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The Yemenite Ketubbah (Marriage Contract)
The ketubbah, or "marriage contract," was enacted by Šimon b. Šatah (TB Šabbat 14b) in order that it might not be esteemed a light thing for a man to divorce his wife (Maimonides, Hilkoth Išuth 10:7). The enactment provides for a man's wife to receive a fixed sum of money, usually accruing from his property, in the event of his divorcing her or of his predeceasing her. R. Šim‘on b. Gamli’el, however, held the view that the ketubbah was a teaching derived from the Law (TB Ketubbot 10a). Whatever its origins, the practice has spread itself since ancient times amongst all the communities of Israel, the law prescribing that the ketubbah be drawn up before the night of the wedding, and read aloud during the ceremony. In Yemen, the custom was to read the ketubbah before the actual betrothals took place, so that if the bridegroom wished to back down, he could still do so. The reading was performed by the mori (Rabbi) who read the contract while standing, yet while all others sat quietly upon the floor. When the mori concluded its reading, he would roll it up and hand the ketubbah to the bridegroom, at which time the bridegroom stood up and commenced to make the benedictions and the actual betrothals.
As in most contracts made between two parties, there are mutual obligations, conditions and terms of reciprocity for such a contract to hold up as good. Thus said R. Yannai: "The conditions written in a ketubbah, [when breached], are tantamount to [forfeiture of] the ketubbah" (Ketubbot 54b). A woman who denied coitus unto her husband, a condition of the ketubbah, was considered legal grounds for forfeiture of her marriage contract, with the principal and additional jointure being written off. (See translated text of ketubbah for a broader understanding of these terms.) In former times, they would deduct seven denarii per week from the dower's price of her ketubbah, for as long as she persisted in her state of rebellion against her husband by denying him to cohabit with her. The seven denarii were fixed in accordance with the number of unwritten obligations a woman was seen as having towards her husband: to grind, to bake, to cook, to launder, to breastfeed her son, to make-up his bed and to spin wool. (Berešit Rabba 52:13). A man, likewise, if he denied coitus unto his wife, was formerly compelled to add an additional three denarii per week unto the dower's price of her ketubbah, until at last he acquiesced to his wife's desires. These three denarii were fixed in accordance with the three major responsibilities a man was seen as having towards his wife from the standpoint of the Law (Exo. 21:10): to provide food, to provide clothing and jewellery, and to cohabit with his wife (Berešit Rabba, ibid.).
In Yemen, the financial obligations pledged by a man to his wife were never seen as fictitious, as they are often viewed today. Rather, all obligations were legally binding and enforced by the courts. If a man divorced his wife without due cause, the court would oblige him to pay his wife the monies pledged in her ketubbah. However, in cases where the woman sued for a divorce, it was sometimes seen as a breach of contract, and the husband was not always compelled in such cases to pay her ketubbah. One such case had arisen in San‘ā’ where the daughter of the Chief Rabbi and President of the Court, Yihye Yishāq Halevi (1905–1932), was married to Yihye b. Nissim Mansūra, and their marriage had fallen apart. The woman returned to live in her father's house, without receiving a divorce. Her father soon began to appeal to his fellow jurists to force the husband to dissolve their marriage by giving the estranged wife a bill of divorce, as also to make good all payments in her ketubbah. The Rabbi's daughter claimed that she found her husband intolerable, or what is known in Hebrew as me'is ’alay. The fellow jurists, R. Yihye Qafih and R. Yihye Abyad, contended that he ought, indeed, to divorce his wife, but not be compelled to pay her ketubbah, citing that a woman was not to be believed when saying that her husband was intolerable, lest perhaps she laid eyes upon some other man. Now there arose a great dispute over this matter, dividing the community. Some said that he ought to divorce his wife and to pay her ketubbah, while others said that he ought to divorce her, yet not pay her ketubbah. At length, after much coercive speech and prodding, the husband divorced his wife, yet was she not entitled to any settlement. He eventually went off and was married to a different woman.
The ketubbah which we have selected is unique in that it bears the signature of one of the greatest Rabbis ever produced by Yemen, Viz., R. Yihye b. Yosef Sālih known by the acronym MahrisToday, it is found in the Ketubbah collections at the Hebrew University National Library of Jerusalem. The handwriting is believed to be that of Mahris. The year in which the ketubbah was written was 1747 C.E. (corresponding with the year 2058 of the Seleucid Era, or what is also known as the year of Alexander, or the Era of Contracts), written in the city of San‘ā’, some sixty-seven years after the community's return from their Exile to Mawza. The old Jewish Quarter (al-Saila) had been demised of its former status, while the new quarter had just been built without the walls of the old city. During that same year, the community would lose their respected and beloved Rabbi, David b. Yihye Hoter, who served as President of the Court at San‘ā’. So, too, the secretary of the Court, R. Yosef b. Sa'adia Bašarī, a man responsible for making a written record of all deeds transacted in the Court, had ceased to work in this profession.
