Divorce Court: Talmud

Literary critic Adam Kirsch is reading a page of Talmud a day, along with Jews around the world.

Tractate Ketubot has ranged widely over many aspects of the laws of marriage, in the process revealing some of the rabbis’ key assumptions about gender relations and sexuality. But the name of the tractate comes from the actual contract, the ketubah, that makes a Jewish marriage official; marriage law, in the Talmud, is a subset of contract law. In Chapter 9, which Daf Yomi readers covered this week, the fine points of that contract were at issue, as the rabbis determined how to deal with the tricky property claims that can arise in the context of marriage and inheritance. This chapter shows the Talmud as a code of civil law, rooted in the Bible but worldly in its distinctions and concerns.

Under Jewish law, a husband gains legal control over his wife’s earnings and property. The rationale for this, as we saw earlier, is that he also bears responsibility for her sustenance. But just as a wife can opt out of this arrangement, declining to be supported by her husband and to share her money with him, so, we learn in Ketubot 83a, a husband can renounce his rights to his wife’s property. Exactly why a husband might do this is not clear—perhaps it would be a tactic in a marriage negotiation, making the prospect of marriage seem more attractive to the woman by guaranteeing her control over her own assets.

To make this renunciation, however, the Mishna instructs that the man has to spell out exactly what rights he is disclaiming. If he writes a legal document saying simply, “I have no legal dealings or involvement with your property,” then he cannot sell her possessions. But he still retains the implied right of usufruct, that is, the right to enjoy the “produce” of her property, whether that takes the form of actual produce from land or interest on capital. If he means to renounce the produce as well, he must say so explicitly in writing, and the same is true of the produce of the produce.

The question arises, then, whether a husband can go so far as to renounce his right to inherit his wife’s property when she dies. At first the Mishna says yes, so long as he adds the stipulation “in your lifetime and after your death” to his renunciation. But this would seem to contradict Torah law, which says that a husband always inherits from his wife; and, according to Rabbi Shimon ben Gamliel, “whoever stipulates that which is counter to that which is written in the Torah, his stipulation is void.” For the same reason, the Gemara adds, a purchaser cannot renounce his right to sue the seller for fraud, because fraud is a crime under Torah law (“And you shall not wrong one another,” Leviticus 25:17). I wonder how this compares to American law when it comes to questions like nondisclosure agreements or arbitration agreements, which limit the right of a dissatisfied party to seek redress.

The next mishna, in Ketubot 84a, establishes the priority of different categories of claimants on a dead man’s estate. Say a man dies owing money to a creditor and also leaves a widow who demands payment for her marriage contract and children who expect to be heirs. Who gets first dibs on the man’s estate? Here the rabbis disagree. Rabbi Tarfon humanely rules that it will be given to “the weakest of them,” that is, the party who needs the money most. But Rabbi Akiva says, on the contrary, that “one is not merciful in judgment”: A judge shouldn’t be influenced by compassion, but should adhere strictly to the law. (This sounds like a Jewish version of the maxim “justice is blind.”) And the law maintains that a man’s heirs are the first to receive his estate, regardless of the claims of the widow or the creditors.

As the Gemara explains, however, this holds only once the man is dead. If a creditor can manage to seize the debtor’s property before he dies, then he is entitled to keep it. The Gemara gives several examples of such cases, including “a certain woman who had a bag full of documents deposited with her.” These documents were presumably financial instruments belonging to a third party. When their owner died, his children came to the woman “and claimed it from her,” on the principle that heirs are paid before creditors. But the woman insisted that she had “seized” the documents as payments for a debt while their owner was still alive, and so she had the right to keep them. However, when she could not produce any witnesses to support her claim in court, she was ordered to return the documents to the heirs after all.

Several of the issues raised in this chapter bring up the problem of record-keeping in a society without institutions like probate courts or banks. If the only record of a debt is a promissory note, what is to stop the holder of the note from claiming payment in one court and then going to another, distant court and claiming payment a second time? What about a woman claiming that she is divorced and demanding payment of her marriage contract: How does the court know, in the absence of documentation, that she really was divorced and that she hasn’t already received payment in another venue?

In Ketubot 89a, the rabbis offer a kind of compromise solution. If a woman can present the court with a bill of divorce but doesn’t have a copy of her marriage contract, her husband must pay the statutory amount of the contract (200 dinars for a virgin, 100 for a widow or divorcee). If, however, she has a copy of the marriage contract but not a bill of divorce, her husband can claim that he has already paid her off, and the court can’t force him to pay again. The Gemara “concludes” from this law that a man paying a woman’s marriage contract—and presumably, by extension, any debtor paying a debt—should demand a written receipt that he can present in court if necessary.

In the course of the discussion, the rabbis raise another delicate issue. Can a husband demand that his wife take an oath about financial matters? The Talmud envisions a situation in which a man “establishes his wife as a storekeeper” or a “steward” in charge of his business or property. Can he then demand that she swear that she has not cheated him out of money that is rightfully his? The rabbis say that he can make such a demand about business matters, but not when it comes to domestic accounts, which are her domain by right. “A person does not reside in a basket with a snake,” as the rabbis put it—in other words, a wife should not have to live with a husband who doesn’t trust her with everyday financial matters. Here is another example of the way the theoretical legal power of a husband over a wife is tempered, in the Talmud, by expectations of trust and reasonable accommodation.

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Adam Kirsch is a poet and literary critic, whose books include The People and the Books: 18 Classics of Jewish Literature.