Abstracts

HUSBAND AND WIFE

A. Beeri, The husband's obligation to support his wife in Israeli Law; the rebellious wife and her right to maintenance (Heb.), Ramat-Gan, l982, Pp. 484 (Bar-Ilan University Dissertation); see KS 58/4 no. 5802.

J. David Bleich, "Jewish Divorce: Judicial Misconceptions and Possible Means of Civil Enforcement", Connecticut Law Review 16/2 (1984), 201-289. - The author argues that civil enforcement of a get in American courts ought not to fall foul of first amendment problems, since the get is a non-religious act of the parties (comparable to a contract under Jewish law), and not a decree of a rabbinic court. He notes a growing judicial recognition of the true character of the get in American courts, and urges "a policy of non-intervention expressed in the withholding of a decree of divorce in the absence of a get " as a permissible form of pressure. (B.S.J.)

M. Chigier, Ha'ish veha'ishah bedine yisra'el, Jerusalem: Harry Fischel Institute, l984, Pp. ii, 241; see KS 60/1-2 no. 1378.

M. Chigier, Husband and Wife in Israeli Law, Jerusalem: Harry Fischel Institute for Research in Talmud and Jurisprudence, 1985, Pp.281. - This is a useful summary of the legal regulation of marriage in the State of Israel. Commencing with a historical survey from the Pre-State period, the author deals successively with jurisdiction, matrimonial property, the rights of widows and divorcees, the positions of Muslim and Christian women, and the Agunah problem. (B.S.J.)

Y. Cohen, Jewish Legislation (Talmudic Era) regarding the economic relations between spouses (Heb.), 2 vols., Tel-Aviv University Thesis, 1980.

M. Donaldson, "Kinship Theory in the Patriarchal Narratives: The Case of the Barren Wife", JAAR 79:1 (1981), 77-87. - The kinship theories of Lévi-Strauss conduce to reading the patriarchal narratives synchronically. This shifts the emphasis from fathers-and-sons and instead asks "who is the legitimate wife?" Lying between incest (Abram-Sarah) and exogamy (Esau), the answer is that the legitimate wife is a matrilateral cross cousin. (S.N.R.)

Diana R. Engel, "Marital Property Rights in Jewish Law: A Survey and Comparison", National Jewish Law Review II (1987), 97-122.

Ze'ev Falk, "Concerning Marriage in Hosea and Malachi" (Heb), in Studies in the Bible and the Hebrew Language offered to Meir Wallenstein, on the Occasion of his Seventy-fifth Birthday, edited by C. Rabin, D. Patterson, B.-Z. Luria, Y. Avishur (Jerusalem: Kiryat Sepher, 1979), 188-195. - Falk deals first with Hos. 2-3, and makes a series of observations on the legal phraseology or topoi, with frequent references to rabbinic literature. For example, he states that the children's names (lo' 'ammi, etc.) imply a temporary annulment of their paternal relationship; that the marriage term ishi reflects a shift from a patriarchal notion of marriage to a more egalitarian one. Falk then digresses on old biblical family law, and suggests that Zech. 13:3, where the parents must kill their son for a false prophecy, is related to notions in Deut. 13:7-12, and reflects a reversion to older family laws, where relations executed punishment (vs. the pre-exilic development reflected in Deut. 21:19). Regarding Malachi, Falk interprets the fact that intermarriage desecrates the Kodesh YHWH (2:11) in light of the "holy seed" of Israel concept in Ezra 9:2 (cf. Lev. 21:15), or possibly as related to the idea of a holy covenant (cf. Dan. 11:28,30). Falk stresses that for Malachi marriage was a permanent affair; and draws an a fortiori comparison between the fact that God can annul his divorce with Israel and the teaching to Israel that their human love must overlook iniquities in marriage. (M.F.)

