continue with the problem presented in this decision, I want to emphasize the nature of the "yes-fault" divorce and the asymmetry of the way it works (sometimes to the disadvantage of the wife and sometimes to the disadvantage of the husband).  If the husband sues for divorce, and the wife relents, he has to prove grounds for divorce to be absolved from paying the ketuba.  If the wife sues for divorce and the husband relents, she has to prove grounds for divorce to be able to collect her ketuba.  The result of this approach is a string of nasty allegations thrown around on both sides, sometimes polygraph tests (if both parties agree to use them to back up their claims - perhaps in a later post I'll bring some example of that), private investigators - in short, lots of dirt made public, often rather fictitious dirt. There has to be a better way!

But, as stated, in this case the beit din ruled that the husband must pay the ketuba, so what is the problem?
סכום הכתובה בנדון זה הוא מיליון ₪. ידועה מחלוקת הדיינים אם כתובה בסך הנ"ל היא בגדר אסמכתא ואין לחייב את הבעל בכל סך הכתובה או שכתובה בסך הנ"ל אינה אסמכתא והבעל חייב בכל סכום הכתובה.
The amount of the ketuba in our case is one million shekels.  It is a known dispute among dayyanim whether such a [large] sum is a case of asmakhta, in which case the husband should not be obligated to pay the whole sum of the ketuba, or a ketuba with such a sum is not asmakhta, and the husband has to pay the whole sum of the ketuba.

The pesak then proceeds to present the two opposing opinions, each in the name of a very senior, very well-respected dayyan, and each with some of the halakhic arguments of the respective "camp".  The problem is not just that there has been a dispute about this issue in the past halakhic discourse.  If the rabbinate had chosen one, consistent approach to dealing with such problems, then the batei din would have to rule accordingly.  But they didn't.  And so it ends up left to each beit din to rule as it sees fit.

According to the opinion cited which claims it is askmakhta, the amount of the ketuba should be between 100,000 NIS and 120,000 NIS - the amount required to support someone for a year, to be consistent with the opinion that the 200 zuz (see the post about the Value of the Ketuba Part I) was meant to be maintenance for a year.  It is true, according to this opinion, that theoretically any additional amount could be valid, if the commitment was not made under pressure, if it was not done to impress those present at the wedding, etc. Further, the Israeli law that divides property (refer to the Value of the Ketuba Part II) must be taken into consideration (there also might be no property to divide).  But according to this opinion, the groom is under pressure and is out to make an impression.  Therefore, according to the dayyan who maintains this opinion, only the basic amount of a ketuba (the 100,000 NIS to 120,000 NIS) should be paid.

The opposing opinion - that the exorbitant ketuba is not a case of asmakhta - claims that a kinyan (acquisition) is made and it is stated clearly in the ketuba that the the groom recognizes that it is not asmakhta.   (In halakhic reality, such a statement on a contract does not mean that asmakhta is ruled out.) According to this opinion, the groom knows very well what he is agreeing to. If the amount is attainable during the lifetime of the husband (if he can't pay it all at once, he owes the balance and should pay it when he has it), then it is not askmakhta.  A million shekels is an attainable amount.
The av beit din (head of the beit din) writes:
לדעתי, יש היגיון בסברא לומר שחתן הכותב כתובה מוגזמת כוונתו להרשים את הנוכחים בחתונה או שמרגיש אי נעימות לכתוב סכום נמוך, ובנוסף אין החתן מרגיש שהתחייבות זו היא מחייבת – הואיל וזה עתה נושא אישה אין הוא חושב על גירושין ואינו מאמין שהתחייבות זו תבוא לידי ביצוע.
In my opinion, it is reasonable to say that a groom who writes an exaggerated ketuba [sum] intends to impress those present at the wedding, or that he feels uncomfortable writing a small amount, and in addition, the groom does not feel that this obligation is [actually] incumbent upon him - considering that he is presently marrying a woman and he does not think about divorce and he does not believe that this obligation will come to pass [but he should realize that it is very feasible that he will leave his wife a widow - the ketuba is supposed to be for that, too! - DK].

He therefore concludes that it is asmakhta.  He adds that according to the other opinion - that it it not asmakhta, this is so only if the amount is attainable by the husband.  In this case, the wife even agreed to settle for half the amount, 500,000 NIS, suggesting that she realizes that the whole amount is not feasible.  This husband will never be able to attain even the 500,000 NIS amount; forget the one million shekels!  (He is not a big earner, you must gather from this.)  Their jointly-owned apartment in Haifa is not worth the half million.  The husband is a man in his thirties, and not particularly well-off. Since the woman agreed that the beit din could use its judgment to decide on the amount of the ketuba, and because there is no other joint property to divide under Israeli law, the beit din set the amount he should pay at 200,000 NIS.  The other two dayyanim concur.

Is this fair? Well, one could say that since he wants the divorce, he should pay. But if it were the other way around, she wouldn't have to pay!  She'd probably have to give up her ketuba, but she wouldn't  have to shell out anything.

