סוגיה 25 - הדדיות בנישואין: זכויות מול חובות

הָאָב זַכַּאי בְבִתּוֹ בְקִדּוּשֶׁיהָ, בַּכֶּסֶף בַּשְּׁטָר וּבַבִּיאָה, וְזַכַּאי בִּמְצִיאָתָהּ, וּבְמַעֲשֵׂה יָדֶיהָ, וּבַהֲפָרַת נְדָרֶיהָ. וּמְקַבֵּל אֶת גִּטָּהּ, וְאֵינוֹ אוֹכֵל פֵּרוֹת בְּחַיֶּיהָ.

נִשֵּׂאת,

יָתֵר עָלָיו הַבַּעַל-

שֶׁאוֹכֵל פֵּרוֹת בְּחַיֶּיהָ, וְחַיָּב בִּמְזוֹנוֹתֶיהָ, בְּפִרְקוֹנָהּ, וּבִקְבוּרָתָהּ.

רַבִּי יְהוּדָה אוֹמֵר, אֲפִלּוּ עָנִי שֶׁבְּיִשְׂרָאֵל, לֹא יִפְחֹת מִשְּׁנֵי חֲלִילִים וּמְקוֹנָנֶת:

Mishnah Ketubot 4:4

(4) The father has authority over his daughter with regard to betrothal, [whether it be effected] with money, with a contract, or with intercourse. He is [also] entitled to what she finds, to her earnings, and to the annulment of her vows. He [also] accepts her divorce document [on her behalf]. [However,] he does not enjoy the usufruct [of her inherited property] during her lifetime. If she gets married, the husband has the advantage over [the father], inasmuch as he does enjoy the usufruct [of her inherited property] during her lifetime. But he is obligated to [provide] her food, her ransom [in case of her being in captivity], and her burial. Rabbi Yehudah says, "Even the poorest man in Israel should not have fewer than two mourning flutes, and one lamenting woman [at the funeral of his wife]."

נכסי צאן ברזל ונכסי מלוג:

המשפט העברי מכיר בשני סוגי נכסים שהאישה מכניסה לבעלה עם נישואיהם:

נכסי צאן ברזל: נכסים של האישה ההופכים לרכוש הבעל. בעת הגירושין או במות הבעל - הם חוזרים לאישה באותו ערך שהיה בעת הנישואים, גם אם ערכם עלה או ירד.

נכסי מלוג: נשארים בבעלות האישה, אך הבעל זכאי ליהנות מה"פירות" (הרווחים שהנכסים מניבים). עם פקיעת הנישואין האישה מקבלת אותם בערכם הנוכחי, כפי שהם באותה שעה: אם ערכם עלה היא הרוויחה , ואם ירד ערכם היא הפסידה.

כתובות מ״ז ב:ד׳-ה׳

חייב במזונותיה וכו':

תנו רבנן:

תיקנו מזונותיה תחת מעשה ידיה

וקבורתה תחת כתובתה

לפיכך בעל אוכל פירות

'פירות'- מאן דכר שמייהו?

חסורי מחסרא,

והכי קתני:

תיקנו מזונותיה תחת מעשה ידיה

ופירקונה תחת פירות

וקבורתה תחת כתובתה

לפיכך בעל אוכל פירות.