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בְּשֵׁם אֲשֶׁר לוֹ הַגְּדוֹלָּה / וּמרוֹמָם עַל כָּל בְּרָכָה וּתהִלָּה / בְּשָׁעָה מְעוּלָּה וְעוֹנָה מְהוּלָּלָה / וְיָד וְשֵׁם וּתהִלְָּה / וְדִיצָה וְצַהֲלָה / וְחֵן וְחֶסֶד וְחֶמלָה / וּמִלּוּי כָל שְׁאָלָה / לֶחָתָן וְלַכַּלָּה / וּלכָל הַקְּהִלָּה הַנִּקהָלָה / זֶרַע יִשׂרָאֵל הַסְּגֻלָּה / יָשִׂישׂוּ וְיִשׂמָחוּ / וְכַשּׁוֹשָׁן יָפרִיחוּ / וְכַבֹּשֶׂם יָפִיחוּ / וְיִבָּנוּ וְיַצלִיחוּ / כְּוַיִּבנוּ וַיַּצלִיחוּ / מָצָא אִשָּׁה מָצָא טוֹב וַיָּפֶק רָצוֹן מֵיְיָ' / בַּיִת וָהוֹן נַחֲלַת אָבוֹת וּמֵיְיָ' אִשָּׁה מַשׂכֶּלֶת.
בְּמַעֲלֵי שַׁבָּא דְּהוּא תִּשׁעָה יוֹמִין לְחֹדֶשׁ שְׁבָט שְׁנַת תְּרֵין אַלפִין וְחַמשִׁין וְתַמנֵי שְׁנִין לִשׁטַרֵי בְּמַאתָּא קַאע בִּיר אַלעֲזַבּ דְּעַל בֵּירִין דְּמַיִין נָבעִין דִּילַהּ מוֹתְבַהּ בְּיוֹמָא דְּנָן בִּזכוּת אַברָהָם אֲבוּנָא אֵיך יוֹסֵף ן' סַאלִם ן' סְלֵימַאן אלהשַׁאשׁ אלמְכֻנָּא אלפְתַיחִי חַתנָא אֲמַר לַהּ לג'זאל בִּנתּ יוסף ן' סַאלִם צַאלָח הַמְּכֻנָּא אלחַידַּאנִי כַּלְּתָא בְּתוּלְתָא הֲוִי לִי לְאִנתּוּ כְּדָת מֹשֶׁה וְיִשׂרָאֵל וַאֲנָא בְּמֵימְרָא דִּשׁמַיָּא אֱפלַח וְאוֹקֵיר וַאֲסוֹבַר וַאֲזוּן וַאֲפַרנֵיס וַאֲכַסֵּי יָתִיכִי כְּהִלכַּת גּוּברִין יְהוּדָאִין דְּפָלחִין וּמוֹקְרִין וּמסוֹבְרִין וְזָנִין וּמפַרנְסִין וּמכַסִּין יָת נְשֵׁיהוֹן בִּקשׁוֹט וִיהֵבנָא לִיכִי מוֹהַר בְּתוּלִיכִי כֶּסֶף זוּזֵי מָאתַן דְּאִנּוּן מִזּוּזֵי כַּספָּא דָּכיָא עַסרִין זוּזִין וְחַמשָׁה זוּזֵי דְּחַאזוּ לִיכִי וּמזוֹנִיכִי וּכסוּתִיכִי וְסוּפקִיכִי וּמֵיעַל לְוָתִיכִי כְּאוֹרַח כָּל אַרעָא וּצבִיאַת כַּלְּתָא דָּא וַהֲוָת לֵיהּ לְאִנתּוּ וְדָא נְדּוּניָא דְּהַנעֵילַת לֵיהּ מִאיַה' קַפלֵה פֻצַ'ה הַכֹּל נִתקַבַּל חָתָן זֶה