Skimping on Expense Accounts; Skimping on Spouse Support
The Teshuva MeiAhava, Hagaon Rav Elazar Flekeles zt”l
A husband and wife come to Beit Din, marriage hanging by a thread. They are living separately, so Beit Din instructs the husband to give his wife a stipend while attempting a reconcilliation. But the wife saves the money, eating very little. The husband now claims the remainder of the money as his own, based on Rav Moshe Issurles’ (the Rema’s) ruling (Even Haezer 70) that if a woman minimizes the amount of support she takes advantage of, the money is returned to the husband. Is he right?
Skimping on Spouse Support
The Teshuva MeiAhava, Hagaon Rav Elazar Flekeles zt”l
The following responsum, a letter of the Teshuva MeiAhava, Hagaon Rav Elazar Flekeles zt”l to his great teacher the Nodah BeYehuda, Rav Yechezkel Landau zt”l of Prague, has been recently quoted in a modern business-halakhic discussion of expense accounts.
The question: The situation presented before the Teshuva MeiAhava seemed at first to be an open and shut case.
A couple having serious marital difficulties came to his rabbinical court. Though the court was encouraging them to explore reconciliation they were for the time being separated. The court, as standard in such situations, determined an appropriate of money for the wife’s support, and the husband complied. However, the wife, instead of using the full sum for food, skimped and saved, starving herself and retaining a portion of the money. The husband now claims the remainder of the money as his own, based on Rav Moshe Issurles’ (the Rema’s) ruling (Even Haezer 70) that if a woman minimizes the amount of support she takes advantage of, the money is returned to the husband. The Rema’s ruling is based on the Tur and not questioned in the Beit Yosef’s commentary and, apparently, should be decisive.
For the Teshuva MeiAhava a previous ruling of the Rema was not sufficient basis for rendering a halakhic decision. “It is my way to investigate the source of the matter,” and not to blindly rule based on the text of the Shulchan Arukh without examining his sources and questioning their final decisions (See Maharsha Chidushei Aggadot 3rd Chapter of Sotah).
Proofs that the money goes to the wife (against the Rema & Tur)
1. Rashi’s comment on “The remnants of the husband’s support go to the husband,” (Ketubot , the source of the Rema and Tur): Rashi explains that the Gemara refers to a woman who does not physically need the amount of food allotted to her by the Mishna’s ruling. It is sensible to infer that a woman who by nature needs the amount of food that the Mishna prescribes, but starves herself, would not have to return the leftovers to the husband.
2. Tosafot’s comment on Nazir 24b: The Mishna refers to a woman whose Nazir sacrifices belong to her — she legally owns them. The Gemara tries to understand how a woman can own something separately from her husband, seemingly against the principle that a woman’s acquisitions are acquired by her husband (part of the broader system of reciprocal husband -wife legal relationship). The Gemara gives two answers: A. that she skimps and saves from the support her husband gives her; B. that a third party gives it to her on the condition that her husband has no share in it.
Tosafot explain that the first answer refers to a situation where she was alotted a certain amount of money for support and prices went down, so she had leftover money. Even though Tosafot might have a subtle argument, they both seem to agree that leftover spouse-support money does not always go to the husband, like a superficial reading of the principle in Ketubot might imply. They seem to limit the principle to where a woman does not naturally need as much food as the Mishna says she is alotted.
Possible Counterproof and Refutation
Perhaps the second answer in Nazir rejects the first. When the Gemara offers a second possibility for how a woman can own her own sacrifices, maybe it is rejecting the first answer. Rashi in Nazir (See Sheim Hagedolim, “Rashi”, p. 180, who quotes a number of opinions that what is printed as Rashi on Nazir is not really his work, but, perhaps, his son-in-law’s) seems to read the second answer of the Gemara this way.
Rejection
First of all, the Rashi in Ketubot seems to contradict this Rashi (if this is indeed Rashi). Furthermore, the Ran in Nedarim 88a quotes the first answer of Nazir 24a as authoritative halakha. Tosafot in Nazir also seems to assume that it is a final ruling. It also makes sense to read the Gemara as offering two different options, not two differing approaches.
Conclusion
The Teshuva Mei’Ahava finds the Rema’s ruling difficult and requests that his rebbe, the Nodah B’Yehuda review his response as speedily as possible, within the time he promised to answer the two sides of the dispute. “I am sure that out of the love of a rav for his disciple he will respond at the earliest mail delivery. If I have been mistaken out of haste, please forgive my error.”
