DOWRY


DOWRY (Heb. נְדֻנְיָה), the property a wife brings to her husband at marriage; the Yiddish equivalent, nadn, is from the same root. The custom of nedunyah became clearly defined and institutionalized only in the talmudic period. In biblical times, mohar (מֹהַר), whereby the groom bought his wife from her father (Gen. 24:53; Ex. 22:15–16; Hos. 3:2), was the accepted practice. It was then customary that the groom give the bride gifts, and that she bring certain property to her husband's home upon marriage: slaves, cattle, real estate, etc. (cf. Gen. 24:59–61; 29; Judg. 1:14ff.; I Kings 9:16). Evidence of the custom of nedunyah is to be found in Tobit (7:14; 8:21) and in the Assuan papyri (Cowley, Aramaic, nos. 15, 18). Gradually, mohar was superseded by the ketubbah custom according to which the husband merely assumed the responsibility of compensation to his wife in case he divorced her: he had to pay her 200 zuzim if she had been a virgin at the time of marriage, and 100 zuzim if a widow or divorcée (see *Ketubbah).

By talmudic times, the institution of nedunyah was prevalent; the father gave a dowry to the bride since the daughter was excluded from paternal inheritance. Fifty zuzim (equivalent to the worth of 180 grams of silver) was the minimum amount a father was obliged to give to his daughter (Ket. 6:5). Parents usually gave much more, according to their social standing. Community funds provided the dowry for an orphan or a very poor girl (ibid.; cf. Sh. Ar., YD 251:8). In case of her father's death, the brothers of a minor girl were obliged to give her the minimum dowry, and the court estimated how much her father would have given her above the minimum dowry. The sum was then taken out of the father's estate and given to the daughter upon majority (Ket. 6:6; 68a–69b). In the absence of such an estimate, each daughter was entitled to receive one-tenth of the value of her father's estate in money, or in valuables (Yad, Ishut, 20:4–7; Sh. Ar., EH 113:4). If the father was unable or unwilling to pay the promised dowry at the betrothal ceremony, the groom could refuse to marry his bride (Ket. 13:5; Ket. 108b–109a). Insistence on exact payment of the promised dowry, however, was frowned upon by later rabbinic authorities (Rema to Sh. Ar., EH 2:1). In certain communities it was customary for the groom's father to make a dowry contribution equal to that of the bride's father (Ket. 102b). The dowry, whether given in real estate, slaves, money, or chattel was recorded in the marriage contract (the ketubbah) and in some instances one-third or one-fifth of the actual value of the dowry was added to the sum mentioned in the ketubbah. Based upon a decree enacted by *Simeon b. Shetah (first century C.E.), the Talmud ruled that the husband and his entire property were liable for compensation as stipulated in the ketubbah, either in case he died (when she collected the sum specified in the ketubbah from the heirs) or in case he divorced his wife (Ket. 82b). For the status of the dowry and the husband's rights and obligations, see below. The rabbinic enactments (Takkanot Shum) by R. Jacob *Tam and by the rabbinic synod of the communities of Speyer, Worms, and Mainz (Germany) stipulated that if a woman died without children within the first year of her marriage, the whole dowry should be returned to her father or to his heirs, and if she died without children within two years of her marriage, one-half of her dowry should be returned to her father or his heirs. These stipulations were accepted by Jews all over Europe, as well as by some Oriental communities. A rabbinic conference at Slutsk (1761) modified these rules by decreeing that only after five years of marriage would the husband of a childless wife become the sole heir to his deceased wife's property.

The custom of dowry in its original sense prevailed until modern times, especially among Jews of Eastern Europe. In these communities, the dowry often consisted of full board granted to the groom for several years so that he might continue his talmudic studies free from financial care. The custom was called in Yiddish kest and the financial arrangements of the dowry were detailed in a document called tena'im ("stipulations"; "conditions") signed at the betrothal ceremony; tenoim shraybn is derived from the term tena'im (see Ket. 102a–b). Jews in Muslim countries never accepted the custom of nedunyah, but continued the practice of mohar. The money which the groom gave to the bride's father, however, was used to buy furniture and household goods for the newly married couple. In modern Israel, the Oriental practices of mohar, as well as the custom of nedunyah, tend to disappear gradually. On the other hand, in cases of divorce, when couples settle the material aspects before a rabbinic court, the court's judgment, which is guided by the principles of halakhah, is legally binding. Societies for providing dowries for poor or orphaned girls were prevalent (see *Hakhnasat Kallah).