I. Francus, "The Approaches of the Babylonian and Jerusalem Talmuds to the Widow's Right to Claim her Ketubah from Movable Property" (Heb.), Sinai 86 (5740), 136-148. - The Gaonim changed the Talmudic law that a widow could only collect her Ketubah from immovable property and allowed her to collect it from chattels too. The article deals with two passages in the Talmud dealing with this law, with a view to clarifying the law in the Talmudic period. (Y.S.K.)

S. Friedman, "The Case of the Woman with two Husbands in Talmudic and Ancient Near eastern Law", Israel Law Review 15 (1980), 530-558. - The author considers Yeb. 10:1,3: the case of a woman who marries another man during the absence of her husband. Unlike the ancient Near East sources (Laws of Eshnunna 29, 30, LH 133-136, Assyrian Laws 45) rabbinic jurisprudence allows the deserted woman to marry another man only on the testimony that he had died. According to the mishnaic sources, if she re-marries without authorisation of the Beth Din, her second marriage is considered not valid and, on his return, she is allowed to return to her first husband. On the other hand, if she re-marries with such authorisation, her second marriage is considered valid; in this case, she is compelled to leave both men. This decision results from the fact that the Sages regarded as unlawful the co-existence of two valid marriages: no idea of a penal function is involved in this decision. (D.P.)

T. Frymer-Kensky, "Patriarchal Family Relationships and Near Eastern Law", The Biblical Archaeologist 14 (1981), 209-214. - The author sees the patriarchal material as authentically reflecting a general cuneiform tradition of the ancient Near East. A common pattern of the extended family is sketched which is seen as being patrilocal in residence, patripotestal in power and patrilineal in descent. The well rehearsed problems of childlessness, the barren wife, adoption and inheritance, particularly in Gen. 15 and 16, are examined in the light of cuneiform material. The consistent biblical motif of choosing the younger son over the older is seen to reflect the Near Eastern use of the terms "first-born", as well as "son", "father", "brother" and "sister", as the description of a judicial relationship which is a matter of choice and can be entered into by contract as well as by birth. (K.W.W.)

Irwin H. Haut, Divorce in Jewish Law and Life, New York: Sepher-Hermon Press, 1983, ISBN 0-87203-110-1, Pp. xiii, 146, Price: $12.50 (Studies in Jewish Jurisprudence, V). - Prompted by the increasing problem encountered in the civil courts of dealing with failure to deliver or accept a get, this book seeks to provide the courts, the legal profession and the general public with an understanding of the principles of the Jewish law of marriage and divorce, with particular attention to the problem of get. He deals with the formalities of marriage, marital obligations, the ketubah (providing an English text), rabbinic takanot, the get and its formal requirements, the wife's right to sue for divorce, the get procedure (according to the Shulhan Arukh) and the legal consequences of divorce. Turning to modern problems, he deals with the relations between civil and religious divorce, the Conservative ketubah, and the response of American courts to the get problem, particularly in the state of New York. The response of Israeli courts is also briefly treated. In surveying rabbinic proposals to solve the get problem, he advocates a takanah which would empower the rabbinate to annul marriages as a last resort. The Opinions of Wachtler, J., and Jones, J. (dissenting) in Avitzur v. Avitzur are extracted in an Appendix. This book will add nothing new for the specialist, but may certainly assist the lay public in grasping the general character of the problem. (B.S.J.)

The Jewish Law Annual, ed. B.S. Jackson, Leiden: E.J. Brill, Vol.IV, 1981, ISBN 90 04 06504 0, Pp. vii, 332, Price: Gld.108. - Part One consists in a major symposium on "The Wife's Right to Divorce", with articles which deal with the ancient Near East (Lipinski), Biblical law (Zakovitch), The New Testament (Lvestam), the intertestamental and early rabbinic period (Piattelli), the Roman Empire (Rabello), the Cairo Geniza documents (Friedman), and the period of the Rishonim (Shilo, on the particular problem of impotence as a ground for divorce). The modern problem of the wife denied a get by her husband is dealt with in articles by Washofski, Bleich, Novak and Chigier, and the relationship between civil and religious laws are considered by Meislin (for North America) and Freeman (England). An extract is published from the judgment of Judge Held in Stern v. Stern. Comparative perspectives on the problem are provided by Pearl (for Muslim law) and Derrett (Hindu law). The Editor in his Introduction argues for reversal of the normal rule of priority, which requires the parties to obtain a civil divorce before approaching the religious authorities. (B.S.J.)

