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Introduction to Tractate Ketubot

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Introduction to Tractate Ketubot Introduction to Tractate Ketubot The Tractate mostly deals with the monetary aspect of talmudic marital law. Its Babylonian equivalent is known as "miniature Talmud" since a mastery of this Tractate requires concurrent mastery not only of all aspects of marriage law (as given in Tractates Yebamot, Gittin, and Qiddusin) but also of torts and all aspects of civil law (contained in the three Gates of Tractate Neziqin) and of judicial oaths (from Tractate Sebuot). The same characterization can be applied to the Yerushalmi Tractate. The word ketubah denotes the document which spells out the husband's obligations towards his wife. (There is a question whether to write ketubah or ketubbah for the Hebrew Π21ΓΙ3. It is clear that the word is spelled, and is pronounced, by all Jewish groups with 3 to distinguish it from the feminine passive participle παΐηϊ, but it seems that universally the Ibl is treated as having dagesh lene. A duplication of b seems to be unwarranted.) The ketubah document contains several sections. The obligatory ones are: (1) a declaration that the bride, mentioned by name, has agreed to be married by the groom, also mentioned by name. (2) A promise by the groom of a donatio propter nuptias, to be paid upon termination of the marriage either by divorce or by the husband's death. The required minimum is two minas for a virgin, one mina for a widow. 2 INTRODUCTION KETUBOT The actual value of such a sum can be determined by Mishnah Peah 8:8 which states that a person who owns two minas in passive investments is precluded from applying for public charity. The minimum sum is always stated explicitly; the groom is free to obligate himself for additional sums1. (3) A summary statement of the mutual duties of the spouses. (4) A description and evaluation of the dowry brought by the bride, which becomes the husband's property for the duration of the marriage. Originally, in the times of the establishment of Jewish customs after the Babylonian exile, the husband pledged specific guarantees for dowry and donation. In Hasmonean times, this was changed to a general lien on all real property held by the husband2. (5) A declaration that the bride's rights in this document were irrevocably affirmed in the presence of two witnesses who signed the document. The first Chapter states first the principle that the basic amount of the ketubah of a virgin is 200 zuz, two minas, and that of a non-virgin one mina. Since the second mina is pretium pudicitiae, there follow rules under which circumstances the husband can claim that his bride was not a virgin and he has the right of either to declare the marriage null and void 1 In modern Israeli ketubot, a sufficient amount in modern currency is pledged. 2 The specific pledge is found in Hellenic law in Egypt; the general lien on all property was Egyptian native practice. Cf. R. Taubenschlag, The Law of Greco- Roman Egypt in the Light of the Papyri, New York 1944, p. 94. In general, local laws are more relevant for Talmudic law than Roman law which in matters of personal relations superseded local customs in the East only in Christian times. This section is missing in most modern ketubot, since the transfer of jurisdiction in money matters from rabbinic to State courts has reduced most ketubot in the Western world to meaningless pieces of paper. INTRODUCTION KETUBOT 3 or to reduce the ketubah. (Since Deut. 22:13-21, about the husband claiming his bride was not a virgin, deals with criminal law, it is clear that in rabbinic interpretation the entire paragraph has to be re-interpreted. Since the husband is married to his wife, he is barred from testifying for or against her as a relative. Criminal matters can be decided only by the testimony of two independent witnesses. Therefore, the paragraph presumes that the husband produces two witnesses to the adultery of his bride between preliminary and definitive marriage ceremonies.) It is clear that the husband has no claim if before the definitive marriage he had unchaperoned access to his fiancee. The second part of the Chapter is devoted to the weight given to testimony of the parties in absence of witnesses or documents in all kinds of civil suits. The second Chapter starts with a case in which there is no ketubah document; what kind of proof is admitted for a claim of a divorcee or widow for full payment of a virgin's dower. The remainder of the Chapter is devoted to two principles of procedure in matters other than criminal law. The first is that the mouth which forbade is the mouth which permits·, i. e., if a person testified to anything which is to his detriment and which was not known from another source, he must be believed if he testifies to another fact which neutralizes the detriment. The second is that while people cannot testify in their own behalf since everybody is related to himself and relatives cannot testify, two people can mutually testify to each other's benefit. The main application of that principle is to the rules of priesthood. A priest may not be married to a woman who had sexual relations with a man whom she could not legally marry. A woman raped by a Gentile cannot be married to a Cohen. But women who were kidnap victims together can testify for one another that 4 INTRODUCTION KETUBOT they had not been raped. This then leads to a discussion of further rules for victims of kidnappings or wars. The third Chapter deals with the fines and other payments imposed on rapists and seducers, whose payments are in biblical law tied to the "bride money of virgins", which is identified with the two minas of the basic ketubah. A close relative who rapes or seduces cannot be made to pay since for an act which is a capital crime the perpetrator cannot be made to pay even if he cannot be executed for lack of eye-witnesses. Whether a person who is punished by whipping can be made to pay is a matter of dispute. There are differences in law depending on the age of the victim, whether underage, adolescent, or adult. This leads to a discussion of patria potestas over the different categories of girls (there is no materna potestas in rabbinic law.) The rapist or seducer who confesses to his crime can be made to pay for the damage he caused but cannot be made to pay a fine since nobody (e. g., a thief) can be punished by a fine on his own confession. The main topic of the fourth Chapter is the father's power over his underage or adolescent daughter, based on the biblical rules regarding a rapist and a seducer on one side and of the man falsely accusing his wife (whom he married when she was underage) of infidelity. Marriage emancipates a girl from her father's power. This leads to a discussion of the husband's power over and obligations towards his wife and children. The second part of the Chapter contains a list of obligations of the husband or his estate towards his wife and children which are independent of a written ketubah·, they are implied by the fact that a marriage exists. If a wife is kidnapped, the husband has to ransom her. If she falls sick, he INTRODUCTION KETUBOT 5 has to pay for her medical expenses. (For the widow, there is a difference in treatment of an acute or chronic illness.) In a polygamous marriage, if a wife dies before her husband, her sons will inherit their mother's ketubah claim. Daughters, who do not inherit if there are sons, have the right to be supported until they marry and to receive an appropriate dowry. The widow is given the choice either of remaining in her husband's house and being supported by his estate or to claim payment of her ketubah and leaving. The fifth Chapter starts with a discussion of the value of a ketubah. Everybody agrees that there is no upper limit to the amount for which the groom can obligate himself in the ketubah, and that the basic amount must be two minas for the virgin and one mina for the previously married woman. There is an opinion that the bride may write a fake receipt, in fact reducing the basic amount. The opposing opinion holds that any marriage without full financial responsibility of the husband is immoral. A second topic is the way in which a non-priestly woman enters the priestly clan by marriage; the complications are uniquely the result of the rabbinic system of double marriage ceremonies, preliminary and definitive. The wife is obligated to keep house; there is a list of necessary duties which depend on the amount of dowry the bride brings with her; most authorities hold that even the richest heiress has to do some housekeeping, if only for her own mental health. Then follows a discussion of the marital duties; a husband's duty to satisfy his wife's sexual needs depend on his working life; it ranges from once every day for financiers to once in six months for sailors. If a wife refuses to sleep with her husband, he can go to court to reduce her ketubah·, if the husband refuses to sleep with his wife, she can go to court to increase her 6 INTRODUCTION KETUBOT discussion turns to details of other obligations the spouses have to one another.
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