Ishut - Chapter Twelve

These ten responsibilities and four privileges are all explained in detail in the chapters that follow, through Chapter 23.

These requirements are mentioned in Exodus 21:10. The verse forbids a husband from denying his wife these rights. Sefer HaMitzvot (Negative Commandment 262) and Sefer HaChinuch (Mitzvah 46) consider this to be one of the 613 mitzvot of the Torah.

Note the commentary of the Ramban on Exodus (loc. cit.), which interprets sha'arah and kesutah as also referring to conjugal rights and maintains that the obligation to provide a wife with her subsistence and with garments is Rabbinic. Most authorities, however, follow the Rambam's understanding.

The Ra'avad and others maintain that the husband's right to inherit his wife's property stems from the Torah itself. The matter is the subject of a difference of opinion between our Sages (Ketubot 83b), and there is no explicit resolution of the question in the Talmud. Rav Kapach maintains that the early manuscripts of the Rambam's Commentary on the Mishnah (Ketubot 9:1; Bava Batra 8:1) indicate that the Rambam himself originally subscribed to the view mentioned by the Ra'avad and changed his mind later in life. (See also Halachah 9.)

With regard to the other two matters that are linked the husband's obligation to redeem her and to bury her, the woman does not have this option. Although this arrangement was instituted for the woman's benefit, our Sages did not give her a choice regarding these matters, because they desired to ensure that the woman would not be forced to remain in captivity among the gentiles and that she would be buried (Shulchan Aruch and Ramah, Even HaEzer 69:5).

Our Sages instituted this arrangement for the woman's benefit, since a woman's income could not ordinarily provide for her subsistence. Accordingly, the option of whether or not to forego the arrangement is in the woman's hands. If a woman can earn more than her subsistence, she is also entitled to forego the above arrangement.

Even in such a situation, the woman is still responsible for taking care of the household tasks (Maggid Mishneh).

The husband may, however, tell his wife: "Endeavor to earn your subsistence, and I will compensate for whatever deficiency remains" (Ramah, Even HaEzer 69:4).

I.e., although the t'na'ei ketubah are rabbinic in origin, and the obligation to provide for the woman's subsistence is from the Torah, since the linkage of it with her wages is rabbinic, the obligation is considered to be part of the t'na'ei ketubah.

I.e., they are obligations that apply universally and are not dependent on the consent of a particular couple.

The principle upon which this statement is based is that any stipulation to which both parties agree that concerns monetary rights - even those that are granted to a person by the Torah - is binding (Kiddushin 19b). For a person has the option to waive his right to property or privileges that justly belong to him (Rashi, loc. cit.). Therefore, a woman may waive even the rights to her subsistence or clothing that the Torah itself grants her.

Instead, the failure to provide a woman with conjugal rights is considered to cause her physical anguish (Rashi, loc. cit.). Although the Mordechai maintains that conjugal rights can also be considered monetary matters, for it is possible to give a woman enough money that she would be willing to forego her rights, the Rambam's view is accepted by most authorities.

I.e., the woman writes a receipt for part of the sum on her ketubah.

With regard to this instance, the Tur (Even HaEzer 66) differs and maintains that the man is not obligated to pay her the full sum.

Although this is a situation that concerns financial matters, our Sages desired that the fundamental requirement of the marriage contract be a binding institution, and therefore did not allow any modification of this obligation. Hence, the stipulation is nullified.

Note the Maggid Mishneh, who mentions views that differ with that of the Rambam and maintains that if the man desires to divorce the woman, he is not obligated to give her the sum for which the Sages obligated him. It is only when he wants to remain married to her that our Sages enforced their requirement.

The Shulchan Aruch (Even HaEzer 66:9) states that even though the man's stipulations are of no consequence, the sexual relations he conducts with his wife are considered promiscuous, because she may be unaware of the law and not know the amount due her.

A different ruling applies if the stipulation is made between erusin and nisu'in, as explained in Chapter 23, Halachah 6.

See Hilchot Nachalot 6:1.

For a woman is obligated to eat three meals on the Sabbath as a man is (Shulchan Aruch, Orach Chayim 291:6).

Note the slight difference between the Rambam's statements here and those in Hilchot Matnot Aniyim 9:13.

A me'ah is one sixth of a dinar (Kiddushin 12a). Based on the Rambam's statements in Hilchot Shekalim, ch. 1, it is evident that this is a coin of relatively small value, approximately 1.5 grams of pure silver.

The Beit Shmuel 70:7 states that if he can provide her with bread, even if he cannot provide her with other food, he is not obligated to divorce her. (See, however, Chelkat Mechokek 70:12.)

