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The Dowry Return Edict of R. Tam in Medieval Europe European Journal of Jewish Studies 12 (2018) 136–167 brill.com/ejjs The Dowry Return Edict of R. Tam in Medieval Europe Shalem Yahalom Abstract Adolescent marriage was the norm for the Jewish girls of medieval France. The fre- quency of death of these brides was high, which led R. Tam to decree that in the event of death during the first year of marriage all dowries shall be refunded. This edict con- tradicted Talmudic law that awarded the husband rights to his wife’s estate. Factors that led to the decree include personal tragedy, Palestinian custom, Roman law, and norms of royalty and feudal society. The edict of R. Tam was accepted in France and the Rhine Valley communities. However, East German communities rejected the de- cree by means of clever literary devices, including the invention of the author’s retrac- tion. The conflict surrounding the Dowry Edict opens a portal to the spiritual world of the Eastern communities during their formation. Keywords R. Tam − adolescent marriage − East German Jewish communities − Ḥasidei Ashkenaz dowry 1 Introduction Medieval French Jewry at times married off their daughters before the onset of puberty.1 Difficult medieval living conditions, early marital relations and 1 Irving A. Agus, The Heroic Age of Franco-German Jewry (New York: Yeshiva University Press, 1969), 277–284; Avraham Grossman, Pious and Rebellious: Jewish Women in Europe in the Middle Ages (Waltham, MA: University Press of New England, 2004), 40–41, 44–46; Elisheva Baumgarten, Mothers and Children: Jewish Family Life in Medieval Europe (Princeton, NJ: Princeton University Press, 2004), 22, 85. © koninklijke brill nv, leiden, 2018 | doi:10.1163/1872471X-11311041Downloaded from Brill.com09/29/2021 12:11:00PM via free access The Dowry Return Edict of R. Tam in Medieval Europe 137 pregnancy complications led to the deaths of young brides.2 These tragedies brought legal questions regarding the husband’s rights to his wife’s dowry to the forefront. In his commentary to Tractate Ketubbot, Rashi determined that according to Talmudic law, the death of a bride between the engagement and the wedding exempts her father from fulfilling his dowry obligations: If the husband committed material goods to her husband as terms of the dowry […] and stated in writing that [the obligation] would take effect upon the engagement, but she died during the engagement, [then the husband] loses his rights.3 The implication of Rashi’s comment is that if the couple was actually wed then the father is obligated to fulfill his dowry commitments even after the death of his daughter. Rashi’s decision is based upon an assumption that the father’s 2 On the high frequency of death during childbirth in general, and for young brides in par- ticular, see: Angus McLaren, A History of Contraception: From Antiquity to the Present Day (Oxford: Blackwell, 1990), 102, 123; David Herlihy and Christiane Klapisch-Zuber, Tuscans and Their Families: A Study of the Florentine Catasto of 1427 (New Haven, CT: Yale University Press, 1985), 277; Ron Barkai, “A Medieval Hebrew Treatise on Obstetrics,” Medical History 33 (1988): 108-109, 116; Shalem Yahalom, “Moch: Family Planning in the Jewish Communities of France and Catalonia in the Middle Ages,” Pe’amim 128 (2011) [Hebrew]: 136. The Tosafists experi- enced much suffering and loss: “Which suffering? It is puzzling. What does he want? Doesn’t he know about the great suffering a virgin experiences when she is deflowered? Most pre- pubescent girls become sick on account of this.” (Eliyahu Lichtenstein (ed.), Tosafot Rosh, Ketubbot (Jerusalem: Mosad ha-Rav Kuk, 1999), nr. 39a, s. v. ẓar, 278, corrected according to MS Frankfurt a. M. – Universitätsbibliothek Qu 17, 50b). This discussion of Tosafot Rosh is copied from: Tosafot Rashba mi-Shanẓ al Massekhet Ketubbot, ed. Abraham Liss (Jerusalem: Machon ha-Talmud, 1973), nr. 39a, s. v. ẓar, 83, which was abbreviated in “our Tosafot” by Tukh, to: “and some girls become sick from this.” (Tosafot Tukh, Ketubbot, nr. 39a, s. v. ẓar, corrected according to Venice 1521 edition). Possibly Tukh’s de-emphasis of girls’ suffering relates to his opposition to the dowry return edict to be examined. Note that Tosafot Tukh to Bava Kamma copied without altering the text: “most girls become ill from this.” (Tosafot Tukh, Bava Kamma, nr. 59a, s. v. ones, corrected according to MS New York – Jewish Theo- logical Seminary Rab. 732, 75a). The Tosafot “on the daf” of tractate Bava Kamma are Tosafot Tukh. See: Ephraim E. Urbach, The Tosaphists: Their History, Writings and Methods (Jerusa- lem: Mosad Bialik, 1980) [Hebrew], 625–629, 642. Regarding adolescent death see: Julius Kir- shner and Anthony Molho, “The Dowry Fund and the Marriage Market in Early Quattrocento Florence,” The Journal of Modern History 50 (1978): 421–422; Roger Schofield and Edward A. Wrigley, “Infant and child mortality in England in the late Tudor and early Stuart period,” in Health, Medicine and Mortality in the Sixteenth Century, ed. Charles Webster (Cambridge: Cambridge University Press, 1979), 64–68. 