We are all familiar with the ketubah, the marriage contract that is read under the chuppah at every Jewish wedding. While its ancient aramaic text may sound unfamiliar to those unaccustomed to Talmud study, its basic idea - detailing the responsibilities of the husband towards his wife, and in particular his financial obligations in case of dissolution of the marriage - are naturally understood by all. This financial obligation can be broken down into 3 components. The first is called the ikar ketuba (lit: the main part of the ketubah), and refers to the basic sum of money that every husband must pay his wife if he divorces or predeceases her. The second is called the nedunya (lit: dowry), and refers to the value of the property that the wife brings into the marriage, and whose value she will be entitled to retrieve upon dissolution of the marriage. The third is called tosefet ketubah (lit: the additional ketubah), and refers to an additional sum of money that the husband may voluntarily agree to be responsible to pay upon dissolution of the marriage (this can be any sum agreed to by both parties). The basic idea of this financial obligation is to act as an incentive to keep the couple together, and to promote the sense of security that each party has in the marriage. This understanding of the ketubah is referred to numerous times in the Talmud by the phrase shelo t’hey kalah b’eynav l’hotziyah - so that the wife not be “light” in the eyes of her husband to divorce her (see Ketubot 11a, 39b, Yevamot 89a, Bava Kama 89a). Indeed, the ketubah was regarded by Chazal as so pivotal to the marriage that some tana’im (sages of the Mishnah) even went so far as to prohibit the couple to be together without a proper ketuba (see mishna ketubot 54b, gemara 57a), referring to such relations as b’ilat znut (lit: promiscuous). Presumably, this surprising terminology is meant to convey that the role of the ketubah isn’t just about protecting the wife from a shotgun divorce, but rather to imbue the marriage with a sense of permanence and commitment. Hence, lack of a ketubah can be equated to a lack of commitment and permanence, and such a relationship can thus aptly be described as promiscuous. This was not merely a fringe view, but is, in fact, the accepted halakhah, as codified by both Maimonides (Hilkhot Ishut 10:10) and Shulchan Aruch (Even Ha’Ezer 66:3). Hence, if a couple loses their ketubah (or never had one), they are prohibited from being together until they write a replacement. While there is room for leniency with respect to being b’yichud (lit: seclusion) with one another (see Rama ibid 66:1), marital relations are certainly prohibited, highlighting the critical role of the ketubah.
While the idea behind the ketubah is fairly intuitive, and while its importance in Jewish law is clear, the question of the origins of the ketubah are much more murky. Where exactly does the ketubah obligation, in particular the ikar ketubah, come from? Is it a biblical obligation, imposed by the Torah itself upon the husband, or is it a later rabbinic enactment?
This leads us to this week’s parashah. The Torah (Ex. 22:15-16) states: “If a man shall seduce (mefateh) a virgin who was not betrothed and lie with her, he shall marry her (mahor yimharena) to him as a wife. If her father refuses to give her to him, the man shall weigh out silver according to the marital payment of the virgin women (heb: mohar habtulot).”
The Torah here describes a situation in which a man, acting impermissibly, takes advantage of a young girl (there is debate in the Talmud about her exact age, but certainly not a mature adult). The Torah prescribes the consequences of this misdeed, by demanding that the man take responsibility for the girl and marry her (assuming that she and her father consent), thereby ensuring that the girl is properly taken care of. If the marriage falls through, then the man must pay the father a sum of money equal to the mohar hab’tulot. This case is known in the Talmud as the mefateh, and the sum of money that he is required to pay, although not explicitly stated in these verses, is 50 silver shekalim. The phrases mahor yimharena and mohar hab’tulot are difficult to translate, as they are subject to a major debate amongst the commentaries, one which gets at the root of our question.
Rashi suggests that the phrase mahor yimharena means that the man must assign her a marital portion in accordance with what is typical for a man to his wife, i.e. that he must write her a ketubah and marry her. In other words, the Torah here describes its demand that the man marry this girl by referring to the ketubah contract. Clearly then, Rashi thinks that the ketubah obligation is of biblical origin. Not only that, but Rashi thinks that the ketubah is so central to the marriage that it would be reasonable for the Torah to describe the man’s obligation to marry the girl by referring to his writing her a ketubah - he should make her his wife as expressed by writing her a ketubah.
Nachmanides, on the other hand, takes issue with Rashi, precisely because Rashi suggests that the ketubah is a biblical obligation. Nachmanides is convinced that the ketubah obligation is only of rabbinic origin, and hence cannot possibly be the explanation of a biblical verse. Instead, he suggests that the phrase mahor yimharena means that the man must send the girl marital gifts in preparation for the wedding (such as gold or silver jewelry, clothing, and the like), in accordance with the typical custom to do so. While the giving of these gifts is not a biblical obligation, since it was customary for the prospective husband to send them, the Torah describes the man’s obligation to marry the girl by referring to this custom of sending gifts - he should make her his wife as expressed by sending her the customary gifts.