In Jewish Law

Dowry or nedunyah, apparently from the word neden, nedeh (i.e., gift – Ezek. 16:33 and commentaries), means all property of whatever kind brought by the wife to the husband upon their marriage (Yad, Ishut, 16:1 and Maggid Mishneh thereto). In its restricted and common meaning, the term is intended to refer to those assets of the wife which she of her own free will entrusts to her husband's responsibility, the equivalent whereof the husband of his own free will undertakes in the *ketubbah, and in a sum of money specified therein as the nedunyah, to restore to his wife upon dissolution of their marriage (Maggid Mishneh, Ishut 16:1; Tur, EH 85; Sh. Ar., EH 66: 11a and 85:2, Isserles' gloss; 88:2). Such property is also called nikhsei ẓon barzel, to be distinguished from another category of the wife's property, called nikhsei melog (see below). It is the practice for the husband to undertake in the ketubbah to restore to his wife the dowry with an increment (the tosefet nedunyah) of one third or one half of the amount specified, subject to local custom. Both parts of the total amount may be stipulated together in an inclusive sum and this is the customary practice; to this inclusive sum is added the sum of the ketubbah, as fixed by the halakhah, and its increments (see *Ketubbah), so that an overall sum is mentioned, but it is stressed that this sum is the aggregate of all the above-mentioned components (Sh. Ar., EH 66:11, and Rema thereto). The said obligation of the husband is treated in the same manner as any other pecuniary obligation (Maggid Mishneh, Ishut 16:1).

NIKHSEI ZON BARZEL

(lit. "the property of iron sheep") is a term derived from the name of a transaction in which one party entrusts property on certain terms to another, the latter undertaking responsibility therefor as he would for iron, i.e., for return of the capital value of the property as at the time of his receipt thereof, even if it should suffer loss or depreciation; since, generally, small cattle was the subject matter of such transactions, they came to be described by the above term (BM 69b and Rashi thereto). Hence the use of the term ẓon barzel for the property of the wife, to denote that part of her property given over to her husband's ownership but under his responsibility, i.e., subject to his undertaking to restore to her the value thereof as fixed in the ketubbah upon dissolution of the marriage. This obligation of the husband is governed by the rule that any appreciation or depreciation in the property is his, regardless of any change it may undergo, or even its loss (Tur and Sh. Ar., EH 85:2); on the other hand, this obligation remains constant despite any fluctuations in currency values (as distinguished from the fluctuations in the value of the property) and the husband remains liable for the sum specified in the ketubbah as the dowry equivalent at its value on the date of the marriage, but subject to calculation thereof in accordance with the local law prevailing at the time of its recovery (Taz EH 66, n. 6; Rema ḤM 74:7; Resp. Ḥatam Sofer EH 1:126). However, if at the time of its recovery, i.e., upon divorce or the husband's death (Sh. Ar., EH 66:11 and Rema EH 93:1), the actual property is still in existence and fit for the purpose assigned to it at the time of the marriage – generally the case in respect of real property – the wife is entitled to demand the return thereof in specie, as being "the luster of her father's home" (shevah beit aviha), and neither the husband nor his heirs can compel her to accept money instead (Sh. Ar., EH 88:3; Beit Shemuʾel 88: n. 4; Taz 88, n. 3).

NIKHSEI MELOG

(lit. "plucked property," i.e., usufruct) is a term derived from the word meligah, e.g., meligat ha-rosh, i.e., plucking of hair from the head which remains intact. Similarly, melog property is property of which the principal remains in the wife's ownership but the fruits thereof are taken by the husband so that he has no responsibility or rights in respect of the principal, both its loss and gain being only hers (Rashbam BB 149b; Haggahot Maimoniyyot Ishut 16:1), and upon dissolution of the marriage such property returns to the wife as it stands, in specie. This category embraces all the property of the wife falling outside the category of nikhsei ẓon barzel – save for property of the kind described in the next section – whether brought by her at the time of entering the marriage, or acquired thereafter, e.g., by way of inheritance or gift (Yad, Ishut 16:2; Tur and Sh. Ar., EH 85:7).

