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 . 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: University Press, 1969), 277–284; Avraham Grossman, Pious and Rebellious: Jewish Women in Europe in the Middle Ages (Waltham, MA: University Press of New , 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, 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 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.), Rosh, Ketubbot (: Mosad ha-Rav Kuk, 1999), nr. 39a, s. v. ẓar, 278, corrected according to MS 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-, 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 Heb. 4°370, 63, 19b-20a. 5  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

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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 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. However, the stipulation serves to margin- alize the interpretation of Rashi and that seems to be its very purpose. See: Ephraim Kupfer (ed.), et decisiones: ad fidem codicis bodleianensis 692 edidit prefatione et notis in- struxit (Jerusalem: Mekiẓe Nirdamim, 1973) [Hebrew], 317. Note that medieval community edicts also included explicit prohibitions, such as shaving with a razor. See: Finkelstein, Jewish Self-Government, 225; R. Mordecai ben Hillel, Sefer Mordecai, Ketubbot, nrs. 154–155; R. Meir ha-, Haggahot Maimuniyyot, Ishut, nr. 22, 1, ed. Shabse Frankel (Jerusalem: Ohel Yosef, 1977), 177. The relationship between R. Tam’s Talmudic interpretation and his edict will be discussed in the following section and notes. 7 The other two signatories are disciples of R. Tam. See Urbach, The Tosaphists, 96, 99, 146, 149. 8 PT Ketubbot, 9:1, fol. 33a in the Venice edition. There is another precedent for the dowry edict in the Palestinian Talmud, not yet mentioned in scholarly literature in this context to my knowledge. R. Judah claimed that the first marriage contract is always the father’s [to recover] (Mishnah Ketubbot 4:2). Regarding this the Palestinian Talmud states: “R. Bun bar Ḥiyya said that R. Judah’s rationale is to encourage each man to give his daughter a generous [dowry]” (PT Ketubbot 4:2, fol. 28b in the Venice edition).

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The custom to write [the dowry return clause] in the marriage contract is reasonable, as stated in the Yerushalmi: “those who write […]” However, since it has been stated that one should not ‘precede’ a tragedy [= by men- tioning it, one may cause it to occur], even though it is not written [in the contract] it is considered as if written [and applies automatically]. This is the prevalent custom in our communities, and it has been ruled that regarding the marriage contract all [details] follow the local custom.9

In the introduction to his edict, R. Tam stated that the custom of Narbonne is a precedent to his own decree, “Just as the Great Sages of Narbonne erected this [legal] fence.”10 Thus, whether or not he was aware of it, R. Tam’s edict followed the prec- edent of PT, for he based his edict on the custom of Narbonne and the Sages of Narbonne based their custom on PT.11 How can this association between PT and the edict of R. Tam be explained? During the middle ages, Ashkenazi Jewry, with ancient roots in Palestine, made accommodations with the rest of the Jewish world and accepted the Babylonian Talmud as a canonical text.12

9 R. Meir Yona (ed.), Sefer ha-Ittur, vol. 1, 2, Ot Kaf Ketubbot (Warsaw, 1885), 30d, corrected according to MS Vatican – Biblioteca Apostolica ebr 143, 135b. On the topic, see: Simcha Asaf, “Ha-tekanot ve-ha-minhagim ha-shonim b-yerushat ha-ba’al et ishto,” Madda’ei ha- Yahadut 1 (1926) [Hebrew]: 81–83, 91. For Provence and Palestine, see: Shalem Yahalom, Between Gerona and Narbonne: Nahmanides’ Literary Sources (Jerusalem: Mekhon ben Ẓvi, 2013) [Hebrew], 269, 307. 10 On similarities between the Jewish communities of Provence and those of Northern France see: Avraham Grossman, The Early Sages of France: Their Lives, Leadership and Works (Je- rusalem: Magnes Press, 2001) [Hebrew], 539–541, 554–561, 572–575; Israel M. Ta-Shma, R. Zerahyah ha-Levi – Ba’al ha-ma’or u-vnei ḥugo (Jerusalem: Intellect Books, 1993) [Hebrew], 34–35; Binyamin Z. Benedict, Merkaz ha-Torah be-Provence (Jerusalem: Mosad ha-Rav Kuk, 1985) [Hebrew], 8–9; Simon Schwarzfuchs, “L’opposition Tsarfat-Provence: la forma- tion du judaïsme du nord de la France,” in Hommage à Georges Vajda. Études d’histoire et de pensée juives, eds. Gérard Nahon and Charles Touati (Louvain: Peeters, 1980), 135–150. 11 Avraham (Rami) Reiner claims that the Palestinian Talmud was a second-tier source in the legal thought of R. Tam, familiar with it primarily from secondary sources. See chapter three of his forthcoming book. On the gap between the levels of knowledge of PT exhib- ited by R. Samson of Sens and his teacher, R. Isaac of Dampierre, student of R. Tam, see: Shalem Yahalom, “Tosafot Sens: Editions and Characteristics,” Tarbiẕ 80 (2012) [Hebrew]: 50–52. 12 See: Israel M. Ta-Shma, Early Franco-German Ritual and Custom (Jerusalem: Magnes Press, 1992) [Hebrew], 61–74, 86–87, 98–101; Asher Frishman, The Early : Since their Settlement in North-West Europe to the First Crusade (Tel Aviv: ha-Kibbuẓ ha- Me’uḥad, 2008) [Hebrew], 383–386. See also: , Wine in Ashkenaz in the Middle Ages (Jerusalem: Zalman Shazar, 2008) [Hebrew], 340–341. On Ashkenazi roots in Babylon, see: idem, “The ‘Third Yeshivah of Bavel’ and the Cultural Origins of

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Numerous Ashkenazi practices were transferred from Palestine but their sources were forgotten over the course of time. The reception of the Babylo- nian Talmud gave rise to a necessity for giving legal force to local customs that contradicted the introduced text. Customs such as these were reinforced with edicts. Yitzhak D. Gilat pointed out the role of the edict in legally reinforcing accepted norms that no longer conformed to updated legal principles.13 We conclude that the customary Palestinian dowry return policy was the commu- nity standard among medieval French Jewry, and R. Tam simply provided a formal legal stamp to the prevalent practice. Additional Ashkenazi edicts are previously attested to in Palestinian sources. Mordechai A. Friedman views the decree of R. Gershom forbidding polygamy as an extension of Palestinian opposition to new legal support for it.14 The Ashkenazi custom of ripping the divorce contract after its delivery is also attested to in Palestinian sources.15 The will and testament of R. Judah the Pious prohibits the marriage of certain members of extended family as previ- ously found in PT.16 In addition to PT, the Provencal dowry return policy was also modeled on the Christian practice. Roman law stipulates the return of the dowry in the case of early death, and Provencal jurisprudence was significantly based upon

Ashkenaz – a Proposal,” in Collected Essays, ed. Haym Soloveitchik (Oxford: The Littman Library of Jewish Civilization, 2014), vol. 2, 150–201. 13 See: Yitzhak. D. Gilat, The Teachings of R. Eliezer Ben Hyrcanos (Tel Aviv: Dvir, 1968) [Hebrew], 7–10, 31–35. Apparently, Ashkenazi custom also originated similarly; see: Ta-Shma, Ritual and Custom, 101. 14 See: Mordechai A. Friedman, Jewish Polygyny in the Middle Ages: New Documents from the Cairo Genizah (Tel Aviv: Mosad Bialik, 1986) [Hebrew], 7–12, 19–21; Moshe Gil, Palestine during the First Muslim Period (634-1099), vol. 1, Studies (Tel Aviv: Tel Aviv University and the Ministry of Defense Publishing House, 1983) [Hebrew], 428. The Sages of Provence were aware of the connection between the prohibition on polygamy and the Palestinian Talmud; see: R. Menahem ha-Meiri, Beit ha-Beḥirah al Massekhet Yevamot, ed. Ḥanokh Albeck (Berlin: Itzkowski, 1922), 243. On relations between Provence and Ashkenaz, see: Yaakov Sussmann, “Rabad on Shekalim? A Bibliographical and Historical Riddle,” in Me’ah She’arim: Studies in Medieval Jewish Spiritual Life in Memory of , eds. Ezra Fleischer et al. (Jerusalem: Magnes Press, 2001) [Hebrew], 149–151, 154–161. 15 Compare: R. Jacob Mulin, Sefer Maharil, Hilkhot Gitin, ed. Shlomo Y, Spitzer (Jerusalem: Machon Yerushalayim, 1989), 504; R. Israel Isserlin, Terumat ha-Deshen, ed. Samuel Avitan (Jerusalem, 1991), 340; Yoel Fixler and Hanan Eshel, “Tearing Divorce Documents in Light of the Documents from the Judean Desert,” Sidra 22 (2007) [Hebrew]: 81–87. 16 See: PT Yevamot 2:4, fol. 3d in the Venice edition; Sefer Ḥasidim: MS Parma H 3280, ed. Ivan G. Marcus (Jerusalem: Merkaz Dinur, 1985), nr. 716, 209; Tosafot Yevamot 21a, s. v. u-motar; Ezra Chwat, “The Will of R. Judah the Pious, a Comparison of Early Editions and Manuscripts,” Talelei Orot 10 (2001) [Hebrew]: 129.

