A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law

8/6/2019 A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law

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A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American LawAuthor(s): Alina Semo KofskySource: Journal of Law and Religion, Vol. 6, No. 2 (1988), pp. 317-353Published by: Journal of Law and Religion, Inc.Stable URL: http://www.jstor.org/stable/1051155 .Accessed: 24/02/2011 15:15

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A COMPARATIVE ANALYSIS OF WOMEN'SPROPERTY RIGHTS IN JEWISH LAW AND

ANGLO-AMERICAN LAWAlina Semo Kofsky*

Woman is a slave, from the cradle to the grave. Father,guardian,husband-master still. One conveysher, like a piece of property,over to the other. -Ernestine RoseIn the past several decades there has been a growing movement

within the Jewish community to improve the self-image and status ofwomen in Halachah (Jewish law). There is no doubt that this move-ment was largely affected by the women's liberation movement thathas been taking place since the beginning of this century. Despite theassertion of many rabbis and scholars that the role of women in tradi-tional Judaism has been noticeably superior to that of other contem-porary civilizations,' critics frequently point to the many religiousactivities from which women continue to be excluded. In the past,women were not accepted as witnesses in a trial; did not inheritequally with their male siblings; were not required or expected to per-form the daily religious duties assigned to men; and had to sit sepa-rately from the males in the congregation.2 Only recently have Jewishwomen been ordained as rabbis and relied on as cantors; allowed toserve on congregational boards as presidents of congregations;3granted equal access to study, and allowed to perform all mitzvot;counted in a minyan, the quorum needed for a public worship service,and called to the pulpit for aliyot during the Torah service; and able toignore the formal requirement of providing a get, the bill of divorce,although it can still be requested.4

* Associate, Hopkins, Sutter, Hamel & Park, Washington, D.C.; B.A., 1985, Univeristyof Maryland-College Park; J.D., 1988, Georgetown University Law Center, Washington,D.C. This article was written in the context of a seminar at Georgetown University LawCenter, "Judaic Sources of American Law," taught by Professor Sherman Cohn, Rabbi DavidSaperstein, and Dr. T. Forcht Dagi.1. See, e.g., RABBI R. GITTELSOHN,LOVE, SEX AND MARRIAGE:A JEWISHVIEW191(e) (1976) [hereinafter GITTELSOHN].2. Id. at 191h.

3. Only about five percent of all Reform congregations in the United States have womenas presidents and vice-presidents, and only four percent of the Union of American HebrewCongregations members are women. RABBIS. PRIESAND,JUDAISMAND THE NEW WOMAN35 (1975) [hereinafter PRIESAND].4. It should be noted that these developments have been predominantly characteristic of317


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JOURNAL OF LAW & RELIGIONIn the wake of these moderndevelopments, he focus of this pa-per is to inquireinto the nature of propertyrights that women haveenjoyedin Jewishlaw, and to examine theirdevelopment hroughouthistory. A discussionof women'spropertyrights possessedby Ameri-can and English women will then be examined,and will include ahistorical look at the common law roots of the coverturelaws. Fi-

nally, the two systemswill be compared n orderto ascertainwhetherone is more advantageous han the other, and whetherone legal sys-tem more adequatelyrecognizes women's interests and desires forequality. The primarypremiseof this paper is that Jewish law af-forded more propertyrights to women, and at an earlier time thanAnglo-Americancommonlaw. Propertyrightsare an essentialstep-ping stone to definingwomen as first-classcitizens who can co-existequallywith men. It is only when womenarefinallyable to enjoythesame legal rights and privilegesas men, such as contracting,writingwills, and owning and devisingreal and personalproperty,that theywill be ableto achievethe independenceandrespectthey havesoughtfor so many centuries,and no longerbe classifiedtogetherwith deafmutes, minors,and the insane.5

I. A LOOK AT JEWISH WOMEN THROUGHOUT HISTORYA. Biblical Women

The Old Testamentbegins with Genesis-the story of the crea-tion of mankind. Two differentversions have been generatedby reli-giousscholars:according o Genesisone, man andwoman are createdequal;but in Genesis two, the womanis createdfrom the man'srib.the Reformed Jewish movement; the early leaders of the Reform movement in Germanywanted to give women equality, and has ordained women as rabbis since 1972. Currently, theConservative movement has also attempted to grant women more equality by allowing them tosit together with men in the congregational pews, and decreeing that women may now becounted in a MINYAN and be ordained as rabbis. The Conservative movement is currentlyconsidering whether women may be allowed to perform the MITZVOT of wearing a tallit. S.Basinger, Preservingthe Covenant-A Challengefor Jewish Women, in THE LIFE OFTHE COV-ENANT: THE CHALLENGE OF CONTEMPORARY JUDAISM 1-2 (J. Edelheit ed. 1986); GITTEL-SOHN, supranote 1, at 191j; F. KLAGSBURN, VOICES OF WISDOM 135 (1980). Nevertheless,the Orthodox branch has steadfastly resisted any such changes, deeming them impermissible.5. Deaf mutes, minors, and the insane have had no legal standing in Jewish courts.Their statements, either as litigants or as witnesses, have never been accepted in a court of law.M. MEISELMAN, JEWISH WOMEN IN JEWISH LAW 73 (1978) [hereinafter MEISELMAN]. Fur-thermore, as late as the nineteenth century, American and English common law also classifiedwomen in the same way. In 1847, Benjamin Hall writes in THE LAND OWNERS'MANUALthat in New York, "all persons except idiots, persons of unsound mind, married women, andinfants" might devise realty in a will. N. BASCH, IN THE EYES OF THE LAW: WOMEN, MAR-RIAGE, AND PROPERTY IN THE 19TH CENTURY NEW YORK, 67 (1982) [hereinafter BASCH].

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WOMEN'SPROPERTYRIGHTSThese varying interpretations led to the Jewish legend of the Lilithmyth:6WhenGod createdAdam,He also createda wife forhim out of theearth. This first woman was Lilith. Adam and Lilith, however,did not makea happy couple. Becausethey were both of the sameorigin, she consideredherselfhis equal and refusedto obey him.They quarreledwith one another until in a momentof rage,withthe help of the ineffablename of God which she uttered,she flewaway from Adam and vanished into the air.Adamcomplained o God that the wife He had givenhim had

desertedhim. God sent threeangelsto bringher back. The angelsfoundher in the Red Sea, in the veryspot the Jewslaterpassedinthe Exodus from Egypt. The angels tried to make her return,threateningthat if she would not, hundreds of demon childrenwould die daily. Lilith preferred his punishment o returning oAdam.Againthe angelsthreatened:hey woulddrownher in the sea.She implored hem to spareher, and in returnedshe granted hema concession. She told them that her purposein life was injuring

babies. Until the eighth day, after their birth, she could injureboys;andgirlsuntil their twentiethday. But, she swore,whenevershe would see the names of these three angels writtenin a home,she would keep away from child and mother, and would do noinjury.The threeangelsreleasedLilithaftershe had taken that oath.And to this day, the names of these three angels are written onamulets and hung upon the walls of the room wherea womanliesin childbed.7The Lilith legend is significant in that it recognized the status ofwomen in the Jewish community. Although Lilith wished to be equalwith Adam, this was not permitted, and she was ultimately punishedfor her desire to be independent.8 This legend was perpetuated inJewish law, which regarded the woman as the ruler of the household,the dominating, central figure of influence and love;9 but that was theextent of her domain. The predominant role of the Jewish womanwas that of a wife and mother, and every Jewish girl was reminded ofthis each Shabbat when her father would say the blessing: "May you

6. PRIESAND, supranote 3, at 3.7. Id. at 3-4.8. Id. at 4.9. Brayer,TheRole of JewishLawPertaining o the JewishFamily,JewishMarriageandDivorce, in JEWSAND DIVORCE5 (J. Freid ed. 1968).

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be like Sarah,Rebecca,Rachel and Leah."' The ideal woman, ac-cordingto Proverbs31:10-31,was one who worked fromearlymorn-ing until late in the evening,spinningandweavingandworking n thefield,supervising he household,and caringfor her family.11In con-10. PRIESAND, supranote 3, at 6.11. Id. Proverbs 1:10-31(Oxford)states:A CAPABLEWIFEWho can finda capablewife?Her worthis farbeyondcoral.Her husband'swhole trust is in her,and childrenare not lacking.