וּבָא לְיָדוֹ וְנַעֲשֶׂה בִרשׁוּתוֹ וְזָקַף הַכֹּל עַל עַצמוֹ בְּמִלוָה וּרשׁוּ וְדִי יָהֵב לַהּ בַּעלַהּ חַתנָא דְּנָן בְּמַתַּנתָּא קַמַּייתָּא מִאיַה' קַפלֵה פֻצַ'ה וְדָרתָא בִּמדוֹר יְהוּדָאֵי בְּמַפְּקָנַהּ וּמַעֲלָנַהּ וְכָל צוּרכָּהּ דְּחַאזוּ לַהּ מֵאַרעִית תְּהוֹמָא וְעַד רוּם רְקִיעָא וְרָצָה וְהוֹסִיף לַהּ תּוֹסֶפֶת בְּסוֹף מוּהרָהּ מִאיַה' קַפלֵה פֻצַ'ה אַלכֻּל מִן הַדֵ'ה אלקִפַאל אלפֻצַ'ה אלמַד'כּוּרַה פַוק אַלַּדִ'י יַצִח פִי כֻּל מִאיַה' קַפלֵה מִנְּהַא את'נַין וְעִשׁרִין קַפלֵה פֻצַ'ה טַיְּיבַּה כַ'אלִצַה בִּוַזן אלצאגַ'ה אלצַנעאנִי אלמַערוּף לִאלפֻצַ'ה פִי מְדִּינַה' צַנעַא פִי סוּק אלצֻוַוג' וְכָּך אֲמַר לַנָא חַתנָא דְּנָן אַחרָיוּת כְּתוּבָּה דָא כּוּלָּהּ עִיקָר וּנדּוּניָא וְמַתַּנתָּא קַמַּייתָּא וְדָרתָא וְתוֹסֶפתָּא עִם כָּל שְׁאָר תְּנַאיֵי כְּתוּבָּה קַבֵּילִית עֲלַאי וְעַל יָרְתאי בָּתרָאי וְעַל כָּל שְׁפַר אֲרַג נִכסִין וְקִניָינִין דְּאִית לִי תְּחוֹת כָּל שְׁמַיָּא דִּקנֵיתִי וְדַעֲתִיד אֲנָא לְמִקנֵי מְקַרקְעֵי וּמִטַּלטְלֵי מִטַּלטְלֵי אַגַּב מְקַרקְעֵי כּוּלְּהוֹן יְהוֹן אַחרָאִין וְעַרבָּאִין לִכתוּבָּה דָא כּוּלָּהּ עִיקָר וּנדּוּניָא וְמַתַּנתָּא קַמַּייתָּא וְדָרתָא וְתוֹסֶפתָּא לְאִתפְּרָעָא מִנְּהוֹן בְּחַיַּאי וּבָתַר מָוֶת וְאַפִילּוּ מִגְּלִימָא דְּאַכִּתפַאי וְקָנִינוּ מִן יוֹסֵף חַתנָא דְּנָן לכַלְּתָא ג'זאל דָּא עַל כָּל מַאי דְּכַתִיב וּמפָרַשׁ לְעֵיל קִניָן שָׁלֵם חָמוּר גָּמוּר מֵעַכשָׁו בִּכלִי הַכָּשֵׁר לִקנוֹת בּוֹ בְּבִיטּוּל כָּל מוּדַעֵי וּתנַאיֵי עַד סוֹפְהוֹן וּשׁטָר כְּתוּבָּה דָּא לָא כְּאַסמַכתָּא וְלָא כְּטוּפסֵי דִּשׁטַרֵי אֵלָא כְּחוֹמֶר חוֹזֶק כָּל שִׁטרֵי כְּתוּבּוֹת הַנּוֹהֲגוֹת בְּיִשׂרָאֵל וְכַהוֹגֶן וּכתִקּוּן רִזִ"לִ וְהַכֹּל שְׁרִיר וְקַיָּים.