European Journal of Jewish Studies 12 (2018) 136–167Downloaded from Brill.com09/29/2021 12:11:00PM via free access 142 Yahalom these laws.17 Thus, in the 13th century the Provencal Sage R. Isaac ben Morde- cai Kimhi stated:

If her husband made […] a ‘Christian’ marriage contract with his wife, that if she dies childless the goods shall be returned […] so too the goods shall be returned, for this is an early marriage contract condition stated in the [Talmud] Yerushalmi […] R. Yosi stated, “those […]” Come and see that the ‘Christian’ wedding contract custom is prevalent in all Provencal territories.18

Thus, we see that R. Tam based himself on the decree of Narbonne and adapt- ed Jewish law to the established norms of his place and time. We could list additional cases of correspondence between the legal decisions of R. Tam and surrounding general law.19

17 See: Alan Watson (trans.), The Digest of Justinian (Philadelphia: University of Pennsyl- vania Press, 1985), vol. 1, 23.3.6; and Hermann Kantorowicz and William W. Buckland, Studies in the Glossators of the Roman Law: Newly Discovered Writings of the 12th Century (Cambridge: Cambridge University Press, 1969), 94–100. On the subjection of Provence to Roman law, see: Paul Vinogradoff, Roman Law in Medieval Europe, 2nd ed. (Oxford: Clarendon, 1929), 43–48, 72–80, 119–120; Christian Dadomo and Susan Farran, The French Legal System (London: Sweet & Maxwell, 1993), 5. The reliance of Provencal Jewish com- munities on PT, mentioned above in note 9, is worth recalling in this general context. It is unclear whether these two factors are related vis a vis Northern France. 18 MS Paris – Bibliotheque Nationale heb 1391, nr. 163, 96a–97b. On the connection between the dowry edict and general law, see: Simcha Emanuel, “The Struggle for Provençal Hal- akhic Independence in the Thirteenth Century,” Hispania Judaica Bulletin 9 (2013): 11–14; and Pinchas Roth, “Regional Boundaries and Medieval Halakhah: Rabbinic Responsa from Catalonia to Southern France in the Thirteenth and Fourteenth Centuries,” The Jew- ish Quarterly Review 105(1) (2015), 22-27. Over and beyond general legal requirements, par- ticular marriage contracts contained stipulations for dowry refunds. Francesco di Marco Datini, a 14th century Italian entrepreneur, stipulated in a wedding agreement that if his daughter should die within the first two years of marriage that the dowry shall be re- funded to him; see: Iris Origo, The Merchant of Prato: Francesco di Marco Datini (Boston: David R. Godine, 1986), 202. Special funds for procurements of dowries in Florence re- turned funds in the event of early death; see: Kirshner and Molho, “Dowry Fund,” 406– 425. Provencal sources also inform us that these types of agreements were also found in Jewish society, and the general laws applied in situations where no contract was signed. See Robert I. Burns, Jews in the Notarial Culture: Latinate Wills in Mediterranean , 1250-1350 (Berkeley, CA: University of California Press, 1996). 19 On the similarity between the community decrees of R. Tam and German and feudal law, see: Yitzhak F. Baer, Studies in the History of the Jewish People (Jerusalem: The Histori- cal Society of Israel, 1985) [Hebrew], vol. 2, 98; Shalom Albeck, “Rabbenu Tam’s Attitude to the Problems of his Time,” Zion 19 (1954) [Hebrew]: 130–132. For a skeptical view re- garding these claims, see: Ephraim Kanarfogel, “Unanimity, Majority, and Communal

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In addition to the legal dimension, the edict might be attributed to R. Tam’s proximity to regal circles in feudal society.20 In the 12th century the social sta- tus of French female royalty was on the rise, and the figure of the noblewoman hosting upper echelon royalty in her palace rose to prominence.21 Even women in the familial circles of R. Tam attained these lofty heights.22 This is the con- text of R. Tam’s edict prohibiting future appropriation of the daughter’s prop- erty by the husband, as a prerequisite for setting appropriate dowries for these important women. Their lofty status did not permit a state in which the wife has no share in the estate of her husband, but he still inherits her dowry.23 It should also be mentioned that feudal societal laws established that a woman who inherits a feodum shall marry by approval of the seigneur, to prevent the co-option of her wealth by unwanted hands. This feudal supervision was espe- cially strict in Lorraine and France.24 Similarly, the edict of R. Tam allowed a father giving a dowry to prevent the transfer of the property to foreign hands. It is distinctly possible that the very authority that R. Tam claimed was a product

Government in Ashkenaz during the High Middle Ages: A Reassessment,” Proceedings of the American Academy for Jewish Research 58 (1992): 86–97. On associations between the contemporaries Ra’avad and R. Tam, see: Haym Soloveitchik, “Rabad of Posquieres; A Programmatic Essay,” in Studies in the History of Jewish Society: In The Middle Ages and in The Modern Period, eds. Immanuel Etkes and Yosef Salmon (Jerusalem: Magnes Press, 1980), 31–36. 20 On connections between R. Tam and royal French circles, see: Avraham Reiner, “ and Politics: A Correspondence between Rabbenu Tam and the Authorities of Champagne,” in Entangled Histories: Knowledge, Authority, and Transmission in the Long Thirteenth Centu- ry, eds. Elisheva Baumgarten et al. (Philadelphia: University of Pennsylvania Press, 2017), 16–17. On the connection between Jewry and royalty, see: Jacob Katz, Between Jews and Gentiles (Jerusalem: Mosad Bialik, 1960) [Hebrew], 18–20, 57–60. 21 Marc Bloch, Feudal Society: Social Classes and Political Organization, trans. L. A. Man- yon (London: Routledge, 1989), 703; Erin L. Jordan, “The ‘Abduction’ of Ida of Boulogne: Assessing Women’s Agency in Thirteenth-Century France,” French Historical Studies 30 (2007): 3–5; Fredric L. Cheyette, Ermengard of Narbonne and the World of the Trouba- dours (Ithaca, NY: Cornell University Press, 2001), 245–247; Kimberly A. LoPrete, “Adela of Blois: Familial Alliances and Female Lordship,” in Aristocratic Women in Medieval France, ed. Theodore Evergates (Philadelphia: University of Pennsylvania Press, 1999), 7–43; Amy Livingstone, “Aristocratic Women in the Chartrain,” in Evergates (ed.), Aristocratic Women, 74–110. 22 Urbach, The Tosaphists, 61–63. 23 Rejection of special male privileges for the sake of gender equity is also found in the edict of R. Gershom. It stipulates that just as according to Torah law the wife requires her hus- band’s agreement for a divorce, so too after the decree the man shall require the wife’s agreement. 24 Bloch, Feudal Society, 226–227; Evergates (ed.), Aristocratic Women, 81, 88; Susan Reynolds, Fiefs and Vassals: The Medieval Evidence Reinterpreted (Oxford: Oxford University Press, 1994), 19.

European Journal of Jewish Studies 12 (2018) 136–167Downloaded from Brill.com09/29/2021 12:11:00PM via free access 144 Yahalom of this surrounding influence. The rights of the seigneur to decree edicts ban- num were more highly recognized in France than in any other country,25 and this is the context of R. Tam’s lawmaking activities.

3 Reservations about the Edict of R. Tam

At the beginning of the 13th century the communities of the Rhine accepted the edict of R. Tam upon themselves.26 The efficacy of the new edict was even expanded from the first year to the first two years of marriage. However, this technical extension was more than eclipsed when in response to the decree’s pronounced gender distinction, it was determined that the refund would be equally limited to only half of the dowry whether the husband or the wife passed away:

I found in a responsum of R. Barukh of Mainz, and in [other] responsa that the communities decreed that if a man and woman wed, and either of them passes away childless within two years, that half of the dowry shall be returned to the inheritors of the deceased.27

As opposed to the accommodating attitude in the West, the sages of Eastern Europe resisted this edict. R. Isaac ben Jacob ha-Lavan, a disciple of R. Tam, was a Sage of Prague and who disagreed with his teacher and pre- ferred Rashi’s interpretation.28 However, in actual practice R. Isaac ha-Lavan

25 Bloch, Feudal Society, 251; Chris Wickham, The Inheritance of Rome: A History of Europe from 400 to 1000 (New York: Viking Press, 2009), 518–523. Elizabeth M. Hallam and Judith Everard, Capetian France 987-1328 (Essex: Pearson Education, 2001), 17–22; Jean-Pierre Poly and Eric Bournazel, The Feudal Transformation (New York: Holmes & Meier, 1991), 28–29, 260–261. 26 The original decree applied only to the communities of France; see: Asaf, “Ha-tekanot ve-ha-minhagim,” 91–92. In 1220, the communities of the Rhine, led by the cities of shUM, decreed a series of edicts; see: Finkelstein, Self-Government, 218-251. 27 Sefer Mordecai, Ketubbot, nr. 155, corrected according to MS Budapest – Orszagos Szech- enyi Konyvtar, fol. 1, 283b. On the authorities who issued this decree and its textual vari- ants, see: Kupfer, Responsa et decisiones, 162–163, 318–320; R. Meir ha-Kohen, Teshuvot Maimuniyyot, Nashim, ed. Shabse Frankel (Jerusalem: Ohel Yosef, 1977), nr. 35, 437; Re- sponsa of R. (Prague, 1608), nrs. 533–534, 93b–94a; and Asaf, “Ha- tekanot ve-ha-minhagim,” 92. 28 See: Urbach, The Tosaphists, 512–216; Victor Aptowitzer, Introduction to Sefer Rabiah (Jerusalem: Mekiẓe Nirdamim, 1938) [Hebrew], 174, 260; Avraham Reiner, Rabbenu Tam: His French teachers and his German students, MA Thesis, The Hebrew University of Jeru- salem, 1997) [Hebrew], 96–97.