Tryggve Kronholm, "Polygami och monogami i Galma testamentet. Med et utblick över den antika judendomen och Nya testamentet", Svensk exegetisk Arsbok 47 (1982), 48-92. - In his article on polygamy and monogamy the author gives a survey of Old Testament evidence of the existence of both polygamy and monogamy from the very beginning of Israel's history. It seems that for social and economic reasons polygamy was mainly practised by the more prominent men of the Israelite tribes and by the kings, while ordinary people practised monogamy or bigamy. The author emphasizes the underlying monogamous ethos in the creation accounts and in prophetic and wisdom literature. In a concluding survey of the attitude in post-biblical Judaism it is shown how NT, the Essenes, possibly also the Sadducees, the Samaritans etc. opposed polygamy, while the Pharisees claimed that polygamy is accepted by the Torah. The controversy between the Rabbis and the Church Fathers on this point is seen as a continuation of inner-Jewish contradictory positions. The article ends with an English summary. (K.N

H. Klein, "Natur und recht: Israels Umgang mit dem Hochzeitsbrauchtum seiner Umwelt", Theologische Zeitschrift 37 (1981), 3-18. - Various biblical episodes give an insight into marriage customs, probably of Canaanite origin, which though recorded were not officially sanctioned by the biblical writers. Judg. 21:19-23; Gen. 38:12-26; Gen. 34 reflect Canaanite methods of finding a marriage partner. Hos. 4:13 reflects the custom of ritualized adultery after the wedding. Gen. 2-3 and Song. 3:6-11 allude to ceremonies associated with the wedding itself. Probably Israelite men were allowed more liberty in following these foreign customs than their womenfolk. (G.J.W.)

Hans-Aage Mink, "Indtil døden skiller jer ad. Ægteskab of skilsmisse i den antike jødedom of kristendommen", in Tekster of Tolkninger. Ti studier i Det gamle Testamente, ed.Kund Jeppesen & Frederick H. Cryer (Anis, 1986), 155-74. - In his article "Till death do you part" Hans-Aage Mink gives a survey of marriage and divorce in Old Testament law and storytelling. He concludes that polygamy does not seem to have been common in pre-exilic times, and argues that in post-exilic time polygamy as well as divorce has been limited as much as possible. In rabbinic literature discussions about divorce are frequent and show two main trends: a more conservative and a more liberal. The more restrictive trend can be found in the Qumran texts and in the New Testament. Monogamy is regarded as the will of God, all from creation. But in the teaching of Jesus divorce is regarded not only as something contrary to the original will of God, but as more or less belonging to the reality of human life. Monogamy is a blessed way of living, but other things than death are able to separate what God has brought together. (K.N.)

J.R. Mueller, "The Temple Scroll and the Gospel Divorce Texts", RQ vol 10, no 38 (1980), 247-56. - Mueller seeks to draw some implications from the Temple Scroll on marriage, and also to try to solve some cruces in the gospels. He notes that 11Q Temple LVII:17-19 is opposed to polygamy and divorce for the king, and suggests that it applies to the people as well. He further suggests that 11Q Temple LXVI:11-17, which combines various biblical laws against incest, is an attempt to redefine this issue (also of concern to Dam Doc. V:7-11). He claims that Dam Doc. IV:20-21 is clarified by the Temple scroll and must be understood as opposed to polygamy and divorce. Further, with respect to Gospel passages, Mueller suggest that 11Q Temple LVII, which is against polygamy and incest, and associates unchastity with incestuous marriage, may have influenced Mark 10:2, where the question is raised - without further qualification - whether divorce is permitted; and it may have influenced the phrase "except for unchastity" in Mt. 19:9, and indicate that the Greek porneia may refer to illicit marriage (not adultery). (M.F.)

