The Bathhouse and the Relative

The Hook

The Claim of the Man Who Did Not Ask

Twenty five chapters of the laws of marriage end here, and they end on a courtroom. Not on a wedding, not on a blessing, not on a summary of what a home is for. The last thing the Rambam wants settled, before he closes the treatise, is what happens when a man stands up after the fact and says that this is not what he agreed to.

He is entitled to say it. Sometimes the law believes him and he walks away owing nothing. What makes the chapter unforgettable is the test the Rambam uses to decide, because it has almost nothing to do with the man's honesty and almost everything to do with the layout of his town.

Vows at the Door

A Marriage Entered on False Premises

The chapter opens with a man who married without stipulating anything, and then discovered that his wife is bound by vows. He may divorce her without paying her ketubah, neither the principal amount nor whatever he added to it, because the agreement was entered on false premises. He did not expect to marry a woman under such restrictions. The Rambam is careful, though, to add that since he said nothing explicit at the time of the consecration, he is still required to divorce her formally. The marriage is real. Only the money is gone.

Then he names the vows he means, and the list is a small portrait of a life. A vow not to eat meat. A vow not to drink wine. A vow not to adorn herself with colored garments, or with the other things the women of her place customarily wear. Any other vow, he says, costs her nothing at all.

Ask why those three and the answer is disquietingly human. These are the vows the Talmud describes as an oppression of the soul. A woman living under them will be weighed down, and she will not be pleasant company. The law is not protecting the husband's appetite for meat and wine. It is protecting his expectation that the person he married would be capable of gladness. That is what he thought he was agreeing to, and if she had already sworn it away before he arrived, he was never told.

The Bathhouse and the Relative

Two Facts About a Town

The same principle should extend to physical blemishes, and it does, but here the Rambam does something remarkable. Instead of asking whether the husband knew, he asks whether he could have found out.

If there is a bathhouse in the city and he has relatives there, he does not have the right to say that he did not know about the blemishes. This holds even for blemishes in hidden places. The reasoning is stated flatly: we assume that he checks with his relatives, and since he married her anyway, we assume that he heard and accepted. If the town has no bathhouse, or he has no relatives in it, he may raise a claim about blemishes that are ordinarily unseen. Regular fits of epilepsy, which follow a set pattern and keep a person indoors, count as unseen.

For blemishes that are openly visible he may never claim, because everyone can see them and it may be assumed that he heard and accepted the matter. And then the Rambam qualifies even that, by geography. This applies, he writes, where it is customary for women to walk in the marketplace with their faces uncovered, and everyone recognizes everyone, and people say, that is so and so's daughter, that is so and so's sister, as in the European cities of the present era. Where women do not go out to the market at all, and a girl who goes to the bathhouse in the evening goes veiled so that nobody sees her except her relatives, a husband may bring a claim even about blemishes that are plainly visible. Unless, of course, the city has a bathhouse and he has a relative in it, in which case he may not, since everyone sees her there. And if she is the kind of woman who covers herself even in the bathhouse, or washes at night, or in a small private room, so that nobody would know, he has his claim back again.

Then comes the line that gives the chapter its temperature. These matters, the Rambam writes, are concepts that reason dictates. They are not decrees of the Torah to be accepted on faith.

He is telling us that nothing here is arbitrary. The whole structure is one question asked over and over in different conditions: was the information available to this man, in this place, with these relatives, about this woman. If it was available and he did not go and get it, his surprise is not a legal fact.

Some of the geonim wanted to widen the net, and ruled that a man can be expected to ask his friends, not only his relatives, since anyone can send a friend's wife or sister to look. The Rambam refuses. A man will not reveal all the concerns he has about matters such as these to anyone other than his relatives, and he will rely only on the word of his relatives. It is a small ruling with an enormous piece of realism inside it. The law will hold you responsible for what you could have learned, but only through the people you would actually have been willing to ask.

Who Carries the Burden

Whoever Holds Her, Proves

When the claim is live, someone has to prove something, and the Rambam sorts this with a clean instinct. If the blemish is one that certainly existed before the consecration, an extra finger or the like, the burden falls on the father. He must show that the husband knew and accepted, or that we may assume he knew. If he cannot, the woman is divorced with nothing.

If the blemish is the sort that could have appeared afterwards, the burden follows possession. Discovered after she has entered her husband's house, the husband must prove she had it beforehand. Discovered while she is still in her father's house, the father must prove it came afterwards, and the loss is the husband's. The Rambam's own image for that loss is a field that has been flooded. She was already his. The damage fell on his ground.

And if the husband proves the blemish preceded the consecration, or she admits it, but the father can then show that the husband saw it and accepted it in silence, the husband owes the ketubah in full. Silence, once there was something in front of him to see, is an answer.

The last gate closes with a sentence of extraordinary plainness. A husband who had relations with his wife, waited several days, and then claimed that only now has he discovered a blemish, is not heard. Not even if the blemish is in a fold of skin, or on the sole of her foot. The reason given is that a man does not drink from a cup unless he checks it well first. Once there has been that kind of nearness, the claim of not knowing has died. He looked. He is presumed to have looked.

