THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
1) THE PENALTY FOR A REBELLIOUS SPOUSE
QUESTIONS: The Mishnah discusses how to penalize a man or woman who rebels
against his or her spouse and refuses to fulfill his or her obligations. Rav
Huna explains that the rebellion under discussion is refusal of marital
relations. Rebbi Yosi b'Rebbi Chanina says that the refusal is that of work,
where the woman refuses to work for her husband (or provide him with her
Ma'aseh Yadayim), or where the man refuses to give his wife Mezonos.
It is difficult to understand why there is a fine for the husband or wife who
rebels with regard to Melachah.
(a) First, there is a Machlokes in the Gemara earlier (58b) whether the main
purpose of the enactment of Mezonos was for the benefit of the woman (so that
she will be supported) or for the benefit of the man (so that he will receive
her Ma'aseh Yadayim). Rav Huna in the name of Rav says that the enactment was
made for the benefit of the woman, and therefore she is entitled to say "Eini
Nizones v'Eini Osah" -- "I decline the right to receive the Mezonos [from my
husband], in order not to have to give him my Ma'aseh Yadayim." Reish Lakish
argues and says that the enactment of Mezonos was not for her benefit but for
the husband's benefit, so that he receive her Ma'aseh Yadayim, and therefore
she cannot say "Eini Nizones v'Eini Osah."
Whose opinion does Rebbi Yosi b'Rebbi Chanina follow? If he follows Rav's
opinion, then if the wife refuses to work for the husband, she should not be
considered to be rebelling, because she is *allowed* to refuse to give him
her Ma'aseh Yadayim by saying "Eini Nizones v'Eini Osah." As soon as she
stops working for him, the husband should just stop giving her Mezonos and he
has nothing to complain about. If, on the other hand, Rebbi Yosi b'Rebbi
Chanina follows Reish Lakish's opinion, that the enactment of Mezonos was
made for the husband's benefit, then how could the husband be considered
rebellious when he does not give his wife Mezonos? He should be entitled to
tell her to keep her Ma'aseh Yadayim and not to give her Mezonos, since the
enactment was for his benefit and he may decline the benefit if he wants!
(b) If the rebellion is only a question of a monetary matter, where one of
the members of the marriage is not fulfilling his or her monetary
obligations, why should the Mishnah make an unlimited penalty (of adding to
or taking away from the Kesuvah indefinitely)? The Chachamim should just say
that since she owes him money because she rebelled, he merely collects from
the Kesuvah the value of whatever Ma'aseh Yadayim she did not give to him!
(a) TOSFOS (DH Rav Huna) indeed learns that Rebbi Yosi b'Rebbi Chanina holds
like Reish Lakish, that a woman is not entitled to say "Eini Nizones v'Eini
Osah," and that is why she is considered to be rebellious when she refuses to
give to her husband her Ma'aseh Yadayim. It is Rav Huna who argues with Reish
Lakish earlier. In our Sugya, he is following his own view that a woman *may*
say "Eini Nizones v'Eini Osah."
Why, then, is the husband considered rebellious when he does not give Mezonos
to his wife? According to Rebbi Yosi b'Rebbi Chanina, the husband should be
entitled to say that the enactment of Mezonos was for *his* benefit and he is
entitled to decline receiving her Ma'aseh Yadayim and not to give her
Tosfos (47b, DH Tiknu) proves from numerous Gemaras that even though the
enactment of Mezonos was made for the husband's benefit according to Reish
Lakish, the husband is not allowed to decline the Ma'aseh Yadayim and stop
giving her Mezonos (if she does not produce enough Ma'aseh Yadayim to support
herself independently). Reish Lakish holds not that the enactment was made
solely for the husband's benefit, but that the enactment was made *also* for
his benefit -- as well as for *her* benefit, and therefore neither one can
decline to give what the other one is entitled to receive. Hence, he cannot
say that he does not want her Ma'aseh Yadayim and refuse to give her Mezonos.
The RITVA and other Rishonim do not accept the assertion of Tosfos that Rebbi
Yosi b'Rebbi Chanina holds like Reish Lakish. Rather, they say that Rebbi
Yosi b'Rebbi Chanina agrees with Rav Huna in the name of Rav that a woman may
say "Eini Nizones v'Eini Osah." If so, why is she considered in order to be
considered rebellious? Apparently, the case under discussion is when the wife
already received the Mezonos for that day, and she afterwards she refused to
give her husnband the Ma'aseh Yadayim for that day in return. Certainly in
days that follow, though, the husband will simply keep the Mezonos since she
is keeping her Ma'aseh Yadayim.
(b) According to the above, the rebellion of Melachah involves just one day's
Ma'aseh Yadayim that was not given to the husband when it was supposed to be
given (because after that day, the husband simply stops giving his wife
Mezonos). Why, then, do we not simply take that amount off from the Kesuvah?
Why do we deduct from the Kesuvah indefinitely?
Tosfos and other Rishonim explain that even if we have the ability to
forcefully take the money owed from the rebellious wife or husband, we do not
do so, but rather we fine them by lessening or increasing the Kesuvah until
they agree to fulfill their obligations on their own. We do not forcefully
take away their money because it is impossible for a person to live with a
spouse who has to be continually forced in order to fulfill his or her
obligations ("Ein Adam Dar Im Nachash b'Kefifah Achas"). By altering the
amount of the Kesuvah, the defiant party might be persuaded to agree to
fulfill his or her obligations willingly.
