Jacob and his two Wives

I have chosen to write about the legal tradition from the Eẓ Ḥaim beth midrash in Amsterdam. These analyses will come from the responsa literature of the Hakhamim found in the Peri Eẓ Ḥaim. The first case comes from Vol 6.

Author: Jacob ben David Fidanque 1 Siwan 5538/27 May 1778 

Peri Eẓ Ḥaim, Vol. 6, simán 60 (pg 423) 

Question: 

Jacob who is a God-fearing, integral, and correct person married a woman who only gave birth to daughters. Since he did not fulfill the miẓwah of “be fruitful and multiply,” he married a second wife. His second wife bore him sons. The first wife became jealous and told Jacob that she could not bare to be with him while he is married to the second wife, and that he should pay the full value of her ketubah. He replied to her saying that he married a second wife with her initial approval and that he did so in order to have sons. He will gladly pay, but is not sure he has to return the dowry, since there were no children within the marriage. What is the law in this case in regards to the ketubah payment? 

Response: The first source that the author cites is from the chapter Hezqath ha-Batim (b.Bathra 40b), where it says that a wife brings assets to the marriage at the time of the wedding, which return to her in the case of his death or a divorce. The author cites the Rashbam to expound on the phrase from the Gemara (b. Bathra 49b) “I did such and such thing with pleasure and ease of mind on behalf of my husband.” He explains that she enters a business contract to purchase land for her husband, which he then buys back from her, only because she did not want to anger him. The Rashbam considers her to be anusá, thereby making the transaction void. The husband is not entitled to those assets, and neither is there any legal presumption, unless there are witnesses or a document with a specific stipulation. If there was no stipulation made in the ketubah that everything which she gains during the marriage belongs to her, then she cannot make any claim on those things after the fact. 

The Gemara in (B. Bathra 49b) states: Rab Huna says that Rav says: A woman can say to her husband: I will not be sustained by you and, in turn, I will not work, i.e., you will not keep my earnings. The Sages instituted that a husband must provide sustenance for his wife, and in exchange is entitled to her wages. Since this was instituted for the benefit of wives, the wife is able to opt out of this arrangement. Similarly, the husband may waive his rights to the profits from his wife’s land. It is in such a circumstance that the Mishna rules that even if he relinquished his rights, he does not establish the presumption of ownership by enjoying the profits. The Mishna teaches that a husband does not establish the presumption of ownership of his wife’s field by enjoying its profits. The Gemara suggests: By inference, the husband has the ability to bring proof that he purchased the field from his wife or received it as a gift from her and consequently be regarded as the owner of the field. The Gemara asks: Why is this proof decisive? Let her say: I did it, i.e., I gave or sold the field to my husband, only to please my husband, but I did not mean it. The author then cites Rabba bar Rab Huna who says: The halakha that a woman can claim that she acted only in order to please her husband is not stated with regard to all of her property, but is necessary only with regard to those three types of fields that have special status: One field about which he wrote to her in her marriage contract that it would serve as payment of her marriage contract; and one that he specified to her as payment for her marriage contract, even though it was not stipulated explicitly in the contract; and one in a case where she brought into the marriage an appraisal of a field from her own property that she owned prior to the marriage, which took on the status of guaranteed property, meaning that she will receive it if her husband dies or divorces her. If a field of one of these three types is sold with her approval, she can claim that she did not truly consent to this sale, but stated her consent only in order to please her husband.

Then the author cites the Rashbam again on Rabba bar Rab Huna’s ruling. This is interesting because the Rashbam was the grandson of Rashi. However, he did not utilize the pilpul method of interpretation, rather the peshat method of exegesis. 

Then the author cites the Tur and the Bah’s commentary on the Tur on this same sugya from the Gemara (b. Bathra 49b), the Rambam (Ishut 22:7), the Shakh, and the Rashba. According to these sources of law, Jacob must pay the full ketubah of his first wife. 

Why doesn’t the author just cite the Rambam, but brings all of these commentaries together in agreement with the Rambam? The author states calls the Rambam “ha-Rab” and “Morenu,” saying that no poseq mentioned here disagrees with him on this issue. We learn from here that it is not about one’s origin, rather how one learns and understands the law, as long as it is in accordance with the Rambam.