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Encyclopedia Judaica:
Concubine


Jewish Concepts: Table of Contents | Marriage | Sex


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CONCUBINE, marital companion of inferior status to a wife.

In the Bible

The term in Hebrew is pilegesh, the equivalent of Greek pallakis (παλλακίς) and Latin pellex. Among the Assyrians the concubine (esirtu) gained the rank of wife only after the veiling ceremony conducted by her spouse, if he so chose to elevate her (Assyrian Code A, 41). The legal formalities, if any, are not described in the Bible. A concubine did not always reside in her husband's home (Judg. 8:31), but such was not the general rule (Judg. 19–20). Her spouse was called the son-inlaw (ḥatan) of her father, who was the father-in-law (ḥoten). Therefore, the concubinage relationship could partake of many aspects of regular marriage. Two famous concubines are mentioned in the Bible. Rizpah the daughter of Aiah the concubine of Saul (II Sam. 3:7) whose moving display of maternal love so moved David that he had her children buried in the family sepulcher (21:8–14) and the concubine of Gibeah whose rape and murder brought about the death of 25,000 members of the tribe of Benjamin and the ban against members of the other tribes intermarrying with them (Judg. 19–21).

Royal concubines were standard among the kings of Israel and Judah, just as in any ancient Near Eastern kingdom (Song 6:8–9). They were clearly distinguished from the wives (II Sam. 5:13; I Kings 11:13; II Chron. 11:21). To lie with a monarch's concubine was tantamount to usurpation of the throne (II Sam. 3:7; 16:21–22). For this reason Abner took Rizpah (II Sam. 3:7). The same concept stands behind Ahitophel's advice to Absalom, to "go into his father's concubines" (16:21), and Adonijah's request for Abishag the Shunamite was clearly associated with this custom (I Kings 2:21–24). The harem was usually in the charge of a eunuch (Esth. 2:14; cf. II Kings 9:32). The role of the concubine as the mother of venerable ethnic groups is not overlooked in the genealogies. Their descendants are usually classed as secondary or subsidiary tribes (Gen. 22:24; 36:12), especially the Abrahamic groups (Gen. 25:6; I Chron. 1:32). Within Israel, some of the clans were also the offspring of concubines (I Chron. 2:46; 7:14). In one instance, the term concubine is applied to a handmaiden (shifḥah and aʾmah) who had borne children to her mistress' husband (Gen. 35:22). Such a relationship was usually established because the legal wife was barren (Gen. 16). Ancient marriage arrangements often stipulated that if the wife was barren, she must provide a handmaiden for her husband (cf. Code of Hammurapi, paragraphs 144–5 and the adoption contract from Nuzi in Pritchard, Texts, 220). Naming the handmaiden given to the bride by her father in such cases was evidently related to this practice (Pritchard, loc. cit.; Gen. 29:24, 29). If the wife later bore children of her own, they took precedence in the inheritance over those of the handmaiden (Gen. 21:12; cf. Code of Hammurapi, 170), although the latter did receive a share (usually on condition that their father had granted them legal recognition; Code of Hammurapi, 171). Israelite law provided safeguards for the rights of Hebrew girls sold as handmaidens who were to be wed to their purchaser or to his son (Ex. 21:7–11). If the handmaiden bore children for her mistress and then sought to place herself on an equal footing, she normally could not be sold, although she could be reduced to the status of a slave again (Code of Hammurapi, 146; cf. Gen. 21:12–14, where the slave-concubine and her child are both expelled, but only on the advice of a divine oracle.).

[Anson Rainey]

In the Talmudic Period and the Middle Ages

There is no evidence of actual concubinage in the Talmud, nor is there any evidence of it in practice during the Middle Ages. In the responsa of *Asher b. Jehiel (no. 32:1) there is a reference to a concubine, but it seems to be merely the case of a man cohabiting with a woman without going through a marriage ceremony with her, and not to a formal concubine. In the Middle Ages concubinage was formally forbidden by the rabbis as immoral, only one authority, Jacob *Emden (responsum no. 15) expressing the opinion that it should be permitted.