She repayshim with good, not evil,all her life long.She chooseswool and flaxand toils at her work.Like a ship ladenwith merchandise,she bringshome food fromfar off.She rises while it is still nightand sets meat before her household.After carefulthoughtshe buysafieldand plantsa vineyardout of herearnings.She sets about her dutieswithvigourand bracesherselffor the work.She sees that her businessgoes well,and neverputs out her lampatnight.She holds the distaff n her hand,and her fingersgraspthe spindle.She is open-handed o the wretchedand generous o the poor.She has no fear for her householdwhen it snows,for they are wrapped n two cloaks.She makesher own coverings,and clothingof fine linenandpurple.Her husband s well knownin thecity gatewhen he takeshis seat with theelders of the land.She weaveslinenand sells it,and suppliesmerchantswith their-sashes.

She is clothedin dignityand powerand can affordto laughattomorrow.When she opensher mouth,it is tospeakwisely,and loyalty is the theme of herteaching.


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317] WOMEN'SPROPERTYRIGHTS 321trast, her rightswere much more limited in the largercommunity.12Thebiblicaldiscussionof women is not completelydevoid of pos-itive treatment. Miriamwas a great prophetess,Deborahajudge,andHuldah was said to be a woman of great wisdom and learning.'3Ruth's loyaltyand conversionto Judaismcausedthe rabbis o regardher as King David'sgreat-grandmother, hile her devotion to Naomiwas unequaled.'4 Finally, there was Esther, who saved her peoplefromthe cruelHaman,and was able to approach he kingbecauseheloved her.15

B. Womenin the TalmudThe primaryrole of women as homemakersremainedgenerallyunchangedduringTalmudictimes. RabbiYossi is knownfor saying,"Never have I referred to my wife as 'my wife' but rather as 'myhome.' "16 An additionalresponsibilityof the wife was to allow herhusbandand sons to engagein the studyof Torahwhile she tended tothe household and raising of the family.'7 But even during thesetimes some exceptionalwomen emerged. Rachel, the wife of Rabbi

Akiba,became the exampleof the ideal wife who sacrificedherselfinorder that her husband could study Torah. Rachel fell in love withRabbiAkibba while he was tending sheepfor her wealthyfather. SheShe keepsher eye on the doingsofher householdand does not eat the breadofidleness.Her sons with one accord call her

happy;her husbandtoo, and he singsherpraises:'Manya woman shows how capableshe is;but you excell them all.'Charm s a delusion and beautyfleeting;it is the God-fearingwomanwho ishonoured.Extol her for the fruitof all her toil,and let her laboursbringher honourin the city gate.

12. See infranotes 37-42and accompanyingext for furtherdiscussion.13. PRIESAND, supra note 3, at 6.14. Id.15. Id.16. Shabbat 118b cited in Hauptman, Women in the Talmud, in THE JEWISHWOMAN:AN ANTHOLOGY 61 (L. Koltun ed. 1973) [hereinafter Hauptman].17. Id.


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JOURNAL OF LAW& RELIGIONmarried him against her father's wishes, and lived in poverty while hewas studying at the great yeshivot. When he finally returned severalyears later as a great teacher and charismatic leader, he publicly ac-knowledged to his students that all of his acquired knowledge wasattributable to his wife Rachel.18

The wife of Abba Hilkiah was said to be so virtuous that whenthey both prayed for rain, a cloud appeared and it began to rain firstin the comer where she was praying.19 When asked for an explana-tion, Abba Hilkiah answered:Becausemy wife,beingall day in the house,givesfood to the poor,somethingthat bringsthem more good than money, for if I givethemmoneythey mustfirstbuythe food beforetheycan eat it ....Wehave hadneighbours,who aregreat rogues,andI prayfor theirdeath, but my wife prays that they should repentand turn awayfrom their evil deeds. Moreover,she takes the children to schooland fetches them from school, she helps in bringingthem up asgood and virtuousmen; she looks after the house-on her alonedependsthe happinessof the home and familylife. Thereforehermeritis fargreater han that of a man and her prayerswere heard

first.20One of the greatest women of this period was Beruriah, thedaughter of Rabbi Hanina ben Teradyon, and the wife of RabbiMeir.21Beruriah was recognized as a religious scholar, and the Talmudrecords her opinions.22 It is said that she was able to absorb overthree hundred laws each day, and that some of her legal decisionswere accepted as Halachah, despite the opposing views of some

Rabbis.23 Unfortunately, her active participation in the male-domi-nated religious community also gave rise to negative comments.Many stories portray Beruriah as "a cantankerous woman who use[d]her mental abilities to mock her husband and his colleagues."24 Nev-ertheless, she represented an exception to the Talmudic portrayal ofwomen as "lightheaded, emotional, prone to gossip and incapable of18. Id.19. L. Kuzmack, Rabbinic Interpretations of Biblical Women in Aggadic Literature 20(April 21, 1975) (unpublished M.A. Thesis: Baltimore Hebrew College) [hereinafterKuzmack].20. Gaster, Some Stories About Jewish Women, in L. JUNG,WOMAN 18-20 (1970), quotedin Kuzmack, supra note 19, at 20.21. Kuzmack, supra note 19, at 20.22. PRIESAND, upra note 3, at 26.23. Kuzmack, supra note 19, at 20; Hauptman, supra note 16, at 162.24. Hauptman, supra note 16, at 162.

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WOMEN'SPROPERTYRIGHTSserious study."25Rashi tells the story, which has never been con-firmed, that Rabbi Meir convinced one of his students to seduceBeruriah,becauseshe mockedthe Rabbinicdictum that "womenarelight-minded."26Apparently the student succeeded, and Beruriahcommitted suicide.27The storiesof Jewish women throughoutBiblicaland Talmudictimes are significant n that they conveya sense of the role and statusof womenin the Jewishcommunity. Withonly a few exceptions,wo-men were regardedas primarilyhomemakers, wives, and mothers.They were forbidden to remain idle,28while at the same time theywere not allowed to have careersbecause of the belief that a homesupportedby a woman would not receive divine blessings.29Theseconceptswere largely responsible or the shapingand developmentofwomen'spropertyrights within Jewishlaw.

II. PROPERTY RIGHTS OF WOMEN IN JEWISH LAWA. Biblical Times

In earlyBiblicaltimes,a womanwas herselfregarded implyas apieceof property. Frombirthuntil the end of her life, she was depen-dent on, and continuallyunder,someoneelse'sownership:her father,her guardian, or her husband.30Marriage symbolized a businesstransaction, n which the groom purchased he bridefrom the father25. Id.26. Kuzmack, supra note 19, at 22.27. Id. Beruriah'swisdom was further demonstratedby the mannerin which she in-formedher husbandof the death of their two sons:

When[RabbiMeir]returnedhometo celebrate he Sabbath, he welcomedhimas if no sorrow had befallenthem. When he asked for his sons, she said that shewouldexplain heir absenceaftertheyhadfinished he Sabbathmeal. She then askedhis advice in a very important matter.A strangerwho had given her somejewels to take care of, she said, had nowreturnedand demanded hat she give thejewels back. She had grownveryfond ofthem and wantedto knowif shehadto return hem. RabbiMeirwasastonished hata womanas wise as his wife would ask such a foolish question,and he repliedthatcertainlyshe must give themback. At that pointBeruriah ook him into the roomwhere theirtwo sons lay deadandin his griefshe comfortedhim. 'Theywerejewelsgivento us by God for safekeeping,' he said, 'untilhe demanded hem for Himselfonce again.'PRIESAND, upra note 3, at 26.28. As Maimonides declared: ". ..[S]he should not sit idle, without work, because idlenessleads to immorality." MAIMONIDES, HE CODE OF MAIMONIDES:BOOK V-THE BOOKOFWOMEN131 (I. Klein trans. 1972) [hereinafter MAIMONIDES].29. PRIESAND, upra note 3, at 27.30. Id. at 6.

