Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat Acharei Mot-Pesach

14 Nissan 5768

April 19, 2008

Vol.17 No.31

Bittul Chametz and Contemporary Financial Arrangements - Part 4

by Rabbi Chaim Jachter

Intoduction

In the past three weeks, we have discussed Halachic perspectives on the changing nature of the husband-wife financial relationship and its impact on many areas of Halacha, including Bittul Chametz. We mentioned that a minority of Dayanim accepts the view of Rav Dichovsky that Halacha recognizes that the financial relationship between husband and wife in our times constitutes an equal financial partnership. Most Dayanim, though, do not accept this approach for the various reasons we discussed in the past weeks. Even Halachic authorities who do not accept the approach of Rav Dichovsky, however, may still recognize the many Halachic implications of the changing financial relationship between husband and wife. Rav Yaakov Ariel (Techumin 22:129-147), the Rav of Ramat Gan and a major Halachic authority, adopts a compromise position, and we shall present his approach in the concluding essay of this series.

Rav Ariel asserts that even today, the husband assumes the primary responsibility to support his wife. He notes that he presented this point to hundreds of couples from all sectors of Israeli society who work in a wide variety of professions, and not one woman stated her willingness to waive the benefit of this right. Rav Ariel also maintains that a husband remains responsible to pay for his wife’s medical needs (based on either his obligation to provide for her needs or his requirement to redeem her from captivity) even if the cost is very steep, as is the case if a specialist is needed to treat a catastrophic illness. He argues, accordingly, that it is fundamentally unjust (with exceptions, as we discussed in previous issues) for a husband to shoulder very significant financial responsibilities and yet not retain ownership of the marital assets. However, Rav Ariel does grant that since most women today earn a significant salary or have the potential to do so, they enter marriages with less financial dependence on their husbands and more of a sense of mutuality. He also acknowledges that this attitude is legitimate and is recognized by Halacha in a host of areas, as we shall discuss.

Obligations of the Wife to the Husband

The Shulchan Aruch (E.H. 80) states that just as the husband has obligations to his wife, the wife has certain obligations to her husband. These include washing his hands and feet, serving him wine, and sowing clothes for their family. Rav Ariel states unequivocally that these specific obligations no longer apply. As we discussed last week, Halacha teaches that every couple, unless otherwise stipulated, enters a marriage with the intention that it will act in accordance with commonly accepted community practices (Minhag HaMedinah). Hence, since the Minhag HaMedinah is that wives no longer perform these services on behalf of their husbands, husbands have no right to expect that wives perform these tasks on their behalf.

Interestingly, Rav Ariel also argues that if a woman works outside the home, she is not obligated to cook for the family (despite the fact that this obligation is stated in the Shulchan Aruch E.H. 80:6), since a person can purchase commercially prepared food that can be warmed in a microwave oven. This last point appears to be highly debatable, since some families cannot afford (see Shulchan Aruch ibid.) to purchase prepared food on a routine basis. In addition, prepared food is often far less healthy than food prepared at home, which might make some husbands averse to consuming it on a regular basis

Moreover, it seems to me that even in families where the wife works a demanding job, the wife very often, at least in Orthodox homes, prepares the food for the family. Thus, there does not appear to be a Minhag HaMedinah that working wives do not cook for their families. This might be a worthwhile topic for partners to discuss prior to their marriage and even prior to their engagement. This same idea seemingly applies to issues concerning childcare and household chores. An engaged couple should also consider Rav Hershel Schachter and Rav Mordechai Willig’s urging that if at all possible, mothers should avoid working outside the home during child-rearing years.

A Wife’s Control of Family Assets

It does seem clear, however, that Rav Ariel is correct in his assertion that the Minhag HaMedinah is for husbands and wives in a healthy relationship to make joint decisions about significant monetary issues. Rav Ariel argues that this holds true even if one rules that title to marital assets is vested with the husband, since the Minhag HaMedinah is that couples share equal access to the family’s financial assets.

Therefore, Rav Ariel rules that, unlike in the times of the Gemara when only husbands made decisions regarding Tzedakah allocations (see Shulchan Aruch Y.D. 248:4), nowadays neither spouse is permitted to donate significant sums without the other’s consent, in accordance with the current Minhag HaMedinah. This would appear to apply to substantial purchases as well.

Another ramification appears to be in the area of tort liability. In the time of the Gemara, one would have difficulty recovering damages from a wife who caused a monetary loss (see Bava Kama 87a), since she had no readily available assets from which to collect. However, Rav Ariel argues that today things are different: "….because it is unreasonable to say that a wife can draw from her account to pay for a variety of needs, without any objection from her husband, but when she is obligated to compensate for financial loss that she caused to others, her husband can object. Therefore, it appears that even though the Talmudic principle that ‘What a wife earns belongs to the husband’ still applies in our times, nonetheless this is insufficient reason to excuse her from indemnifying one to whom she caused loss. As far as this matter is concerned, we relate to her as if she has assets of her own."

