The Contract Nobody Wrote

The Hook

A couple marries with no document at all. No ketubah drawn up, nothing discussed, nobody negotiating anything. The Rambam rules that the husband has ten responsibilities toward her and four privileges from her, and adds the line that decides the character of the whole chapter. There is no need to state them explicitly. The obligations were not created by the couple's agreement. They arrived with the status.

Then he opens the door to bargaining, generously. If the husband stipulates that he will not carry one of these obligations, or the wife stipulates that he will not receive one of these privileges, and the other party accepts, the stipulation binds. A man may agree that he owes her no food and no clothing and takes no benefit from her property, and the arrangement holds. Food and clothing are Torah obligations, written in the verse alongside the third, and the Rambam lets them go.

Three things cannot be touched by any stipulation, and the first of them is the third item in that same verse. Conjugal rights. The reason he gives is not that the matter is holy. It is that this stipulation is against what is written in the Torah and does not concern financial matters. The line does not run between Torah law and Rabbinic law, because two Torah obligations just went out the door and a Rabbinic one is about to prove immovable. The line runs between what has a price and what does not.

Ten and Four, and Nobody Had to Say So

The ten are worth reading slowly, because they are not a list of nice intentions. Three come from the Torah: her subsistence, her clothing, and conjugal rights. The seven others are conditions of the marriage contract established by the court. The fundamental requirement of the ketubah. Medical treatment if she sickens. Redemption if she is taken captive. Burial if she dies. Provision from his possessions after his death. The right to go on living in his house as long as she remains a widow. Her daughters fed from his estate until they are consecrated. Her sons inheriting her ketubah beyond the share they take with their half brothers.

The four privileges are all Rabbinic. The fruits of her labor. Anything ownerless she finds. The profits of her property in her lifetime. And her property itself if she dies first, ahead of every other claimant. Then the Sages did something that turns a list into a structure. They set the fruits of her labor against her subsistence, his duty to redeem her against his benefit from her property, and his duty to bury her against his right to inherit what her ketubah brought. Every right he holds is the purchase price of a duty. Nothing in his column is a gift.

And then the structure is deliberately broken on one side. A woman may say that she will not hold him to her subsistence and will not work, and she is given that option and cannot be compelled to work. Her husband may say the identical thing, that he will not provide for her and will not take the fruits of her labor, and he is not given the option, lest she turn out to be unable to earn her own living. The trade is the same trade. It may only be opened by the party who would be hurt if it went wrong. The Rambam notes that it is because of this arrangement that her subsistence came to be counted among the conditions of the marriage contract at all.

The Three That No Agreement Reaches

Conjugal rights, the fundamental requirement of the ketubah, and his inheritance of her property. Three items, three reasons, and the reasons are more interesting than the rule.

The first fails because it is a condition against the Torah in a matter that is not financial. That clause is doing enormous work. Conditions against Torah law are routinely valid where money is involved, which is exactly why he can lawfully agree to stop feeding her. What cannot be traded is what was never property to begin with. A man may sell his obligations. He may not sell her body's claim on the marriage, because that claim does not belong to the economy in which selling happens.

The second fails in the most startling ruling of the chapter. A man who stipulates a marriage contract for less than two hundred zuz for a virgin, or less than a hundred for a woman who is not, has made a stipulation of no substance, and the Rambam adds a consequence that goes far past invalidity. The relations he conducts with his wife are considered promiscuous. He names the workaround as well, since people had evidently found it. Write the full two hundred on the document, and have her sign that she has already received part of the sum when she has received nothing. That is also of no substance. The floor is not a number in a contract. It is what makes the marriage a marriage rather than an arrangement, and a couple cannot lower it by agreeing with each other, because what they would be agreeing about is what they are doing in the bedroom. The third fails for the opposite reason. His right to inherit her is Rabbinic in origin, and the Sages reinforced their own enactment with the force of a Torah statute, so that with regard to inheritance every stipulation is void despite money being squarely involved. A Rabbinic institution turns out to be the immovable one and two Torah obligations turn out to be negotiable, which is a good corrective for anyone who reads the weight of a law off its pedigree.

Two Meals, a Departure, and a Vow

Having secured what cannot be sold, the chapter becomes almost domestic. Her subsistence is bread for two meals a day by the standard of the people of her town, reckoned for a person who is neither sick nor a glutton, made from whatever grain the place eats. With it, legumes and vegetables, oil for her food and for the lamp, fruit, and a little wine if the women there drink wine. Three meals on Shabbat with meat or fish as the town does it. And a silver me'ah for her own needs, a small coin for the laundry or the bathhouse, money that is hers and is not accounted for. That is the floor for a poor man. A wealthy husband is compelled to feed her according to his wealth. A man too poor to give her bread is compelled to divorce her, and the debt of her ketubah follows him until he can pay it.