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324 JOURNAL OF LAW& RELIGION [Vol.6much likethe purchasingof a slave.31For a certainpurchaseprice,ormohar,the groomand his familyacquireda wife who would tend tothe householdtasks, while the familyof the bridelost a valuableandproductivepiece of property.32Throughoutthese times, the womanhad few legalrights,andher role was limited to tendingto householdchores and raising her family. Nevertheless, a change in attitudeslowly beganto emerge,and Jewish womenbeganto be regarded essas a man'spossessionand more as humanbeingsin their own right.33Jewish law witnessedan ever-growingexpansionof women's rightsover a periodof a thousandyears.34

TalmudicTimesIn rabbinictimes, marriagecontinued to be a businesstransac-tion, but Jewish law created new devices such as the ketubah35 anddower throughwhich women receivedsomewhat more legal protec-tion.36 The status of Jewishwomenin the medievalworld,for exam-ple, was far betterthanthe women of other nations. Womenbegantoparticipatemorefrequently n communityactivitiesas their economicemancipationexpanded.37Although women were counseled not to

31. Id.32. Id. The conceptof the Leviratemarriageperpetuatedhe status of women as prop-erty. Biblical law providedthat the widow of a man who died childless should marryherbrother-in-law.(Deut. 25:5-10). The rationale for this ancient tradition was to preventtheinheritance rompassingoutsideof the family; o continue the nameof the deceasedbrother:("thefirst born that she bearethshall succeedin the name of his brother hat is dead,that hisname be not blotted out of Israel";and to prevent he widow frombecominga burdenon thecommunity.Thewidow thereforebecame hepropertyof her husband's amily,andby requir-ing her brother-in-law o marryher, the family'spropertyrightin her was maintained.Although this tradition was popularin deuteronomic ime, (seventhcentury B.C.E.),where t was considereddisgracefulorthe brother-in-lawo refuse o marry hewidow,by thefourthcenturyB.C.E.,the ceremonyof halitsah, in which the brother-in-lawreed the widowand allowed her to marrywhomever she wished)becamecustomary. G. HOROWITZ,HESPIRITOF JEWISHLAW 283 (1963) [hereinafterHOROWITZ]; RIESAND, supranote 3, at 10-11. 33. PRIESAND, upranote 3, at 8. In Exodus20, for example,the last of the Ten Com-mandments ays:"Thou shalt not covet thy neighbor'shouse ... thy neighbor'swife, nor hismanservant,norhis maid-servant, or his ox, nor his ass,noranything hat is thy neighbor's."Interestingly,n Deuteronomy the prohibitionagainst coveting thy neighbor'swife is listedfirst,thus leadingto the conclusionthat the womanhad now achieved a higherstatus.34. HOROWITZ, supra note 32, at 253.35. The ketubahhas beendescribedas a "legaldocumentembodying he essentialpointsagreeduponby the partiesandsanctionedby the law as to the mannerof theirlivingtogetheras husband and wife." L. EPSTEIN,THE JEWISHMARRIAGECONTRACT (1927) cited inPRIESAND, supra note 3, at 14.36. PRIESAND, supra note 3, at 14.37. Roth, TheSuccessof theMedievalJewishIdeal in GREATAGESANDIDEAS F THEJEWISH EOPLE94 (L. Schwarzed. 1956) [hereinafterRoth].


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appear frequently n public, many women duringthis time attendedservices,appeared n court, and engagedin the daily activitiesof thecommunity.38Womenoften participatedn the businessworld,notjust as wid-ows carryingon their deceasedhusbands'businesses,but oftenduringtheir husbands' ifetimes.39Later, t becamecustomary or the wife toengagein businesstransactionsandtradingso that her husbandcouldengagein the study of Torah.40Along with this growingeconomicfreedom,women also gainedexposureto the culturalaspects of society. The averageJewishwo-man likely knew how to read and sometimeswrite, knew many He-brew words and phrases used in daily speech, and memorized themost common Hebrewprayers.41The Jewish woman was thereforeexposedto a muchhigherlevel of culture,achieveda moreprominentstatusin her community,and was able to reapthe benefitsof her ele-vated social positionat an earlier time than her contemporarycoun-terpartin other societies.42

C. Jewish Women'sPropertyRights1. The Ketubah

A majorityof the propertyrights that a womanpossessedarosein the context of the marriagerelationship,because it was assumedthat she would be in that state for most of her life. The mohar,orpurchaseprice,which in earliertimes had been paidby the groomtothe father of the bride, became merely symbolic. According to theRabbis,the ancientmoharwas also the sourceof anotherveryimpor-tant development n Jewish law: the ketubah.43The Talmud statesthat it became customary for the father to give the mohar to his

38. Rabbi J. Kravetz, Divorce in the Jewish Tradition in JEWSAND DIVORCE171 (J. Freided. 1968).39. Roth, supra note 37, at 294.40. Id. Many responsaduringthis time that dealt with problems nvolvingwomenin-cludedthe statement:"Nowadays, t is commonplaceor womento engage n business."MEI-SELMAN, supra note 5, at 83.41. Id. at 294-95.42. Id. at 295.43. Onescholar has argued hat the ketubahwas a contract n which both partiespartici-patedequally,thusattempting o dispelthe imageof the wife as the husband'sproperty.Jew-ish law recognizes wo typesof contracts: he kinyan ssur-a contractwhich causesa changein ritualstatus;and the kinyanmamon-a contract which effects a monetarychange. Mar-riage,and therefore he ketubah, t is argued, s reallya kinyanissur,becauseof the resultingbondbetween he brideand the groom. But criticshaveargued hatin fact the kinyanmamonmore accuratelydescribesthe marriage,wherebythe woman becomesthe acquiredobject.MEISELMAN, supra note 5, at 96-97.

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daughter n the form of a separateestatein order to protecther in theevent the marriagecame to an end.44Later,it was ordainedthat be-cause the propertycould be lost or dissipated,the husbandshouldcommit himself to paying his wife a pre-established um upon hisdeath or their separationor divorce.45Finally, duringthe periodofthe Second Temple, Simeonben Shetah, QueenAlexandra Salome'sbrother(76-67 B.C.), passedan ordinancedeclaringthat the ketubahwas to become a "statutory" ien on the husband'sestate, thereforeensuringthat the wife would be able to collect her ketubah.46The originalpurposeof the ketubahdocumentwas to ensurethatthe widow wouldbe providedfor in the event of divorceor the deathof the husband.47Withtime, it becamecustomary o also addspecificobligationsthe husbandwas expectedto fulfill, such as supportandconjugalrights.48Accordingto the Talmud,the ketubah mposedtenobligationsupon the husband,some of which were derivedfrom theScripture,and others from Rabbinical aw.49In communitiesoutsideof Europe where the generalprohibition against polygamy was notfollowed, a clause was added to the ketubah stipulating that thegroom promised not to take a second wife during the bride'slifetime.50The ketubah endowedthe woman with certainproperty rights.

44. HOROWITZ,upra note 32, at 297.45. Id.46. Id.47. PRIESAND, upra note 3, at 20.48. HOROWITZ,upra note 32, at 308.49. Id. These obligations were:(1) food; (2) clothing; (3) conjugal rights (Ex. 21:10); (4) care and cure in sickness;(5) redemption of the wife from captivity; (6) provision for her burial; (7) payment toher sons by him of the amount of the ketubah upon her death (the obligation of thebenin dikrin); (8) support after her death of any daughters that she may have broughtwith her at marriage, until they came of age or until they were married, if that oc-curred while they were still minors; (9) support during her widowhood until shecollected the ketubah or remarried; and (10) that the lien of the ketubah was to be acharge on all his property binding on himself and his heirs.50. Id. at 309-10. The form of the document most commonly used today reads as follows:"On the ..... day of the week, the ..... day of the month, in the year ...... since theCreation of the World, the era according to which we are accustomed to reckon here in theCity of ..... State of ..... United States of North America:"Whereas, the groom ..... the son of..... said to the virgin ..... daughter of..... 'Be

thou my wife according to the law of Moses and Israel, and I will work for thee, honor,support, and maintain thee in accordance with the custom of Jewish husbands, who work fortheir wives, and honor, support, and maintain them in truth. And I will give thee 200 zuz asmohar of thy virginity which is due thee, and thy food, clothing and necessaries, and cohabitwith thee according to universal custom;' and"Whereas, this virgin ..... daughter of..... consented and became his wife; and"Whereas, the dowry that she brought from her father's house in silver, gold, ornaments,