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 145 stopped short of completely rejecting the opinion of his teacher and decided that the groom has the right to half of the dowry:

Sefer ha-Yashar […] from here we learn that the decision regarding the dowries of our grooms which were not collected before the deaths of their brides, even after marriage, is that they lose their rights to them […] [until here] wrote the late honored R. Tam, but I have a difficulty [with this] […] therefore in this single matter I was unable to grasp the opinion of our saintly teacher, of blessed memory, and the current of the Talmudic discussion does not flow according to the interpretation of our teacher. In any case, since it was emitted from his holy mouth the judge shall [decide a] compromise between his opinion and that of Rashi, who explained that the Talmudic dispute concerns the engagement.29

Rejection of the Talmudic interpretation of R. Tam pulled the rug out from under the edict. It was no longer possible to require that the groom return the dowry that he actually received, when according to Talmudic law the father of the bride is obligated to pay the dowry even after the death of his daugh- ter. Thus, R. Isaac ben Or Zaru’a testified that R. Ephraim ben Isaac of Regensburg, a disciple of R. Tam, opposed the introduction of the edict in his city.30 R. Avigdor Katz, who served as chief judge in Halle and in the 13th century, also took this approach and opposed the edict of the western communities:

In this case the honorable R. Joseph of Gurelitz wed a widow from Vienna, the daughter of R. Mordecai, a.k.a. Markol Regensburg. She brought him 100 litra as her dowry, and died within the first year of mar- riage. Her brother, R. Elisha, arrived and claimed the 100 litra from the

29 R. Isaac ben Jacob ha-Lavan, Tosafot Ketubbot, ed. Pinchas Y. ha-Kohen (London: Hamad- fis, 1954), nr. 47a, s. v. katav, 49-51. MS München – Bayerische Staatsbibliothek, Cod. Hebr 317, 19b–20a. In the responsum preserved by Rabiah, R. Isaac absolutely rejects the posi- tion of R. Tam: “I, Avi ha-Ezri, found [attributed] to the name of R. Isaac ha-Lavan the Pious, of blessed memory, that he disagrees with the decision of Sefer ha-Yashar, that dowries which grooms have collected before the deaths of their wives are not collected after the deaths of their brides. [R. Isaac] argues and states that everything is collected, and I have the responsum” (R. Eliezer ben Joel ha-Levi, Sefer Rabiah, Responsa of R. Joel, ed. David Dablitzky (Bnei Brak: David Dablitzky, 2005), vol. 3, nr. 912, 66; corrected accord- ing to MS Oxford – Bodleian Library Opp 66, 180b). Rabiah is quoted by Sefer Mordecai, Ketubbot, nr. 154. 30 On R. Ephraim see: Reiner, Rabbenu Tam, 68–70, 82–92. On his disagreements with R. Tam see: Urbach, The Tosaphists, 199–204.

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honorable R. Joseph according to the edict of R. Tam, of blessed mem- ory, who decreed that the dowry should be refunded to her inheritors if she died during the first year of marriage. The claimant and the hus- band both wrote to the greatest Rabbinic authorities of the generation […] Here, I examined the matter further along with our teacher, R. Israel, may he be blessed with long life, who stated that our teacher, R. Avigdor Katz, ruled against R. Tam here in the city of Vienna, for he stated that his edict did not spread to distant [lands] […] in no case in which our later great before us were in dispute do we [legally] confiscate monies [and give them to claimants] […] I heard, in my humility, that in the end the great Sages all agreed to confiscate the dowry from the honor- able R. Joseph. Afterwards, a similar case occurred to R. Menachem son of R. Israel, whose wife died within her year, and all of the Great Sages wrote [a decision], and here are their words […] that the husband has the right to everything which is in his possession, and all the more so in the city of Regensburg, where R. Isaac, son of R. Moses testified that our brother R. Ephraim won the rights to all of his wife’s goods that he had collected.31

R. Eliezer ben Solomon, editor of the Tosafot, was active during the second half of the 13th century in the city of Tucheim in eastern .32 Following his rabbinic teachers R. Isaac Or Zaru’a and R. Avigdor and other sages of eastern Germany, R. Eliezer probably opposed the edict of R. Tam.33 In this context,

31 Simcha Emanuel, Responsa of Meir of Rothenburg and his colleagues (Jerusalem: Magnes Press, 2012) [Hebrew], 788–790. 32 Idem, 50–53, 182; Simcha Emanuel, “Unpublished Responsa of R. Meir of Rothenburg as a Source for Jewish History,” in The Jews of Europe in the Middle Ages (Tenth to Fifteenth Cen- turies): Proceedings of the International Symposium held at Speyer, 20–25 October 2002, ed. C. Cluse (Turnhout: Brepols, 2004): 289–290; Israel M. Ta-Shma, Ashkenaz, vol. 1, Studies in Medieval (Jerusalem: Mosad Bialik, 2004) [Hebrew], 235 n. 31, 238–239. 33 For responsum of Austrian Sages who rejected the edict of R. Tam, see: Emanuel, Respon- sa, nr. 408, 788–791. R. Israel Isserlin recognized the sharp difference between East and West regarding the dowry: “I will write what is known to me about the current customs in the various lands. In and its vicinity, I am unaware of any set custom for either the first year or the second year. Upon each new occurrence the matter would be questioned and no consistent custom proliferated clearly. In the Rhine and its vicinity, my custom has always been to explicitly state, while setting the conditions of the match, that the couple accept upon themselves the edict of the communities. I do not know if this is done in order to preempt any protests or questions, or if it is necessary because the extent of the proliferation of the custom is unclear. It seems as if the communities recently renewed it. Their leaders decreed that it is not the custom of the Austrian communities” (R. Israel Isserlin, Terumat ha-Deshen, nr. 321, 262; corrected according to MS New York – Jewish Theological Seminary Rab 1532, nr. 164, 128b).

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 147 we should examine the statement of Tosafot Tukh, according to which R. Tam retracted his edict at the end of his life. As per his style of editing the Tosafot, R. Eliezer copied the text of Tosafot Sens,34 and only added the surprise ending:

Tosafot Sens Tosafot Tukh

Rashi interprets the baraita as from the The countrais [=Rashi] interprets the time of the engagement […] however, all baraita as from the time of the engage- [Talmudic opinions] agree that from [the ment […] however, all [Talmudic opin- time of the] wedding […] but R. Tam dis- ions] agree that from [the time of the] agrees, for if it was referring to the time of wedding […] but R. Tam disagrees, for the engagement, why did the baraita here if it was referring to the time of the en- destroy it by referring to the wedding? gagement, why does our Mishnah here […] Furthermore, the conclusion which deal with the wedding? […] Further- states that here [it is different], due to more, the conclusion which states that the marriage, and if we are discussing the here [it is different], due to the mar- engagement, it would not be referred to riage, and if we are discussing the en- as marriage […] Since this Talmudic dis- gagement, the engagement would not cussion is dealing with marriage, dowries be referred to as marriage […] R. Tam which the groom has not yet collected are ruled in actuality that in the case of a not required to be paid, according to R. groom whose wife died, and the father Tam. So he taught all along […] our rever- of the bride was still in possession of end teacher, who decided on the groom’s the dowry, and [R. Tam] decided based dowry.35 on this Talmudic discussion that the husband did not have the right to the dowry. Furthermore, his edict, that even a husband in possession [of the dowry] must return it if she died with- in the year, did not carry full force of law, and he retracted that edict at the end of his life.36

34 On Tosafot Tukh as an abbreviated Tosafot Sens, see: Urbach, The Tosaphists, 585; Aryeh J. Leibowitz, Tosafot Tukh on the Talmud: A Critical Analysis of R. Eliezer of Tukh’s Redaction of Tosafot and his Marginalia (PhD diss., Yeshiva University, New York, 2012), 60. 35 Tosafot Rashba mi-Shanẓ al Massekhet Ketubbot, nr. 47a, s. v. katav, 111–112, corrected ac- cording to MS Cambridge – University Library Add. 508, 79a–b. The proofs of R. Tam are found in Sefer ha-Yashar: Ḥelek ha-Ḥiddushim, nr, 34, 35–36. 36 Tosafot Tukh, Ketubbot, nrs. 47a–b, s. v. katav, corrected according to Venice 1521 edition.

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The imagined retraction that Tosafot Tukh appends on here (by his own initia- tive) did not appear in the original version he copied from. It was an accepted technical means of resolving disputes in the Rabbinic world.37 For example, in the 14th century the Catalonian Sage R. Shem Tov ben Abraham ibn Gaon testified that retracted his incorporeal perception of the godhead and embraced the view of Kabbalistic thought:

In my opinion, R. Moses, of blessed memory, recognized them at the end of his days, for I testify that in Spain, the land of our birth, I saw written on an ancient old parchment scroll the following text: “I, Moses, son of R. Maimon, when I descended to the chambers of the chariot, I under- stood the matter of the end [of days], etc.” His words are similar to those of the true Kabbalists who our great teacher Nahmanides, of blessed memory, refers to at the beginning of his commentary to the Torah.38

The necessity to construct traditions of Sages reversing their opinions stems from a reluctance to undermine their authority by maintaining a dissenting opinion. Thus, an authoritative interpreter of religious law such as R. Tam,39 is not subject to the criticism of later sages, preferably not even in selecting an opposing opinion of a sage contemporary to him. The result is that with the passing of years, his interpretation becomes binding law beyond all criticism, and the only figure authorized to dispute his words is he himself.40 General medieval legal thought was unable to rise above the authority of the lawmaker. In the middle of the 12th century, the regal courts of England main- tained that a law that contradicts ancient custom shall only remain in effect for the duration of the lifetime of the lawmaker. Stating that he reversed his opinion at the end of his life was also a recognized rhetorical device.41 It should

37 See, for example: Responsa of R. Meir of Rothenburg (Prague, 1608), nr. 109. 23a; Sefer Mor- decai, Bava Kamma, nr. 110, ed. Avraham Halperin (Jerusalem: Jerusalem Institute, 1992), 134; R. Eliezer Valdenberg, Tzitz Eliezer (Jerusalem, 1996), nrs. 21, 28, 55. 38 R. Shem Tov ben Abraham ibn Gaon, “Migdal Oz,” in , Madda, Halakhot Yesodei ha-Torah (Venice, 1524), nrs. 1, 10–11, 11a. On the “inversion” of Maimonides into a Cabbalist after his death, see: Gershom G. Scholem, “From Philosopher to Cabbalist: a Legend of the Cabbalists on Maimonides,” Tarbiẕ 6 (1935) [Hebrew]: 334–342. 39 On the perception of R. Tam as the greatest scholar of his era, see: Yehiel Kaplan, “Deci- sion-Making in the Jewish Communities According to Rabbenu Tam – Theory and Prac- tice,” Zion 60 (1995) [Hebrew]: 277–287. 40 Daniel Friedmann, The Purse and the Sword: The Trials of the Israeli Legal Revolution (Tel Aviv: Yediot Books, 2013) [Hebrew], 567, states this as a general principle regarding reli- gious law. 41 See: Bloch, Feudal Society, 409–410.