Ketubot 47b:4-5

The reason is that he wrote that she would be entitled to the additional amount only on the condition that he would marry her, and since he did not marry her, she is not entitled to the extra amount. The Gemara compares the respective opinions: The one who says that the husband does not have the right to her dowry holds in accordance with the opinion of Rabbi Elazar ben Azarya, and therefore he rules that just as a husband guarantees his wife an extra sum in her marriage contract only if they actually get married, the wife’s father also gives the dowry only the condition that the couple marries. And the one who said that the husband does have the right to her dowry holds in accordance with the opinion of the Rabbis, because the document is fully in effect even before marriage. The Gemara refutes this suggestion: No, everyone agrees that the halakha is in accordance with the opinion of Rabbi Elazar ben Azarya, and the explanation is as follows: The one who said that he does not have the right to the dowry clearly holds in accordance with the opinion of Rabbi Elazar ben Azarya, as stated above; and the one who says the husband does have the right to her dowry would distinguish between the two cases: Rabbi Elazar ben Azarya states that the marriage contract is not fully in effect until marriage only with regard to a bestowal from him to her, i.e., the extra sum that the husband adds to her marriage contract, as he wrote it for her only on the condition that he would marry her, and he did not intend to give her anything before she became his wife. However, with regard to that which is given from her father to him, i.e., the dowry, even Rabbi Elazar ben Azarya concedes that the husband is entitled to this money, as the gift of a father is due to marriage, i.e., he wants the families to be joined in matrimony, and they have already become linked in marriage. The dowry given by the father has nothing to do with the transition from betrothal to actual marriage. § The mishna teaches that a husband is obligated to provide his wife with sustenance, redemption from captivity, and burial. The Sages taught in a baraita: The Rabbis instituted that a husband must provide his wife with her sustenance in exchange for his rights to her earnings, and similarly they decreed that a husband must tend to her burial in exchange for the fact that he inherits the dowry that she brought into the marriage and which is written in her marriage contract. Consequently, the husband may consume the produce of her property. The Gemara expresses surprise at this last statement: Produce, who mentioned anything about that? The baraita did not previously mention produce at all, so how did it arrive at a halakhic conclusion with regard to produce? The Gemara explains that the baraita is incomplete, and this is what it is teaching: They instituted that a husband must provide his wife with her sustenance in exchange for his rights to her earnings; and it is his duty to provide her with redemption from captivity in exchange for his right to consume the produce of her property; and it is his obligation to attend to her burial in exchange for the fact that he inherits the dowry that she brought into the marriage and which is written in her marriage contract. Consequently, a husband may consume the produce of her property. Although the Gemara has explained how the tanna came to speak about produce, the wording of the baraita remains problematic. What is the significance of the word consequently in this context? The Gemara explains: Lest you say that the husband should not consume the produce but leave it so that if he requires funds to redeem his wife he will have them available, as, if he is not compelled to do so he will refrain from redeeming her, as he will be unwilling to spend his own money for that purpose; the tanna therefore teaches us that this arrangement is preferable, because sometimes the produce will not amount to the funds necessary to redeem her from captivity, and he would not redeem her if he was expected to use the funds produced by her property. Consequently, the Sages decreed that he consumes the produce immediately and that he must redeem her from his own funds if she is taken into captivity. After analyzing the language of the baraita, the Gemara turns its attention to the halakha itself. But I can reverse these connections; why does the baraita say that a husband’s obligation to provide his wife with sustenance was instituted in exchange for his right to her earnings, as opposed to another of his rights, e.g., his right to consume the produce of her property? Abaye said: The Sages instituted a common obligation in exchange for a common right, and they instituted an uncommon obligation in exchange for an uncommon right. In other words, the Sages instituted a husband’s obligation to provide his wife with sustenance, which is relevant on a regular basis, in exchange for his right to her earnings, which also applies regularly. The other obligations and rights of a husband are relevant less frequently. § Rava said: This tanna, in the baraita cited below, maintains that the obligation of a husband to provide his wife’s sustenance applies by Torah law, as it is taught with regard to the verse pertaining to a husband’s obligations toward his wife: “If he takes another wife for himself, her food [she’era], her clothing [kesuta], and her conjugal rights [onata], he shall not diminish” (Exodus 21:10). “She’era”; this is sustenance, and it likewise states: “Who also eat the flesh [she’er] of my people” (Micah 3:3). “Kesuta” is understood in its literal sense as referring to clothing. “Onata”; this is her conjugal rights, which is stated in the Torah, and so it says: “If you shall afflict [te’aneh] my daughters” (Genesis 31:50), which indicates that a husband may not deprive his wife of her conjugal rights. The baraita continues: Rabbi Elazar says: “She’era”; this is her conjugal rights, and so it says: “None of you shall approach to any who is near [she’er] of kin to him, to uncover their nakedness” (Leviticus 18:6), which demonstrates that the word she’er is used in the context of sexual relations. “Kesuta” is understood in its literal sense as referring to clothing. “Onata”; this is sustenance, and so it says: “And He afflicted you [vayanekha], and made you suffer hunger, and fed you with manna” (Deuteronomy 8:3).

ביאור:

שנינו במשנה שהבעל חייב במזונותיה של אשתו.

תנו רבנן [שנו חכמים]:

תיקנו חכמים חובת הבעל במזונותיה של אשתו תחת חובת האשה לתת לו את מעשה ידיה.

וכן תיקנו שיהא חייב הבעל בהוצאות קבורתה תחת כתובתה, כלומר, בעד הנדוניה שמכניסה לו,

ולפיכך בעל אוכל פירות הנכסים.

