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Kesuvos, 63

1) THE PENALTY FOR A REBELLIOUS SPOUSE

QUESTIONS: The Mishnah discusses how to penalize a man or woman who rebels against his or her spouse and refuses to fulfill his or her obligations. Rav Huna explains that the rebellion under discussion is refusal of marital relations. Rebbi Yosi b'Rebbi Chanina says that the refusal is that of work, where the woman refuses to work for her husband (or provide him with her Ma'aseh Yadayim), or where the man refuses to give his wife Mezonos. It is difficult to understand why there is a fine for the husband or wife who rebels with regard to Melachah.

(a) First, there is a Machlokes in the Gemara earlier (58b) whether the main purpose of the enactment of Mezonos was for the benefit of the woman (so that she will be supported) or for the benefit of the man (so that he will receive her Ma'aseh Yadayim). Rav Huna in the name of Rav says that the enactment was made for the benefit of the woman, and therefore she is entitled to say "Eini Nizones v'Eini Osah" -- "I decline the right to receive the Mezonos [from my husband], in order not to have to give him my Ma'aseh Yadayim." Reish Lakish argues and says that the enactment of Mezonos was not for her benefit but for the husband's benefit, so that he receive her Ma'aseh Yadayim, and therefore she cannot say "Eini Nizones v'Eini Osah."

Whose opinion does Rebbi Yosi b'Rebbi Chanina follow? If he follows Rav's opinion, then if the wife refuses to work for the husband, she should not be considered to be rebelling, because she is *allowed* to refuse to give him her Ma'aseh Yadayim by saying "Eini Nizones v'Eini Osah." As soon as she stops working for him, the husband should just stop giving her Mezonos and he has nothing to complain about. If, on the other hand, Rebbi Yosi b'Rebbi Chanina follows Reish Lakish's opinion, that the enactment of Mezonos was made for the husband's benefit, then how could the husband be considered rebellious when he does not give his wife Mezonos? He should be entitled to tell her to keep her Ma'aseh Yadayim and not to give her Mezonos, since the enactment was for his benefit and he may decline the benefit if he wants!

(b) If the rebellion is only a question of a monetary matter, where one of the members of the marriage is not fulfilling his or her monetary obligations, why should the Mishnah make an unlimited penalty (of adding to or taking away from the Kesuvah indefinitely)? The Chachamim should just say that since she owes him money because she rebelled, he merely collects from the Kesuvah the value of whatever Ma'aseh Yadayim she did not give to him!

ANSWERS:

(a) TOSFOS (DH Rav Huna) indeed learns that Rebbi Yosi b'Rebbi Chanina holds like Reish Lakish, that a woman is not entitled to say "Eini Nizones v'Eini Osah," and that is why she is considered to be rebellious when she refuses to give to her husband her Ma'aseh Yadayim. It is Rav Huna who argues with Reish Lakish earlier. In our Sugya, he is following his own view that a woman *may* say "Eini Nizones v'Eini Osah."

Why, then, is the husband considered rebellious when he does not give Mezonos to his wife? According to Rebbi Yosi b'Rebbi Chanina, the husband should be entitled to say that the enactment of Mezonos was for *his* benefit and he is entitled to decline receiving her Ma'aseh Yadayim and not to give her Mezonos!

Tosfos (47b, DH Tiknu) proves from numerous Gemaras that even though the enactment of Mezonos was made for the husband's benefit according to Reish Lakish, the husband is not allowed to decline the Ma'aseh Yadayim and stop giving her Mezonos (if she does not produce enough Ma'aseh Yadayim to support herself independently). Reish Lakish holds not that the enactment was made solely for the husband's benefit, but that the enactment was made *also* for his benefit -- as well as for *her* benefit, and therefore neither one can decline to give what the other one is entitled to receive. Hence, he cannot say that he does not want her Ma'aseh Yadayim and refuse to give her Mezonos.

The RITVA and other Rishonim do not accept the assertion of Tosfos that Rebbi Yosi b'Rebbi Chanina holds like Reish Lakish. Rather, they say that Rebbi Yosi b'Rebbi Chanina agrees with Rav Huna in the name of Rav that a woman may say "Eini Nizones v'Eini Osah." If so, why is she considered in order to be considered rebellious? Apparently, the case under discussion is when the wife already received the Mezonos for that day, and she afterwards she refused to give her husnband the Ma'aseh Yadayim for that day in return. Certainly in days that follow, though, the husband will simply keep the Mezonos since she is keeping her Ma'aseh Yadayim.

(b) According to the above, the rebellion of Melachah involves just one day's Ma'aseh Yadayim that was not given to the husband when it was supposed to be given (because after that day, the husband simply stops giving his wife Mezonos). Why, then, do we not simply take that amount off from the Kesuvah? Why do we deduct from the Kesuvah indefinitely?

Tosfos and other Rishonim explain that even if we have the ability to forcefully take the money owed from the rebellious wife or husband, we do not do so, but rather we fine them by lessening or increasing the Kesuvah until they agree to fulfill their obligations on their own. We do not forcefully take away their money because it is impossible for a person to live with a spouse who has to be continually forced in order to fulfill his or her obligations ("Ein Adam Dar Im Nachash b'Kefifah Achas"). By altering the amount of the Kesuvah, the defiant party might be persuaded to agree to fulfill his or her obligations willingly.