PROPERTY WHICH IS NEITHER ZON BARZEL NOR MELOG

A third category is property of the wife concerning which the husband has no rights at all, neither as to the principal nor the fruits thereof. This includes property acquired by her after the marriage by way of gift, the donor having expressly stipulated that it be used for a specific purpose (such as for her recuperation), or that it be used for any purpose of her choice without her husband having any authority thereover (Yad, Zekhi'ah 3:13, 14; Sh. Ar., EH 85:11), or property given to her as a gift by her husband, he being considered here to have waived his rights to the fruits thereof, in terms of the rule "whoever gives, gives with a generous mind" (BB 52b and Rashbam thereto; Sh. Ar., EH 85; 7; see also *Gifts).

THE HUSBAND'S RIGHTS TO THE PRINCIPAL

Since the wife is entitled to the ownership of her property – melog, because it has never ceased to be in her ownership, and ẓon barzel, in terms of the halakhic rule concerning "the luster of her father's home" (see above) – the husband is not entitled to deal therewith in any manner prejudicial to her right, e.g., sale, etc., and any such act is invalid with reference to both movable and immovable property (Sh. Ar., EH 90:13, 14; Rema to 14; Beit Shemu'el 90, n. 48; Resp. Ribash no. 150). In the case of money the position is different: if it falls within the category of ẓon barzel and therefore passes fully into the husband's ownership, he being responsible for returning the equivalent thereof as determined in the ketubbah, he is free to trade or otherwise deal therewith, as with his own money (Ḥelkat Meḥokek 85, n. 4; Resp. Ribash no. 150); if, however, the money is part of the melog property and therefore not in the husband's ownership, he is not entitled to trade therewith save with his wife's consent but may only – and even will be obliged to do so if so requested by his wife – invest the money in such manner that the principal is preserved for her, while the fruits will be his (Resp. Ribash no. 150; Ḥelkat Meḥokek 85 n. 42).

INCOME FROM THE WIFE'S PROPERTY

All the fruits of the wife's property, i.e., all benefits derived from her property in a manner leaving intact the principal and its continued capacity to provide benefits – such as natural or legal fruits, e.g., rental or the right of occupation or stock dividends – belong to the husband (Sh. Ar., EH 69:3, 85:1, 2, 13). In accordance with the regulations of the sages he is entitled to these in return for his obligation to ransom her should she be taken captive, in order to avoid the ill-feeling that would arise between them if he received no help from her (Ket. 47a–b and Codes). The wife cannot forego her right to be ransomed at her husband's expense with the object of depriving him of his right to the fruits of her property, lest she remain unransomed and become absorbed among the Gentiles (Sh. Ar., EH 85:1); for the same reason, the husband does not escape the obligation to ransom his wife by renouncing the fruits from her property (ibid.).

By virtue of this right, the husband is entitled to receive the fruits and to take all steps necessary for the realization thereof – such as collecting rent or demanding the ejection of a tenant – in his own name and without being specifically authorized thereto by his wife (Sh. Ar., ḤM 122:8; EH 85:4 and commentaries; PDRE 4:107); nor does he require any specific authority from his wife in order to recover and receive any money to which she is entitled, including the principal, in order that it may be available to him for its investment and his enjoyment of its fruits (Sh. Ar., ḤM 122:8; Siftei Kohen, ḤM 122, n. 33; Rema ibid.). On the other hand, the husband, being entitled to the fruits, has the corresponding obligation to defray thereof the expenses of the property (Sh. Ar., EH 88:7), and if the fruits do not suffice for the purpose and he has to invest of his own money and labor on the property, he generally will not be entitled to compensation, not even upon divorce, since he is considered to have waived any claim therefor, having invested them with a view to enjoying the fruits ("what he has expended, he has expended and what he has consumed, he has consumed" – Ket. 79b; Sh. Ar., EH 88:7).