[Louis Isaac Rabinowitz]

In Jewish Law

A concubine may be defined by Jewish laws as a woman dedicating herself to a particular man, with whom she cohabits without *kiddushin (see *Marriage ) or *ketubbah . "What is the difference between wives and concubines? R. Judah said in the name of Rav: Wives have ketubbah and kiddushin, concubines have neither" (Sanh. 21a; Maim. Yad, Melakhim 4:4; Leḥem Mishneh and Radbaz, ad loc.). Not all the scholars adopt this reading, however, and Rashi, for instance, comments: "wives with kiddushin and ketubbah, concubines with kiddushin but without ketubbah" (Comm. to Gen. 25:6; see also Comm. Hagra, EH 26, n. 7). This latter reading is apparently that of the Jerusalem Talmud too (TJ, Ket. 5:2, 29d and Hagra, ibid.; but see Mareh ha-Panim thereto). The majority of the *posekim accept the former reading as the correct one (Radbaz to Yad, Melakhim 4:4; Kesef Mishneh and Leḥem Mishneh, as against the Maggid Mishneh, to Yad, Ishut, 1;4; Radbaz, Resp., vol. 4, no. 225; vol. 7, no. 33; Naḥmanides, commentary to Gen. 19:8; 25:6; Ralbag to Judg. 19:1; Rashba, Resp., vol. 4, no. 314). Hence a concubine is to be distinguished both, on the one hand from a married woman, i.e., by ḥuppah ("marriage ceremony"), kiddushin, and ketubbah, and on the other from a woman who does not dedicate herself to one particular man exclusively, but who prostitutes herself; i.e., the harlot (Hassagot Rabad to Ishut 1:4 and see also Rema to EH 26:1).

The Prohibition against Concubinage

There are divided opinions in the codes on the question of whether the taking of a concubine is prohibited or permitted. Some of the posekim are of the opinion that neither pentateuchal nor rabbinical law forbids it, if the woman observes the rules concerning the mikveh so that the man should not cohabit with her during her period of menstruation (Rema in the name of Rabad, EH 26:1). Others are of the opinion that although it is not legally prohibited, one should refrain from taking a concubine, and they caution against her, "lest knowledge of the permissibility encourage licentiousness and sexual relations with her at a time when she is sexually unclean" (Sefer Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Ramban, no. 284). The majority of the posekim, however, are of the opinion that it is forbidden to take a concubine, although they differ as to the substantive nature of the prohibition. Some are of the opinion that taking a concubine is a transgression of a prohibition of the pentateuchal law, based on the negative command: "There shall be no harlot of the daughters of Israel" (Deut. 23:18), to be punished with lashes (Rema to EH 26:1 in the name of Maimonides; Rosh, and Tur), while others expressed the opinion that the prohibition stems from a positive command of the pentateuchal law, the Torah saying, "when a man takes a wife" (Deut. 24:1) – i.e., he should take her by way of kiddushin. According to another view, the prohibition is rabbinical law only. (On the different views and their reasons, see Oẓar ha-Posekim, EH 26:3–8.) All the foregoing applies only to a woman who is unmarried; a married woman is by pentateuchal law at all times prohibited to have sexual relations with any man but her husband (issur eshet ish; see Prohibited *Marriages ; *Bigamy ; *Marriage ).

Since more recent times it is unanimously accepted that the taking of a concubine is prohibited: "At the present time a woman is permitted to no man except through kiddushin, ḥuppah, sheva berakhot, and ketubbah" (Radbaz, Resp., vol. 4, no. 225; vol. 7, no. 33). This applies even more in the case of a married man, in the same way as he is prohibited from taking an additional wife (see *Bigamy ), both for the protection of his wife and because his taking a concubine – since he is aware that he must not take an additional wife – can only be for the purpose of prostituting, and this is forbidden in the opinion of all the posekim (Rashba, Resp., vol. 4, no. 314; Oẓar ha-Posekim, EH 1, n. 4; 26, n. 5).