This debate regarding the origins of the ketubah, while presented here by Rashi and Nachmanides, has its roots much earlier, in the Talmud itself. In fact, in numerous places in Masechet Ketubot the Talmud suggests that a particular debate between various tana’im regarding a detail of the ketubah can actually be traced back to this very question. Some of the practical implications of this question raised by the Talmud are: whether the husband is believed to claim that his wife was unfaithful such that she would forfeit her ketubah (10a), whether the husband can pay the ketubah with land that is considered less favorable (10a), which type of currency the husband has to use when paying the ketubah (110b), and whether the husband can stipulate, with the consent of his wife, that he will not be obligated in the full ketubah payment (54a-b). This last example is slightly more complicated, as it implicates the more general question of whether one can stipulate monetary conditions seemingly at odds with Torah obligations, and as noted earlier, the Talmud seems to conclude that the husband may not reduce the amount of the ketubah, irrespective of whether the ketubah obligation is rabbinic or biblical. Regardless, it is clear that there is ample Talmudic support for both the view of Rashi and of the Ramban.
Interestingly, though, the majority of rishonim rule that the ketubah is of rabbinic origin, citing numerous Talmudic passages, unattributed to any particular rabbinic sage, that seem to present this view as authoritative. Indeed, this is the view of the Rif (65b in the dapei harif), Ran (ibid), Ramban (chiddushim 110b), Ritva (ibid), Rabbenu Chananel (as cited by Nachmanides), the Geonim (as cited in Piskei Harosh 1:19), and the Rosh himself (as understood by Shiltei Giborim on Rif ibid, and by the Tur in kitzur piskei harosh ibid). The one major outlier is the view of Rabbenu Tam (see Tosafot 10a s.v. amar), who contends that the ketubah payment is of biblical origin in accordance with the view of Raban Shimon ben Gamliel (cited in the mishnah, 110b). Rabbenu Tam’s position is primarily motivated by the need to justify the common practice in his day of writing in the ketubah the phrase d’chazi lechi mide’orayta (as is owed to you according to the Torah), which seemingly only makes sense if the ketubah obligation is indeed biblical. The other rishonim contend either that the practice is incorrect and hence this phrase should be omitted (see aforementioned Nachmanides, Ran), or that the phrase is merely meant to convey information about the details of the ketubah payment but not the nature of the payment itself (see aforementioned Rosh, Ritva). Practically, the common custom amongst Ashkenazim today is to continue to include this phrase, presumably based on the Rosh’s defense that it need not imply that the ketubah obligation is biblical (see Rema Even HaEzer 66:6), whereas Sefardim omit the phrase (Shulchan Aruch ibid).
Thus, Rashi in his comments to our verse, sides with the minority view of Rabbenu Tam that ketubah is biblical, whereas Nachmanides’ comments align with the majority view, the view that he himself endorses in his aforementioned chiddushim, that ketubah is a rabbinic enactment.
Until now we have ignored the second ambiguous phrase, “he shall weigh out silver according to the mohar hab’tulot”, but with this background we can return to it now. How do Rashi and Nachmanides, respectively, interpret this phrase? Nachmanides, as expected, interprets it as referring to the customary gifts, and not to the ketubah. The mefateh has to pay the girl’s father an amount of money that is equivalent to the value of these customary gifts, as payment for having made it more difficult for this girl to find a husband in the future who will be willing to give her these gifts. What about Rashi? One would have expected that Rashi would simply say that the mohar hab’tulot refers to the ketubah payment itself. That is to say, if the man refuses to marry the girl, he should be obligated to pay her the ketubah payment now, perhaps as a penalty for not marrying her, or perhaps because we suspect that it will be harder for her to find another suitor. Indeed, some rishonim do interpret this verse exactly in this way (see for example, the Piskei HaRosh Ketubot 1:19 explaining the view of Rabbenu Tam). According to their view, the ketubah payment is explicitly stated in the Torah as being paid in kesef, silver coins, which would impact upon the value of said payment, as the Talmud notes elsewhere (Kiddushin 11a) that biblical obligations are paid in kesef tzuri (pure silver), whereas rabbinic obligations may be paid in kesef medinah (common currency containing only ⅛ silver). Thus, according to the Rosh’s understanding of Rabbenu Tam, the value of the ikar ketubah is eight times more than it is according to the majority of rishonim who hold that the ketubah is only a rabbinic obligation (leaving aside the view of the Rosh himself that the ketuba is rabbinic but must still be paid in kesef tzuri).
Interestingly, though, Rashi interprets this phrase differently. He explains that mohar hab’tulot refers not to the ketubah payment, but rather to the penalty of 50 shekalim that is paid by a man who is me’aneis (forces himself upon) a girl, as described in Deuteronomy (ch. 22). Hence, the meaning of our verse is that the mefateh must pay the father silver equivalent to the payment of the me’aneis. Why did Rashi deviate from the seemingly more simple interpretation of the phrase (for those who hold that the ketubah is of biblical origin), an interpretation that others in this camp explicitly endorse?