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 149 be noted that faith in the diligence of the Sage to repair the breach before his leaving the world is also found in Jewish legal texts.42

4 Veracity of the Testimony of R. Eliezer in His Time

The lack of authenticity of the testimony of R. Eliezer emerges both from the opinions of those who decide that the dowry should be returned and from the opposition. R Israel Joshua bar Rehaviah wrote that R. Tam’s recantation was only known of in the community of Regensburg, where the edict was opposed, and this itself was learned from Tosafot Tukh. As a result of this new informa- tion, he too altered his approach:

The master of the world knows that last year, when I wrote the account of the daughter of my relative R. Mordecai, I did not know about the tes- timony of our teacher, the reverend Eliezer, of blessed memory, until I arrived at Regensburg. While learning [Tractate] Ketubbot there, I saw written in his commentary to Chapter Na’arah she-nitpattetah that R. Tam retracted his edict at the end of his life. Behold, R. Eliezer is [con- sidered] trustworthy by the whole [nation of] Israel, even to confiscate money on account of his [testimony], all the more so, obviously, to keep it in the hands of those holding it. On account of his testimony, I retract everything I wrote last year. Also, our teacher, the reverend Shmarya and our teacher, the reverend Jonathan, decided in an actual case that the husband had the right to keep everything he was holding. Israel Joshua son of R. Rehaviah, the pious, of blessed memory.43

In his legal decision, R. Israel Joshua stressed the level of authority of R. Eliezer. We learn from this a lack of faith in his testimony concerning this matter.44 Explicit skepticism regarding the reliability of the testimony is provided by

42 “R. Kalonymous, the father of R. Meshulam uttered […] at the moment of his passing […] three things were uttered at the time of his passing as if they were prophecy” (Tosafot Menaḥot, nr. 109b, s. v. bi-teḥilah, corrected according to the Venice 1522 edition). 43 Emanuel, Responsa, nr. 408, 789. For the little that is known about this sage, see: Naftali Y. ha-Kohen, Oẓar ha-Gedolim Alufei Ya’akov (Haifa, 1967), vol. 6, 72; Kupfer, Responsa et decisiones, 322 n. 30. 44 Other Sages expanded on the level of reliability that should be attributed to R. Eliezer; see: Emanuel, Responsa, nr. 408, 791. On false Rabbinic attributions, see: Marc B. Shapiro, Changing the Immutable: How Orthodox Rewrites Its History (Oxford: The Littman Library of Jewish Civilization, 2015), 255–271.

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R. Joseph, the brother of R. Perez of Corbeil. R. Joseph was perplexed at how Sages who also studied in the yeshivot of France, as R. Eliezer did, discussed details of the edict and decided according to it:

I was surprised and shocked. What is this tradition that our teacher, the revered Eliezer, the pious, of blessed memory, received that R. Tam re- tracted? But the sons of Évreux, and our teacher, the reverend R. Meir, of blessed memory, did not receive this [tradition]. They also received their Torah from the French Rabbis just as he did. I heard that our rever- end teacher, of blessed memory, decided an actual such case and Tosafot Évreux maintained that R. Tam’s edict only applies in the case of a virgin daughter’s first marriage. If R. Tam retracted his opinion, how could our reverend teacher, of blessed memory, obligate [in such a case], and why would Tosafot Évreux need to distinguish the case of a virgin daughter and the first marriage if R. Tam already retracted and annulled his edict? […] I also received from my teacher, my brother, R. Perez […] [Signed,] the wretched one known as Joseph.45

Characteristic of traditional Jewish legal texts, considerable effort is exerted to reconcile conflicting testimonies.46 The edict of R. Tam was rewritten and extended according to the later practice of the communities of the Rhine; thus, it was possible to limit the recantation of R. Tam to only the second year of marriage. In the first year, the edict remained in full force and everything was returned to the father. The retraction of R. Tam pertained to the second year alone, in which the groom has no right to claim a promised dowry; however, what the groom has already collected was not confiscated.47 An additional sug-

see: Kupfer, Responsa et decisiones, 324 ,הענ״י ,Ibid. On the expansion of the abbreviation 45 n. 44. On R. Joseph, see: Urbach, The Tosaphists, 576, 578; Emanuel, Responsa, 791 n. 21. It -who was pre ,מו״ רבי״ הר״ מאיר ז״ל :refers to Maharam, that is מו״ רבי״ ז״ל appears that viously mentioned in the responsum. Thus, the legendary tradition was born. Maharam and the Sages of Évreux were not familiar with the tradition of R. Tam’s retraction. Fur- thermore, they decided in practice according to the edict. On R. Perez’s period of study under Maharam, see: Urbach, The Tosaphists, 576–577. In our opinion, R. Perez’s brother also studied with Maharam. On the application of the dowry edict by Maraham, see: R. Meir ha-Kohen, Teshuvot Maimuniyyot, Nashim, nr. 35, 437. 46 This typical medieval methodology was especially rampant among Ḥasidei Ashkenaz, see: Ephraim Kanarfogel, “Peering through the Lattices”: Mystical, Magical, and Pietistic Di- mensions in the Tosafist Period (Detroit, MI: Wayne State University Press, 2000), 119–122. 47 An additional attempted compromise was to maintain the edict of R. Tam only in rare cases of death during the seven-day wedding festival, similar to the Midrashic descrip- tion of the curse in (Sifre de-bei Rav, ed. Isaac H. Weiss (Vienna: Schlossberg, 1962),

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 151 gested compromise limited the retraction to not imposing a ban of excommu- nication on those who abrogate the edict:

Behold, I found that R. Yekutiel, of blessed memory […] therefore, R. Tam decided that in the first year everything will return to his father-in-law,48 even if the dowry has already been collected and is in the hands [of the groom]49 […] If she dies during the second year, we don’t confiscate any- thing in the possession of the groom, which he had already collected previously [before the death of the bride]. In the third year, nothing will be returned to the groom […] However, that is not the custom in this kingdom. Rather, from the first year on everything is the husband’s if he is in possession. I also heard from my teacher, my brother, R. Perez, that at first, R. Tam decreed a ban on those who resisted returning the dowry to their father-in-law due to grief, but he subsequently lifted this ban and decreed as has been explained above. The custom in our kingdom is to split the dowry between them, and this is proper and clear. Our teacher, the reverend Eliezer, wrote that R. Tam retracted. This should be inter- preted as meaning that he retracted the ban of excommunication, but the edict still stood, and thus, all of the difficulties are no longer perplex- ing. [Signed,] the wretched one known as Joseph.50

be-ḥukotai, nr. 5:3, 111d): “R. Tam only retracted when she died during [the first] twelve months. In those cases, we do not confiscate from her husband, but if she died during the seven days of the celebration then the father does confiscate from her husband […] Jacob, son of R. Eliezer, may he rest in honor” (Emanuel, Responsa, nr. 408, p. 789). 48 R. Yekutiel ha-Levi of Worms may be the transmitter of the edited version of R. Tam’s edict; see Kupfer, Responsa et decisiones, 324 n. 41. If so, this explains why R. Tam’s position was adapted to accord with the decree of the Rhineland communities. 49 According to this, the distinction between the second and third years is unclear, for dur- ing both of these years the groom does not return what is in his possession. Also, the gap between the decree of R. Yekutiel and the decree of “our kingdoms” is vague. In both locales, from the second year on the groom maintains possession of property under his jurisdiction. Ephraim Kupfer suggested that a sentence is missing which stated that a dowry deposited with a third party must be returned, even if grabbed by the groom; see: Kupfer, Responsa et decisiones, 324 n. 42. According to this, in “our kingdoms” the groom has rights during the third year to dowries deposited with a third party. 50 Emanuel, Responsa, nr. 408, 791. R. , who was active in during the 13th and 14th centuries, cited the version of R. Tam’s edict adapted to the Rhineland com- munities’ custom, and attached testimony to the retraction of R. Tam: “R. Tam decreed a ban […] that if a woman should die in the first year of marriage, he must return everything to his father-in-law, even if he has already collected […] if she dies during the second year he shall return half of the dowry to his father-in-law, but if she dies during the third year he shall not return anything at all. Some maintain that R. Tam retracted [this decision] at the end of his life” (R. Menachem Recanati, Recanati, ed. Yisrael D. Miller (Petrokov, 1894;

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5 The Legendary Retraction of R. Tam

What is the source of R. Eliezer’s account of the retraction of R. Tam? A possi- ble source is the decision of R. Perez.51 In a responsum, the teacher of R. Perez ruled that since the edict of R. Tam did not spread to all of the communities,52 it is possible to question its authority.53 R. Perez added an indecipherable statement to this regarding R. Tam’s relaxing of the ban. It is unclear whether his intention is that the edict itself, which is to be collected by force of a ban of excommunication, was annulled or whether it stands and only the sanction accompanying it was removed. As we have seen, his brother R. Joseph tended towards the second possibility. As the following source demonstrates, R. Perez actually applied one of the versions of the dowry return policy edict:

facsimile, Jerusalem, 1978), nr. 514, 140, corrected according to MS Vatican – Urbinati ebr. nrs. 33, 95, 32b–33a). R. Benjamin, son of R. Matityahu, a Greek Rabbinic Sage of the 16th century, questioned this, reasoning that Sages who post-dated R. Tam continued to rule according to his edict. In his opinion, a textual emendation should constrict the retrac- tion of R. Tam to the second year alone. This emendation is similar to the statement of R. Joseph: “He claims further that R. Tam retracted this ban. R. Menahem Recanati wrote in his legal decisions, nr. 95: ‘“some maintain that he retracted at the end of his life” […] however, I found an emendation to this which states that the retraction of R. Tam was from the second year, but not the first year.’ This emendation appears to be correct since at the end of the ban R. Tam wrote: ‘a year’s time and no more than this, for after a year he will have forgotten what he gave […]’ and if R. Tam retracted his opinion regarding the first year, why didn’t Mordecai cite this? […] for he wrote that R. Tam issued a ban […] and he didn’t mention that R. Tam retracted his opinion” (Sefer Binyamin Zev (Venice, 1539), nr. 60, 122–123). 51 For the relationship between Tosafot Tukh and R. Perez compare the two Tosafot on Trac- tate Pesaḥim (R. Perez ben Elijah, Tosafot Pesaḥim, ed. Shraga Wilman, (Brooklyn, 1970)). See, for example: Perez, nr. 5b, s. v. u-shma minah, 15 – Tukh, nr. 5b, s. v. leḥaleq; Perez, nr. 12a, s. v. beqamah, 30 – Tukh, nr. 12a, s. v. be-eize yom; Perez, nr. 16a, s. v. dam, 41 – Tuch, nr. 16b, s. v. dam. 52 This is not a historical account, but discrediting a position which would prevent the edict from proliferating; see: Isadore Twersky, Introduction to the Code of Maimonides (Mishneh Torah) (New Haven, CT: Yale University Press, 1980), 128–130. In , a tex- tual variant between the first and second editions concerns the proliferation of the edict, stemming from the author’s different approaches; see: R. , Sefer Mitzvot Gadol, ed. Yoel Katan (Jerusalem: Jerusalem Institute, 1993), Negative Command- ment nr. 81, 48; and R. Meir ha-Kohen, Haggahot Maimuniyyot, Ishut, nr. 22:1, 177. On the similarity between the approaches of R. Moses of Coucy and Ḥasidei Ashkenaz, see: Katz, Between Jews and Gentiles, 106–108. 53 Among R. Perez’s teachers, we find: R. Samuel of Évreux, R. Jehiel of Paris, R. Isaac of Cor- beil, R. Jacob of Kinon, and R. Meir of Rothenburg; see: Urbach, The Tosaphists, 576–577.