Then two rulings that say more than their subject. He may eat alone, and provide for her separately, if that is how he wants to live, provided he eats with her on Friday night. The law will not force a man to enjoy his wife's company six days a week and will not let him skip the seventh. And a priest may not feed her entirely out of terumah, because it is very hard for her to guard it from impurity and to eat it in purity herself, so he gives her half ordinary food. His privilege of eating holy food is not permitted to become her daily anxiety. As for children, he is compelled to feed them until they are six. After six he is not compelled, but he is rebuked and finally announced in public as a cruel man who is worse than an impure bird, which does feed its young. And if he has means, his property is expropriated for charity and the children are fed to majority anyway. The not compelled has a door behind it.

The last third of the chapter is absence and vows. A man who travels leaves a presumption behind him for three months, since a person does not depart without provisioning his household, and then the court sells his property for her keep. She may sell it herself without a court, without a public announcement and without an oath, until he comes home and disputes it. The geonim wanted her to produce her ketubah document before any of this. The Rambam rules against them for a woman whose husband merely travelled, because her claim to subsistence comes from the Torah, and with them for a widow, whose claim is Rabbinic and whose money now belongs to heirs. A neighbor who fed her out of kindness has lost his money, since nobody asked him and she did not borrow. A husband who told her at the door to buy her food from her earnings has closed her claim, because if she had not been willing she could have said so then. Then the vows. A man who vows his wife out of all benefit from him gets thirty days, and then must divorce her and pay. A man who vows her out of a single species of produce gets the same thirty days, and the Rambam extends it in so many words to a species she has never tasted in her life. The injury is not dietary. And if she took the vow and he let it stand, and then says he does not want a wife with vows, he may divorce her and must pay her ketubah in full, because the annulment was his to make and he left it.

The Unifying Principle

The chapter is one long argument about the difference between what you agreed to and what you entered. Almost everything here can be renegotiated by two consenting people, and what survives their consent is not the most sacred sounding material but the material that protects the party who might later have no bargaining power at all. She may open the trade and he may not. The ketubah has a floor neither of them may lower. His inheritance was fixed with borrowed severity so that nobody could bargain it away in a good mood. The chapter trusts agreements and does not trust them to have been made by equals.

The Alter Rebbe opens the Tanya with the oath administered to the soul before it enters the body, that it should be righteous and not wicked. It is a strange place to start a book, because an oath sworn before a person exists is an obligation nobody consented to, and the Tanya treats that as the foundation rather than the problem. It is the same structure the Rambam is describing. The obligations of a marriage are present the moment the marriage is, whether or not anyone wrote them down, and their force does not come from having been chosen. The Baal Shem Tov taught that a soul may descend into this world and live seventy years in order to do one favor for another person, which is the same claim from the other direction. The assignment was issued before anybody was in a position to have a view about it.

The Alter Rebbe also gives Elul its picture, the King who has left the palace and is walking in the field, receiving everyone with a pleasant countenance before any of them has been summoned or has applied. And the Rebbe returns constantly to the reading of the month's name as the verse about being one's beloved's and one's beloved being one's own, noting that the order matters, that the movement runs from below upward first. Which is the chapter's asymmetry again. The party with less leverage is given the right to open. What holds a household together, in the Rambam's account, is a set of obligations nobody negotiated, guarded by three that nobody may negotiate.

Modern Application

The modern instinct is that a serious relationship should be explicit. Define the terms, write it down, and nothing will be assumed. The chapter agrees more than expected, since it allows most of the arrangement to be rewritten by mutual consent. But it insists that the load bearing parts were never terms. Burial, redemption from captivity, medical care, a widow's right to stay in the house, a daughter's food until she is consecrated. Nobody puts these in a document because they only matter on the day everything has gone wrong, which is exactly the day a document written by two hopeful people would have failed to mention.

And the last ruling of the chapter is the one to carry into the week. He did not make the vow. She made it. He simply did not annul it, and he pays as though it had been his. Permission is a deed. What is quietly allowed to stand in a household belongs to whoever could have lifted it, as fully as anything he said out loud. A whole marriage can be assembled out of what nobody objected to, and the halacha declines to call that an accident.

The Closing

This chapter is learned on the twenty sixth of Elul, in the days when a person is inclined to itemize what he intends to commit to for the coming year. The chapter is unimpressed by itemizing. The ten things a man owes his wife were his from the moment he married her, listed by nobody, agreed to by nobody, in force regardless, and the four things he receives are the price of carrying them.

That is also what stands between a person and the King in the field. Nothing was signed. There is no document to produce, which is the Rambam's ruling about the woman whose husband is away and who need not show her ketubah before she is fed, because her claim comes from a higher place than paperwork.

Four days from now a year opens, and the temptation is to spend the remaining time drafting terms, resolutions, undertakings, the exact language of what will be different. The chapter suggests that almost none of it is where the weight lies. The weight is in ten obligations nobody wrote down, three of which cannot be traded even by the two people they belong to, and a final ruling that a man pays in full for the vow he merely permitted. So the question for these last days is not what you are prepared to promise. What have you already been carrying without ever having agreed to it, and what have you allowed to stand in your house that you always had the power to annul?