Personal Status and Pecuniary Rights of a Concubine

Inasmuch as a concubine does not acquire the personal status of a wife (eshet ish: Tur EH 26; Sh. Ar., EH 26:1), she has no ketubbah; therefore, in accordance with the rule providing that the "terms and conditions of the ketubbah [tena'ei ketubbah] follow the [prescribed] ketubbah" (Ket. 54b; Rashi ibid. S.V. tena'ei ketubbah) she does not acquire any of the wife's pecuniary rights – especially she is not entitled to maintenance – as all those rights stem from the ketubbah. Nor does living with a man as his concubine create a kinship as an impediment to marriage between herself and any of the man's relatives, or between the man and her relatives, as would be the case if she would be considered to be his wife (Rosh, Resp. no. 32:1; Oẓar ha-Posekim, EH 26, n. 3). For the same reason there is no need in principle for her to obtain a get (see *Divorce ) in order to be permitted to marry any other man (Oẓar ha-Posekim, loc. cit.; Sefer ha-Tashbeẓ 3:47). However in the opinion of some of the posekim, for the sake of appearances, in view of the parties having lived together, the matter should be approached stringently and the woman should not be permitted to marry another man without obtaining a prior "get out of stringency" (get me ḥumrah) from the man with whom she has lived; but whenever the latter's refusal to grant her the get is likely to entail the risk of her becoming an *agunah , she may certainly be permitted to marry without getting such get (Oẓar ha-Posekim, EH 26, n. 3). Moreover, since the prohibition against concubinage is intended solely against the concubine's connection with her spouse, this fact alone and as such does not impair the personal status of children born of the union, nor their rights of inheritance according to law (Rashba, Resp. vol. 4, no. 314).

Legal Position in the State of Israel

Since the question of concubinage touches on the issue of the requirements necessary for conferring on a woman the status of a wife, the question is a matter of "marriage" – within the meaning of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, no. 64 of 5713/1953 – and therefore in the case of Jews who are citizens of the State of Israel, governed by Jewish law (sec. 1). However, legislation enacted for the first time after the creation of the state has given recognition to the concept of the "common law wife," i.e. a woman living together with a man to whom she is not married, but is so regarded (erroneously) by the public (yedu'ah ba-ẓibbur keishto) and in some laws the same applies, vice versa, to such a "husband" – granting her certain rights, mainly with regard to pension and tenant's protection. According to decisions of the courts, such a woman is entitled to the said rights even if she is lawfully married to another man (CA 284/61, in PD, 16 (1962), 102–12). As to the actual definition of the term "a woman known to the public as his wife" and the modes of proving the necessary facts, widely differing opinions have been expressed in decisions of the courts. It is generally accepted, however, that the said legislation does not entail any change in the personal status of the woman, whose position is to some extent similar to that of a concubine.

[Ben-Zion (Benno) Schereschewsky]

Decisions of the Israel Supreme Court

The distinctions in Jewish Law regarding the status of a woman who lives with a man to whom she is not married formed the basis of the Supreme Court's ruling in the case of Agbara v. Agbara (CA 4946/94, 49(2) PD 508). The case concerned a divorced couple, whose divorce agreement stipulated that "the husband's obligation to pay the entire sum of maintenance … will apply until each of the children has reached 21 years of age or until the wife remarries, if she remarries, whichever the later" (p. 510 of judgment). Following the husband's remarriage and subsequent separation from his second wife – without a get, due to the second wife's refusal to accept it – the original couple resumed living together as "common law spouses." Eighteen years later the husband left the home. The woman claimed that the original divorce agreement was still in force, as she had not yet married, and the man was therefore liable for maintenance payments. The husband claimed that his obligation under the agreement lapsed at the point that the wife had received a secure financial framework, and that the agreement was void by implication because their actions, upon returning to live together, attested to its annulment

The Supreme Court (Justice Zvi Tal) ruled that, in accordance with Jewish Law, the agreement was no longer valid because the condition regarding the woman's remarriage had been fulfilled, and the woman was considered as both betrothed and married to the man.