The Chatam Sofer (Even HaEzer, Responsum 131) states that the Rambam's words imply that if the husband cannot support his wife from his own earnings, he is compelled to divorce her, even if she herself has the means to provide herself with subsistence.

The rationale is that since he cannot provide her with subsistence, he is obligated to give her the opportunity to find another husband who can.

The Hagahot Maimoniot question whether the husband can be compelled to seek to hire himself out as a laborer, or the court's only resort is to compel him to divorce his wife. Although that text does not favor either approach, the latter opinion is quoted by the Ramah (Even HaEzer 70:3). The Ramah also mentions the opinion of Tosafot (Ketubot 63a), which states that a husband who has no resources is not compelled to divorce his wife.

I.e., even in a separate dwelling (Rambam's Commentary on the Mishnah, Ketubot 5:9).

In his Commentary on the Mishnah (loc. cit.), the Rambam states that this prerogative may in no way infringe on the husband's obligation to provide his wife with conjugal rights. In addition, he must share the Friday night meal with her, implying that this is for the sake of communication, not only as preparation for marital relations, as understood by some commentaries.

Note the Ramah (Even HaEzer 70:2), who objects to the Rambam's ruling, and states that a man is given this prerogative only if his wife consents.

Note Mishneh LaMelech and the Dagul MeRevavah (Even HaEzer 70), which state that this applies only when the woman purchased her food at a lower price than was originally estimated. If, however, she starved herself and consumed less than was allotted her, she, and not her husband, is entitled to the remainder.

Food that is terumah may not be eaten if it contracts ritual impurity, nor may it be eaten by a person who is himself ritually impure.

Rabbenu Nissim maintains that this obligation is incumbent on a father from the Torah itself, as an extension of his obligation to provide for his wife. Rabbenu Asher, however, maintains that the father's obligation is independent of the marriage bond. Even if he fathers children outside marriage, he is liable for their support.

The obligation to provide for one's children's subsistence until majority was one of the enactments instituted by the Sanhedrin after this body was relocated in Usha in the Galilee after the destruction of Jerusalem. At that time, several enactments were passed to direct the functioning of the Jewish community in this new phase. (See Ketubot 49b.)

Today, most rabbinic authorities maintain that because of changes in the socio-economic system, it is proper for a father to continue supporting his children well past the age of Bar or Bat Mitzvah.

As evident from Halachah 17, this applies only when the father is present. The Rambam maintains that a person's property may not be expropriated for this purpose outside his presence.

See Hilchot Matnot Aniyim 10:16, which states:

Although he is not obligated, when a person provides subsistence for his older sons and daughters, so that the males can study the Torah and the females will follow the straight path, . . . it is an act of charity, and indeed, a great act of charity.

And Chapter 7, Halachah 10, of that source, states:

When a person does not desire to give charity, . . . the court compels him, and administers stripes for rebelliousness until he meets the assessment made for him. [Moreover,] when he is present, his property is expropriated [for this purpose].

The Ramah (Even HaEzer 70:5) quotes opinions that state that this ruling applies only when the husband left home in an atmosphere of peace. In such a situation, we can be sure that he has provided for his family. If, however, he left home annoyed with his wife, it is plausible to assume that he did not provide for her needs.

I.e., after three months, or after she approaches the court. If she waits longer than three months, she is not given any payment for the previous period (Ramah, ibid.).

Rabbenu Asher differs and maintains that the court should consider the amount the woman can earn when deciding on the size of her allotment. His rationale is that before expropriating a person's property, we should try to act in his interests. Although many authorities speak in favor of Rabbenu Asher's logic, they rule according to the Rambam's decision. (See Chelkat Mechokek 70:20.)

The Avnei Milu'im 70:3 explains the Rambam's position, stating that the husband is granted the right to his wife's earnings only when he provides for her subsistence willingly. When he forces her to approach the court to receive her subsistence, he has no claim on her earnings.

There is a debate among the authorities whether or not she must consult experts with regard to the evaluation of the object. (See Chelkat Mechokek 70:21.)

Generally, when property is sold by the court, it is necessary that a public announcement be made informing people of the sale, to attract customers and assure competitive bidding. (See Hilchot Malveh V'Loveh 22:6.) In this instance, no such requirement is made, in order that the woman will not have to wait to receive the funds she requires.

See Chapter 16, Halachah 4.

Whenever a person is required to take an oath, the plaintiff can obligate him to take an oath on another claim. In this instance, since the woman is obligated to take an oath to her husband's heirs to collect the money due her for her ketubah, she can be required to take an additional oath regarding the sale of his property for her subsistence.

We do not expropriate his property and provide for his children as an act of charity, because it is possible that he is giving charity in the place to which he has journeyed.

