The Bathhouse and the Relative

About This Talk

Chapter 25 closes Hilchot Ishut with the claims a husband may bring about what he married. A man who stipulated nothing and finds his wife bound by vows against meat, against wine, or against the ornaments the women of her place wear, may divorce her without the principal or the additional sum of her ketubah, since the agreement was made on false premises, while other vows cost her nothing and a formal divorce is still required of him. The same holds for blemishes, but only where he could not have found out, and the Rambam builds the whole test out of two facts about a town: where there is a bathhouse and he has relatives in the city he is presumed to have checked and accepted even hidden blemishes; where there is neither he may claim about blemishes that are not seen, regular fits of epilepsy among them; where women walk the market with their faces uncovered he may raise no claim about open blemishes at all, and where they go out only veiled at night he may, unless a bathhouse and a relative are both available to him, and a woman who covers herself even in the bathhouse or washes at night leaves him a claim in any case, all of which the Rambam says reason dictates rather than Scripture. He refuses the geonim who stretched relatives to include friends, since a man will disclose concerns like these only to his own and will trust only their word. Burden of proof follows possession: a blemish that plainly preceded the consecration is the father's to explain away, one that could have arisen afterwards belongs to whoever holds her, so the husband must prove his case once she has entered his house and the father must prove his while she remains in his, and a husband who had relations and complains days later is not heard even about a blemish in a fold of skin or on the sole of a foot, because a man checks the cup before he drinks. A wife who has no warning before her period must check with a cloth before and after and her husband with his own, a great blemish that costs her nothing since she can inspect and live as a wife, unless blood is found three times running, in which case she is divorced with neither the principal nor the addition, he may never take her back lest he treat the divorce as conditional on her healing, and she may still marry another man. Everything that arises after the marriage is the husband's loss: she may become blemished or even leprous and he pays her ketubah if he divorces her, while he may lose a hand, a foot or the sight of an eye and not be compelled to divorce at all, so that she leaves as a rebellious wife with nothing if she will not stay, yet he is compelled to divorce and pay if he takes on constant bad breath or a smell from his nose or becomes a gatherer of dog dung, a copper miner or a tanner, and compelled even against her own wish if he becomes a leper, unless she undertakes to live with him before witnesses so that they will not have relations. A widow who faces a yavam carrying her late husband's own defect may say that she accepted it in one man and will not accept it in another, and he performs chalitzah and pays her ketubah out of the estate.