ותוהים: פירות מאן דכר שמייהו [מי הזכיראת שמם]!? הרי לא נזכרו בברייתא כלל פירות הנכסים, וכיצד הגיעה הברייתא לדבר בהם?! ומסבירים: חסורי מחסרא, והכי קתני [חסרה הברייתא, וכך שנה] כך יש לשנותה:

תיקנו מזונותיה תחת מעשה ידיה,

ופירקונה [ופדיונה], חובתו לפדות אותה כאשר נשבית, תחת פירות שהוא אוכל מנכסיה,

וקבורתה תחת כתובתה, לפיכך בעל אוכל פירות.

חסורי מחסרא והכי קתני: הברייתא חסרה, וכך יש ללמוד אותה. התלמוד "מתקן" נוסח של מקור אחר

כתובות נ״ח ב:ד׳

אמר רב הונא אמר רב:

יכולה אשה לומר לבעלה:

איני ניזונת ואיני עושה.

קסבר: כי תקינו רבנן –

מזוני עיקר, ומעשה ידיה משום איבה,

וכי אמרה 'איני ניזונת ואיני עושה' –

הרשות בידה.

Ketubot 58b:4

However, according to Rav Shmuel bar Yehuda, the first ruling was due to abrogation and the latter ruling was also due to abrogation. If so, what is the difference between the reasoning of the initial version of the mishna and the decision of the court that convened after them? The Gemara answers: The practical difference between them is with regard to superficial investigation, i.e., the investigation that could have been conducted on his behalf by his female relatives, which could have been only a superficial investigation. One Sage holds that superficial investigation is considered a valid investigation, and therefore once he requested to marry her and the marriage date arrived, there is no concern of a later abrogation, and one Sage holds that superficial investigation is not considered a valid investigation, and consequently there is still concern that when he consummates the marriage he will find some blemish on her and abrogate the marriage. MISHNA: If one consecrates his wife’s earnings, meaning anything she produces, such as thread that she spins from wool, which, according to the Sages’ ordinance, belongs to her husband, she may work and sustain herself from her earnings, as the consecration is ineffective. However, there is a dispute with regard to the surplus, meaning any earnings she produces in excess of the amount she is required to produce for her husband. Rabbi Meir says: The surplus is consecrated property, and Rabbi Yoḥanan the Cobbler says: The surplus is also non-sacred. GEMARA: Rav Huna said that Rav said: A woman may say to her husband: I will not be sustained by you and, in turn, I will not work, i.e., you will not keep my earnings. He holds that when the Sages instituted the various obligations and rights of a husband and wife, the husband’s obligation to provide for the wife’s sustenance was the primary one, and they then decreed that her earnings belong to him in return, due to concern about animosity. If he would be obligated to provide for her sustenance but she would be allowed to work and keep her earnings, he would resent her. Since her right to sustenance is the primary one, if she says: I will not be sustained by you and, in turn, I will not work, i.e., you will not keep my earnings, she has permission to do so. As the arrangement was established for her benefit, she may cancel it if it is not suitable for her. The Gemara raises an objection from a baraita: They instituted the husband’s responsibility for her sustenance in exchange for his right to her earnings. This indicates that the primary enactment is the husband’s right to his wife’s earnings, and the ordinance that requires him to provide her with sustenance comes as a result. According to this, the wife would not be allowed to waive the arrangement, contrary to Rav Huna’s statement. The Gemara responds: Emend the text of the baraita and say instead: They instituted her earnings in exchange for the husband’s responsibility for her sustenance. The Gemara raises an objection: Let us say that the mishna supports Rav Huna’s opinion, as it is taught: If one consecrates his wife’s earnings, she may work and sustain herself from her earnings. What, is it not discussing a woman who is sustained by her husband, meaning that he is willing to sustain her, although she relinquishes her right to sustenance in accordance with Rav Huna’s principle? Therefore, her earnings do not belong to him to consecrate. The Gemara answers: No, it is discussing a woman who is not sustained by her husband, as he does not have sufficient funds to sustain her. Consequently, there is no proof with regard to Rav Huna’s statement. The Gemara asks: If it is discussing a woman who is not sustained, what is the purpose of stating that he may not consecrate her earnings? Even according to the one who says that a master can say to his slave: Work for me but I will not sustain you, this applies only to a Canaanite slave, about whom it is not written: “With you.” But with regard to a Hebrew slave about whom it is written: “It is good for him with you” (Deuteronomy 15:16), this does not apply, and the master must sustain him just as he sustains