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317] WOMEN'SPROPERTYRIGHTS 327She could sell it if she wished,but the buyeronly obtained a life ex-pectancywith a rightto collect only if the marriage erminatedwithinher lifetime.51She could also sell it to her husband,but a new onewould have to be drawnup containingthe statutoryminimumof 200zuz.52 The bond of the ketubahwas collectible fromthe entireestateof the husband,as decreedby the Geonim,and it becamecustomaryto stipulatethat it was collectible from his best lands.53Finally, itseems clear that no statute of limitationsexistedto barthe collectionof the ketubahby the woman.54clothing,householdfurnishingsand bed-clothes,amounting n all the value of ...... thegroomhas takenupon himself;and"Whereas, he groom has consented to match that sum by addingthereto the sum of..... makinga total in all of......"Whereforedid the groom..... the son of..... declarethus:'I takeuponmyselfandmy heirs after me the responsibility f this shetarof ketubah,of the Dowry, and of the Addi-tion, that all shall be paid from the best of my propertyand my possessions,wheresoeversituate,that I now possessor mayhereafteracquire,both realandpersonal.All my property,eventhe mantleon my shoulders hallbe security orandsubject o this shetarof ketubah, hisDowry, and this Addition,in life and in death,from this day and forevermore.'"Theresponsibility ndthe full force of this shetarof ketubah, he Dowry,and the Addi-tion did the groomtakeuponhimselfwith the full forceand effectof all shetarsof ketubahandtheir additionsas is customary or the benefitof daughtersof Israel,and as made n accordancewith the institutionof oursages(maytheirmemorybe for a blessing),not as a penalobligationnor as a mere form of document."Wehavetakenkinyan by means of an articlefit for the purpose rom the groom.....the son of..... on behalf of the virgin .... the daughterof..... with respect o all that ishereinabovewrittenand set forth. And all is valid and established........... W tness.......... W tness51. Id. at 312.52. Id. Zuz or denarswas a form of coin used duringancient times. Today, it is esti-mated that one zuz wouldequal 15cents,which,duringthatperiodof time,would have hadsubstantialpurchasingpower.53. Id. at 313. Maimonides tated:The Geonimin all the academieshave ordainedthat the wife may collect herketubahafter herhusband'sdeath even out of movables ... Likewise,all the otherconditionsstipulated n the ketubah are in this respectsubjectto the same rules asthe ketubah tself, and maybe collectedout of movablesas well as out of land ....Maimonides, upranote 28, at 100.54. Maimonides tated:A widow who producesa ketubahmay swear an oath andmaythencollect herketubahindefinitely,even a hundredyearshence, whether she resides in her hus-band's house or in her father'shouse.If she cannot producea ketubah,she is entitled to nothing, not even to thestatutoryketubah,and not even if she demands t on the very day of her husband's

death.The sameapplies o a divorcee,who is not entitledevento the statutoryketubahuntil she producesthe document tself.When does this apply? In places where it is the practiceto write a ketubah.Where the practice s not to write a ketubahbut to rely on the termsestablishedbythe court,she maycollect the statutoryketubahevenif she cannotproduce he docu-mentaryketubah,whethershe has beendivorcedor widowed,whethershe resides n


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Today, the ketubah as a bond of indebtednesshas becomeobso-lete; the law of each countrynow protectsthe propertyrightsof wo-men.55 The ketubah is still used as a ceremonial document andreligiousremembranceof the past by observantand orthodoxJews,althoughit has lost its legal validity.562. Melog and "Iron Flock" Assets

Jewish law gave the husbandmany rights in the use and enjoy-ment of his wife'sproperty.57The husbandwas entitled to his wife'searningsand services,58 hance findingsthat producedgains, as wellas acquisitionsof ownerless property.59The wife in turn expectedsupport, food, clothing, shelter and care from her husband.60Althoughthe benefitson eachsidemighthaveappearednequitable,aJewishwoman possessedmany more propertyrights than her coun-terpartin other societies.The married woman's propertywas divided into two differentcategories:melog assets, literallymeaning "plucking,"and assets of"ironflock,"tzon barzel. Melog assetsrepresentedpropertyacquiredboth beforeand after the marriage,but which belongedonly to thewife.61 These included any assets which she had brought into themarriagebut had not deliveredto the husbandas part of the dowry,and had not been designated"iron flock"assets in the ketubah;giftsreceivedbefore or duringthe marriage;and inheritancesand collec-tion of damagesfor personalinjuries.62The husband'srights in the

her husband'shouse or in her father's house. She is not, however,entitled to thesupplementary mount unless she producesclearproof.Whatis the time limit for a widow entitledto collect the statutoryketubah, n aplacewhereno ketubah s written?If she resides n herhusband'shouse,shemaydoso indefinitely;f she resides n herfather'shouse,the time limit is twenty-fiveyears.If she comesto collect aftertwenty-fiveyears,she is entitledto nothing,becausehadshenot waivedherrightto it, she wouldnot havekeptsilent all this time. Inasmuchas she is not residingwith the heirs,she cannotclaim, 'I was embarrassedo demandpaymentfrom them while they residewith me in the samehouse.'Maimonides, upranote 28, at 104-05.55. HOROWITZ, supra note 32, at 315.56. Id.57. Id. at 295.58. The Mishnahspells out seven labors for which the wife was responsible:grindingcorn,baking,washing,cooking, nursingherchildren,makingbeds,andworking n wool (butnot in flax,which was consideredmorestrenuous).KetubotV, 5 cited in HOROWITZ, supranote 32, at 297.59. Id.60. Id.61. Id. at 300.62. Id. Maimonides tated:

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WOMEN'SPROPERTYRIGHTSwife's melog assets were very limited. He could make expendituresbased on them, but if he spent everythingand made no income,upondivorce he could be reimbursedonly for the improvementshe hadmade upon the property.63The husband'spersonalcreditors couldnot collect fromthe melogassets.64And althoughthe husbandcouldnot sell any of these assets, he could inheritthem if his wife died.65

Althoughat firstglanceone wouldpresume hat such limitationson the husbandwould allowthe wife full rightsoverherproperty, hiswas not entirelythe case. The wife could sell theseassets,but only asto the corpus,thus conveyinga baretitle, with the actualpossession,enjoymentand use deferreduntil such time that she becamewidowedor divorced.66Full title and possessioncould be conveyedsimultane-ously only when both the husband and wife joined in the convey-ance.67The wife could, if she wished,transferhermelogassets to herhusbandby means of eithera gift or a sale transaction.68"Iron flock"assets, in contrast to melogassets, includedproper-ties that the wife broughtto the husband,the dowry, and the assetsthat the husband set aside for her, and for which he acted as an in-sureragainst loss, damage,or impairment.69Although the husbandwas free to spendthese moniesand commoditiesbecausehe was ulti-mately responsiblefor their repayment,he could only have the useand enjoymentof landsand chattels.70He could neversell realprop-erty that was "iron flock," even with the apparentapprovalof his

[A]ll property belonging to the wife and not brought by her to her husband, norregistered n the ketubah,but remaining n her own possession,or propertythatcame to herby way of inheritance ubsequent o her espousal,or by wasof gift-allsuch propertyis likewise called melog property,since it all remainsunder herauthority.Maimonides, upranote 27, at 99."If, however,[the husband]does not becomesuretyfor the dowry,and it remainsunderthewife'sauthority, he rule is thatif there is a depreciation,he must bearthe loss, and if there isan increment, t belongsto her. Such property s melogproperty."Id. at 98-99.63. Id.64. Id. at 298.65. Id. at 299.66. Id.67. Id. at 299-300.68. Id. at 300.69. Id. The assets "were ike a flock of sheepbecausethey produceda yield which thehusbandenjoyedandtheywerelike ironbecausetheywereindestructible ropertyof the wifeby virtueof his guaranty."Maimonides tated: "Ifthehusbandbecomessuretyforthedowry,so that it comesunderhis authority, he rule is that if it depreciates,he must bear the loss, andif it goes up in value,the incrementbelongsto him. This is what is called 'iron sheep property.'" Maimonides,supranote 28, at 98.70. HOROWITZ, supra note 32, at 301.

