(2008/5768)

An Erev Pesach Debate

I experienced an eye-opening interaction this past Erev Pesach.  I joined a gathering of rabbis who assembled in the office of a leading New Jersey Rav for the sale of Chametz.  As the fifth Halachic hour of the day, when Chametz becomes forbidden to derive benefit from, approached, I called my wife to remind her to nullify her Chametz (Bittul Chametz).  The rabbis expressed their astonishment at my behavior.  Their reaction stemmed from the Shulchan Aruch (O.C. 434:4), which indicates that a wife recites Bittul Chametz only in a situation where her husband did not perform the Bittul. 

The basis for the Shulchan Aruch’s uncontested approach is that the husband is traditionally considered the owner of marital property.  This idea is partly expressed by the Talmudic principle “What a woman acquires automatically comes into the ownership of her husband” (Gittin 77b).  In fact, the Mishnah Berurah (434:19) writes that in the unusual case where a wife does proclaim the Bittul, she should state that she nullifies “All of the Chametz in my husband’s domain” and not “All the Chametz in my domain,” since Halacha regards marital property as under the sole control of the husband. 

I responded that Halacha might be different nowadays, since contemporary society regards marital property as a joint ownership.  In general, contemporary practices are relevant regarding Halachic monetary matters (see, for example, Bava Metzia 74a and 83a).  With regards to money, there is much more flexibility, as the Gemara (Bava Metzia 94a) presents the accepted opinion of Rabi Yehuda that “Conditions regarding money are valid.”  Generally speaking, one may dispose of his money as he deems fit and may even arrange monetary affairs in contradiction to Halacha.  A classic example of this is a case of a lender and a borrower who agree that the borrower’s responsibility regarding the borrowed item applies only to the extent of an unpaid watchman, a Shomer Chinam (see Bava Metzia ad. loc. and my Gray Matter II pp. 170-171). 

Indeed, some Dayanim, such as Rav Shlomo Dichovsky of the Israeli Supreme Rabbinic Court, insist that Halacha recognizes and incorporates contemporary attitudes and civil laws as Halachically binding.  I reasoned that according to this approach, my wife and I jointly own the Chametz, and therefore both of us should recite Bittul Chametz.  Even though Bittul Chametz can be accomplished by one’s agent (Shulchan Aruch O.C. 434:3), the Gemara (Kiddushin 41a) teaches, “It is a greater Mitzvah when done by oneself than by his agent.”  Therefore, I remind my wife very year to recite Bittul Chametz.

On the other hand, the other Rabbanim (with the notable exception of one veteran Rav, who commented that he thought that I might be correct) replied that they believe that the age-old principle of “What a wife acquires belongs to her husband” still applies nowadays despite changes in contemporary society. 

This debate reflects a much larger debate that currently rages among Rabbanim and Dayanim as to whether the Talmudic principle of “What a wife acquires belongs to the husband” applies in current circumstances and milieus.   In this series of essays, we shall present this debate and its manifold Halachic applications, of which Bittul Chametz is but one.  We shall begin by outlining the basic rules regarding the classic financial relationship of husband and wife as presented by Chazal throughout the Talmud.

A Husband’s Obligations and Entitlements

Rambam (Hilchot Ishut 12:1-4) outlines the mutual obligations between husband and wife.  He begins by presenting ten obligations Halacha demands from a husband, three of biblical origin and seven of rabbinic origin.  The three Torah obligations are the obligations to feed, clothe, and have intimate relations with his wife.  The seven rabbinic obligations are to pay the basic Ketubah payment in case of death or divorce, to pay her medical bills if she is sick, to redeem her if she is taken captive (a not-uncommon occurrence in the time of the Gemara and in certain countries even today), to bury her if she dies, to support her from his estate and allow her to live in his house if he predeceases her (though she does not inherit him), to support their daughters from his estate until they marry, and to give their sons a larger portion from his inheritance than sons from a marriage to another woman (Ketubat Banin Dichrin).  Halacha entitles a man to four items from his wife: whatever she earns (Maaseih Yadyaim), whatever she finds (Metziah), the income generated during her lifetime by the property that she brings into the marriage (Nichsei Melog), and priority to inherit her if she predeceases him. 

Chazal also instituted, the Rambam continues, that three of each partner’s respective obligations be arranged as quid pro quo arrangements.  The husband is entitled to his wife’s earnings in exchange for supporting her, to benefit from her Nichsei Melog in exchange for redeeming her, and to inherit her in exchange burying her. 

The Wife’s Property

Halacha divides a wife’s property into three sections (see Shulchan Aruch E.H. 85 and Pitchei Choshen 8 for details).  The first is the dowry, or the Nedunyah, which is categorized as Nichsei Tzon Barzel (lit. iron sheep property).  Generally speaking, the Nedunyah is listed and assigned a value in the Ketubah, whereupon the husband assumes financial responsibility for this property.  Upon his death or the couple’s divorce, the Nedunyah is returned to the wife, either in its original form or as its assigned value in the Ketubah regardless of whether its value has appreciated or depreciated.  Since the amount he must pay for the Nedunyah does not vary, it is referred to as “iron sheep property.”