The key to understanding Rashi is found in a Talmudic passage (Ketubot 10a). The Talmud brings a beraita (tana’itic teaching) which cites our verse - “the man must pay silver according to the mohar hab’tulot” - and expounds the verse to mean that the payment of the mefateh to the father should be equivalent to the mohar hab’tulot, and that the mohar hab’tulot should be equivalent to the payment of the mefateh. The beraita concludes that “from here we learn that the ketubah is a biblical obligation”. One could ask on the beraita, how does this prove that the ketubah is biblical? And what exactly is meant by the comparison of the mefateh’s payment to the mohar hab’tulot? The simplest explanation is that the Talmud interprets the phrase mohar hab’tulot to refer to the ketubah. By the Torah comparing the payment of the mefateh to that of a ketubah, we thus see that the ketubah is biblical (according to this view, the comparison only goes one way, i.e. we learn something about the ketubah from mefateh but we learn nothing about mefateh from ketubah). As noted earlier, this is indeed the explanation of the Rosh for Rabbenu Tam.
The difficulty with this view, however, is that the Talmud elsewhere (Ketubot 38b) seems to cite this very same teaching in a different context, to explain how R’ Yosi knows that the mefateh’s payment is 50 shekalim, and that the payment of the me’aneis is in silver coins. There the Talmud seems to assume that the mohar hab’tulot of our verse refers not to the ketubah payment, but rather to the me’aneis payment. The Torah, by comparing the mefateh to the me’aneis (connoted by the phrase mohar hab’tulot), thus teaches that the payment of both the mefateh and the me’anies is 50 silver shekalim (the word kesef, silver, is stated by the mefateh, and the number 50 is stated by the me’aneis). Rashi, assuming that there exists only a single beraita, and that it can only mean one thing, thus interprets it on daf 10a in accordance with how it is understood on daf 38b. He is thus forced to explain the teaching on daf 10a as follows: the fact that the Torah called the me’aneis payment the mohar hab’tulot is itself a hint to the existence of a ketubah payment, since the term mohar is a term referring to marriage in some capacity (as Rashi himself explained in his comments on the Torah regarding the phrase mahor yimharena, as discussed earlier). Indeed, Rashi (10a), commenting on the phrase m’kan samchu chochomim (from here the rabbis saw a biblical hint), explains that the biblical hint to ketubah is from m’d’kari la mohar (from the fact that the Torah referred to the me’aneis payment as a mohar). In other words, the reference to ketubah in the phrase mohar hab’tulot is an indirect reference, as the phrase directly refers to the payment of the me’aneis and only indirectly alludes to the existence of a ketubah payment. It is not that the phrase mohar hab’tulot means the ketubah (as understood by the Rosh explaining Rabbenu Tam), but rather it refers to the me’aneis payment, and the biblical hint is just from the fact that this payment is referred to as a mohar, a word which connotes marriage. Indeed, this is how Nachmanides (in his chiddushim Ketubot 110b) presents the opinion that ketubah is of biblical origins (even though, as previously noted, he rejects this view l’halacha).
What emerges, then, is that there are really three opinions (that we have seen) in the rishonim regarding the nature of the ketubah obligation. The majority view is that ketubah is a rabbinic enactment, with absolutely no biblical origin whatsoever. On the other end of the spectrum, the Rosh (in explaining Rabbenu Tam) thinks that even the value of the ketubah payment is explicitly stated in the Torah; the phrase “he shall pay silver according to the mohar hab’tulot”, is thus interpreted as saying that the mefateh must pay the father an amount equivalent to the ketubah (and since we know that the mefateh pays 50 shekalim, it follows that this is the biblical requirement for the ketubah). Rashi, however, presents us with a middle view, in which the idea of a ketubah is biblical, as seen in his explanation of the phrase mahor yimharena, but the value of the ketubah is not explicit in the Torah. According to this middle view, the biblical requirement of ketubah presumably has no set value (but rather can be any value upon which the husband and wife agree), and the fixed 50 shekel requirement was a later enactment of the sages (see Nachmanides chiddushim Ketubot 110b).
As we have seen, the Talmud, and later the rishonim, debate the origins of ketubah, with views ranging from it being a purely rabbinic institution, a purely biblical one, or a hybrid. While this debate is interesting and significant, it is clear that, according to all approaches, the ketubah is a key element of Jewish marriage, serving to solidify the commitments of both spouses, and ultimately ensuring that the relationship be one of holiness, and not, Heaven forbid, of znut (promiscuity). While today, after the enactment of Rabbenu Gershom (in the end of the 10th century) forbidding unilateral divorce, the ketubah’s role is seemingly diminished (see Rema Even Ha’Ezer 66:3; although see Beit Shmuel and Chelkat M’chokeik ibid who disagree), it has nonetheless remained the custom to write the ketubah, and its symbolic significance continues to guide us in fostering caring and loving relationships with our spouses, built on a mutual sense of commitment and responsibility.