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JOURNALOF LAW& RELIGIONwife,because of a presumption hat she had agreedto the transactiononly to please her husband,and had thereforenot consented to itfreely.71 The husband inherited the wife's "iron flock" upon herdeath.72 On the other hand, when the husbanddied, only the sonsfrom their marriagewere entitledto the assets.73The wife had no possessoryrightsto the "iron flock"assets,norcould she sell, mortgage,or pledgereal estateor movableswithoutherhusband'sconsent.74But she could executea bindingtransferof theassets if she had freely taken the initiativeto do so herself,and herhusband ater ratified t.75 In situationswherethe marriageendedindivorceor deathof the husband, he wife could claimher "ironflock"assets at the value set in the ketubah.763. Capacityof Womento Contractand Incur Obligations

Interestinglyenough,no levy couldbe imposedon a marriedwo-man's propertybecauseit was consideredto be underthe husband'sinfluence.77Nevertheless, a marriedwoman could incur debts, besued, and suffer udgmentsagainsther.78Only when she became di-vorced, widowed, or a "femmesole" (a "single female"),could herpropertybe levied against.79The Geonim later passedan ordinancewhich required he husbandto pay any debts his wife might have in-curredbeforemarriage f she hadprovidedreal andpersonalpropertyto the marriage.80Furthermore,any debtsthat the wife incurred orher maintenanceand supportor for household needs had to be paidby the husband,becauseshe actedonly as his agent,andhe was there-fore liable as principalfor all of her business transactions.81

71. Id. In Rif and Rosh's opinion,a husbandcould nevertheless ell real "iron flock"property,althoughthe conveyancewould still be subjectto the terminationof the marriagewithin the wife's lifetime.72. Id.73. Id. See infra notes 95-125 and accompanyingext for furtherdiscussionof inheri-tance rights.74. Id.75. Id.76. Id.77. Id. at 304.78. Id.79. Id.80. Id.81. ComparewithSharpev. Buckstaff, 9 Wis. 2d 114,299 N.W.2d 219 (1981), infranote136.Furthermore,he husbandwas obligatedto supporthis wife in the manner o whichshewas accustomed,and to comportwith her situationin life, as well as to local custom. TheTalmudalsofixeda minimumamountof foodand maintenancehateven the pooresthusbandhad to provide. HOROWITZ,upra note 32, at 302.

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WOMEN'S PROPERTY RIGHTS

4. The Wife's SeparateEstateIn addition to the melogassets,discussedearlier,overwhich thewife had predominantcontrol, there were severalother situationsinwhich the husband had little or no influence over his wife's prop-erty.82For example,a wife could sell her dowry, ketubah or melogassets to a third party who would take possessionwhen she becamewidowed or divorced;she could use the money from the sale in anyway she wished.83Or the husbandand wife could drawup an agree-mentstipulating hat he would have no rightsin the wife'sproperty.84Finally,the wife could preventherhusband romacquiringany rightsin her propertyby transferringt to a thirdpartytrusteepriorto themarriage.85The trustee held the legal title for the wife, and the hus-band could not enjoy any rights in the property.86

5. The DowryThe amount of the woman'sdowrywas usuallystipulated n theketubah87and representedthe daughter'sshare in her father's es-tate.88Althougha fatherwas not legally obligated o providea dowryfor his daughter,due to ancientcustomit was deemedto be his socialand moral obligationto do so, and was considered a mitzvah of thehighest merit.89In later times, the dower became a parental obliga-tion intended to entice potentialsuitors.90The husbandmost commonlybecamethe suretyfor the amountof the dowryas stipulated n the ketubah,which was then convertedinto "iron flock"assets.9' But if the propertybroughtby the wife as

82. Id. at 305.83. Id. at 306.84. Id. at 306 n.12. Nevertheless,a stipulation n such an agreement hat the husbandwould not inherit from his wife was invalid.85. Id.86. Id. at 306-07. Eventhoughsuch trustswerelegallyvalid,they were frowneduponbyTalmudists,whoclaimedthatthey wereby nature raudulent, ftenbeing keptsecretfrom thehusband. Mar Samuelof Nehardea,a famous masterof Talmudicalcivil law, once declared:"I formallyexpoundand teach that if a 'shetarpisis'[thenameof the trust]werepresented ome, I would tear it up and destroyit."87. Maimonidesstated that "[t]hepropertythat a wife bringsto her husband,whetherrealestate,or movables,or slaves,even thoughregisteredn the ketubahdocument, s never-thelesscalled not ketubah,but dowry." Maimonides, upranote 28, at 98.88. PRIESAND, upra note 3, at 15.89. HOROWITZ,upranote 32, at 307. In fact,becauseof the importanceof providingadowry,the courthad the dutyof settingaside a portionof the father'sestatefor the dowryofthe orphaneddaughter n case the heirs failed to providefor one.90. PRIESAND, upra note 3, at 15.91. HOROWITZ,upra note 32, at 307.

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JOURNALOF LAW & RELIGIONdowry was not specificallymentionedin the ketubah,it was consid-eredmelog propertybelongingto the wife only.92Local custom dictated the amount of the dowry; it was eitheroverstated, out of courtesy, or understated, out of modesty.93Althoughthe Rabbis had declaredthat the ketubahwas to be writtenaccordingto the custom of the specific place, only the true value ofthe dowrywas to be binding,regardlessof whether t had been under-stated or overstated.946. Inheritance n Jewish Law

In Jewishlaw, the dispositionof both real and personalpropertycould only be effectuatedby a living person.95Therefore,propertyimmediatelypassedon to the statutoryheirs upon a person'sdeath,unless the dying person designateda differentheir upon their death-bed througha deathbedgift (a gift causa mortis).96In effect, there-fore, very few wills existedin Jewishlaw, althoughthere were manyother methodsby which a personcould transfer heir propertypriorto death.97The laws of inheritance n Halachah have often been criticizedfor their discriminationagainstwomen, althoughothers have arguedthat the one-sided laws tend to favor women more than men.98

a. The Husband's Right to the Wife's EstateAccordingto Jewishlaw, the husband nheritedhis wife's entireestate upon her death, and acquiredfull and complete title to all ofthe property.99Suchproperty ncludedthe ketubahandany property

that was in the wife's possessionat her death.1 Although the hus-band did not inheritthe wife's debts and expectancies,he did inherit92. Id. Mohammedan law on dowry differed in an important way from Jewish law. Jew-ish law did not allow the wife to waive her dower rights in favor of her husband, but Moham-medan law allowed this. The Koran states: "Give them their dowry according to what isordained, but it shall be no crime in you to make any other agreement among yourselves. Ifthey [the women] voluntarily remit unto you any part of it, enjoy it with satisfaction andadvantage." D. AMRAM,THE JEWISHLAW OFDIVORCEACCORDING O BIBLEAND TAL-MUD 115-16 (1968).93. HOROWITZ,upra note 32, at 307.94. Id. at 308.95. MEISELMAN,upra note 5, at 87.96. Id.97. Id. See also notes 111-14, 122-25 and accompanying text for further discussion.98. Id. at 84. See infra note 104 and accompanying text for further discussion.99. Id.100. Id.