the members of his own household. And this is true all the more so with regard to his wife, as there is a specific obligation of sustenance. Consequently, if he does not do so, he certainly has no right to her earnings. The Gemara answers: This halakha did not need to be stated, but the latter clause was necessary, as it contains a novelty with regard to the surplus: Rabbi Meir says that the surplus is consecrated property, and Rabbi Yoḥanan the Cobbler says it is non-sacred. The Gemara comments: This opinion of Rav Huna disputes that of Reish Lakish, as Reish Lakish said: Do not say that the reason for the opinion of Rabbi Meir is that since he maintains that a person may consecrate an object that has not yet come into the world, the consecration can take effect even on her future earnings. Rather, say that the reason for the opinion of Rabbi Meir is that since he can compel her to produce her earnings for him, it is as if he had a certain legal claim to the products of her hands, i.e., her earnings. Consequently, he is considered as if he had said to her: Your hands are consecrated to the One Who made them, and the consecration can therefore take effect on something that already exists. Since Reish Lakish said that he may compel her to produce earnings for him, the implication is that she may not say: I will not be sustained and I will not work. With regard to Reish Lakish’s statement, the Gemara asks: But he did not say this to her; rather, he said that he was consecrating her earnings. The Gemara answers: Since we heard that Rabbi Meir said: A person does not say things for naught, and according to this principle, when one says something that has no halakhic meaning, it is interpreted as if he had said something that does have halakhic relevance, he is considered as if he had said to her: Your hands are consecrated to the One Who made them. The Gemara asks: Does Rabbi Meir hold that a person may not consecrate an object that has not yet come into the world? Isn’t it taught in a baraita that if a gentile says to a woman: You are hereby betrothed to me after I convert; or if she was a gentile and he said to her: You are hereby betrothed to me after you convert; or if he was a slave and said to her: After I am emancipated; or if she was a maidservant and he said to her: After you are emancipated; or if she was married and he said to her: After your husband dies; or if he was married to her sister and he said: After your sister dies, as at that point the betrothal could take effect; or if she was a widow waiting for her yavam and he said to her: After your yavam performs ḥalitza with you, Rabbi Meir says: If any of these cases occurred, she is betrothed. Apparently Rabbi Meir maintains that betrothal can take effect even on something that has not yet come into being. The Gemara answers: Actually, from that baraita, one can learn that this is Rabbi Meir’s opinion, but Reish Lakish merely wanted to say that no inference is to be learned from this mishna, as it is possible to explain Rabbi Meir’s words in another way, based on the principle that a person does not say things for naught. § The mishna states that with regard to the surplus, Rabbi Meir says: It is consecrated property. The Gemara asks: According to this opinion, when does the surplus amount become consecrated? Rav and Shmuel both said: The surplus is consecrated only after the woman’s death. Rav Adda bar Ahava said: The surplus is consecrated while she is still alive. Rav Pappa discussed it, as he was perplexed by this dispute: With regard to what do they argue? If we say that the husband provides for her sustenance and additionally provides her with a silver ma’a coin every week for the rest of her needs, as he is obligated to do (see 64b), then what is the reason for the opinion of the one who said it is consecrated only after her death? As the husband has fulfilled all of his obligations and is consequently the owner of his wife’s earnings, he should be capable of consecrating them. And if we rather say that he does not provide for her sustenance and does not provide her with a silver ma’a for her needs, and she must consequently support herself entirely, then what is the reason for the opinion of the one who said that it is consecrated in her lifetime? It is possible that at some point she will not find sufficient employment, and since her husband does not provide for her sustenance or her other needs, she will need the money for herself and there will not be any surplus at all. The Gemara answers: Actually, one must explain that they are discussing a situation where he provides for her sustenance, but does not provide her with a silver ma’a for her needs, and this is their dispute: Rav and Shmuel maintain that the main enactment was that they established