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My teacher wrote that the edict did not propagate into all of the [com- munities] of Israel. I think I also heard that R. Tam retracted the ban. My custom is to apply the ban [if the death occurs] during the first year of marriage and the groom is in possession [of the dowry] of the bride and the groom refuses to return half of the dowry to the father of the daugh- ter [= the bride]. If the dowry is in the hands of a third party holding it for the groom and bride, it seems that the half is not considered in the possession of the groom […] thus, it is fitting to return one quarter of the total amount in the hands of the third party to the groom, and three quar- ters to the father of the daughter. If the dowry is still in the possession of the father, even after several years, everything goes to the father of the daughter and the husband receives nothing, since he never had posses- sion of it. In peace, which is the desire of Perez.54

It seems that the unclear transmission and lack of practical legal bearing of R. Tam’s actual position in the formulation of R. Perez was transformed by R. Eliezer into a complete retraction of R. Tam from his edict. In this manner, Sages active a hundred years after R. Tam formed their conception of his posi- tion retroactively.55

6 Reasons for Resistance to the Dowry Edict

Several motives can be suggested for the opposition of R. Eliezer (and those following in his footsteps) to the edict of R. Tam. The rejection probably stems

54 Kupfer, Responsa et decisiones, 318. 55 In contrast to the presentation here, an alternative scholarly opinion accepts the historic- ity of R. Tam’s retraction as the authentic French tradition of Tosafot Tukh; see: Urbach, The Tosaphists, 584; Leibowitz, Tosafot Tukh on the Talmud, 303–307. Menachem Elon also accepted the retraction of R. Tam, and noted that in spite of this, Rhineland communi- ties adopted a similar decree; see: M. Elon, Jewish Law: History, Sources, Principles (Phila- delphia: The Jewish Publication Society, 1994), 787, 838. Elon followed the opinion of R. in Yam shel Shelomo, Ketubbot (Bnei Brak, 1959), nr. 4:14, 43. In our opinion, the “retraction” of R. Tam took place well after his death in the second half of the 13th century, and there is no difficulty regarding the chronological order of the Ashkenazi de- cree. As noted, that this type of literary device for revising an opinion was commonplace during this period. R. David ben Saul, a Provencal Sage of the 13th century, opposed the leniencies of R. Tam regarding gentile wine. R. David claimed that the opinion was stated only theoretically, not practically, and that apparently R. Tam retracted these statements; see: Pinchas Roth, Later Provençal Sages – Jewish Law (Halakhah) and Rabbis in Southern France, 1215-1348 (PhD diss., Hebrew University of Jerusalem, 2012) [Hebrew], 193–195.

European Journal of Jewish Studies 12 (2018) 136–167Downloaded from Brill.com09/29/2021 12:11:00PM via free access 154 Yahalom from its inherent conflict with Talmudic interpretation. Adoption of Rashi’s ap- proach by the Eastern European Sages allowed the groom to collect the prom- ised dowry even after the death of his wife. This interpretation prevents the application of R. Tam’s edict which forces the groom to return an already col- lected dowry. Over and beyond the issue of Talmudic interpretation, a spiritual worldview stands behind the opposition of R. Eliezer and his followers. As will be shown, the pious spiritual world of Ḥasidei Ashkenaz was taking hold in the environment surrounding R. Eliezer, temporally and geographically. In the last decades of his life, R. Judah the Pious emigrated from Speyer to Regensburg. There, he was in contact with local Sages regarding all Rabbinic issues. Israel M. Ta-Shma viewed this move as an attempt to establish a pious Ḥasidic com- munity in the Eastern borderlands, after his approach was rejected in the older communities of the West.56 Regensburg and Magdeburg, near Tucheim, and their Jewish communities, were located along the length of a commercial route stretching from Prague to the Rhine Valley.57 Ephraim Kanarfogel pointed out common features shared by the Eastern Sages and the Pious Ḥasidei Ashkenaz. R. Ezekiel of Magdeburg, teacher and uncle of R. Eliezer, was a study colleague of R. Judah the Pious.58 R. Avigdor Katz, a teacher of R. Eliezer, interpreted the Pentateuch according to the tech- nical numerological and notrikon methods of Ḥasidei Ashkenaz. His writings transmit oral traditions from R. Judah the Pious and Ḥasidei Ashkenaz. In his book, Gates of Mussar, one finds similarities with Sefer Ḥasidim, and he inter- preted the prayer book mystically as Ḥasidei Ashkenaz did.59 Under the influence of his teacher, R. Judah the Pious, R. Isaac ben Moses of Vienna endorsed fasting on Rosh ha-Shanah, and in extending prayer at the

56 Ta-Shma, Ashkenaz, 250–253; Joseph Dan, R. Judah he-Hasid (Jerusalem: Zalman Shazar, 2006) [Hebrew], 11–13; Kanarfogel, Peering through the Lattices, 25–26. For a rejection of the theory of the influence of pietistic circles on the East; see: Haym Soloveitchik, “Olam ke-Minhago Noheg,” Association of Jewish Studies Review 23 (1998): 229–232. This position views Ḥasidut Ashkenaz as only a periphery force in Jewish society; see: idem, “Three Themes in the Sefer Hasidim,” Association of Jewish Studies Review 1 (1976): 325–338. So- loveitchik is aware of the attendance of students from Slavic regions in Tanakh classed of R. Judah the Pious. See also: Dan, R. Judah he-Hasid, 12–13. 57 Wilhelm Wadl, Geschichte der Juden in Kärnten im Mittelalter: Mit einem Ausblick bis zum Jahre 1867 (Klagenfurt: Kärntner Landesarchiv, 1992), 18–20, 104. 58 On these associations, see: Simcha Emanuel, Fragments of the Tablets: Lost Books of the Tosaphists (Jerusalem: Magnes Press, 2006) [Hebrew], 224; Avraham Shoshana, Piskei Mahariḥ: Ruling of Rabbi Hezekiah ben Jacob of Magdeburg on Hulin (Jerusalem: Ofeq In- stitute, 2004) [Hebrew], 493–494; and Ta-Shma, Ashkenaz, 252. 59 Kanarfogel, Peering through the Lattices, 95–98, 107–109, 221–227, 251–252; idem, The In- tellectual History and Rabbinic Culture of Medieval Ashkenaz (Detroit, MI: Wayne State University Press, 2013), 469–477.

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 155 conclusion of the Sabbath. His writings portray typical Ḥasidic beliefs regard- ing “revelation of the honor,” dangers of the menstruating woman, and the magical powers of demons and evil spirits. R. Isaac also copied writings and numerology from Ḥasidic mystical literature. His book, Or Zaru’a, which sum- marizes practical Talmudic discussions, fits the stance of Ḥasidei Ashkenaz in opposition to the pilpul method of Talmudic study.60 These connections sig- nal commonalities between the approach in the East and Ḥasidei Ashkenaz. It is worth mentioning that Maharam of Rothenberg, a teacher of R. Eliezer, also instructed sinners to follow principles of Ḥasidei Ashkenaz. He received traditions and numerologies attributed to R. Judah the Pious, and his general tendency to stringency and to fulfilling all legal opinions fits the approach of Sefer Ḥasidim.61 It is safe to assume that along with his teachers and colleagues, R. Eliezer was also drawn to this circle. The pious Ḥasidei Ashkenaz believed in a deity which runs the world in a precise and detailed manner, punishing the wicked and rewarding the righ- teous. This faith was dashed against the rocks of resistant reality when the righteous were afflicted. So Ḥasidei Ashkenaz applied the belief that man is also punished and rewarded as a result of his ancestors’ deeds. In this vein, Sefer Ḥasidim justified the loss of property resulting from the early death of a spouse, attributing it to a divine plan to repair prior sins:

A certain man had sons and daughters, who died after marriage. He would tell a certain Sage: “[…] My sons and daughters died and the money re- mains [in the possession] of their grooms and brides. Since they did not merit offspring, why didn’t they die before marriage, so that the money would not be transferred from my hands to theirs?” The Sage replied to him that perhaps the money was [originally] obtained sinfully.62

60 Kanarfogel, Peering through the Lattices, 111–115, 127–130, 163–164, 218–219, 221–225, 256– 257; idem, Intellectual History, 469–472; Avraham Grossman, He Shall Rule over You? Medieval Jewish Sages on Women (Jerusalem: Mosad Bialik, 2011) [Hebrew], 156–157; Joseph Dan, The Esoteric Theology of Ashkenazi Ḥasidism (Jerusalem: Mosad Bialik, 1968) [Hebrew], 66, 188. 61 Kanarfogel, Peering through the Lattices, 46–47, 115–124, 234–235, 251–252; idem, Intellec- tual History, 477–487; Grossman, He Shall Rule over You?, 313. However, tendency towards stringency can be caused by factors not related to the particular schools of Ḥasidei Ash- kenaz; see: Soloveitchik, “Olam ke-Minhago Noheg,” 232–233. 62 Sefer Ḥasidim, nr. 132, 45. Also there: “A situation occurred in which a man married off his son to a maiden and gave him money and books. The son died and it was left to the widow in her ketubbah. An elder said: ‘I’m certain that the money of the father of the groom rightfully belonged to the father of the new groom of the widow, and a travesty was com- mitted against him. Thus it came about that the father left everything to his son, his wife inherited it, and the descendant of the one the widow married shall inherit her.’ Behold,