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JOURNALOF LAW & RELIGIONright to enjointhe sale if it deprivedher of furthersupport.109

In order to alleviate the seeming unfairness of the widow'sdesignationas a creditor,a husband could providean extra shareofhis estate to his wife throughashetar,a bondwhichprovidedher withyet anothercreditor's ien on his estate.110The principalof the estatecould be invaded and sold to satisfythis claimif the income fromtheestate was not sufficient,and the widowhadlegalauthority o transferthe title."' In latertimes, a custom developedwherebythe husbandwould leave his wife an additionaltestamentary harealong with hissons.ll2 It also became common for the wife to be appointedthe ad-ministratrixof her husband'sestate, and a presumption developedthat when the husbandwilled his entireestateto his wife,he intendedthat she act as trusteefor their children.113c. The Daughter's Rights to the Father's Estate

A daughter, n contrast to the widow, seldom inheritedany por-tion of the estate, unless there were no male heirs.114She was onlyentitledto supportor alimonyfromthe estate until she becameof age,(customarily welve yearsand one day), or married.15 The ketubahexplicitly providedfor this.16 She was also entitled to a marriageportion out of the estate, which was to serve as a dowry upon hermarriage.117Both the alimonyand the marriageportionrepresentedliens against the father's estate, including movables, and the heirswere forbidden o sell it while a daughterwas still beingsupportedby

109. Id. at 390.110. Id.111. Id.112. Id.113. Id.114. Id. at 392.115. Id. The Talmudprovided he followingdiscussion:"As far as inheritance oes, a sonis preferable;s far as harvaha interpreted lternatively s 'support'and 'gifts'],a daughter spreferable."RabbenuGershom's nterpretations:As faras inheritancegoes, the son is givenpreference,or he is kam tahtav, .e.he replacesand takes over the functions of the father. As far as dispositionof theestateby gift is concerned,a daughter s givenpreference nda largersharethanthesons becauseshe is not in a positionto go out and earn a living,as it says:'Theentire

gloryof the daughterof the king is on the inside.' [Ps. 45:14]. A son, on the otherhand, can go and earn a living whereverand wheneverhe wants and is thereforegiven less.MEISELMAN, supra note 5, at 93.116. HOROWITZ,upranote 32, at 392. "[F]emalechildren hatyou mayhavefromme, ifthey became orphans in my house, shall be supportedfrom my propertyuntil they bemarried."117. Id. at 392. See supranotes 87-94 and accompanyingext for a discussionof dowry.

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WOMEN'SPROPERTYRIGHTSit."18Furthermore,f the heirs had transferredhe estate, the daugh-ter had the legal power to seize it from the granteesto satisfy herlien.19 Her lien was neverthelesssubordinate o the claims of credi-tors and her mother'sketubah;and if she failed to claim her dowrywhen she got marriedor when she came of age, the daughterwaivedher rights to the estate.120In Germany, in an attempt to remedy the inequities of thedaughter'suniorclaim, it becamecustomary n the Jewish communi-ties for fathersto providefor their daughtersby will, often assigningthem a shareequivalent o one half of the brother's.121This "deed ofwill," or "Shetar of Half of the Male Share" was a kinyan 122 whichrepresenteda presenttransferof title, with possessionbeingdeliveredupon the father's death.123Unfortunately, his did not improvemat-ters, because the "Shetar of Half of the Male share" was stillsubordinateto the debts of the decedent and the mother's ketubahand alimony.124The above discussionof women'sproperty rights in Jewish lawdemonstrates hat the Jewishcommunitywas aheadof its other Euro-pean neighborsin recognizingwomen, particularlymarriedwomen,as personsin theirown right,who possessedthe abilityto own, man-age, anddevise real andpersonalproperty,managetrusts on behalf oftheirfamilies,and conductbusinesstransactionsn the world at large.The rightsof Jewish women remained airlyconstantthroughouttheMiddle Ages, with the Bible, Talmud, and other Rabbinicwritingsservingas guidesfor how to treat women. It was not until the 1800s,which interestinglycoincided with the American women's reformmovement, that the rights of Jewish women began to change. Theeffect of the Reform movementwas to modernize and updatemanyreligiousdoctrinesand practices.125Simultaneously, eligiousleadersbeganto acknowledge he growing importanceandequalityof Jewishwomen in the community.126

118. Id.119. Id.120. Id.121. Id. at 393-94.122. See supranote 43 for definition.123. HOROWITZ,upra note 32, at 394.124. Id.125. PRIESAND, supra note 3, at 30.126. Id. at 30-31. In July 1845,the Conferenceof the Rabbisof Germany n FrankfortamMain declared:Oneof the markedachievementsof the Reform movementhas beenthe changein the statusof women. Accordingto the Talmud and the RabbinicCode, woman

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336 JOURNALOF LAW& RELIGION [Vol. 6

Despitetheseattemptsto achieveequalityfor women,the Jewishcan take no partin public religiousfunctions,but this Conferencedeclaresthat wo-man has the sameobligationsas man to participateromyouthup in the instructionof Judaismand in the publicservicesand that the custom not to include womeninthe numberof individualsnecessary or the conductingof a publicservice(a minyan)is only a custom and has no religiousbasis.Reportof Committeeon Ordinationof Women,CCAR Yearbook 1 (1956). Furthermore,n1846,the BreslauConferencegrantedtotal equalityto women:The halachic[legal] positionof women mustundergoa change,and it is hopedthat all memberswill be unanimouson that subject.... [Jewishwomen]have re-ceived assurancesof theircapabilitiesor emancipation,without, however,beingin-deed permittedto become emancipated. It is useless to argue why the religioussituation of women has becomeimpaired. .. To be sure,according o their view-point, the rabbiswere absolutelyright in systematicallyexcludingthe female sexfroma significantpartof religiousduties and rights,and the poorwoman could notcomplainaboutbeingdeniedexaltedspiritualblessings, or it was believedthat Godhimselfhadpronouncedhedamningverdictover her. In the faceof so manyoffend-ing slightsin civic life, she could not even complainabout the fact that the house ofGod was as good as closed to her, that she had to beg the rabbi'spermission or thedaily expressionof her Israelitish aith, as one begs for alms. She was permittedashareneither n religious nstructionnor in certainsacredparentalduties. The exe-cution of sacred acts was now permitted,now forbidden o her;and finally,thoughthe man'sdailybenediction or the goodfortuneof not havingbecomea woman,shehad to experience he most bitter offense n the veryhouseof God. And yet, all thisappearsmost mild when compared o the conferencesof a ChristianCouncilin theMiddleAges, debatingwhether a woman had a soul at all!For our religiousconsciousness.. it is a sacreddutyto expressmostemphati-cally the complete religiousequalityof the female sex. Life, which is stronger hanall theory,has indeed achievedquitea bit in this regard;however,a greatdeal is stilllacking orthe achievement f absoluteequality,and even the little that has occurredalready s still devoid of all halachicstrength. It is thus our task to pronounce heequalityof religiousprivilegesand obligationsof womenin so far as this is possible.We have exactly the same right to do this as the synod underR. Gershom,eighthundredyearsago, which also introducednew religiousdecreesin favor of the fe-male sex....Esteemedgentlemen, he Committeeherewith submitsthe following proposalsfor your examination:The RabbinicalConferenceshall declare the female sex asreligiouslyequalwith the male, in its obligationsandrights,andpronounceaccord-ingly as halachic:1. Thatwomen must observeall mitzvot,eventhoughthey pertain o a certaintime, in so far as these mitzvothave any strengthand vigor at all for our religiousconsciousness;2. That the female sex has to fulfill all obligations oward children n the samemanneras the male;3. That neither he husbandnorthe fatherhas the rightto absolvea religiouslymaturedaughteror wife fromher vow;4. That fromnow on, the benediction helo assaniishah(who has not made mea woman),which was the basis for the religiousprejudiceagainstwomen,shall beabolished;5. That the female sex shall, from earliestyouth,be obligated o participatenreligious nstructionandpublicworship,andin the latterrespectalsobe counted n aminyan;and finally,6. That the religiouscomingof ageforbothsexesbeginwith the ageof thirteen.W. Plaut, The Riseof ReformJudaism 253-55(1963),cited in PRIESAND, upranote 3, at 31-32.


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communityhas been slow to change. As was discussedearlier,notuntilrecentlyhave women been ordainedas rabbis,allowed to partici-pate in a minyan,and called to the bema to participate n aliyot. It isdifficult to change a tradition and a mental attitude rooted inthousandsand thousandsof yearsof history. In observantJewishcir-cles, women'srightscontinue untouchedby such reform movements.The discussion of Anglo-Americanwomen'spropertyrightsthat fol-lows is intended to reaffirm he fact that women, regardlessof theculturethey belongedto, playeda secondaryrole in society,a conceptthat is perpetuated o this day. As will be seen, Jewish women wereaccordeda muchhigherstatusin societythan womenin EnglandandAmerica,and consequentlywereaffordedmorepropertyrightsand agreaterability to function as first-classcitizens at an earlier time inhistory.