3 Rashi, Ketubbot, nr. 47a, s. v. katav, ometa, corrected according to MS Roma – Biblioteca Angelica, Or. 57, 136a. European Journal of Jewish Studies 12 (2018) 136–167Downloaded from Brill.com09/29/2021 12:11:00PM via free access 138 Yahalom debt is activated at the moment of the creation of the family unit, the actual marriage. Rashi’s grandson, R. Jacob ben Meir, widely known as Rabbenu Tam (hence- forth R. Tam), disagreed with the Talmudic interpretation implicit in this de- cision and ruled that a dowry will not be collected by the groom even in the case of death after the actual marriage. The father’s monies were set aside for the sake of his daughter, not for the benefit of the former bridegroom after her death: If he wrote [a contract obligating himself to pay a dowry consisting of] income [from property], clothing, or vessels, as fathers [traditionally] pledge to their daughters at the time of the wedding ceremony, they were then officially wed, and she died subsequently, even though [the dowry] was legally acquired [by the groom] for collection after the wedding like all brides who bring property to their husbands […] the husband loses his rights to these items because he did not manage to collect (!) before her death […] He [the father] wrote [the contractual obligation to pay the dowry] for [the sake of] her livelihood, and here she has died […] from this we learn that nowadays, in the case of allocated dowries of grooms not collected before the death of their wives, [the grooms] forfeit their rights to them, even after [complete legal] marriage.4 Our study focuses on this medieval edict that supplemented Talmudic law. 2 The Edict of R. Tam and Its Rationale As a response to the aforementioned phenomenon of the premature death of young brides, R. Tam took a further step and overruled Talmudic law entirely. He decreed an edict that in the case of the death of a bride during the first year of marriage, the groom is required to return all dowry monies, even those that he has already actually received. This edict directly contravenes Talmudic law,5 according to which the husband is entitled to keep dowry monies in his possession:6 4 R. Tam, Sefer ha-Yashar: Ḥelek ha-Hiddushim, ed. Simon S. Schlesinger (Jerusalem: Kiryat Sefer, 1959), nr. 34, 35–36, corrected according to MS Jerusalem – The National Library of Israel Heb. 4°370, 63, 19b-20a. 5 Mishnah Ketubbot 9:1. 6 Louis Finkelstein, Jewish Self-Government in the Middle Ages (New York: Jewish Theological Seminary of America, 1964), 163–165. The translation is Finkelstein’s. One of the stipulations European Journal of Jewish StudiesDownloaded from12 (2018) Brill.com09/29/2021 136–167 12:11:00PM via free access The Dowry Return Edict of R. Tam in Medieval Europe 139 Following the example set by the community of Narbonne, we […] have bound ourselves to obey the following ordinance by a severe oath […] [t]hat if a man marries a woman and she then dies within a year of the marriage without being survived by any permanent issue, he shall return to the giver of the dowry or his heirs all that is left of his wife’s dowry or her jewels […] We have further decreed that the bridegroom shall not demand the payment of the uncollected portions of the dowry, in case of the death of the wife, even though she had lived with him a full year, and even though she be survived by a child […] for who shall enjoy and partake of the gifts of the father […] after the death of the woman […] Jacob b. Meir, Isaac b. Baruch, Menahem b. Perez.7 Over and beyond the need to respond to the familial and economic tragedies, R. Tam may have had additional motives. A dowry return policy was previously found in the Palestinian Talmud: R. Yosi said, [regarding] those who write [an obligation in the marriage contract stating that] in the case of a death [of the bride] without chil- dren, the dowry will return to the father’s estate: that condition is a finan- cial one and as so, it shall be remain in effect.8 This decision of PT was cited by the Provencal Sage R. Isaac ben Abba Mari in his Sefer ha-Ittur as a precedent to the local dowry return custom: of the decree was that the promised dowry would never be collected after the death of the wife. This statement is an expression of Talmudic law according to the interpretation of R. Tam, not necessarily a later legal development.
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