2) A REBELLIOUS SPOUSE
OPINIONS: The Mishnah and Gemara mention a number of ways in which Beis Din
forces a spouse to fulfill his or her obligations to the other. The Mishnah
(63a) says that Beis Din forces a defiant woman by lessening the amount of
her Kesuvah, and ultimately taking it away entirely. The Gemara cites the
opinion of "Raboseinu" who later instituted that instead of gradually
reducing her Kesuvah, Beis Din just proclaims in the synagogues on four
consecutive Shabbosim that this woman is rebelling against her husband, and
that she is going to lose her Kesuvah if she does not change her ways. After
the fourth week, if she has not capitulated, they take away her entire
Kesuvah at once. The Amora'im here argue whether or not the Halachah follows
the view of Raboseinu.
On the next Daf (64a), the Gemara says that Beis Din waits twelve months
before permitting the husband to divorce her, during which time the husband
is not obligated to support her.
When all is said and done, what is the proper practice of fining a rebellious
wife according to the Gemara, and what is the Halachah?
There seems to be a Machlokes among the Rishonim about how to understand the
order and application of the different Takanos of the Gemara.
(a) According to RASHI, the later Takanah of Raboseinu was not accepted by
all of the Amora'im as the Halachah. Rather, the Gemara concludes that the
Halachah is "Nimlachin Bah" -- we delay the divorce and the immediate
revocation of her Kesuvah (but rather we reduce the amount of the Kesuvah in
the manner described in the Mishnah), and we try to persuade her to change
her ways. When the Gemara (64a) says that we give her twelve months, it is
also in agreement with the fine of our Mishnah. However, it is imposing an
upper limit to the fine; after twelve months of rebelliousness, whatever is
left of the Kesuvah is taken away and the husband may divorce her without
giving her the Kesuvah or Tosefes.
HALACHAH: The SHULCHAN ARUCH (EH 77:2) rules that if the woman who rebels is
ready to get divorced and to forego her Kesuvah, she cannot force the husband
to divorce her, like the opinion of Rabeinu Tam. If *he* wants to divorce
her, he may divorce her right away.
(b) TOSFOS and other Rishonim explain that the Halachah does follow the view
of Raboseinu. The only question among the Amora'im is whether Beis Din must
inform her of the consequences of her actions both before and after each
public announcement, or only after each announcement. The Amora'im agree that
she is fined the entire Kesuvah after four weeks.
The Rishonim argue, however, how to understand the Takanah to wait twelve
months. Is the Takanah referring to a woman who wants her Kesuvah, or is it
referring to a woman who is ready to get divorced and is willing to forego
1. The RASHBA (cited by the Magid Mishnah, Hilchos Ishus 14:9) says that it
is referring to a woman who is ready to forego the Kesuvah. Even though a
woman who wants her Kesuvah and continues to hold out is divorced after four
weeks without her Kesuvah, however if she says explicitly that she is ready
to forego the entire Kesuvah then we delay the divorce for twelve months.
This Takanah to wait twelve months was instituted by the Amora'im because the
Chachamim saw that women were getting divorced impulsively and then they were
regretful that they lost both husband and Kesuvah. By giving them time before
permitting them to divorce, the Chachamim hoped that the husband and wife
would appease each other.
The RIF writes that the Takanos did not end there. At a later period in time,
after the time of the Gemara, the Ge'onim instituted that if she does not
want her Kesuvah and they both want to divorce, he may divorce her right away
(and he does not have to wait twelve months).
2. The ROSH (5:34) explains that the Takanah was not only instituted for a
situation where they are both ready to get divorced and she does not want her
Kesuvah, but also in a situation where she does want her Kesuvah. The husband
still must wait twelve months before divorcing her.
3. The RAMBAM (Hilchos Ishus 14:9-10) writes the opposite of the Rashba. The
Takanah to wait twelve months was instituted only for a rebellious woman who
*wants* her Kesuvah. The Magid Mishnah explains that it is shameful for
Jewish women to be divorced out of quarreling ("Mipnei Ketatah"). Therefore,
we try to appease them for twelve months. But in a situation where she wants
to leave right away because she is disgusted with him, and she is willing to
forego her Kesuvah, then the husband may divorce her right away and we do not
make her wait at all (because she cannot be persuaded to stay with him under
such circumstances of being disgusted by him).
The Gemara explains that the enactments of the Mishnah and of Raboseinu apply
only when the woman says that she still wants her Kesuvah and is not willing
to be divorced without it. If she is willing to be divorced without her
Kesuvah, then Ameimar says that "we do not force her" to remain married. The
Rishonim argue what Ameimar means when he rules that "we do not force her" to
According to the RASHBAM (cited by the Rosh 5:34) and the RAMBAM (Hilchos
Ishus 14:8), this means that if she wants to leave him without a Kesuvah, we
make the husband divorce her and the husband cannot force her to remain
married to him.
However, according to RABEINU TAM (cited by Tosfos DH Aval and other
Rishonim), the Ameimar does not mean that we force him to divorce her, but
rather that we do not influence him *not* to divorce her; if he wants to
divorce her, he may.
If the woman who rebels demands her Kesuvah, she loses her Kesuvah after four
weeks of defiance (like Raboseinu), but the husband must wait twelve months
before divorcing her. This follows the view of the Rambam, (opinion (b):3
above) that we wait twelve months only when she is angry with him, but not
when she is disgusted by him and is ready to leave without a Kesuvah.
The REMA adds that some say that the Takanah of waiting twelve months after
she loses the Kesuvah was only in the times of the Gemara when a person was
permitted to marry a second wife. Nowadays, when we may not marry two wives,
since waiting twelve months would cause the husband to lose out as well
(because he will not be able to marry another wife), we allow him to divorce