We’ve been doing a lot of reading and thinking about written contracts and the language that makes them effective and valid. On yesterday’s daf, the mishnah turned to a more practical concern: paying the scribe. Because while contracts often set up new kinds of financial agreements, it frequently takes a financial agreement to get a contract written.
When it comes to documents of divorce and receipts for the return of a woman’s ketubah money, for example, the mishnah states:
The husband pays his wages.
The mishnah states that the husband is responsible for paying the scribe who writes the documents that effect a divorce and confirm that the ketubah money has been returned to the woman. On today’s daf, the rabbis interrogate that statement.
What is the reason? As the verse states: “When a man takes a wife and marries her, and it comes to pass, if she finds no favor in his eyes, because he has found some unseemly matter in her, he shall write her a scroll of severance and give it in her hand.” (Deuteronomy 24:1)
Deuteronomy permits divorce, and puts the power to initiate a divorce in the hands of the husband who is assigned all the active verbs: He writes the document and gives it to his wife. Therefore, if the man chooses to outsource writing to a scribe, he must pay their wages. This reading of the biblical text seems reasonable.
But the Talmud continues:
Today we do not do so, and the sages placed the (financial) burden upon the woman, so that he should not delay.
Even though a close reading of Deuteronomy suggests that the man is in charge of all components of a biblical divorce, including paying scribal fees, the Talmud goes in a different direction and insists that it is the woman who must pay the scribe for her document of divorce. The Talmud explains that if a man wishes to be divorced but is stingy, he may put off giving his wife an actual get, keeping her in limbo — stuck in an unhappy marriage that has ended in all but name, but unable to move on. To prevent a man’s cheapness from making his wife an agunah, the Talmud puts the burden of paying for the get on the woman.
It’s difficult to know how to interpret this decision. On the one hand, this measure may prevent men from making excuses not to go through with a divorce. On the other hand, it puts a financial burden on a woman who has not yet received her ketubah payout, and may not have other income. And there’s a question of fairness here: After all, if all the power lies in the hands of the husband, why can’t the court just coerce him to give a divorce rather than shift some of the responsibility to his wife?
This teaching is a troubling one, without an easy interpretation. While I don’t know how to solve the questions that it raises, I will note that the complexity of this tradition continues into the medieval period. Moses Maimonides and Joseph Caro, for example, follow the Talmud and insist that a woman must pay the scribe for her get. However, the medieval rabbis of Ashkenaz take a different approach. Moses ben Jacob of Coucy, in his 13th-century Sefer Mitzvot HaGadol, writes that women are permitted to pay the scribe if their husband refuses, in order to facilitate a speedy divorce. Similarly, 13th-century German scholar Mordechai ben Hillel writes that a woman is permitted to pay the wages of the scribe, “if she wants, in order not to remain an agunah.” These rabbis uphold the talmudic principle while building in agency for the woman.
Read all of Bava Batra 168 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on December 10, 2024. If you are interested in receiving the newsletter, sign up here.
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