Many other Halachic authorities do not concur with this view. For example, Rav Yaakov Blau (Pitchei Choshen 8:8:75, published in 1996), rules based on classical Halacha regarding this matter without noting any difference in our times. Similarly, Rav Blau (ad. loc. 8:73) presents as normative the classic rules forbidding a wife to donate money to Tzedakah without her husband’s consent.

Perhaps one can reconcile the apparent dispute between Rav Blau and Rav Ariel by distinguishing between the Modern Orthodox community and the Chareidi community. Rav Blau’s approach might fit the Chareidi communities, where couples might be presumed to operate based on the classic Talmudic model of the husband-wife financial relationship. Rav Ariel’s approach, on the other hand, seems more appropriate for the Modern Orthodox community, where couples seem to function based on a different model than the classic one. Thus, these two communities have different Minhagei HaMedinah. Rav Aryeh Yehudah (Ronnie) Warburg, a leading Dayan in the United States, reports that some Dayanim actually distinguish between these communities regarding whether they implicitly accept classic Halachic models or contemporary monetary models in their financial interactions. In addition, Rav Blau might rule otherwise even for Chareidi wives in a case where the wife is listed as a joint owner in the family’s bank account and/or securities accounts.

This might have ramifications in other areas of Halacha. One aspect could be regarding selling Chametz. Can the wife appoint the family’s Rav to sell the Chametz on behalf of the family without the husband’s consent? Furthermore, does the husband require the wife’s consent to sell the family’s Chametz? Another case which depends on this issue could be a situation where the wife has loaned money to someone. Can the husband’s Prozbul document, which allows for collection of the loan even after the conclusion of the Shemittah year, cover the wife’s loan? Rav Ariel addresses the Prozbul issue and concludes that it is preferable for the wife to create a separate Prozbul.

Ritual Matters

The Shulchan Aruch (O.C. 529:2) frames the Torah’s obligation to rejoice on Yom Tov as follows: "One must rejoice and be in a good mood during Yom Tov; he, his wife, his children and all those who are part of his family [must be happy]. How does he facilitate their rejoicing? Children are given parched grain and nuts (candy), and for women one should purchase clothes and jewelry according to his means."

Rishonim debate the nature of the obligation of women to rejoice on Yom Tov. The Rambam (Hilchot Chagigah 1:1) rules that the wife has an independent obligation to rejoice, fulfillment of which the husband facilitates by buying jewelry and clothes. Since the husband controls the family finances, he allocates the money for the clothes and jewelry. The Raavad (commenting on Rambam ad. loc.) believes that the wife has no independent Mitzvah to rejoice on Yom Tov; rather, the Torah obligates the husband to make her happy on these days. The Shaagat Aryeh (numbers 65-69) and the Mishnah Berurah (529:15) rule in accordance with the Rambam. In a touching story, Rav Hershel Solnica of Queens relates that when he was a student at the Mesivta Tifereth Jerusalem, he was asked by Rav Moshe Feinstein to drive him to a bank before Yom Tov in order to withdraw money to purchase a dress for Rebbetzin Feinstein in honor of Yom Tov.

Rav Ariel raises the question of whether the mechanics of this Mitzvah change in our times in light of the fact that wives share control of the family’s funds. He begins by focusing on the Rambam. The Rambam believes that fundamentally, the wife is obligated in this Mitzvah but that only the husband can facilitate its fulfillment, since he controls the finances. However, since contemporary wives share control of the finances with their husbands, they should be obligated to bring about their Yom Tov joy themselves. Rav Ariel recommends that the best approach to maintain marital harmony is for a couple to agree on the amount of money that will be allocated to the purchase of clothes and jewelry for the wife in honor of Yom Tov, thereby allowing the wife to fulfill the Mitzvah even if she has an independent obligation.

Conclusion – Bittul Chametz

We began this series by raising the question of whether wives today should perform Bittul Chametz along with their husbands. We noted that traditionally, there was no need for her to do so, since one violates the prohibition of owning Chametz only if the Chametz is considered to be his according to Halacha. Since all marital assets, including the home, belonged to the husband, there was no need for the wife to recite Bittul Chametz.

In our times, though, most women need to be concerned with the prohibition to own Chametz. Contemporary wives own Chametz based on either Rav Dichovsky’s approach (or a variant thereof) or on the fact that wives in most cases are listed as joint owners of the marital home. I have heard that in some homes today, husbands and wives perform Bittul Chametz together, while in other homes only the husband makes the Bittul Chametz, as was practiced for generations. In such a case, the husband acts as the wife’s agent in reciting the Bittul Chametz.

I close with a vitally important assertion made by Rav Ariel. Despite the change in terms of financial control and decision making in our times, a basic distinction between the roles of husband and wife nonetheless remains in full effect. The primary responsibility to earn a livelihood for the family rests upon the husband, and the primary role of a wife is that of mother and homemaker. The complementary yet not identical obligations between husband and wife are illustrative of the special character of the Jewish home. I would add that the dramatically lower divorce rate in observant homes with mostly traditional arrangements between spouses compared to that of non-observant families that function with an egalitarian model highlights the need to essentially follow the traditional model.