Regarding an ordinary couple who are common law spouses, there are many opinions as to whether or not the woman requires a get, and it also depends on the circumstances of the case. There are those who at the very least require her to receive a get le-ḥumra (a writ of divorce to cover possible halakhic uncertainty as to her status), based on the presumption that "a man does not intend his sexual relations to be promiscuous" and the evidentiary presumption – anan sahadi – that there was marital intention. On the other hand, there are those who make the application of this presumption conditional upon whether the life style of the couple in question validates its application in their particular case. Furthermore, if they could have married officially, and refrained from doing so, this is deemed as a declaration on their part that they are not interested in marrying, and hence the presumption does not apply to them.

But irrespective of what the situation is regarding an ordinary couple, it differs with respect to spouses who were married, divorced, and then resumed living together. Regarding such a couple the Mishnah states (Git. 9:10):

"If a man has divorced his wife and then stays with her overnight in an inn, Bet Shammai say that she does not require from him a second get, but Bet Hillel say that she does require a second get from him …."

The halakhah was decided according to Bet Hillel, and codified accordingly (Maim., Yad, Gerushin 10.17; Sh. Ar., EH 149:1):

"Now, if this is the rule regarding one night in an inn, then a fortiori, it would apply to cohabitation for almost 20 years, during which time the couple were regarded as husband and wife; hence, she requires a get from him if she wishes to remarry. For if on the basis of one night together in an inn the woman is considered as "definitely betrothed" (the terminology of Shulḥan Arukh), and betrothal alone does not obligate the man to support her, then it is clear that cohabitation for close to 20 years would be deemed a marriage, creating an obligation of support. Indeed, the essence of huppah – which confers the status of marriage upon a betrothed woman – is their shared domicile in one house as man and wife. The fact that the couple did not remarry by way of a proper marriage ceremony with ḥuppah and kiddushin is not indicative of their intention not to marry, for the husband was still officially married to his second wife. It seems clear that, under the circumstances, the respondent should be considered a married woman who requires a get from the appellant, and as such he is obligated to support her by dint of his personal status – albeit not by force of the agreement. Regarding the divorce agreement, the condition stipulated for the termination of the agreement – "until she marries" – should be regarded as having been fulfilled, and there fore the obligation to pay support pursuant to the divorce agreement is vitiated. (ibid., pp. 513–14)."

The question which the Supreme Court was required to decide in the framework of the appeal was limited to the issue of the validity of the agreement. Regarding this question, the Court's conclusion was that the agreement is invalid, inasmuch as the couple was considered as still married. Therefore, the woman can demand support from the man on the basis of her status as his married wife, but she can only do so in the framework of a separate proceeding.

It is noteworthy that Justice Tal emphasizes that the ruling does not constitute a decision on the validity of the marriage, an issue residing within the exclusive jurisdiction of the rabbinical court. The Supreme Court's decision relates solely to a secondary question, required for the clarification of the main question: the financial question of the validity of the agreement – for which the Supreme Court has jurisdiction.

[Menachem Elon (2nd ed.)]

 


BIBLIOGRAPHY:

In the Bible: De Vaux, Ancient Israel, 521–22. Talmud and Middle Ages: Z. Falk, in De'to, 27 (1965), 35ff. In Jewish Law: L.M. Epstein, in PAAJR 6 (1934/35), 153–88; B.Z. Schereschewsky, Dinei Mishpahah (1967), 92, n.39. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 3:1415f.; idem, Jewish Law (1994), 4:1684f.; idem, Ḥakikah Datit (1968), 119–54; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah, 2 (1986), 356; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (1997), 245. M. Shawa, "Mashma'ut 'Ben Zug,'" in: Ha-Ḥakikah Le-Or Ḥok Yesod: Kevod ha-Adam ve-Ḥeruto, Minḥah Le-Yiẓḥak (1999), 197; S. Lifshitz, "Yedu'im be-ẓibbur," in: Iyyunei Mishpat, 25(3), 741–849. Corinaldi, Status, Family & Succession, Between State and Religion, (2004) 31–37.


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.

 

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