Nichsei Melog (lit. property that is plucked) are all other properties that a wife either brings into the marriage (but are not listed in the Ketubah) or acquires during the marriage.  The wife retains title to the Nichsei Melog, but the husband is entitled to benefit from it during the wife’s lifetime (provided that he does not mismanage it) and potentially inherit it.  Since the husband may “pluck” this property by keeping the revenue generated by it, such as dividends from stocks or rent from an apartment, it is referred to as “property that is plucked.”

A wife also can own her own private property in a marriage.  This occurs either when she is gifted the money on condition that the husband enjoys no rights to this specific property or if the husband waives his rights to the property.

The Ketubah

Chazal (Ketubot 11a) instituted the Ketubah obligation “So that it should not be light in his eyes to divorce her” (i.e. as an impediment to a divorce).  This concern was particularly relevant in the days prior to the enactment of Cheirem DeRabbeinu Gershon, which forbids a husband to divorce his wife against her will.  The Ketubah is intended to be of a very significant sum so as to constitute a significant disincentive to divorce a woman against her will (as is seen from Gittin 58a, Rama E.H. 119:6 and Pitchei Teshuvah 154:27).

A study of Masechet Ketubot clearly shows that the Ketubah also serves as a potent tool in the arsenal of Beit Din (rabbinic court) to prod a spouse to treat his or her partner appropriately.  If a husband misbehaves, Beit Din can warn the husband that if he does not mend his ways, he will be pressured to divorce his wife and pay her the Ketubah.  If a wife is not acting properly, she may be warned that if she persists, her husband can divorce her without paying the Ketubah.

In case of death and divorce where the wife is not at fault, she receives the Nichsei Melog that she brought into the marriage, the Nedunyah (or its original value as set forth in the Ketubah), the substantial value of Ketubah,  and, obviously, her private property.  On the other hand, the husband takes all the money that is generated during the course of the marriage. 

The Theological Basis of These Rules

These rules emerge from the roles assigned to man and woman after their banishment from the Garden of Eden, which is described in the third chapter of Sefer Bereishit.  Man is charged with the mission of earning a living for his family, as the Torah states, “BeZeiat Apecha Tochal Lechem,” “By the sweat of your brow shall you eat bread” (Bereishit 3:19), and woman is obligated to tend to the family (Bereishit 3:16 with Rashi s.v. Itzevoneich).  The monetary arrangements between husband and wife allow for an even distribution of obligations and rights.  A man works hard for his family, so the family’s financial assets are in his control.  A woman needs to focus her attention on tending to the family, so she is relieved from the burden of generating income and managing investments to support the family.  In case of death or divorce, she is provided for with the provisions of the Ketubah. 

Even during the course of a marriage, there are ramifications of the fact that Halacha regards marital property to be in the sole possession of the husband.  For instance, a wife is not permitted to donate significant mounts of money to Tzedakah (charity) without her husband’s consent (see Shulchan Aruch Y.D. 248:4).  A husband has no such limitation.  Regarding ritual matters, the home and marital property belong to the husband; therefore, since any Chametz is in his domain, he nullifies it.   

Contemporary Application

Applying these rules to contemporary situations is far from simple.  The value of the Ketubah as set forth by Chazal is exceedingly low for contemporary needs and hardly serves as ample means of supporting a woman in case of death or divorce.  According to Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 4:91-92), the Ashkenazic Ketubah is valued at a hundred pounds of silver, which ten years ago translated into approximately ten thousand dollars (for alternative views regarding the value of the Ketubah, see Techumin 25:180-194).  Indeed, Rav Hershel Schachter articulated (in an address at a conference of Young srael rabbis) the need to update the value of the Ketubah, but there has been no movement among Rabbanim to implement his idea.  In addition, the Ashkenazic Ketubah is a standard document, and a proper list and evaluation of the Nedunyah is not made.  Furthermore, couples commonly list their real estate and financial assets such as stocks and bonds as jointly owned between husband and wife.  (Some male professionals even list all of their assets in their wives’ names to make them “judgment-proof,” meaning they cannot be sued for malpractice, since they themselves do not own any money.)  Moreover, many women at some point in the marriage earn substantial salaries from jobs that entail considerable responsibilities.  Today, a wife is expected to assume some of the financial responsibility for household finances.  These considerations cry out for a critical reevaluation of the responsibilities and rights of spouses towards each other in contemporary settings.

Next week, we shall review the titanic debate concerning this subject between two of the great Dayanim of our generation, Rav Shlomo Dichovsky and Rav Avraham Sherman.