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Parshat Vayetze – Jewish marriage: An origin story

Kislev 5783 | December 2022


TW: rape[1]

The Torah was not given to an empty void. Whether or not we accept the midrashic assertion that Avraham kept the entire Torah at face value, it’s clear that the world had its own “Torah.” We are already familiar with the Seven Noahide Laws, along with the commandments that Avraham received personally (like the directives to immigrate to the Chosen Land and Brit Milah). Based on the stories in the Torah, these laws appear to function in tandem with other judicial and halakhic institutions; most of what is mentioned relates to interpersonal relationships – such as moher (bride price), nisuin (marriage), and yibum (levirate marriage). At times the Torah acknowledges these established institutions, and appropriately adopts and/or adapts them; others the Torah originates.  Let’s study some of the institutions that regulate relationships, which are elucidated by the stories of our forefathers in Sefer Bereishit.

Institutions originated by the Torah – The Torah narrative clearly attests to a pre-existing institution of nisuin marriage. Avimelech is charged with taking a “woman with a husband,” and he is threatened with death as a consequence. (Bereishit 20:3) Rambam explains that while there was an extant concept of marriage, the Torah instituted the initial stage of kiddushin (betrothment). (Hilchot Ishut 1:1) Kiddushin, which halakha also refers to as an act of acquisition, can be understood as a legal formalistic step that binds two people together, a precursor for nisuin- the actualization of the union through cohabitation and physical relationship.[2] The act of acquisition creates a mutual obligation between the two, and all the prohibited relationships involving a married woman apply to the betrothed woman as well.[3]

Things that the Torah adopted and adapted – The Torah acknowledges the institution of levirate marriage, which appears in Parshat Vayeshev, and adopts it with some changes. Eventually, Tamar’s yibum was fulfilled by Yehuda, her father-in-law; the Torah insists that only the brothers of the deceased can perform yibum. Additionally, Yehuda and Tamar’s story does not indicate that there was an option for chalitza – a method to break the commitment if either the man or woman objects; this aspect is originated by the Torah.

Things the Torah adopted and the sages adapted – The stories in the Torah reflect the idea of moher – a bride price. After Shechem rapes Dina and and then decides he wants her for a wife he suggests that Yaakov set a substantial moher that he will readily pay. (Bereishit 34:12) Yaakov is also expected to “pay” for the privilege of marrying Lavan’s daughter(s) by working for several years. (Bereishit 29:18) The Torah acknowledges the tradition of moher and applies it to the case when a single woman is raped. (Devarim 24:28-29; Shmot 22:15-16) The Torah states that the assailant must pay “moher betulot” the bride price of a virgin (even though she is no longer a virgin), and he must marry her.

Moher betulot can be understood as a “down payment” from the husband to the father, to demonstrate that he is serious and sincere about the marriage. Parshat Vayetze indicates that the father would customarily either return this money to the young couple or put it aside as a nest-egg for his daughter to be used in cases of divorce or bereavement. This is reflected in Rachel and Leah’s complaint: “For we are like strangers to him (our father); for he has sold us and also consumed our money.” (Bereishit 31:15) Lavan’s daughters expected that the emoluments he received for the marriages would be returned to them, but Lavan took it for himself.

Some of our sages claim that the source for the rabbinic innovation of ketuba is the moher described by the Torah. (Ketubot 10a) Yet the ketuba is paid out at the end of the marriage, while the moher is paid in anticipation of the marriage. This may reflect a necessary change to the established institution of moher.