III. PROPERTY RIGHTS OF WOMEN UNDER ANGLO-AMERICANCOMMON LAW

A. EarlyDevelopmentsin EnglishCommon LawDuring the thirteenthcentury, the concept of "coverture"wascreated in the English common law.127This invention was largelyresponsible or the absenceof legal rights availableto American andEnglish women in the eight hundredyears that followed. Further-more, the conceptof coverture,havingsurvived nto the modernera,has helped perpetuatethe status of women as helpless and inferiormembers of the society.128Under the common law scheme, a woman essentiallylost all of

127. Chused,MarriedWomen'sPropertyLaw:1800-1850,71 GEO.L.J. 1359, 1386(1983)[hereinafterChused]. Coverturerefers to the legal status of the woman once she becomesmarried. Several centurieslater, Sir William Blackstonereemphasizedhe condition in hisCommentaries:[T]he verybeingor legal existenceof the womanis suspendedduringthe mar-riage,or at least is incorporatedand consolidated nto that of her husband:underwhosewing,protectionandcover,she performs verything; nd is therefore alledinour law-frenchafemme covert,oemina viroco-operta;s said to be covert-baron,runderthe protectionand influenceof herhusband,herbaron,or lord;andhercondi-tion duringher marriage s called her coverture.

W. BLACKSTONE, 1 COMMENTARIESNTHELAWS OFENGLAND430 (Oxford 1765), cited inEly, Book Review, 31 UCLA L. REV. 294, 295 (reviewing N. BASCH,IN THE EYESOFTHELAW: WOMEN, MARRIAGE, AND PROPERTY IN NINETEENTH-CENTURY NEW YORK (1982)[hereinafterEly].128. The inferior tatus of marriedwomenhasits rootsin boththe religiousandmetaphys-ical concepts perpetuatedby the Westernculture. The Old and New Testamentsoften por-trayedwomen as havinga subordinate tatus,while the doctrineof maritalunity was likelyderivedfrom the conceptof the unity of the flesh. BASCH,supranote 5, at 19.

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338 JOURNALOF LAW& RELIGION [Vol. 6her legal rightsupon marriageand becameone with her husband.129The wife was significantly imitedin her rightsto own or managethepropertythat she broughtto the marriage,which includedgifts, in-heritancesand herown labor.130Eventhoughthe title to anyland thewife owned remainedwith her, the husbandgained completepowerand controlover her freeholdestate(a fee simpleor life estate)for thelength of the marriage,or if a child was born to the marriage, or aslong as the husband ived.131The commonlaw husbandhadthe rightto use andencumber he land,as well as to sell, mortgage,or leasetheinteresthe possessed n his wife'sproperty,and was able to keep anyprofitsthat resultedfrom the estate.132This interest was calledjureuxoris.133 Furthermore, because divorce was not possible in earlycommonlaw, through ure uxoris,the husbandgainedthe use of hiswife's estate for the life of the marriage.134A wife's rights, on the other hand, were much more limited.During the marriage,she was merelyentitledto supportand mainte-nancefromher husband.135Althoughshe could buy "necessaries"136

129. See,e.g.,Thalerv. Thaler,N.Y. Journal14(1977) (at common aw, "the husbandandwife were one and the husband was one...."); BASCH, upra note 5, at 15.130. Ely, supranote 127,at 295.131. Chused, upranote 127,at 1386;Ely, supranote 127,at 296. A husbandwhose wifepossessedpropertyand gavebirth to a child duringtheirmarriage,gaineda "tenancyby thecurtesy."Thisgavethe husbanda life estate in his wife'sproperty.When the child was born,the curtesywas combinedwith thejure uroxisestate,resulting n a delayof the returnof theland to the wife's heirs until after the husband's demise. R. CHUSED, A MODERNAPPROACHTO PROPERTY 00 (1978).132. CHUSED, supra note 131, at 300; Ely, supra note 127, at 296.133. Id.134. Id. The ecclesiastical ourts made an exception o the "nodivorce"ruleby grantingthe wife a separationrom bed andboard,particularlyn cases of adultery.BASCH,upranote5, at 20.In summary, he husbandhad the followingcommon law rights:* May sue on behalfof his wife withouther consent* Ownswife'spersonaltyoutright* Can reduce wife's choses in actionto his possession* Controlsmanagementof wife'srealty* May chargewife's realty,but may not devise it* Responsible or wife's necessaries* Responsible or maintenanceand custodyof children* Responsible or wife'sdebtsincurredbeforemarriage* Cannot alienatewife'sdower without her consent(cannotalienatehis own realtywithouther consent);* Entitled to tenancyin all of wife'srealtyfor as long as he lives* At his death,wife's realtyrevertsto her familyif there are no livingchildrenBASCH, supra note 5, at 54-55.135. Ely, supra note 127, at 296.136. In Sharpev. Buckstaff, 9 Wis. 2d 114,at 117-18,299 N.W.2d219, at 221 (1981),thecourt discussedthe common law of "necessaries":Thehusband s under egalobligations o supporthis wife,andnothingbutwrongful


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WOMEN'S PROPERTY RIGHTS

and enter into certain contracts as long as she represented her hus-band, she was unable to contract separately from her husband, andhad an extremely limited testamentary capacity.137 The result at com-mon law was to "reduce the wife to complete economic dependenceand legal invisibility."138

By the fifteenth century, the wife had also gained an "interest"(commonly referred to as "dower") in her husband's land upon mar-riage; however, this interest did not rise to the level of an "estate."139The interest became effective only upon the death of the husband,which rendered the wife's ability to control her husband's propertyduring his lifetime useless.140 Dower entitled the wife to a one-thirdlife interest in the property for which the husband had a fee simple ora fee tail interest at any time during coverture.141 Dower rights origi-nally extended only to real property, but the 1670 English Statute ofDistribution allowed the wife to take an interest in personal propertyas well, although nothing could prevent the husband from willing orgiving such property away to other persons.142 Yet another disadvan-tage of the dower scheme was that the widow's share was calculatedafter all of the husband's debts had been paid from the estate.143 Thispresented a problem only for those widows whose husbands' estateswere small, but small estates were the most common.144

conducton herpartcan freehimfrom suchobligation.If he fails to provideherwithsuitable and propernecessaries,any third personwho does provideher therewith,maymaintainan actionagainsthim for the same. And, in general,we maysay, thatnecessaries re such articlesof food,or apparel,or medicine,or suchmedicalattend-anceandnursing,or suchprovidedmeans of locomotion,or providedhabitationandfurniture,or such provisionfor her protection n society,and the like, as the hus-band,consideringhis abilityand standing,oughtto furnish o his wife for her suste-nance,and the preservation f her health and comfort.137. Chused,supranote 127,at 1386;Ely, supranote 127,at 296;BASCH, upranote 5, at20.138. BASCH,supranote 5, at 55.139. CHUSED,supra note 131, at 300.140. Id. at 300-01.141. Id. at 301. Compare with the definition of "curtesy":The estate to whichby common aw a manis entitled,on the deathof his wife,in thelands or tenements of which she was seised in possessionin fee-simpleor in tailduring her coverture,providedthat they have had lawful issue born alive whichmighthave beencapableof inheriting he estate. It is a freeholdestatefor the term ofhis natural ife."BLACK'SLAW DICTIONARY59 (5th ed. 1969).142. MEISELMAN, supranote 5, at 85.143. Id. at 86.144. Id. In summary, he wife had the following rightsand dutiesat commonlaw:* Entitled to support* Cannot contract except for necessaries and as her husband's agent* Cannot sue or be sued in her own name

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JOURNAL OF LAW& RELIGIONB. The EquityCourtExceptionsto Women'sPropertyRights