The husband's ownership of the fruits is not absolute, since the object of the halakhic rule whence his right to the fruits of the wife's property is derived is "for the comfort of the home" Ket. 80b), i.e., for their mutual comfort in their home and so as to ease the burden of maintaining the household (see Yad, Ishut 22:20 and Maggid Mishneh thereto). Consequently he is not entitled to use the fruits for his personal advantage, and if he should invest them in a way showing that he is not using them for the comfort of the home, the investment will be considered the wife's property as capital forming part of her nikhsei melog, of which the fruits only may be taken by him, to be used for the comfort of the home (Tur, EH 85, Perishah n. 51; Derishah n. 2). For the same reason the husband's creditors, i.e., in respect of debts unconnected with the upkeep of the household, may not seize the fruits and recover their debt from the proceeds thereof since this would preclude them from being used for their assigned purpose (Sh. Ar., ḤM 97:26; commentaries to EH 85:17). On the other hand, since the fruits belong to the husband, the wife must not do anything which may deprive him of his right of usufruct. Hence her sale of the principal without her husband's consent will be invalid with regard to the fruits, as a sale of something not belonging to her and therefore the husband's right of usufruct is unimpaired thereby and he continues to enjoy the benefits thereof even if the principal is in the hands of the purchaser: "the husband may seize the fruits from the purchasers" (Sh. Ar., EH 90:9, 13). This does not mean, however, that Jewish law denies a married woman legal capacity, like an idiot or a minor, for the sale, as mentioned above, is invalid only in respect of the fruits, as being a sale of something that is not hers (Rema EH 90:9, 13; and Ḥelkat Meḥokek 90, n. 29); with reference to the principal, therefore, her ownership is not affected by the husband's usufruct and her sale is valid, to the extent that upon her divorce or the death of her husband, the purchaser will acquire, in addition to the principal, the fruits also of the property purchased by him without any need for novation or ratification of the sale. Upon the death of his wife the husband, indeed, is entitled to seize also the principal from the purchasers, but not because the sale is regarded as invalid for reasons of legal incapacity of the wife, but because the sages regulated that when a wife predeceases her husband, he is considered – mi-ta'am eivah, i.e., in order to avoid ill feeling between them – upon entering the marriage as the earliest purchaser of her property and therefore takes preference over any other purchaser ("Takkanat Usha" – see Ket. 50a, Rashi and Codes). The rule that "whatever the wife acquires, she acquires for her husband," therefore means no more than that he acquires the fruits but the principal is and remains her own (Git. 77a and Rashi; Sh. Ar., ḤM 249:3; on the question of the husband's right to the fruits when he is a mored ("rebellious spouse") see *Husband and Wife).

DOWRY AND THE MARRIAGE DEED

The wife may only recover her dowry at the same time as she does the ketubbah, i.e., upon divorce or the death of her husband (Sh. Ar., EH 66:11; Rema EH 93:1, Isserles). The two are distinct, however, since the amount of the ketubbah is payable from the husband's own pocket whereas the dowry is her own property. Hence, even in the case where the wife forfeits her ketubbah according to law (see *Divorce), she does not lose her dowry, save in case of any express halakhic rule to the contrary (Yad, Ishut 16:1; Maggid Mishneh, ibid.; PD 12: 1121, 1197–1201).

THE DAUGHTER'S RIGHT TO A DOWRY

See *Parent and Child.

IN THE STATE OF ISRAEL

The Supreme Court has interpreted section 2 of the Women's Equal Rights Law, 5711/1951, as directing that Jewish law is not to be followed in matters concerning the husband's rights to the fruits of his wife's property (PD 12:1528ff.). According to this interpretation there is complete separation between the property of the respective spouses with reference to both the principal and the fruits, and the fact of their marriage in no way affects the rights of either party with regard to his or her own property or the fruits thereof.

[Ben-Zion (Benno) Schereschewsky]

The Women's Equal Rights Law, 5711 – 1951, as interpreted by the Supreme Court (see HC 202/57 Sidis v.Rabbinical Court of Appeals, 12 PD 1528) had far reaching implications for those cases in which a woman sued her husband for support, while simultaneously earning income from her own property. Under Jewish Law, the husband was entitled in such a case to argue that the wife receive her support from the income from her property which, according to halakhah, belonged to the husband (File 5712/2921,4457, 1 PDR 239; File 5716/153, 2 PDR, 97). However, in its aforementioned ruling, the Supreme Court partially abrogated the network of reciprocal obligations, so that the husband's obligation to support his wife remained intact, whereas his right to the income from her property was annulled. This meant that the income from the wife's property could not be deducted from her maintenance. This result was harshly criticized, conflicting as it did with the trend towards equalization of reciprocal duties and rights between spouses under which, in cases where the woman had income from property, she was required to assist in the household expenses. The Supreme Court noted that "this situation is unsatisfactory" and recommended that the Legislature rectify the situation by way of appropriate legislation (CA 313/59 Balban v. Balban, 14 (1) PD 285, per Justice Yitzchak Olshan; CA Rinat v. Rinat, 20 (2) PD 21 per Justice Zvi Berenson). In another case (FH 23/69 Yosef v. Yosef, 24 (1) PD 792), the Supreme Court ruled that, when the wife worked and earned a living, her salary was to be deducted against the sum he owed her as support, because her income constituted "the wife's handiwork" (ma'aseh yadeha), which belongs to the husband (see entry: *HUSBAND and WIFE). In wake of that decision, the Court again called upon the Legislator to amend the existing legal position and to equate the law applying to income from the wife's real assets with the law applying to her income, so that both might be reckoned against the sum owed for her support (CA 61/71 Cohen v. Cohen, 25 (2) PD 327, per Justice Etzioni):