J. Murphy-O'Connor, "The Divorced women in 1 Cor.7:10-11", JBL 100 (1981), 601-606. - The author argues that since choristhenai (1 Cor. 7:10) is an aorist passive infinitive, it should be translated "the wife should not be separated from her husband." Paul sometimes uses the passive with the connotation "to allow to be" (1 Cor. 6:7; Rom. 12:2). He thus translates 7:10a as "the wife should not allow herself to be separated from her husband", which is the reverse of "the husband should not divorce his wife" (7:11c). If it is wrong for the husband to issue a writ of divorce, it is equally wrong for the wife to accept it since this is disobedience to God. 7:1-9 is a reaction to a specific situation in Corinth, where ascetics were advocating married couples should abstain from sexual intercourse. It is this situation which might lead to divorce if the partners do not agree. Paul refuses divorce in 7:10-11 because the grounds were insufficient, but permits it in 7:15 where the reason is convincing. He concludes that Paul considered Jesus's prohibition of divorce, not as a binding precept, but a directive whose relevance to a specific situation had to be evaluated by the pastor. (K.W.W.)

Reinhard Neudecker, Frührabbinisches Ehescheidungsrecht: Der Tosefta-Traktat Gittin, Rome: Biblical Institute Press, 1982, ISBN pbk, Pp. XVII, 133, Price: $30.00 (Biblica et Orientalia 39) - This German version of Tosefta Gittin is based on the Erfurt ms (now Ms.or.fol.1220 of the Staatsbibliothek, Berlin), photographs of which are supplied at the end of the volume. Variants from the Vienna ms, the Venice 1521 editio princeps of Alfasi, the Paris Genizah fragment of Gittin, and the Vatican codex, Hebr. 169, are regularly discussed. The commentary is devoted largely to elucidating, in rather "atomistic" fashion, basic problems of translation and meaning. Broader issues, such as the relationship between the various text-witnesses, the structure of the tractate, and the relationship of Mishnah to Tosefta, should have received more attention. Neusner's Tosefta translation and his History of the Mishnaic Law of Women came too late for Neudecker to use systematically, but he gives his reactions to Neusner's work on pp. XIII-XVI of his Vorwort. This is a useful and generally competent contribution to the study of early Rabbinic literature. (P.S.A.)

W.E. Phipps, "Is Paul's Attitude towards Sexual Relations Contained in 1 Cor. 7:1?", New Testament Studies 28 (1982), 125-131. - No. In 1 Cor. 7:1 Paul is quoting a slogan of the Corinthian Christians which he rejected. Paul approved of sexual intercourse within marriage. (G.J.W.)

T. Prewitt, "Kinship Structures and the Genesis Genealogies", JNES 40 (1981), 87-98. - Abram is the oldest of Terah's sons. This means, according to "some ideal political relationships common to anthropologically known contemporary systems", that Abram will be the chief "wife-taker" in the Hierarchized group Abram-Nahor-Haran. The article also notes a persistent south-south-westerly movement of the "Terah connubium". (S.N.R.)

S. Riskin, The "moredet"; a study of the rebellious wife and her status in initiating divorce in Jewish law, Ann Arbor: University Microfilms International, l983, Pp. vii, 199; see KS 59/4 no. 6031.

W. Rudolph, "Zu Mal 2 10-16", ZAW 93 (1981), 85-90. - Rudolph rejects the view of S. Schreiner, who in ZAW 91 (1979), 207ff., had argued on the basis of Ma. 2:10-16 that Malachi tolerated divorce in the manner of Deuteronomy, but regarded the second marriage as inferior. Rudolph also notes other recent literature on Ma. 2:10-16. (J.D.)