I have several conclusions that I make from all of this:

1) The ketuba is part of a halakhic system that is based on a model of marriage that is no longer relevant for most couples today.  If a marriage is dissolved, whether by divorce or death, property distribution should be based on a more equitable system of law - be it an overhauled Jewish law (not very likely) or a civil system.  If a couple wants to be sure to have a more equitable distribution of property, in the event that the marriage is not a success, they would be best to have a financial prenuptial agreement (and proper, equitable wills for successful marriages!!), and in that agreement, the wife should agree that she waives collection of her ketuba 

2) Why in the world don't the mesadrei kiddushin (the clergy who perform the weddings) tell the couple that it is best to keep the standard, minimum amount on the ketuba and not put in sums that they (or at least the groom) might regret later? Why do they let grooms give ketubot with exaggerated amounts on them?

3) What about those kalla teachers?  Instead of feeding brides a lot of medieval drivel about her responsibilities to please her husband, how about if they would explain to the bride the meaning of the ketuba and the complications that can arise? 

The topic of my next post: Understanding a system that has no alimony.


  1. I will first acknowledge that my experience in matters of אה"ע and חו"מ is limited, but I think I do have what to contribute to this discussion:

    1) Firstly, I'm just wondering that if we say that אין תנאי בנשואין is because the חיבת ביאה causes a מחילה, why do we not say that there is also no אסמכתא because the חיבת ביאה creates a מחילה?

    2) From my limited experience, it seems that the prevailing customs amongst Ashkenazi Jews is to only add another 200 zuz to the Kesuba and it is considered a weird thing to add more than that. Perhaps this case of adding one million shekel was a Sefaradic Jew who also tend to publicly announce the dollar amounts of their synagouge pledges. I think that exaggerated Kesuba amounts is hardly an epidemic.

    3) I think that it is counter-productive for you to label what Kallah teachers impart to young brides as "medieval drivel about her responsibilities to please her husband". First of all, labeling this as "drivel" implies intolerance of accepted Jewish traditions for hundreds of years. Drivel is nonsense, this is not nonsense. Secondly, you oversimplify the instructions of Kallah teachers as if to imply that they only teach the brides about their responsibilities to please their husbands (which, by the way, conversely the husbands are taught about their responsibilities to please their wives) but not the complexities and significance of hilchos niddah and mikva and how to maintain proper marital harmony.

    4) You made a point of noting that a wife does not inherit her husband, but a husband does inherit his wife. You neglected to mention that the widow and daughters are entitled to מזונות and פרנסה and that their rights supersede the inheritance of the deceased's sons.

    I find your blog quite interesting. Your bias is obvious (but then again, so is mine), but the discussions are quite thought-provoking and very well-researched. I will indeed enjoy engaging on your blog.

    1. It appears that I have to enter my response in parts:
      Thank you for your comments and for your positive feedback.
      I will try to respond to your points one by one:
      1) Those who hold the opinion אין תנאי בקידושין usually base it on the concept אין אדם עושה בעילתו בעילת זנות. However, there is no halakhic consensus that there is no conditional marriage. I suggest you read R. Eliezer Berkovitz's book תנאי בנישואין ובגט to get a picture of the variety of opinions among the rishonim on this. It is feasible, for example, for a man to say that he is not concerned if his relation with his "conditional wife" turns out to be construed as בעילת זנות and he will marry his wife under the condition that she does not need to do yibbum or halitza. Perhaps he is a soldier and has a 2-year old brother and does not want to keep his wife in limbo in the event that he is killed. (He could also give a conditional get for that problem, but then she could not marry a kohen.) That way, if he dies young, retroactively, the marriage never took place, thus saving her the horrid fate of having to wait for his 2-year old brother to grow up and do halitza, and he spares his wife and his brother the degradation of that ceremony.
      As far as why חיבת ביאה (how would you translate that - the enjoyment of sexual relations?) causing one to forgive the claim of asmakhta - I have never seen such an argument made, and it appears to me to be a very different situation. There is nothing to forgive here. If a man is divorcing his wife, I would guess the חיבת ביאה is no longer there. But I will try to post to my Hebrew blog (which I use to post some Hebrew texts from time-to-time) another case with some details of the asmakhta arguments that are used, so look here for a future comment from me with a link.

      2) Though there is this concept that the prevailing practice for Ashkenazi Jews is to write the basic amount in their ketuba, the reality in Israel shows otherwise. It is probably less the situation in the US, because the ketuba is much less likely (if at all) to be enforced. Again, the cases I read prove otherwise. Often, at the beginning of the pesak, it actually states "of Lithuanian practice" or such.