The existing legal situation gives rise to blatant inequality between maintenance awarded to women who have income-producing property, and those whose income is derived from her wages. In the former case the Court does not consider her income in calculating the support her husband is required to provide, whereas in the case of the working woman, the Court does take her wages into account (her salary being considered "her handiwork"). This is an unacceptable state of affairs. The way to eliminate the inequality inherent in this state of affairs is […] to apply to a women who owns melog (i.e., real property on which the husband enjoys usufruct) the same rule that applies to working woman when determining the amount of support (p. 332 of decision).

In response to the Supreme Court's recommendation to the legislature that the statute be amended, in 1976 a new clause, section 2a, was added to the Family Law Amendment (Maintenance) Law, providing that "Notwithstanding the provisions of the Women's Equal Rights Law, 5712 – 1951, in fixing the amount of support required to be paid to a spouse, the Court is entitled to take into account the income of the spouse from employment and from property, and if deemed appropriate – from any other source."

The Supreme Court (CA 596/89 Hakak v. Hakak, 45 (4) PD 749) ruled (per Justice M. Elon) that the amendment of the law restored the balance in Israeli law between the woman's right to support and the husband's halakhic right to his wife's handiwork:

Had it been possible to rely exclusively on the personal law [based on halakhah], then with respect to Jewish spouses there would have been no need to amend the Maintenance Law, because according to Jewish Law, when fixing the amount of the support the wife's melog property is not taken into account – meaning that she does not have to sell her property in order to support herself. On the other hand, account is taken of her income from that property. However, as a result of the enactment of the Women's Equal Rights Law and its interpretation by the Supreme Court, this consideration for the wife's income from her property was abolished when fixing the amount of her support. This "incidental oversight" has now been rectified by the amendment in section 2a. Accordingly, section 2a begins with the provision: "Notwithstanding the provisions of the Women's Equal Rights Law" – the intention being to specify the name of the law requiring amendment, and to underscore that it was an amendment of that law. As a result of this amendment to the Women's Equal Rights Law, Jewish Law was "released" from the yoke of that "oversight" with respect to the fixing of the amount of support for the wife on the basis of the Women's Equal Rights Law as interpreted by the Supreme Court, and the crown of the original Jewish Law was restored (p. 778 of the decision) (see *Matrimonial Property).

[Menachem Elon (2nd ed.)]

BIBLIOGRAPHY:

GENERAL:

L.M. Epstein, The Jewish Marriage Contract (1927), 89–106; Tchernowitz, in: Zeitschrift fuer vergleichende Rechtswissenschaft, 29 (1913), 445–73. LEGAL ASPECTS: H. Tchernowitz, in: Sefer Yovel… Nahum Sokolow (1904), 309–28; I.S. Zuri, Mishpat ha-Talmud, 2 (1921), 73–79; Gulak, Yesodei, 3 (1922), 44–60; Gulak, Ozar, 56–65, 109f.; ET, 4 (1952), 88–91; B. Cohen, in: PAAJR, 20 (1951), 135–234; republished in his: Jewish and Roman Law (1966), 179–278; addenda ibid., 775–7; idem, in: Annuaire de l'Institut de Philologie et d'Histoire Orientales et Slaves, 13 (1953), 57–85 (Eng.); republished in his: Jewish and Roman Law (1966), 348–76; addenda ibid., 780f.; M. Silberg, Ha-Ma'amad ha-Ishi be-Yisrael (19654), 348ff.; M. Elon, Ha-Mishpat Ha-Ivri (1988), 1:192ff., 398, 466ff., 469, 537, 542; 3:1515ff; idem., Jewish Law (1994), 1:216ff.; 2:486, 568ff., 572, 654, 660; 4:1802ff.; B. Schereshewsky, Dinei Mishpaha (1993, 4th ed.) 115–16, 146–53, 171, 224–31. ADD. BIBLIOGRAPHY: M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Hakhmei Sefarad u-Ẓefon Afrikah (1986), 1:45–47; 2:275–80; B. Lifshitz and E. Shohetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefatve-Italyah, 32–33, 192–94.


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