The mishna compares the cases of ones and mefateh (a man who rapes a single woman and the seductor of a single woman); the former is obligated to pay the money he owes immediately while the latter pays “when he leaves”. (Mishna Ketubot 3:4) The mishna explains that a rapist is never allowed to initiate a divorce from the woman he raped. (This assumes she wants to marry him, which was a possibility in a former societal reality, even if it is unthinkable today.) Since divorce is not an option, it makes sense for him to transfer the money immediately. The mefateh, on the other hand, may be forced to marry the woman he seduced, but he is also permitted to divorce her. According to the plain reading of the mishna, he pays the money “when he leaves” – indicating when he divorces her. Practically, obliging this payment only in the event of divorce may cause him to think twice about this option; the expense of divorce can act as a financial  incentive to remain married.[4]

So it seems the sages took the institution of moher and shifted it to the end of the marriage period (even in normative cases where there was no seduction) in order to reinforce the institution of marriage (“so he won’t see her as easy to send away”).[5] This change also provides the woman with financial support in the aftermath.[6] The gemara claims that enacting measures that protect the stability of marriage or the welfare of women after the end of a marriage can encourage women to get married, since they may be hesitant to do so otherwise.[7]

This may help us understand how there are some who treat the ketuba like a biblical institution (as it is based on the obligation of moher), and others that treat it as a rabbinic innovation (since the sages were the ones who defined the way this financial obligation is fulfilled).

But what about the aspect of moher as a financial investment to demonstrate the man’s commitment to the relationship? Regarding the wedding feast the sages determined “a man does not toil for a meal and ruin it.” They believed that the expense of the wedding feast alone is a type of down-payment. Therefore, in the event that the husband casts aspersions against his wife the day after the wedding (claiming that she was not a virgin/that she sinned while she was betrothed), his claims were more likely to be taken seriously since they thought it irrational for someone to invent a claim that would cause him to devalue his financial investment in the feast.

In light of the above, the ketuba can be seen as an object lesson for a halakha with roots in a preexisting  institution described in Torah narrative, then fixed into Torah law, and later shaped by the sages into its current form. The adaptation and innovations of the sages aimed to protect the institution of the family and the status of the woman – by encouraging marriage, stabilizing it, and providing for the woman upon its dissolution.

[1] This lesson will discuss laws regarding rape, and mention the rape of Dina. The Matan Shayla team want to clarify that as Jewish educators, dedicated students, and human beings, we think it is important to grapple with the way our tradition presents such issues. The formal discussion of these sources should not be misunderstood as complacence or casual acceptance of the societal norms they reflect. We believe that Torah approaches to such issues were progressive for the time and designed to protect women in a certain society. We thank God that we live in a time and place where there are more opportunities for women, even though there’s still room for improvement. As this article makes clear, we understand that the halakhic system is designed to respond and perhaps lead these advances, ensuring the Torah remains an eternal paragon of justice and righteousness.

[2] The definition of nisuinas the stage when the relationship is actualized in reality is reflected in the different halakhic definitions of what constitutes a chuppa – is it the yichud room or the act of yichud (being alone together), or the symbolic entry into the home. See Even HaEzer 55:1 Tur, Shulchan Aruch, Rema and commentaries.

[3] The woman’s obligation is clearer, since she is forbidden to have relations with anyone. The man’s obligations include the obligation to provide food for his wife (which is deferred until the actual marriage) and possibly the obligation to provide for her ketuba (as we will see).

[4] The gemara explains the mishna in a slightly different manner. Additionally, the gemara brings a dispute if the money these men are required to pay is in place of the ketuba or in addition. In any event, whether this explains the actual process that happened to the laws involving the rapist and seductor, it seems that the biblical concept of moher was “transferred” from the beginning of the marriage to the end.

[5] TB Ketubot 39b and parallel sources

[6] The phrasing used in a number of places is “mishum china,” the meaning is disputed but it can be understood as providing for the women in the aftermath.

[7] TB Ketubot 82b

Rabbanit Dr. Adina Sternberg

was in the first cohort of the Matan Kitvuni Fellowship program and her book is in the publication process. She has a B.A. in Bible from Hebrew University and a M.A. and Ph.D. in Talmud from Bar Ilan University. Adina studied in Midreshet Lindenbaum, Migdal Oz, Havruta and the Advanced Talmud Institute in Matan. She currently teaches Bible and Talmud at Matan, and at Efrata and Orot colleges. Adina lives in Adam (Geva Binyamin) with her family.