    2. 3) Yeah, I come down hard on that stuff. Because I hear from young women about the nonsense they are told - yes, I do call it nonsense. If those madrikhot would just stick to hilkhot nidda, fine (and they don't need to give every humra they ever heard of or all kinds of superstitious stuff), but they tell women stuff that rather than try to repeat, I will simply paste here an example - something a woman recently wrote in a facebook group. Now, this is not from a madrikha. It is material given out by the rabbanut. But many madrikhot tell similar types of stuff. OK, I should not generalize. Some madrikhot might be more enlightened, and not tell things that are not scientifically correct (which is why I used the word 'medieval'). Just because something has been a tradition, does not make it good practice. But read this stuff - it has nothing to do with tradition. And, keep in mind that women are not forbidden to use birth control.
      "אז לאחר ששילמנו את חובנו למועצה הדתית בראשון לציון, קיבלנו שקית צבעונית ויפה עם הכתובה שלנו. ביחד עם הכתובה, הסתתרו להן כמה חוברות צבעוניות ויפות ודיסק, עם שמות מאוד רומנטיים ומפתים: "הדרך אל האהבה", מצהירה כותרת אחת החוברות. "הסוד אל הזוגיות", כתוב על הדיסק.
      שמחים ונרגשים, התחלנו לקרוא את החוברות. להלן פירוט:

      בחוברת שעוסקת בדרך אל האהבה, כתוב לאשה מה עליה לעשות כדי שבן זוגה יאהב אותה. "הגבר צריך כבוד. הוא צריך לדעת שהוא שולט בהכל. לכן, אל תכעסי עליו אם הוא מתנהג באנוכיות - ככה הקב"ה ברא אותו.
      אם הוא לא מתנהג אלייך יפה, ואת מרגישה פגועה מהיחס שלו - אל תשווי בנפשך לא לטבול במקווה כדי להעניש אותו, או מתוך מחשבה שהוא אינו ראוי לך. ההפך! תני לא את הכבוד שהוא ראוי לו, ואז תראי איך בבוא מן הימים הוא יעשה ממך מלכה...".
      תרגום לעברית: מותר לגבר להשפיל את האשה, וזאת בכלל לא אשמתו. כך הוא נברא. תפקיד האשה הוא לתת לגבר כבוד בכל מקרה, מתוך ציפייה שזה ישתלם.

      בחוברת שעוסקת בילודה, כתוב שלפי "כל המחקרים" הגלולות למניעת היריון הן ממש רעל, והפגיעה שלהן בגוף האשה היא קשה ובלתי הפיכה.
      הפלות, אליבא דחוברת, פוגעות בגוף ולא מאפשרות לאחריהן להיכנס להיריון נוסף.

      בדיסק ה-DVD שקיבלנו הופיע רב חביב, המרצה בפני נשים ומגלה להן מהו הסוד לחיים ארוכים ובריאים: "נשים שמקפידות על הלכות נידה", אומר הרב, "לא יכולות לחלות בסרטן צוואר הרחם". נו, ניחא. יאלצו נא הנשים המקפידות על נידה להסתפק בסרטן השד.

      אלו הן, כמובן, רק דוגמאות.
      4) In response to this point - there is no way that the woman benefits by not having an inheritance. One short point: If the wife remarries, she does not get anything any more. Same for the daughters. Very paternalistic, wouldn't you say? The husband can remarry and keeps all. The sons can keep all. Maybe at some point I'll get to matters of inheritance in this blog, but in the meantime, I will post on my Hebrew blog an article that I wrote in response to something that a rabbi wrote just about that. Please read it and then I'm sure you will understand that the simplistic message of halakha looking out for the woman is very misleading. The link is:

    3. Reb Chaim, I would also like to respond to a point you made about Ashkenazi custom versus Sephardi custom. It is clear you are Ashkenazi, and I sense a tone of "us and them", and even a slight tone of superiority over "their" customs. I happen to be of Ashkenazi descent. But roughly half of the Jews in Israel are of Sephardi descent - there should not be any "us and them". כל ישראל ערבים זה בזה. More and more marriages in Israel are between various Jewish "ethnicities", and so it should be. And your comment about announcing synagogue pledge amounts in public is quite surprising. I have attended tfilot in dozens and dozens of Ashkenazi synagogues in my lifetime, and only a handful of Sephardi ones, and it used to be VERY common to announce amounts (and still is in some places) in the Ashkenazi ones. If you go to any Ashkenazi synagogue (pretty much the only choice) in European cities today, you will find that same practice prevail. The Young Israel movement in the US - among some of its goals - was to eliminate the auctioning off of aliyot, a very common practice in (Ashkenazi) European synagogues - every Shabbat, and not just on Simhat Torah.

  2. You're right that stuff is drivel and is border-line misogynist. I don't think the material you quoted is standard. It certainly does not reflect the Medieval ideals of Raavad's בעלי הנפש and/or Nachmanides' אגרת הקודש nor does it reflect the ideas set forth in the Steipler Gaon's open letter to young couples or Rabbi Chaim Friedlander's וידעת כי שלום אהלך or Rabbi Shlomo Wolbe's שיחות הדרכה לחתנים which are all the standard texts taught to young couples in the Orthodox world (granted the latter two are geared for the grooms more than the brides). For English-speaking brides, the standard tends to be "The Secret of Jewish Femininity" by Abramaov and "Marital Intimacy" by Rabbi Avraham Peretz Freidman. These book also do not contain anything close to the drivel from which you quoted.


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