63b

OPINIONS: The Mishnah and Gemara mention a number of ways in which Beis Din forces a spouse to fulfill his or her obligations to the other. The Mishnah (63a) says that Beis Din forces a defiant woman by lessening the amount of her Kesuvah, and ultimately taking it away entirely. The Gemara cites the opinion of "Raboseinu" who later instituted that instead of gradually reducing her Kesuvah, Beis Din just proclaims in the synagogues on four consecutive Shabbosim that this woman is rebelling against her husband, and that she is going to lose her Kesuvah if she does not change her ways. After the fourth week, if she has not capitulated, they take away her entire Kesuvah at once. The Amora'im here argue whether or not the Halachah follows the view of Raboseinu.

On the next Daf (64a), the Gemara says that Beis Din waits twelve months before permitting the husband to divorce her, during which time the husband is not obligated to support her.

When all is said and done, what is the proper practice of fining a rebellious wife according to the Gemara, and what is the Halachah?

There seems to be a Machlokes among the Rishonim about how to understand the order and application of the different Takanos of the Gemara.

(a) According to RASHI, the later Takanah of Raboseinu was not accepted by all of the Amora'im as the Halachah. Rather, the Gemara concludes that the Halachah is "Nimlachin Bah" -- we delay the divorce and the immediate revocation of her Kesuvah (but rather we reduce the amount of the Kesuvah in the manner described in the Mishnah), and we try to persuade her to change her ways. When the Gemara (64a) says that we give her twelve months, it is also in agreement with the fine of our Mishnah. However, it is imposing an upper limit to the fine; after twelve months of rebelliousness, whatever is left of the Kesuvah is taken away and the husband may divorce her without giving her the Kesuvah or Tosefes.

(b) TOSFOS and other Rishonim explain that the Halachah does follow the view of Raboseinu. The only question among the Amora'im is whether Beis Din must inform her of the consequences of her actions both before and after each public announcement, or only after each announcement. The Amora'im agree that she is fined the entire Kesuvah after four weeks.

The Rishonim argue, however, how to understand the Takanah to wait twelve months. Is the Takanah referring to a woman who wants her Kesuvah, or is it referring to a woman who is ready to get divorced and is willing to forego her Kesuvah?

1. The RASHBA (cited by the Magid Mishnah, Hilchos Ishus 14:9) says that it is referring to a woman who is ready to forego the Kesuvah. Even though a woman who wants her Kesuvah and continues to hold out is divorced after four weeks without her Kesuvah, however if she says explicitly that she is ready to forego the entire Kesuvah then we delay the divorce for twelve months. This Takanah to wait twelve months was instituted by the Amora'im because the Chachamim saw that women were getting divorced impulsively and then they were regretful that they lost both husband and Kesuvah. By giving them time before permitting them to divorce, the Chachamim hoped that the husband and wife would appease each other.

2. The ROSH (5:34) explains that the Takanah was not only instituted for a situation where they are both ready to get divorced and she does not want her Kesuvah, but also in a situation where she does want her Kesuvah. The husband still must wait twelve months before divorcing her.

3. The RAMBAM (Hilchos Ishus 14:9-10) writes the opposite of the Rashba. The Takanah to wait twelve months was instituted only for a rebellious woman who *wants* her Kesuvah. The Magid Mishnah explains that it is shameful for Jewish women to be divorced out of quarreling ("Mipnei Ketatah"). Therefore, we try to appease them for twelve months. But in a situation where she wants to leave right away because she is disgusted with him, and she is willing to forego her Kesuvah, then the husband may divorce her right away and we do not make her wait at all (because she cannot be persuaded to stay with him under such circumstances of being disgusted by him).

The RIF writes that the Takanos did not end there. At a later period in time, after the time of the Gemara, the Ge'onim instituted that if she does not want her Kesuvah and they both want to divorce, he may divorce her right away (and he does not have to wait twelve months).

The Gemara explains that the enactments of the Mishnah and of Raboseinu apply only when the woman says that she still wants her Kesuvah and is not willing to be divorced without it. If she is willing to be divorced without her Kesuvah, then Ameimar says that "we do not force her" to remain married. The Rishonim argue what Ameimar means when he rules that "we do not force her" to remain married.

According to the RASHBAM (cited by the Rosh 5:34) and the RAMBAM (Hilchos Ishus 14:8), this means that if she wants to leave him without a Kesuvah, we make the husband divorce her and the husband cannot force her to remain married to him.

However, according to RABEINU TAM (cited by Tosfos DH Aval and other Rishonim), the Ameimar does not mean that we force him to divorce her, but rather that we do not influence him *not* to divorce her; if he wants to divorce her, he may.

HALACHAH: The SHULCHAN ARUCH (EH 77:2) rules that if the woman who rebels is ready to get divorced and to forego her Kesuvah, she cannot force the husband to divorce her, like the opinion of Rabeinu Tam. If *he* wants to divorce her, he may divorce her right away.

If the woman who rebels demands her Kesuvah, she loses her Kesuvah after four weeks of defiance (like Raboseinu), but the husband must wait twelve months before divorcing her. This follows the view of the Rambam, (opinion (b):3 above) that we wait twelve months only when she is angry with him, but not when she is disgusted by him and is ready to leave without a Kesuvah.

The REMA adds that some say that the Takanah of waiting twelve months after she loses the Kesuvah was only in the times of the Gemara when a person was permitted to marry a second wife. Nowadays, when we may not marry two wives, since waiting twelve months would cause the husband to lose out as well (because he will not be able to marry another wife), we allow him to divorce her immediately.