023 - הִלְכוֹת אִישׁוּת פֵּרֶק כג

Laws of Marriage, Chapter 23

1. If a woman stipulates with her husband to nullify his rights to matters in which the husband is entitled, if he writes this to her while she is still betrothed, before marriage, there is no need for a formal act of acquisition from him; rather, everything he writes to her is valid. But if he writes it to her after marriage, a formal act of acquisition is required.

2. If he stipulated with her before betrothal that he would have no legal claim or dealings with her property, then if she sells or gives away her property, her sale and her gift are valid. However, he may still consume the produce as long as the property is in her possession. But if a formal act of acquisition was performed from him while she was betrothed, that he would have no legal claim or dealings with her property, then he has removed himself from the principal of the land, and he will never have rights to the produce of her property. Even if he protests the acquisition and says, "I did not intend to forgo the produce because of this acquisition, but only that if she sells, her sale is valid, for no one marries a woman without property," we do not listen to him; rather, he has already removed himself from the principal of the land.

3. If he stipulated with her that he would not consume the produce of her property, then he does not consume their produce. However, the produce is sold, and land is purchased with it, and he consumes the produce of that land, for he only removed himself from the produce of these properties alone.

4. If he stipulated with her that he would not consume the produce of her property nor the produce of their produce, then the produce is taken and land is purchased with it, and the produce of that land is taken and land is purchased with it again, and he consumes the produce of this second land, which is the produce of the produce of the produce. And so the matter continues always, until he stipulates with her that he will have neither produce nor the produce of their produce forever, and after that, he will have no produce during her lifetime. But if she dies, he inherits everything.

5. If he stipulated with her that he would not inherit her, then he does not inherit her, but he does consume the produce during her lifetime. Similarly, if he stipulated with her that he would inherit only part of her property, or if he stipulated with her that if she dies without children, the property will return to her father's house, all these stipulations are valid.

6. In what case are these words said? When he stipulated with her before she was married, for an inheritance that comes to a person not from his own family, he may stipulate about it that he will not inherit it, before it becomes fit for him. But if he stipulated with her after she was married, his stipulation is void, and he inherits her as explained above.

7. If he stipulated with her after marriage that he would have no legal claim or dealings with her property, nor with the produce of their produce forever during her lifetime, and upon her death, then he does not consume the produce at all; but if she dies, he inherits her as explained above.

8. If a husband spent expenses on nichsei melug (property that remains in the wife's ownership but the husband consumes its produce), whether he spent little and ate much produce, or spent much and ate little produce, even if he ate only a single dried fig in a respectful manner, or ate a single dinar's worth even not in a respectful manner, and even if he took from the produce only a bundle of vines, whatever he spent, he spent, and whatever he ate, he ate.

9. Similarly, if money fell to her in a distant place, and he spent expenses to bring it, or to retrieve it from someone who had it, and he bought land with it and ate its produce as is customary, whatever he spent, he spent, and whatever he ate, he ate. If he spent and did not eat, or ate less than customary, we assess how much he improved the property, and ask him how much he spent: if the improvement exceeds the expense, he must swear with a solemn oath how much he spent, and he takes the amount of the expense; but if the expense exceeds the improvement, he receives only the value of the improvement, and with an oath.

10. In what case are these words said? In the case of divorce. But if the woman rebelled against her husband or refused him, even if he ate much, we assess how much he ate and deduct it from what he would be entitled to receive from the expenses after he swears, and he takes it; for he did not acquire it, so that she should take and leave on her own. Similarly, one who spent expenses on the property of his minor wife, and she refused him, we consider how much he ate, how much he spent, and how much he improved, and we assess him as a sharecropper, for he entered with permission.

Many customs regarding the dowry

11. There are many customs regarding the dowry. In some places, the custom is to write in the kesubah a sum for the dowry that is greater than its actual value—by a third, a fifth, or a half. For example, if her dowry is one hundred, they write that she brought him one hundred and fifty, in order to make it appear greater before the people; but when it comes time to collect, she collects only the one hundred. In some places, the custom is to write a lesser amount, so that if she agreed to bring him one hundred worth of goods, she gives one hundred and twenty or one hundred and fifty, but they write that she brought him one hundred. In some places, the custom is to write the actual value. In some places, the custom is that the man gives money according to the dowry—a set amount for the bride to adorn herself and to buy perfumes and similar items. In some places, the custom is that the man adds something of his own to the woman, and it is joined to her dowry to enhance her status.