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The loss of the dowry was the result of a divine plan, and heavenly justice should not be perverted by judicial intervention. An examination of Sefer Ḥasidim reveals other potential reasons for resisting the dowry return policy edict. The traditional perception of the wife as subordinate to her husband permeates Sefer Ḥasidim, which extends the parameters of the conception:

The wife serves her husband so that he can engage in . Thus, domination was given to the man, and one [i.e. the wife] who is subju- gated day and night cannot set aside time for others.63

This perception could justify leaving the dowry in the possession of the hus- band even though the wife has no rights in the inheritance of her husband. It has been proposed that fear of the power of sexual attraction led generally to a decline in the overall social status of women in pietistic circles.64 If so, the gap in the status of women between the regal chivalrous circles of R. Tam and between the Eastern Ḥasidic circles may have led to the abandonment and rejection of the edict. Sefer Ḥasidim contains general opposition to Sages decreeing edicts, reason- ing that they increase a burden on the community which can lead to absolute rejection of the laws of the Torah:

Why didn’t Hillel accept Bet Shammai’s eighteen decrees? Aren’t they all protective fences around the Torah!? Rather, Hillel maintained that if we would issue a decree which most of the community could not fulfill, they

the sins of the fathers are meted out to the sons” (Sefer Ḥasidim, nr. 132, 45–46). The ethi- cal sensibilities of Sefer Ḥasidim limited inheritance rights and stressed that the new wife should not sleep in a bed prepared by the mother of the previous wife. This decision stems from the symbolic significance of the bedding: “If a man has a maidservant with a daughter, and the daughter is married off to a man and eventually dies, and the husband of the maidservant remarries, he should not be given the pillow and other bedding which the daughter of the maidservant brought him, which her mother gave her. A certain Sage said that the Holy One, blessed be he, is upset over this, for the mother of the dead girl still grieves over the death and she now sees her handiwork transferred to others as well. It is a sin for you to marry another woman in the same house, where she can see her sleep- ing on the bedding which she herself gave” (Sefer Ḥasidim, nr. 136, 46). See: Joseph Dan, Ashkenazi Ḥasidism in the History of Jewish Thought (Tel Aviv: ha-Universitah ha-Petuḥah, 1990) [Hebrew], vol. 2, 113–114. 63 Sefer Ḥasidim, nr. 1011, 186. See also: ibid., nr. 140, 46. 64 Judith R. Baskin, “Jewish Women in the Middle Ages,” in Jewish Women in Historical Per- spective, ed. Judith. R. Baskin (Detroit, MI: Wayne State University Press, 1998), 101–127. For a reasoned perspective on attitudes towards women of Ḥasidei Ashkenaz, see: Gross- man, He Shall Rule over You?, 174–211.

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would argue that just as this [law] is not [practical], so too the rest of the Torah is not essential.65

This approach clearly discredits the authority of later-day sages to issue novel decrees. Explicit opposition to R. Tam’s edict along these lines was ex- pressed by the Austrian Sage R. Jacob ben R. Eliezer. According to him, the power to issue decrees has expired, for no later Sage has the authority to act in opposition to the letter of Torah law:

Since the law of the Torah mandates that the husband shall inherit his wife[’s possessions], what authority do they have to confiscate even a penny from the husband, considering that his right to it stems from the Torah? [signed] Jacob ben R. Eliezer, may he rest in honor.66

This line of reasoning also led Ḥasidei Ashkenaz to refrain from opposing the charging of usury to gentiles, since this practice is permitted according to the Torah.67 In addition, a natural general conservative reaction to 12th century innovations could be the responsible factor. French excesses were expressed in Biblical exegesis, Talmudic interpretation, and in the preponderance of de- crees. Now the pendulum swung back. Another possible factor motivating opposition to the dowry edict is the influence of general law. A full treatment of this issue in our context is be- yond the scope of this study; however, it is worth noting that Glossators of Roman law of the 12th century disputed the issue of dowry refunds. Martinus Gosia, active in German law, limited the extent of dowry refunds. However,

65 Sefer Ḥasidim, nr. 812, 151. 66 Emanuel, Responsa, nr. 808, 789. Contemporaneously, Rashba rejected a dowry edict simi- lar to the general law which contradicted Torah law; see: Emanuel, “Struggle,” 13–14; Roth, “Regional Boundaries,” 22–27. The Talmudic ruling regarding inheritance is opposite. A Rabbinic decree stipulates that the husband inherits a minor spouse, even though Torah law dictates that his father received her inheritance; see: TB Yevamot 89b. Austrian Sages undoubtedly distinguished between authoritative Mishnaic Sages and later medieval Sages. Also, R. Tam rejected the community’s authority to enact a decree which would deprive an individual of his wealth. In his opinion, only the leader of the generation, he himself, reserved this right; see: Kaplan, “Decision-Making,” 277–287. Also, in general society it was only possible to override an obligatory precedent with an earlier precedent; see: Bloch, Feudal Society, 113–114. Unlike France, medieval Germany was characterized by archaic conservatism; see: idem, 426–429. See the appendix for R. Eliezer of Tukh’s reversal regarding another edict dealing with financial matters concerning spouses. 67 See: Haym Soloveitchik, Pawnbroking: A Study in the Inter-Relationship between Halakhah, Economic Activity and Communal Self-Image (Jerusalem: Magnes Press, 1985) [Hebrew], 18–20.

European Journal of Jewish Studies 12 (2018) 136–167Downloaded from Brill.com09/29/2021 12:11:00PM via free access 158 Yahalom his disputant Bulgarus obligated a complete refund in all cases.68 The opposi- tion of R. Eliezer and his circle to the edict parallels developments in German law, whose norms contradicted customs of Provence, which were products of Roman law to a greater extent, as we saw previously.69 However, dowries were left in the possession of grooms in central urban centers of Provence during the course of the 13th century.70 It seems that the opposition of R. Eliezer could be attributed to both the drifting apart of German law from Roman law and to developments in general norms of jurisprudence across Europe during the 13th century.

7 The Independence of Eastern Rabbinic Leadership

It would be safe to say that the Jewish Communities of the Eastern border- lands did not view themselves as subject to the decrees of the older Western communities, but rather, as obligated primarily to Talmudic law alone. As mentioned above, previous scholarship has suggested that the emigration of R. Judah the Pious to the East may have stemmed from his desire to free him- self from the inertia of the Western communities.71 Eastern Jewry were not subservient to their Western brethren. The customs of the Austrian communi- ties, which varied amongst themselves, were influenced to a greater or lesser extent by the pietistic movement, and were thus distinct from the customs of the Rhineland communities.72 As opposed to the German dialect spoken in the Western communities, the common Jewish vernacular in the East was a Slavic- tinted “Yiddish” dialect.73 Also beyond our scope, but worth considering, is the scholarly opinion that the Western ideal of martyrdom evinced during the

68 See: Kantorowicz and Buckland, Studies in the Glossators, 94–100. 69 See: Emanuel, “Struggle,” 12. 70 See: Roth, “Regional Boundaries,” 23–24. 71 See note 54 above. On emigration to the East by the Valdens in order to escape legal per- secution, see: Lutz Kaelber, Schools of Asceticism: Ideology and Organization in Medieval Religious Communities (University Park, PA: Pennsylvania State University Press, 1998), 151. 72 Eric Zimmer, Society and its Customs: Studies in the History and Metamorphosis of Jew- ish Customs (Jerusalem: Zalman Shazar, 1996) [Hebrew], 296–298; and Israel M. Peles, The Customs of Worms’ Jewry (Jerusalem: Mekhon Yerushalayim, 1987) [Hebrew], 16. The East also had a unique version of the liturgy; see: Simcha Emanuel, “The Controversy of Ḥasidei Ashkenaz over the Liturgical Texts,” Meḥqerei Talmud 3 (2005) [Hebrew]: 611–624. 73 Max Weinreich, History of the Yiddish Language (New Haven, CT: Yale University Press, 2008), 333–334.

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Rhineland Massacres (Gezerot Tatnu) was not normative in the East.74 Several unique traditions regarding familial laws are found in the Eastern Jewish com- munities. Polish Jewry preserved mi’un, the Talmudic provision allowing a female minor to break off her marriage without requiring a get. This conserva- tism led to a legal conflict with the Ashkenazi edict forbidding mi’un.75 Rabbinic approaches to polygamy are illustrative. Sefer Ḥasidim prohibited an immigrant from taking an additional wife due to concern for a possible inadvertent union between the offspring of the two wives who would be un- aware of their common father. Another concern is the abandonment of the first wife. The ban on polygamy of Rabbenu Gershom is not even mentioned in Sefer Ḥasidim:

A man should not […] travel overseas to a remote location without regu- lar transportation, for he may tarry there, and he cannot take another wife there according to R. Eliezer ben Jacob. Also, how can his wife be abandoned?76

Further to the East, as opposed to the Decree of Rabbenu Gershom, bigamy was practiced, at least sporadically, by Russian Jewry. Discussions concerning the release of a particular agunah [abandoned wife] from her marital vows indicate that he was married to two women:

Furthermore, the aforementioned Rabbi Abraham testified that Rabbi Elijah of Candia told him that he knows that Rabbi David had another wife in Russia, for Rabbi David told him this in confidence when he was still alive. The aforementioned R. David told him that he intended to pur- chase a lot of clothing on credit and to suddenly travel to his first wife he had in Ashkenaz.77

74 Klaus Geissler, Die Juden in Deutschland und Bayern bis zur Mitte des 14. Jahrhunderts (Munich: C. H. Beck, 1976), 70; and Sefer Ḥasidim, nr. 198, 55. On the Western conception of martyrdom, see: Susan L. Einbinder, Beautiful Death: Jewish Poetry and Martyrdom in Medieval France (Princeton, NJ: Princeton University Press, 2002). 75 See: Elchanan Reiner, “Rabbi Jacob Pollack of Cracow: First and Foremost among Cra- cow’s Scholars,” in Kroke-Kazimierz-Cracow: Studies in the History of Cracow Jewry, ed. Elchanan Reiner (Tel Aviv: Tel Aviv University, 2001) [Hebrew], 48–50. 76 Sefer Ḥasidim, nr. 1120, 209–210. 77 Responsa of R. Joseph Colon ben Solomon Trabotto, ed. R. Hiyya Meir ben David (Venice: Bomberg, 1519), 220a.

