I did not make up the title to this weekֶs lesson. It was made up by Rabbi Yosef Karo (1488-1575) the author of the Shulhan Aruch, as the title to chapter 62 of Hoshen haMishpat.

What is this doing in Rabbinic Civil law at this place? This chapter appears in the midst of several chapters dealing with notes of indebtedness. This chapter deals with a wife who manages her husbandֶs property and during the term of the management gains assets in her own name, such as instruments of indebtedness as well as other property. How did she amass this property while managing her husbandֶs property? Her husband used to give her $1,000 a week for household expenses. Every night for dinner (except for Shabbat) she feeds him tuna fish and spaghetti and she now has amassed property in her name worth $5,000,000.

The property that a wife brings into the marriage (the dowry) maybe used by the husband, and all income therefrom belongs to the husband. Such property may be under the stewardship of the husband in one of two ways. In either case he keeps all of the profits of the property. According to the method known as פnichsai tzon barzelצ (iron sheep property), the husband guarantees to the wife that the property will be returned to her upon divorce or upon his death at the same value it had on the day he took possession. This is regardless of whether he makes a profit or loses money during the operation of the property. Alternately, the property may be delivered by the wife to the husband as פnichsai melogצ (milking property), in which case the husband does not guarantee the value of the property when it is returned to the wife. In the latter case all of the losses and gains are the wifeֶs responsibility. In both cases the husband enjoys the profits of the property.

Therefore, if a wife who is managing her husbandֶs property now holds property in her own name that she amassed after marriage, it is presumed that the property, although in her name, is really property that she amassed for her husband. The deeds should have been in her husbandֶs name, since she was using her husbandֶs money to purchase the property since her own money had been turned over to her husband at the time of marriage. However, if the wife can show that she inherited money of her own after marriage, then she is believed when she states that the property that now stands in her name was purchased with such money.

There is a difference between the laws that apply to the wife who manages her husbandֶs property and the wife who does not manage her husbandֶs property. If the wife who does not manage her husbandֶs property amasses property in her own name, it cannot be said she did this while she had stewardship of her husbandֶs property, and thus the presumption in the husbandֶs favor may not apply.

By agreement, whether pre-nuptial (before marriage) or post-nuptial (after marriage) the parties can determine that the husband will not have the use of the property that the wife brings into the marriage. In return for the use of the property that the husband is given, the husband has certain obligations to the wife.

Maimonides, in Laws of Marriage, chapter 12, enumerates ten things for which a husband is obligated to his wife and four things for which a wife is obligated to her husband. According to Torah law, a husband is obligated to provide: (1) her food; (2) her clothing; (3) conjugal rights. The Rabbis of the Talmud instituted seven other obligations: (4) to heal her when she becomes ill; (5) to ransom her if she is captured; (6) to bury her if she dies; (7) to provide for her maintenance out of his estate; (8) to permit her to reside in his house after he dies as long as she is has not remarried; (9) to permit her daughters whom he has sired to receive their maintenance out of his estate until they become betrothed; and (10) to permit her male children whom he has sired to inherit her kethubah, in addition to sharing with their half-brothers in the fatherֶs estate. This is in addition to the statutory kethubah (which provides that the husband will pay to the wife a specified sum in case of divorce and that his estate will pay to her a specified sum in case he dies). The four things to which a husband is entitled were all instituted by the Rabbis of the Talmud: (1) he is entitled to her earnings; (2) he is entitled to anything she finds; (3) he is entitled to the profits of the property she brought into the marriage; and (4) if she dies in his lifetime, he is entitled to be her sole heir. There are many laws whether the husband and the wife may waive some of these obligations. For example, the wife earns $5,000 a week as a lawyer and she eats very little, her total food expenses may be $100 a week. She may tell her husband, פPlease do not provide for my food expenses and I will keep my own salary.צ

I have recently had two situations involving the waiving by the husband to be the sole heir of the wife.

In one situation, a well known Rosh HaYeshiva called me and asked for my help in the following situation. One of his students was about to marry a granddaughter of one of the largest benefactors of the Yeshivah. The grandfather had about 4 years before, while his granddaughter was 14 years old, set up a trust fund worth several million shekels; the income was to accumulate and the entire trust principal and interest was to be given to the granddaughter upon her attaining the age of 21. She was now 18 years and about to be married. I asked the Rosh haYeshiva if he and the bride's grandfather, her parents, the bride to be, the groom to be and members of his family and the lawyers for both families to come to my house. It was agreed that if the bride died before the end of 5 years of marriage, then the groom waived his rights to inherit her and that a halchaik will would be drawn for the bride giving him certain gifts from the bride if she died before the five years of marriage. The lawyers in a few days agreed to the terms of a written agreement. I devised a plan how to have this agreement be executed by the parties and witnesses so that it would be binding in halachah as well as the laws of the State of Israel. The lawyers, who were both pious individuals would act as witnesses to the kethubah, which I read and explained to them so that they were familiar with its contents. They would also act as witnesses for the pre-nuptial agreement restricting the groomֶs rights to inherit his bride.

According to halachah this type of a pre-nuptial agreement could only be signed by the witnesses between kiddushin (the placing of the ring on the brideֶs finger and the recital of the פharai atאצ) and nissuin (the reciting of the sheva brachot). The Rosh haYeshivah would read the kethubah under the chuppah and would pause to have the groom make a kinyan for both, the obligations under the kethubah and also for his waiver of rights under the pre-nuptial agreement. The witnesses would then sign both the kethubah and the pre-nuptial agreement whose contents they knew since they had prepared it. No one in the audience was aware of the second agreement being signed by the witnesses. By coincidence I was also consulted by another lawyer in a similar situation a few months ago. Most rabbis would not get a case such as this in a lifetime, and here there were two such situations in a matter of three years.

IYH next lesson concludes the laws of the wife who manages her husbandֶs property and a similar situation regarding brothers.

The subject matter of this lesson is more fully discussed in Volume 2, Chapter 62 of A Restatement of Rabbinic Civil Law by E. Quint and on sale at local Judaica bookstores.

Address comments to quint@inter.net.il

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