ON MATRIMONIALPROPERTY IN JEWISH AND GERMANIC LAWS by ZEEVW. FALK(Jerusalem, Israël)

Communityof Goods In Jewishas well as in Germaniclaw the groom used to give to the bride a certainamount during the marriageceremony. This gift, included in the matrimonial contract,became a symbolof the wife'slawful status and if omitted,the wifewas considereda mere concubine The Jewishnuptials had changedalready during the secondcommonwealth from a cash-transactionto an insuranceagainst widow- hood and divorce.After the paymentbeing put off till the end of the marriage, the amount becameeasily standardized. Besides this obligationthe matrimonial contract includedthe undertakingto restore the dowry.Sometimes another sum wasvoluntarily promised by the bridegroomas an increaseto the standardmarriage portion, and all these obligationswere guaranteedby a general charge on the husband'sproperty 2). The Germanicdower, too, was originallya gift of the husband to the wife at the nuptials. While sums of moneyor movableswere mentionedin the earlier sources,this gift later on consistedquite often of realty. In the course of time a mere promisewas giveninstead of the actual deliveryof the dower.According to Lombard law this portion generallyamounted to a quarter of all the husband's possessions,Frankish-Salic law providedfor a third and in a Visigothicdeed even half of the property,both presentand future,was settled on the bride3). Correspondinglyvarious rabbinicalsources beginningwith the ninth century inform us of gifts made by bridegroomsto their brides.Up to the tenth century these gifts were includedin the marriagecontract but later they were written in deedsof "specialgift". Besidesthe obligationto pay in casesof divorceand widow- hood, the husbandthus undertookto set asidefor the immediateuse of his wifea sum of money,movables or realty.This separateproperty over which the husband had no right of usufructcould be disposedof by the wifeboth inter vivosand by will. She could, moreover,keep it at the end of the marriagewithout bringing an action or renderingaccounts, as requiredwith regard to marriage portions and dowries4).

1) BabylonianTalmud Sanhedrin21a, PalestinianTalmud Ketubot 5,2 (29b), J. Brissaud,History of FrenchPrivate Law, transl. R. Howell,London 1912,p. 752n. 1. 2) J. Neubauer,Beitrdge zur Geschichted. bibl, talmud.Ebeschliessungsrechis, Leipzig1920, p. 238,L. M. Epstein,The Jewish Marriage Contract, New York 1927, E. Neufeld,Ancient Hebrew Marriage Laws, London 1946. 3) Cf. Tacitus,Gerni. 18, Brissaud, loc. cit., R. Schrbder,Geschichte d. ehelichen Giiterrechtsin Deutschland,Stettin 1863-74, Ch. Lefebvre,L'histoire du droit matrimonialfrançais, Paris 1906-23. 4) Y. Epstein, in "Hamišpat Haibri" IV, Tel Aviv 1933,p. 125, S. Assaf, in "Tarbiz" I, Jerusalem1930, Annex p. 14 n. 14. 71

Instead of special goods, endowmentsof a later stage consistedof a certain ' share of the husband's possessions.Rabbi Solomonben Isaac (Rasi) of Troyes, the spiritualhead of eleventhcentury's Jewry, describes the followingsettlements:

A, being owner of movablesand realty, marriedB and gave her in the marriage contract half of his realty, keeping the rest for himself... 5). A and B gave C, their son, and D, his wife,jointly as a nuptial gift a vineyardbelonging to the formerin town and the rent due to them from a village ... 6).

Jewish couples,thus, fixed their property relations quite similar to those of their Christianneighbours. It is, therefore,worthwhile to comparethe development in the law of husband and wife of both communitiesrespectively. The Germanicdower gave the wifea sayingin the husband'sproperty, preventing him from any dispositionwithout her consent.According to Lombard law this consent had to be establishedin the presenceof two relativesor of the local magistrate7). French law madesimilar arrangements to verifythe free willof the wife8) and the sameintention gave rise to the English"right of dower"9). Hence the Frankish practiceof dispositions"communi manu" arose, showing the husbandacting with assistanceof his wife.This form was used not only with transfersof realty but also in casesof acquisition.German sources of the eleventh and twelfth centuriesfrom Cologneand Franconia usuallyname both spouses as purchasersof immovables.In the land registryof Colognenot only acquisitions wereregistered jointly but eventhe propertybrought into marriageby eitherspouse and estatesbeing inherited by them duringmarriage 10). Similarideas were known in Jewishlegal practice. Since the first centuryB.C.E. a clause had been inserted in the marriage contract making all the husband's property a securityfor the paymentof the amount mentionedtherein. This lien was effectiveagainst any immovablein his possession,both at the time of the nuptials and during the future, givingthe woman the right to trace the property

5) Solomonben Isaac, Responsa,ed. J. Elfenbein,New York 1943,p. 235. 6) J. Miiller,Responsa Hahme Sarfat Velothar,Wien 1881,30, Cf. Eliezerben Joel Halevy, ed. V. Aptowitzer,Jerusalem 1938, p. 453. Meir of Rothenburg, Responsa,ed. Lemberg327, ed. Berlin p. 207 (transi, J. A. Agus, Philadelphia 1947,pp. 295, 331). 7) H. Rosin, Die Formvorschriftenf d. Yerausserungsgeschafted. Frauen nach langobardischemRecht, Breslau 1880, Schr6der, I p. 132. 8) Brissaud,p. 775, E. Ch6non,Histoire générale du droitfranfais, Paris 1929, II, pp. 114, 124.A. Lemaire,in: RevueHistarique de Droit Fran?aiset Etranger, 4e serie,VII (1928),pp. 584-643, VIII (1929),pp. 569-580. 9) PoJlockand Maitland,History of EnglishLaw, Cambridge 1923, II, p. 422. The theory of J. J. Rabinowitz,Jewish Law, New York 1956,p. 284-289 about Jewish influenceon the English "Right of Dower" is not convincing.The rule should rather be consideredin the light of the parallelsources in variousparts of Europe. 10) Schroder,I, pp. 130-131, II-1, pp. 116-119, II-2, pp. 5, 20, 11-3,p. 243. A. Heusier,Institutionen des deutschen Privatrechts, Leipzig 1886, II, pp. 403-404.