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Furthermore, in the 16th century, the Polish Sages began to soften the decree and permitted marriage to a second wife in cases of adultery and mental illness.78 Cultural ties between the Jewish communities of Poland and Eastern Germany, already noted, may also be at play here.79 Over and beyond polygamy, there is evidence for the taking of concubines and legitimation of sexual relations with maidservants in the East. The Sefer ha-Dinim of R. Judah Cohen states:

Shimon had a certain servant, and Zimri stole him and took him to Russia […] then Shimon, with the support of gentiles, took the maidservant of Zimri, his concubine.80

In Sefer Ḥasidim we generally find strident stringency regarding sexual prohi- bitions. However, it is surprisingly noted there that one is not punished with lashes for relations with a maidservant. The author expands upon a singular biblical leniency for sexual relations, with a yefat to’ar taken captive in war, and applies it to any maidservant under the control of a master:

Whoever has sexual relations with […] a maidservant, even if he only had relations once, he shall fast three consecutive days and nights, eat- ing neither day not night, and he shall repeat this [once a year] for three years […] The [sages] explained that ‘an examination shall be made’ (Lev 19:20) indicates that she shall be flogged rather than he, since regarding a Jewish slave it was stated that his master may provide him with a gen- tile maidservant, hence one who has relations with her is not flogged. Just like a yefat to’ar captured [in war], which the verse permits, she [i.e., the gentile maidservant] is also under his jurisdiction. Therefore, one who has relations with her is not flogged, so that no one will understand

78 See: Elimelech Westreich, Transitions in the Legal Status of the Wife in Jewish Law (Jerusa- lem: Magnes Press, 2002) [Hebrew], 303–346. 79 On the proximity between Polish Jewry and Ḥasidei Ashkenaz active in the East, see: Ta-Shma, Ashkenaz, 253. 80 Glosses and Emendations to Mordechai from MS New York – Jewish Theological Semi- nary Rab nr. 376, 253. See also: Haym Soloveitchik, Principles and Pressures: Jewish Trade in Gentile Wine in the Middle Ages (Tel Aviv: Am Oved, 2003) [Hebrew], 112; and R. Eliezer ben Yoel ha-Levi, Ra’avyah, ed. David Dablitzky (Bnei Brak, 2005), vol. 3, nr. 950, 192–194. This gloss was taken from Sefer ha-Dinim of R. Judah Cohen, who was active in Mainz during the first half of the 11th century, and was in communication with Polish Sages regarding legislation; see: Irving A. Agus, Urban Civilization in Pre-Crusade Europe (New York: Yeshiva University Press, 1965), 93–97.

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[erroneously] that one is permitted absolutely and another is flogged for this same activity.81

A strong correlation is found between societies which practice polygamy and between those that practice slavery.82 The legitimacy of polygamy in the East and the rejection of the decree of Rabbenu Gershom should be understood in the context of authorized practice of slavery in the Slavic countries. We have seen that the Eastern communities did not view themselves as subordinate to the senior Western communities. The rejection of the dowry refund policy edict, not specific to Ḥasidei Ashkenaz, should be contextual- ized as part of a greater Eastern expression of independence in various legal areas.83 R. Eliezer rejected the accepted Western German practice of recit- ing kiddush in the on the eve of the Sabbath.84 Palestine was the source for this ancient practice, as well as many other Ashkenazi customs.85 As discussed above, in the Palestinian Talmud we find precedent for the edict to refund dowries, as practiced in the Western Ashkenazi communities. Thus, it seems that a differing approach to the Palestinian Talmud and tradition lies at the crux of the dispute between the Eastern and Western Sages. The ancient communities of the Rhine Valley maintained prior Palestinian traditions,86

81 Sefer Ḥasidim, nr. 19, 17. See also: ibid., nr. 136, 46. 82 See: McLaren, A History of Contraception, 102–103. 83 On decrees which did permeate the East, see: Avraham Grossman, The Early Sages of Ashkenaz (Jerusalem: Magnes Press, 2001) [Hebrew], 140–141. Elimelech Westreich distin- guished between the wide scope of R. Gershom’s ban, which was followed in all regions of Ashkenazi settlement and in all generations, and between the dowry refund edict which was rejected in Eastern Germany and effectively expired at the end of R. Tam’s life; see: Westreich, Transitions, 98–99. Different characteristics of the decrees should be noted. R. Gershom prevented the actualization of male privilege, whereas the dowry edict up- rooted inheritance rights established by Torah law. As we have discussed, the proliferation of both decrees was limited in the Eastern regions. Of note is a later tradition regarding the expiration of the ban of R. Gershom at the end of the fifth millennium (1240). This tradition was circulated by Rashba, a contemporary of R. Eliezer Tukh, who opposed the decree; see: Solomon Z. Havlin, “The Takkanot of Rabbenu Gershom Me’or Hagolah in Family Law in Spain and Provence (in the Light of Manuscripts of Responsa of Rashba and R. Isaac de-Molina),” Shenaton ha-Mishpat ha-Ivri 2 (1975) [Hebrew]: 230–231. Simi- lar to the “retraction of R. Tam” this tradition was also questioned by the fact that after the supposed “expiration of the edict” Sages continued to rule in accordance with it and discuss it; see: Westreich, Transitions, 307. On surprising relationships between Tukh and Rashba, see also note 66. 84 See: Tosafot Pesaḥim, nr. 100b, s. v. yedei. 85 See: Ta-Shma, Ritual and Custom, 166–169, and for an opposing view, see Soloveitchik, Collected Essays, vol. 2, cited in note 12 above. 86 Ta-Shma, Ritual and Custom, 61–69, 86, 100–102.

European Journal of Jewish Studies 12 (2018) 136–167Downloaded from Brill.com09/29/2021 12:11:00PM via free access 162 Yahalom whereas the communities of the East, which rose to prominence later, were increasingly based on the Babylonian Talmud, the updated latest authoritative source when their stars were ascending.87 It should be noted that feudal society is characterized by each seigneurie maintaining his own private customs in his household. Feudal law also devel- oped and evolved with alternate local customs.88 In Eastern Germany, where the force of custom still reigned, rather than Roman law, it was common prac- tice that the associates of the seigneurie would gather periodically before the Weistum to discuss official rights and responsibilities. Adjustments to local practices and new decrees were debated at these gatherings.89 Medieval legal thought was well adjusted to the concept of legal diversity within society, for the law maintained that each individual should be tried according to the laws of his forefathers.90 Apparently, the Jewish communities operated in a similar fashion. We have discussed the impact of feudal culture on the development of the dowry refund edict in France. It should be emphasized that in Germany, especially in the Eastern regions, feudal norms were less prevalent.91 Thus, the impact of these factors on Jewry of Eastern Germany was less pronounced.

8 The Right to “Re-form” Tradition

How did R. Eliezer “Tukh” obtain the right to freely rewrite and reshape the words of his predecessors according to his whim? First of all, free active ed- iting was the prevalent norm among Ashkenazi Jewry. The scribes subtly adapted the Babylonian Talmud, Tractate Shekalim of the Palestinian Talmud, Maimonides’ Mishneh Torah and other base texts, to their own world view.92

87 On emigration from the Western Europe to the East, see: Frishman, The Early Ashkenazi Jews, 138–142. 88 See: Bloch, Feudal Society, 112, 229–230, 248–249. 89 Bloch, Feudal Society, 277–278. 90 Bloch, Feudal Society, 111. 91 Bloch, Feudal Society, 180–181. Like feudal norms in general, their influence waned in the middle of the 12th century; see ibid., 448. 92 See: Yaakov Sussmann, “Masoret-limud u-masoret-nusaḥ shel ha-Yerushalmi,” in Research- es in Talmudic Literature: A Study Conference in Honor of the Eightieth Birthday of Shaul Lieberman, ed. Shmuel Re’em (Jerusalem: Israel Academy of Sciences and Humanities, 1983) [Hebrew], 41–42; Soloveitchik, “Three Themes,” 343; idem, Wine in Ashkenaz, 120– 121; David Rosenthal, Mishnah Avodah Zarah – A Critical Edition with Introduction, (PhD diss., Hebrew University of Jerusalem, 1980) [Hebrew], 135–138; Ta-Shma, Franco-German Ritual, 83–85; Simcha Emanuel, “From First to Third Person: A Study in the Culture of Writing in Medieval Ashkenaz,” Tarbiẕ 81 (2013) [Hebrew]: 431–434. Sefer ha-Minhagim