12. One who marries without specifying otherwise writes and gives according to the custom of the region; and likewise, if she agreed to bring in a certain amount, she gives according to the custom of the region. When she comes to collect her kesubah, she is given what is written in her kesubah according to the custom of the region. In all these matters and similar ones, the custom of the region is a major principle, and judgment is rendered accordingly—provided that this custom is well established throughout the region.

13. If a man and woman were engaged, and he said to her, “How much are you bringing me?” and she replied, “Such and such”; and she said to him, “How much are you giving me or writing for me?” and he replied, “Such and such”; and likewise, if a father agreed on behalf of his son or daughter, “How much are you giving your son?” “Such and such”; “How much are you giving your daughter?” “Such and such”—and then they proceeded and performed kiddushin: these agreements are acquired through words alone, even though there was no formal act of acquisition between them. These are matters that are acquired through verbal agreement.

14. In what case does this apply? When a father agreed on behalf of his daughter, whether she is an adult or a minor, and the other father agreed on behalf of his son, and it is a first marriage—for a person’s mind is closely attached to his son, and out of his great joy at a first marriage, he firmly resolves and transfers ownership through verbal agreement. But if a brother agreed on behalf of his sister, or a woman agreed on behalf of her daughter, or other relatives, or if a father agreed on behalf of his son or daughter for a second marriage—these agreements are not acquired until a formal act of acquisition is performed by the one making the agreement who gives such and such.

15. If a father agreed on behalf of his daughter, the daughter does not acquire the gift until her husband brings her into his home; and likewise, the son does not acquire until he brings her in. For anyone making such an agreement does so only on condition that the marriage will take place. Therefore, if one agreed to give money to his son-in-law, and the son-in-law died before the marriage, and she fell before his brother for yibum, the father can say to the yavam, “I intended to give to your brother, but I do not wish to give to you”—even if the first was an unlearned person and the second is a scholar, and even if the daughter desires him.

16. If one agreed to give money to his son-in-law, and the father went to another country, she can say to her husband, “I did not agree on my own behalf; what can I do? Either marry me without a dowry, or release me with a get.” But if she herself agreed and her means have not come to her, she must remain unmarried until she finds what she agreed to, or until she dies. Why does she not free herself by rebelling? Because a rebellious woman, when she is betrothed, is a case where the husband wishes to marry her and she does not wish; but in this case, the husband does not wish to marry her until she brings the dowry she agreed to, and she wishes to marry him, for she says to him, “Either marry me or release me.” In what case does this apply? With an adult woman; but if a minor agreed on her own behalf, he is compelled either to give a get or to marry her without a dowry.

17. If a man marries a woman and agrees with her that he will support her daughter for a certain number of years, he is obligated to provide for her for those years that he accepted upon himself—provided that they made this condition at the time of the kiddushin. But if it was not at the time of the kiddushin, he is not obligated unless there was a formal act of acquisition from him, or he wrote it in a document or the like, as will be explained in the laws of transactions. If she is divorced within the years for which he accepted to support her daughter, and she marries another man, and she agrees with him as well that he will support the daughter for a certain number of years, the first husband may not say, "If she comes to my house, I will support her." Rather, he must bring her sustenance to wherever she is, with her mother. Similarly, both husbands may not say, "We will both support her together." Rather, one supports her, and the other gives her the value of her sustenance.

18. If the daughter marries within this period, her husband is obligated to provide her sustenance; and both of her mother's husbands, each one of them, gives her the value of her sustenance. If those who agreed to support her die—if there was an act of acquisition from them, or if they obligated themselves in a document—she is like a creditor with a document, and she collects her sustenance from property that is encumbered until the end of the period they agreed upon. But if the agreement was made at the time of the kiddushin and there was no act of acquisition, these are matters that are not given to be written, and she does not collect her sustenance from encumbered property.