What Comes After the Wedding

The Losses You Cannot Return

From here the chapter turns to what happens to a marriage that is already underway, and the asymmetry it produces is the most searching thing in it.

A woman who becomes blemished after the marriage, even one who becomes a leper, is simply the husband's situation now. He may stay married if he wishes. If he wants out, he pays her ketubah in full. A wife who has no warning before her period, who feels nothing until the bleeding begins, is described by the Rambam as carrying a great blemish, and it costs her nothing whatever, because she can check herself with a cloth before and after and live as a wife. Only if blood appears three times in succession is the marriage no longer possible, and then she is divorced without payment, and he may never take her back, so that he cannot secretly treat the divorce as conditional on her healing. She is still permitted to marry someone else.

Now run it toward the husband. If he loses a hand, or a foot, or the sight of an eye after the marriage, he is not compelled to divorce her and pay. She may stay, or she may leave as a rebellious wife, with nothing. But if he takes on a constant bad smell, or becomes a gatherer of dog dung, a miner of copper, or a tanner, he is compelled to divorce her and pay her ketubah, if she wants out. And if he becomes a leper, he is compelled to separate even if she pleads to stay, because the marriage itself would consume him. Unless she says that she will live with him in the presence of witnesses so that they will not have relations. Then, says the Rambam, her request is heeded.

Look at what is being weighed there. Not who is more damaged. What can still be lived with, day after day, in one house.

The Unifying Principle

Availability, Not Sincerity

Every ruling in this chapter runs on one engine. A claim of mistaken premise is heard only where the truth was genuinely out of reach. The bathhouse, the relative, the uncovered faces in the marketplace, the three days of waiting, the silence in front of a visible mark: all of them are ways of asking whether the knowledge was there for the taking. Where it was, the law does not care how sincerely surprised you are.

Rabbi Levi Yitzchak of Berditchev is remembered as the defence attorney of the Jewish people, and what he actually did was not to deny the charges. He argued circumstances. He argued about what a person could realistically have known and borne in the place where they were standing. That is exactly this chapter's method, and it cuts in both directions, because the same argument that excuses the man in the veiled town condemns the man who had a cousin two streets away.

The Alter Rebbe writes in Tanya that one cannot judge a person until one stands in their place, and he means the word place almost physically, the whole set of pressures and habits and opportunities a life is conducted inside. The Rambam has built that principle into procedure. He does not ask the husband to introspect. He asks whether the town had a bathhouse.

And the Baal Shem Tov taught that when a person sees a fault in someone else, it is being shown to him because something of it is in him. That teaching has a quiet echo here. The husband who goes looking for what is wrong with her, days after the wedding, after everything, is the one the law stops cold. Not because the fault is imaginary, but because he is no longer permitted to pretend he is discovering it.

Modern Application

Ignorance You Arranged

Almost everyone arrives at this day with a version of the husband's claim ready. Nobody told me. It was not what it looked like. Had I understood, I would have acted differently.

The Rambam's question is not whether that is sincere. It is whether there was a bathhouse in your city. Whether there was somebody you could have asked and did not. Whether the thing you are calling a shock had been standing in the marketplace with its face uncovered for a year, while you took the long route home.

There is a kind of ignorance a person arranges. It is not lying. It is a matter of never quite making the phone call, never quite reading the whole letter, never quite asking the friend who would have told you the truth. And the law's response is not to call you a liar. It is to say that the claim is simply unavailable. You are presumed to have heard, and to have accepted in silence.

The Lubavitcher Rebbe insisted for decades that these laws are studied daily not as legal history but because the study forms the person who studies it. A chapter like this one does that without a word of moralising. Read it honestly and it takes something away from you, which is the right to be surprised by your own year.

The Closing

Where the Treatise Ends

The very last law concerns a widow whose husband had one of these defects and died childless, so that she now stands before his brother. If the brother carries the same defect, she may say that she was willing to accept it in one man and is not willing to accept it in another. He performs chalitzah, and she is paid her ketubah out of the estate. Acceptance is not transferable. What you took on for one person, in one marriage, was taken on for that person.

The printed editions of the Mishneh Torah close the treatise with a verse after that, a wish to see your children's children and peace upon Israel. The early manuscripts do not have it. Somebody along the way could not bear to let twenty five chapters on marriage end on a woman refusing a man, and added a blessing. It is worth knowing that the Rambam himself left it where it was.

He ended on the moment a person says, clearly and without apology, that this particular thing they once agreed to bear was agreed to once, and is not owed twice.

Tonight the claim you will want to make is that you did not know. The Rambam will not take it from you unless it is true, and he has a test for that which does not run through your conscience at all. It runs through the town you were living in, the people who were standing close enough to tell you, and the number of afternoons you had to go and ask. Kol Nidrei releases vows. It does not release the things you arranged not to find out.