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The individualistic conception of intellectual property rights so prominent in the modern era, according to which an author “owns” his own words, was not dominant at the time. The truth was God’s portion, not man’s: an error should be corrected and overly lenient or lighthearted opinions should be censored lest they lead to the reader’s transgression.93 It should be noted that manu- script copying converts each document into a unique version, differentiated from each other version, so rewriting and editing are just a stone’s-throw away. Ashkenazi Jewry also believed that the foundational texts of Jewish law, the Mishnah and the Talmud, were transmitted orally over many generations with a fluid text, so no great significance should be attributed to any of the par- ticular written formulations.94 Also in the surrounding general culture, prior events recorded in memory were stored loosely and adapted to current needs.95 Fingerprints of Ḥasidei Ashkenaz might also be found on this subject. Raẓon ha-Borei and Din Shamayim, beyond the letter of the law, are central principles of Sefer Ḥasidim that stem from deep religious sensibility.96 Take, for example, Sefer Ḥasidim’s claim that the prohibition for a priest to wed a woman with signs of infertility is that marital relations that do not result in progeny are a form of promiscuity. A weakness of this explanation is the permissibil- ity for a normal Jew to wed such a woman, despite the fact that he too is just as prohibited from engaging in immodest relations as the priest is. Accord- ing to Sefer Ḥasidim’s resolution, the leniency for the normal Jew was granted

of R. Ezekiel, the uncle of R. Eliezer, was emended several times in accordance with local customs; see: Emanuel, Fragments of the Tablets, 227–228. Emanuel hesitates regarding the identity of “Mahara,” who stands out in Sefer ha-Minhagim of R. Ezekiel; see: ibid., 225. He may be “Morenu ha-Rav Eliezer,” his disciple and nephew. “Prishat Mahara” is a com- mon reference in Haggahot Asheri to Tosafot Tukh; see, for example: R. Israel of Kormaz, Haggahot Asheri, Arvei Pesaḥim, nr. 70, in Babylonian Talmud, ed. Yosef Samet (Jerusalem: Oz Vehadar, 2006), 31. In our opinion this is additional testimony to the revision work of R. Eliezer. Also in general society such revision was commonplace; see: Bloch, Feudal Society, 178–180. 93 Ta-Shma, Ashkenaz, 232; Urbach, The Tosaphists, 678; and Grossman, Early Sages, 583– 584. This determination should be viewed in the context of the perception of medieval man as a societal limb devoid of individuality; see: Jacob. Burckhardt, Die Kultur der Re- naissance in Italien (Stuttgart: Alfred Kröner Verlag, 1985), 93–95. 94 See: Jacob N. Epstein, Introduction to The Mishnaic Text (Jerusalem: Magnes Press, 2000) [Hebrew], 693; Eliezer S. Rosenthal, “The History of the Text and Problems of Redaction in the Study of the Babylonian Talmud,” Tarbiẕ 57 (1988) [Hebrew]: 7–9; Ta-Shma, Franco- German Ritual, 85. Note that oral cultures are generally considered to exhibit accurate transmission, so this claim is not self-evident; see: Yaakov Sussmann, “Torah she-be-al peh,” Meḥqerei Talmud 3 (2005) [Hebrew]: 226 n. 1, 243. 95 See: Bloch, Feudal Society, 114. 96 Katz, Between Jews and Gentiles, 99–102; and Soloveitchik, “Three Themes,” 312–325.

European Journal of Jewish Studies 12 (2018) 136–167Downloaded from Brill.com09/29/2021 12:11:00PM via free access 164 Yahalom reluctantly so as not to mandate a losing battle with one’s evil inclination, but this relationship should ideally be avoided as well:97

If a man should wed a minor who is not yet ready for relations and preg- nancy, it is considered promiscuity […] and they said that this delays the redeemer, and they said that a priest should not wed a woman with signs of infertility […] even though it is permitted to a normal Jew […] there are things which the Torah permitted in order to relax the evil inclinations, even though they are not good.

Just as it is possible to convert a Biblical law permitting marital union with an infertile woman into a reluctant leniency provided for those hopelessly unable to resist their evil inclinations, so too, and all the more so, is it possible to re- write the legal decisions of sages of the previous century to adapt them to the “proper” divine ideals. Furthermore, according to Sefer Ḥasidim, sneaky clever- ness for the sake of heaven is meritorious:

One must be clever […] therefore one who fears the word of the Lord must understand the wily devices of the urges and desires […] all the more so myself.98

The author of Sefer Ḥasidim invites the reader to follow his own inferences and correct the book’s errors:

We find in the Torah that whoever is capable of understanding, even though he is not commanded, for one is not punished on account of it […] since one should be clever regarding fear [of God] […] for one should know and examine […] thus, I edited Sefer ha-Yirah […] If I erred within it, the wise man should correct it, so as to fear God forever in truth.99

9 Conclusion

This study surveyed the processes of proliferation and rejection of the dowry refund edict in light of geographic, chronological, and cultural factors affect- ing Jewish society during the shift from West to East and from the 12th to the

97 Sefer Ḥasidim, nr. 1143, 214. See also: ibid, nr. 228, 59; nr. 1100, 207. 98 Ibid., nr. 2, 3. 99 Ibid., nr. 1, 1.

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13th centuries. The complex nature of medieval societies and our lack of a panoptic view of them mitigate rushing to a single, simple explanation for the historical events. Does such an explanation even exist or did various factors combine synergistically to shape this chapter of history? Since we plead ig- norance, several distinct hypotheses have been proposed to explain the phe- nomenon, any one of which could conceivably be the dominant factor. The reader can evaluate the propositions independently according to his or her expertise, accepting and rejecting, combining and separating each explana- tion from the other. In sum, the ancient communities of France and Western Germany main- tained early Palestinian traditions. The edict served as a formal dressing up of existing norms which reflected the universal desire of the parents to be- queath wealth to their own children, not a son-in-law whose brief, technical association with the family ended in tragedy. His prompt exit with the wealth accumulated painstakingly for their beloved departed daughter violates basic ethical instincts of justice and mercy. On the other hand, the more recently prominent Eastern communities felt obligated to the strict sense of the updat- ed text of the Babylonian Talmud and were not aware of an earlier precedent for R. Tam’s edict. Another factor at play in the creation of the edict was an elevated regional social status of women among the French royalty that R. Tam associated with. The norms of the pious Eastern communities forming in the 13th century tend- ed towards the opposite direction, where women were demoted to the lower fringes of the community. Meanwhile, R. Tam and his contemporaries acted with a sense of ethical responsibility to address the double tragedy of loss of a daughter and wealth. However, Ḥasidei Ashkenaz conceived the tragedy as a link in a “divine plan” that should not be diverted by altering the letter of Torah law in any way. Attitudes towards the decrees were also shaped by the influence of external legal systems stemming from Roman and German law, as well as by the varying extent of promulgation of feudal law. The trend towards independence in the Eastern communities led to new directions in various branches of Jewish law.

10 Appendix: The Edict of the Rebellious Woman

The stance of R. Eliezer of Tukh regarding other edicts concerning monetary relations between spouses also underwent change. According to Talmudic law, a rebellious wife loses rights to wealth she brought in to the marriage once it is in the possession of her husband. An edict of the Geonim reversed this law and

European Journal of Jewish Studies 12 (2018) 136–167Downloaded from Brill.com09/29/2021 12:11:00PM via free access 166 Yahalom established that the wealth be returned to the rebellious wife. R. Tam ques- tioned this authority of the Geonim to undermine Talmudic law.100 At first, R. Eliezer endorsed the Geonic edict, following R. and Maharam of Rothenburg:

Reuven’s wife is rebelling against him […] and he has her entire dowry in his possession. Our teacher, the Reverend Eliezer the Pious, of blessed memory, set the custom in this kingdom to return the entire dowry, even if he is in possession, in accordance with Alfasi and with our Rabbi Meir the Pious, of blessed memory. He was the head of the kingdom and its leader.101

In an effort to reduce the frequency of divorce, Maharam ruled that a rebel- lious wife loses her dowry.102 R. Eliezer adopted this change:

R. Ḥayyim Or Zaru’a wrote in response […] so too R. Eliezer of Tukh wrote in the name of Alfasi that we do not fine her for what she brought with her [into the marriage]. He also attributed this opinion to Maharam, of blessed memory. But my father, my lord, the pious, of blessed memory, told us that Maharam ruled this way [only] at first, but in the end of his life he reversed his opinion and decided that we must fine her for the en- tire amount. Maharam added in an edict that we even fine her and con- fiscate what she brought to the marriage and is currently in possession of, because [the phenomenon] of rebellious wives has grown out of hand […] Isaac son of our Rabbi, Reverend Ḥayyim, may he be remembered for everlasting life in the next world […] and our Rabbi Eliezer of Tukh, all issued a final ruling that she be fined for everything she brought into the union, even what she is [currently] in possession of.103

In the first decision R. Eliezer relied upon the authority of the Geonim to issue an edict, and in this case as well he did not accept the opinion of R. Tam. In the

100 See: Nahum L. Rabinovitch, Yad Peshutah (Jerusalem: Maaliyot Press, 1997), vol. 4, 302–304. 101 Responsa of R. Ḥayyim ben Isaac Or Zaru’a, ed. Menahem Avitan (Jerusalem, 2002), nr. 191, 178, corrected according to MS Frankfurt a. M. – Universitätsbibliothek Qu. 4, nr. 173, 145a. 102 See: Grossman, Pious and Rebellious, 244–247; and idem, He Shall Rule over You?, 322–328. 103 Responsa of R. Israel ben Ḥayyim of Bruna, ed. Moshe Hershler (Jerusalem: Tiferet Hato- rah, 1960), nr. 211, 129–130, corrections from MS New York – Jewish Theological Seminary Rab 1427, nr. 182, 83b–84b.

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 167 second revised decision, he reverted to the original Talmudic law and rejected the later decree, just as he had done with the dowry refund edict. R. cited the content of the responsum of R. Ḥayyim Or Zaru’a as found before us today. However, he quoted the decision in the name of ‘R. Iliah’:

In another responsum, number 171, the opposite is written: “I was in- formed that Reuven’s wife is rebelling against him […] and he is in pos- session of her entire dowry.” Our teacher R. Iliah, of blessed memory, set the custom in this kingdom to return the entire dowry, even what he has in his possession, according to Alfasi and according to our teacher R. Meir, of blessed memory. He was the head of this kingdom and its leader.104

From the context it is clear that these words actually refer to R. Eliezer and the mysterious ‘R. Ilia’ is none other than a paleographic variant of ‘R. Ely’ [short for ‘Eliezer’]. It is possible that the variant was developed on purpose, to resolve the contradiction regarding the decree of the Geonim. According to his understanding, R. Eliezer also creatively edited the words of Tosafot Sens regarding the laws of the rebellious wife.105

104 Ibid, 84b. 105 See: Tosafot Rashba mi-Shanẓ al Massekhet Ketubbot, nr. 63b, s. v. ve-einho, 168-169 = Tosafot Tukh, Ketubbot, nr. 63b, s. v. ve-einho.

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