B. Schereschewsky, Dine mishpahah, 3rd ed., Jerusalem: R. Mass, l984, Pp. iv, 588; see KS 60/1-2 no. 1392.

Angelo Tosato, "Il transferimento dei beni nel matrimonio israelitico", Bibbia e Oriente 27 (1985), 129-148; see OTA 9/3 (1986), no.761.

A. Tosato, Il matrimonio Israelitico, Rome: Biblical Institute Press, 1982, Pp. xvi, 274, Price $19.00 (Analecta Biblica 100). - This book, part of the author's doctoral thesis, is in fact his second book on this theme; see also Il matrimonio nel Giudaismo antico e nel Nuovo Testamento, Rome: Città Nouva, 1976. The present work is richly documented and broadly conceived, more broadly than its title might suggest. For the author includes an account of non-matrimonial modes of "taking" a woman - as prisoner, slave or prostitute. His object in this is not merely historical; he seeks to combat modern attacks upon marriage, viewing them as equivalent to enslavement or prostitution. He is at pains to point out the superior rights enjoyed by the wife as compared with the slave or prostitute. He points out, on the basis of linguistic analysis, that there was a transformation of the status of the husband as well as the wife; that the wife was not a passive object in a commercial transaction; that the function of marriage was to assure the legitimacy of the offspring, in the interests of both parties; and that the resultant status of the wife was to be reserved exclusively and unilaterally to the man who became her husband - a reservation not equivalent to a property relationship, but rather a relationship of personal consecration. The availability of polygamy to the man but not the woman is seen as an advantage to the wife, protecting her from divorce; but rights of divorce were enjoyed by both parties. Nevertheless, the woman was still in a position of relative inferiority, to be improved as the institution of marriage developed in the Jewish and Christian world. The author does well not to seek to conceal his conservative orientation; nevertheless, his intelligent and detailed marshalling of the sources, primary and secondary, make this a significant contribution to a difficult topic. (B.S.J.)

R. Yaron, "The Missing Husband in Jewish Law", Mélanges à la mémoire de Marcel-Henri Prévost (Paris: Presses Universitaires de France, 1982), 133-140. - The author considers the obligations of an absent husband to maintain his wife, and the problem of the missing husband, whose whereabouts and fate are unknown. In the latter case, the practice grew up of handing the wife a conditional get. The author discusses various complications which may arise therefrom, as provided for in the early rabbinic sources. (B.S.J

Moshe Yismach, "Polygamy in Israel" (Heb), Sinai 92 (1983), 240-246. - An account of the development of the injunction against polygamy in Jewish Law. Y shows how the formal prohibitions against polygamy in the Middle Ages are rooted in Biblical and Talmudic tradition, both of which indicate that the practice while legally permissible was extremely rare and in fact discouraged by the authorities. Opposition to the practice was rooted in social and Halakhic considerations. In the Gaonic period the social censure was replaced by formal communal prohibitions or the introduction of a limiting clause in the marital contract, and later on by the famous injunction (herem) of Rabbenu Gershom. The author also examines similarities and differences in legal and social structures in polygamy. (M.J.P.)

Y. Yudlov, "A Judgment of the Venetian Rabbis of 1609" (Heb.), Sinai 84 (5739), 166-172. - This judgment, which is also referred to in the general Responsa literature, involved a marrano who for some fifteen years had enjoyed the status of Kohen and now wished to marry a divorcee. His argument was that there was insufficient evidence of his priestly status and, therefore, the marriage ought to be allowed since he was not, in fact, a Kohen. The case quickly became a cause célÍbre, and the Rabbis of Venice, who rejected the marrano's argument, felt the need for a speedy response and published their decision in a separate volume which is presented in the present article. This type of responsum presenting various judgments on a particular issue, is a special, albeit rarely-found branch of the responsa literature in general. (Y.S.K.)

 

 

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