ביאור:

אמר רב הונא אמר רב, יכולה אשה לומר לבעלה: "איני ניזונת משלך ואיני עושה (ואינני עובדת עבורך)".

וטעם הדבר: מכיון שקסבר [סבור הוא]: כי תקינו רבנן [כאשר תיקנו חכמים] את החובות והזכויות בין הבעל והאשה, תקנת מזוני (מזונות), עיקר, שהתקנה שהבעל יפרנס היא עיקר התקנה, וחזרו ותיקנו שמעשה ידיה יהיו שלו, משום איבה, שאם הוא יפרנסנה, והיא תעבוד ולא תתן לו את שכר עבודתה, תהיה לו איבה כלפיה. ומשום כך כי אמרה [כאשר היא אומרת] "איני ניזונת ואיני עושה" - הרשות בידה, שיכולה האשה לוותר על עיקר התקנה שהיתה לטובתה.

עיון ודיון:

1. התלמוד מביא ברייתא ממנה ניתן ללמוד על הדדיות בין האיש לאישה.

מה חייבת האישה לגבר מול זכותה למזונות?

מה חייבת האישה לגבר מול זכותה לקבורה מכובדת?

2. "פירות – מאן דכר שמייהו"? הסבירו את הקושי שמוצאת הגמרא בנוסח של הברייתא.

3. כיצד פותרת הגמרא את הקושי? מהו הביטוי בו היא משתמשת?

4. תחת זכותו של האיש "לאכול פירות" – מהי חובתו?

5. על פי רב: האם האישה יכולה לוותר על מזונותיה? באיזה תנאי?

6. האם האיש יכול מיוזמתו לוותר על מעשי ידיה של אשתו ולא לזון אותה? נמקו!

פותחים סוגריים

סיכום ההתחייבויות של האיש והאישה

אבן העזר ס״ט:א׳-ו׳

במה מתחייב האדם לאשתו ובניו ובו ז סעיפים
(א) כשנושא אדם אשה מתחייב לה בעשרה דברים וזוכה בה בד' דברים אפילו לא נכתבו:

(ב) אלו הן העשרה דברים: מזונותיה וכסותה ועונתה ועיקר כתובתה ורפואתה ולפדותה אם נשבית וקבורתה ולהיות נזונת מנכסיו ויושבת בביתו אחר מותו כל זמן אלמנותה ולהיות בנותיו ניזונות אחר מותו עד שיתארסו ולהיות בניה הזכרים ממנו יורשים כתובתה יותר על חלקם בירושה שעם אחיהם:

(ג) אלו הם הארבעה: מעשה ידיה ומציאתה ופירותיה וירושתה:

(ד) מעשה ידיה כנגד מזונותיה לפיכך אם אמרה איני נזונית ואיני עושה שומעין לה:

אבל הבעל שאמר איני זנך ואיני נוטל מעשה ידיך אין שומעין לו

(ה) אם היא אומרת איני נותנת לך פירות ואיני חפצה שתפדני אם אשבה אין שומעין לה כדי שלא תתערב בין הכותים

(ו) התנה הבעל שלא יתחייב מאחד מהדברים שהוא חייב בהם או שהתנית האשה שלא יזכה הבעל באחד מהדברים שהוא זוכה בהם התנאי קיים חוץ מג' דברים שאין התנאי מועיל בהם ואלו הם: עונתה ועיקר כתובתה וירושתה:

Shulchan Arukh, Even HaEzer 69:1-6

(1) When a man marries a woman, he is obligated to her in ten things, and he merits [is owed] from her in four things, even if it is not written.

(2) These are the ten: her food, her clothing, her regular sexual relations, the core of her Ketubah, her healing, to redeem her if she is captured, her burial, that she be sustained from his possessions and live in his house after his death the whole time she is a widow, that her children be sustained after his death until they are engaged, that her sons from him inherit her ketubah more than their portion of inheritance that is with their siblings.

(3) These are the four: the work of her hands, what she finds, her fruits, and her inheritance.

(4) The work of her hands corresponds to her sustenance. Therefore, if she says "I will not be sustained, and I will not produce" we listen to her. Rema: See further in Section 80. There are those that say that every woman who says "I will not be sustained, and I will not produce", the enactment is nullified, and she can't rescind and say "I will be sustained, and I will produce." (Bet Yosef in the name of the Ran who writes in the name of the Ra'ah) and there are those who disagree (Rabenu Yerucham chapter 23, halacha 5). And all who are not sustained are not obligated to be clothed, which is in the category of sustenance (there in the Ran). But the husband who says "I will not sustain her, and I will not take the work of her hands" - we don't listen to. But, he can say put out [sell] the work of your hands for your food, and what isn't covered I will pay (Ran Ketubot Chapter 7)

(5) If she says, "I will not give you fruits, and I don't want you to redeem me if I'm taken captive" we don't listen to her, so that she shouldn't be mixed in with the Kutim [non-Jews]. Rema: and also with inheritance and burial, neither can say I will not be bury and I will not inherit, in any case [the obligation remains] to bury and inherit.

(6) If the husband makes a condition that he will not be obligated in one of the things that he is obligated in, or the wife makes a condition that he will not acquire one of the things that he acquires, the condition stands. Except for three things where conditions are not effective: her regular sexual relations, the core of her Ketubah, and her inheritance.

(7) That which is said, that conditions are not effective to remove her inheritance - this is when he makes the condition after the marriage or before the engagement, but when he makes the condition with her while they are engaged, it is effective. Rema: Look farther on in section 92. Our Rabbis of blessed memory said: "There is no fitting woman except one who does the will of her husband." (Hagot Maimoni chapter 15 in the name of Tanna d'bei Eliyahu)