דוד ן' יחיא יש"ל
הצעיר יחיא בן כמה"ר יוסף נע"ג
[We bear witness] this day, on the Sabbath eve (Friday), corresponding to the ninth day of the month of Shevat, [in] the year two-thousand and fifty-eight of the Year of Alexander, in the town wherein lies the quarter known as 'The Single's Well' (Bir al-'Azab), [a city] situate upon her wells of flowing water, by the merit of Abraham our forefather, how that Yosef, the son of Sālim, the son of Sulaymān al-Hišāš, who is called [also] by the name al-Fetayhī, being the bridegroom, said to the virgin bride, Ghazāl, the daughter of Yosef, the son of Sālīm Sālih , who is called [also] by the name al-Haydānī, being the virgin bride, "Be my wife, in keeping with the religion of Moses and Israel, and I shall, with G-d's help, work, and honour, and sustain, and nourish, and support, and invest you with clothing, according to the manner of Jewish men who work, and honour, and sustain, and nourish, and support, and clothe their wives in good faith, for which I have proffered you the dower's price of your virginity, two-hundred silver denarius, in which [sum] there are twenty-five denarius of pure silver coin in specie [of that kind which was formerly used in the Holy Shekel], of which things you are most worthy, as also your sustenance, and your apparel, and your conjugal rights, that I might come upon you according to the way of the whole world." Now this bride consented [to such matters], and she has become unto him a wife. Now this largess (dowry) which she brought into him [upon wedlock] is valued at one-hundred silver-[alloyed] Qaflehs. All has been received by this bridegroom, and has come into his hand, and has become his possession, and he has incurred everything upon himself as it were a loan [given unto him], and a debt. That which the husband, the said bridegroom, has vouchsafed unto her as an initial gift is valued at one-hundred silver-[alloyed] Qaflehs, and a courtyard (dwelling place) amongst those places inhabited by Jews, allowing her to go out and to come him, and supplying her with all that which she might stand in need of, which are but fitting unto her, from the depths of the earth [below] unto the height of heaven [above]. And he has desired, moreover, to confer upon her an additional jointure subsequent to that which is prescribed of the dower's price, the value of which [jointure] is one-hundred silver-[alloyed] Qaflehs. All are comprised of those silver-[alloyed] Qaflehs mentioned above, which in every one-hundred qaflehs of those calculated are twenty-two pure and unalloyed silver qaflehs, based after the weight of the San'ani jewelers, and which same [standard] is recognized as silver in the city of San'a, in the Silversmiths' Marketplace.
And thus did the said bridegroom say unto us, that "the guarantee given for this marriage contract, in its entirety, [Viz.], the principal, and the largess, and the initial gift, and the courtyard, and the additional jointure, with all the other conditions [written down] in the marriage contract, I have taken [them] upon myself and upon my heirs that shall come after me, and have made subject [to the conditions of this contract] the choicest of property and acquisitions acquired by me beneath the whole of heaven, whether those things which I have [already] purchased or that which I stand to purchase in the future, whether it be of estates or of chattels, or the appurtenances which lie upon lands of estate; all of them shall become the collateral and security for [payment of] this marriage contract in its entirety – the principal, and the largess, and the initial gift, and the courtyard, and the additional jointure – for the reimbursement thereof, whether in my lifetime or after [my] death, and even if it entails being stripped of the robe upon my shoulder." Now we have purchased from Yosef, the said bridegroom, for this bride, Ghazāl, concerning all that which is written or expressly stated above, what is considered a most complete act of purchase, having the full force and validity [of all other legal transactions], taking effect from this very moment by virtue of [his taking hold on to] a decent piece of clothing with which he disavows all declarations and stipulations [that he might have made to the effect of his being compelled against his will to marry the said bride], even unto the very last statements [that were made by him]. Moreover, [the terms of] this marriage contract are not [misconstrued as] a mere 'assumption' [of things which are to be], neither like unto those pre-drafted forms used in [some] contracts, but rather like unto those which have the severity and force of all marriage contracts practised in Israel, as which is right, and in accordance with what was enacted by the Rabbis, of blessed memory. Now all [that which is herein written] has our assurances of being firm and established.
David, the son of Yihye, may his name live forever
The younger, Yihye, the son of our honourable teacher, the Rabbi, Yosef, whose inheritance is in the Garden of Eden.
So was I told by the late R. Yosef Qāfih, of blessed memory. Still, it was often that the woman would voluntarily waiver her rights to payment in order that her husband becomes willing to give her a divorce. In such cases, a court document was drawn up to that effect. (For examples of this, see the book "al-Misawwadeh," by Yehuda Nini.)
On the use of this term in Yemenite tradition, see:
יוסף טובי, ידיעות על יהודי תימן מתוך ספרי שאלות ותשובות. שבט ועם ז, עמ'
Yehudah Nini (editor), al-Misawwadeh: Court ledger of San‘ā’'s Jewish community in the 18th century; Hebrew Translation by Nissim Benyamin Gamli’eli. Tel-Aviv 2001.
Yosef Qāfih, Halikhot Teiman. Jerusalem 1961.
Amram Qorah, Sa‘arat Teiman. Jerusalem 1954.
Yosef Tobi, Anecdotes on the Jews of Yemen from Responsa. A Tribe and Nation, VII (1973), pp. 271-291.
Shimon Tzalach (Sālih) – editor, Tiklal ‘Es Hayyim Hashalem. Jerusalem 1971.
Shemu’el Yavne’eli, Masa‘ Teiman. Tel-Aviv 1952.