The Ramah (Even HaEzer 71:2) states that if the person had supported his older children before leaving on his journey, provisions should be made for his children while he is away. It can be assumed that this would be his desire. The Ramah also mentions the opinion of Rabbenu Nissim, which states that if he possesses means, support should be provided for his children from his property as an act of charity. This view is not, however, accepted by most later authorities.

The Maggid Mishneh states that the Rambam's wording appears to imply that no provision is made for his older children, even when he has the means to support them. The Maggid Mishneh, however, refers to Hilchot Nachalot 11:11, which states that when a person who has means loses control of his faculties, the court levels an assessment for charity on his estate. Accordingly, it would appear that if the man has the means to give charity, his property is expropriated to pay for his children's subsistence, even if they are over six.

The Tur (Even HaEzer 71) states that in such an instance, the court should expropriate funds for the subsistence of the person's older children even if the person's estate is not large enough for an assessment for charity to be leveled against it. The rationale is that we assume that, like the majority of people, this person would also desire to support his children. The Chelkat Mechokek 71:6 maintains that the Shulchan Aruch follows this view, and not that of the Rambam.

See Chapter 17, Halachah 19.

Rabbenu Asher and others do not accept the Rambam's distinction, and maintain that the court should also protect the interests of a person who is in another country and cannot defend himself. Nevertheless, in his Kessef Mishneh, Rav Yosef Karo defends the Rambam's decision, explaining that in contrast to an heir, the husband has the potential to take his claim to court when he returns. In his Shulchan Aruch (Even HaEzer 70:5), he quotes the Rambam's ruling. This ruling is also accepted by the later authorities.

See Halachah 2.

Since the heir himself was not aware of the details of his benefactor's affairs, he cannot necessarily advance claims in his own interests. Therefore, the court acts to protect them. (See Bava Batra 23a.)

The Ramah (Even HaEzer 70:8) states that the benefactor must lodge a claim against the wife, who in turn must lodge a claim against her husband.

Although the husband is obligated to pay for his wife's subsistence, our Sages rule that when a person pays a debt on behalf of a colleague without being instructed to do so, the debtor is not at all obligated to his patron.

Although our Sages associated a woman's earnings with her subsistence, they made this association for the woman's sake and gave her the prerogative of accepting or declining such a request. In a responsum, the Rambam writes that if it is not logical to assume that she could earn the funds required for her subsistence, for her to forfeit her rights, she must explicitly consent to her husband's stipulation.

I.e., a less severe oath instituted by the Rabbis. (See Hilchot To'en V'Nit'an 1:3.)

She, however, does not have the opportunity of paying the debt until she is divorced or becomes widowed, because all her property is under lien to her husband, and he is entitled to her earnings.

Since it was movable property and not landed property that was sold, the oath that the woman is required to take is more lenient than that mentioned in the previous halachah. The rationale is that had she desired to lie, she could have claimed that the goods were stolen or lost.

I.e., she cannot demand reimbursement for the difference between her earnings and the amount she would ordinarily be entitled to for her subsistence (Chelkat Mechokek 70:41). If she earned more than her subsistence, the additional funds belong to her, not to her husband (Shulchan Aruch, Even HaEzer 70:11).

Based on Ketubot 59b, Rabbenu Asher and Rabbenu Nissim object to the Rambam's ruling. Since the husband is liable to provide for his wife's subsistence, the vow he takes cannot override that obligation, except in specific instances. In both the Kessef Mishneh, and the Shulchan Aruch (Yoreh De'ah 235:2), Rav Yosef Karo follows these views.

After thirty days, the matter will become public knowledge and the woman will suffer ridicule. Therefore, her husband is obligated to divorce (Rambam's Commentary on the Mishnah, Ketubot 7:1).

The Mishnah (Ketubot, op. cit.) states that her husband should appoint a person to provide for her. As the Talmud explains (Ketubot 71a), this does not mean that he should appoint this person as an agent, for this is forbidden by his vow. Instead, he should say, "Whoever provides for my wife will not suffer a loss."

As the Maggid Mishneh explains, this refers to a situation in which the husband took a vow that if his wife partakes of a particular species of produce, she will be forbidden to benefit from his property (or according to the Shulchan Aruch, Yoreh De'ah 235:3, that sexual relations between them will be forbidden). If, however, the husband takes a vow that his wife may not eat a particular type of produce, that vow is nullified. For a person cannot take a vow to restrict the actions of another person.

For, as Numbers 30:8-9 relates, a husband has the right to nullify or uphold the vows his wife takes.

As Rav Yosef Karo mentions in both the Kessef Mishneh and the Shulchan Aruch (loc. cit.), other opinions require the husband to divorce his wife in such a situation.