The Englishcourts of equity145 ttempted o alleviatesome of thecommon law disabilities of women by creating equitable deviceswhich allowed them some economic independencefrom their hus-bands.146Recognitionof the wife'sseparateestatebeganat the end ofthe sixteenthcentury. The courts alloweda wife whose husbandwasat sea, or who had abandonedher, to conveyherproperty o a trusteein order to protectit.147By the seventeenthcentury,the marriedwo-man could create a trust that entitled her to treat the propertythatshe possessedas a separateestate.148 By 1769, Englishcourts of eq-uity began to recognize antenuptialcontracts between the husbandand wife in which the wife was able to hold her estate separatefromthe husband'scontrol.149Later,the courtsaccepteda wife'sequitytoa settlement;and if a husbandwishedto reach his wife's assetswhilesubject to the court's jurisdiction,he had to provide for her sup-port.150 n some cases, even postnuptialagreementsreservinga sepa-rate estate for the wife were recognized.151Despite the increasingprotectionsafforded o marriedwomenbythe courts of equity, the legal rights of most women remainedunaf-fected. It was only the exceptionalwoman,with enoughassets,fore-sight, and ability to skillfullymaneuverher estate, that was able togain a degreeof economic autonomyafter she married.'52Further-more, the equitablerelief availablewas very limited.153The termsofthe documentscreatinga separateestatefor the wifehadto be createdwith great care, becausein most cases, ambiguitieswere resolvedin

* Cannot make a will exceptwith her husband'sconsent* Cannotalienate her realtyexceptwith her husband'sconsent* Entitled to tenancy in one-thirdof husband'srealty as long as she does notremarry* Entitled to her paraphernalia* May lose custodyof childrenby husband'swillBASCH, supra note 5, at 54-55.145. Thecourtof equitywas a conceptbornin thirteenth enturyEnglandwhose basis wasfairnessas opposedto legal strictness. Equityofferedspecialremedieswhich were not avail-able in the court of law, and filledin the gapscreatedby the stringencyof the common law.BASCH, supra note 5, at 20-21.146. Ely, supranote 127,at 296.147. BASCH, upra note 5, at 72-73.148. Id. at 73. See also note 160 for furtherdiscussionon trusts.149. BASCH,supranote 5, at 73. One of the results of coverturewas that a husbandandwife could not contractwith one another undernormalcircumstances.150. BASCH, upra note 5, at 21.151. Ely, supranote 127,at 296.152. BASCH, upra note 5, at 21.153. Ely, supranote 127,at 296.

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contained a provisionallowingthe widow to rejectthe doweror theshare set out in her husband'swill in favor of a statutorilydefinedshareof the estate.161 Usually, if the widow chose to take her statu-tory share she waived herdowerrights.162Duringthe eighteenthandnineteenthcenturies,statutes were passed allowingthe widow to re-ceive her dowerin cash upon her husband'sdeath.163This effectedareleaseuponthe fee simpleof the estate,andfacilitated he transferofland,freefromencumbrances; ut it also had the unfortunate ffectofreducingthe protectionof marriedwomen'sproperty rights.164Onedifferencefrom the English common law that soon surfacedin thecolonies was the frequentland transfersoccurring duringthe eight-eenth and nineteenthcenturies.'65Evidenceshows that colonial wo-men, sometimes married women, received land grants throughwarrantyandquit claim deeds.166For the most part though,the hus-band's common law dominancecontinued through the seventeenthcenturyand a largepart of the eighteenthcentury,with the court ofequity exceptions unctioningas the only meansfor a womanto retaincontrolover herproperty.167No dramaticchangesoccurreduntil thenineteenthcentury,when the movement that led to the enactmentofthe MarriedWomen's Acts in most states was born.

D. The MarriedWomen'sPropertyActs of the 1800sIn 1835, the territoryof Alaska adopteda little-knownpiece oflegislation n 1835that protecteda wife'sproperty rom the debts in-curredby her husbandpriorto marriage.168n 1839,Mississippibe-came the firststate to passa statuteallowinga marriedwoman to own

propertyshe had broughtto the marriage,or which she had later re-ceived as a gift or inheritance.169The statute also protectedmarriedwomen'sslaves from their husband'screditors.170 Most of the otherstates soon followed suit by passing similar reformatorymeasures.For example, Michigan's 1844 statute exemptedthe wife's property161. Id. at 1394-95. This electiveschemedid not alwaysallow the widow to takeher sharepriorto the paymentof her husband'sdebts.162. Id. at 1395.163. Id.164. Id.165. Id. at 1392.166. Id. at 1389.167. Id. at 1390.168. Id. at 1398-99. Alabamaseems to be the only other state which adoptedsimilarlegislation.169. BASCH, upra note 5, at 27.170. Id.

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317] WOMEN'SPROPERTYRIGHTS 343from her husband'screditors.171 n 1845, a statute in the State ofMassachusetts ook into accountthe practicesof the courtsof equityand limited the wife'sseparateestate to the provisionsof the antenup-tial agreement,but also requireda specificwrittenagreement or thecreationof a separateestate.172The best known of the earlystatuteswas the 1848 New York Act.173The act protecteda marriedwoman'spropertyfrom her husband'screditors,statingthat it "shallcontinueher sole and separate property,as if she were a single female,"andalso protected propertythat a woman would receive in the future"fromany personother than her husband"by allowingher to hold it"to her sole and separateuse, as if she werea singlefemale."174 ub-sequently,the 1860 New York EarningsAct, the most advancedofthe statutes,gave wives the right to sue and be sued, and consideredtheir wagesas partof their separateestate.175Althougha numberoflegislaturespassedstatutes that only protectedwomen's realpropertyfrom their husbands'debts,176most other states included both realand personalpropertyunderthe protectionof the statute.177Twentynine states had passedsometype of marriedwomen's statuteby 1865,but the process was not completed until the end of the nineteenth

171. Id.172. Id. at 27-28.173. Act of Apr. 7, 1848,ch. 200, 1848 N.Y. Laws307,citedin CHUSED,upranote 127,at1410 n.266.174. Id. at 1410-11n.266. The full act readas follows:AN ACT for the more effectualprotectionof the propertyof marriedwomen.PassedApril 7, 1848[qc]The Peopleof the State of New York,representedn Senateand Assemblydo enactas follows:1. The real and personal propertyof any femalewho may hereaftermarry,andwhichshe shall own at the timeof marriage,and the rents issues andprofits hereofshall not be subjectto the disposalof her husband,nor be liablefor his debts,andshall continueher sole and single property,as if she werea singlefemale.2. The real and personalproperty,and the rents issues and profitsthereof of anyfemalenow married hall not be subject o the disposalof herhusband;but shall behersole andseparatepropertyas if she werea singlefemaleexceptso far as the samemay be liablefor the debtsof her husbandheretoforecontracted.3. It shall be lawful for any married emaleto receive,by gift, grantdevise or be-quest,fromanypersonother thanher husbandand holdto her sole andseparateuse,as if she were a singlefemale,real and personalproperty,and the rents,issues andprofits hereof,and the same shall not be subject o the disposalof herhusband,norbe liablefor his debts.5. All contractmade betweenpersons n contemplation f marriage hall remain nfull force after such marriage akesplace.175. BASCH, upra note 5, at 28.176. Chused,supranote 127,at 1399. The statesincludedMaryland,Connecticut,Iowa,Kentucky,Indiana, Vermont,North Carolina,and Tennessee.177. Id. at 1399.


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century. 178The appearance of this wave of legislation has sometimes beenexplained in light of the widespread economic problems that had ex-isted in the first part of the eighteenth century, problems which de-manded changes in debtor's laws, and caused the exemptions ofproperty from attachment by creditors to be a source of growing con-cern.179 Furthermore, in the early part of the nineteenth century, leg-islation had been passed which attempted to deal with some of theunfair consequences of the common law of coverture.180 The status ofabandoned women and widows presented legal problems which thecommon law could not deal with adequately.l18 The focus of legisla-tors had therefore shifted onto family law, the condition of coverture,and the role women played in the society at large.182

Despite such seemingly sweeping changes in the laws, commen-tators have observed that in practice, the married women's acts didnot have a major impact on the property rights of women.183 In NewYork, for example, the courts construed the statutes very narrowlyand conservatively, thus demonstrating the laws' weaknesses in con-trast with the common law.184 It has therefore been argued that themarried women's acts were not truly a revolution, because they failedto break down the common law barriers that women had faced forthousands of years.185 Ambiguities in documents were frequently re-solved in favor of the husband's common law rights, thus perpetuat-178. Id.179. Id. at 1400.180. Id.181. Id.182. Id.183. See, e.g., BASCH, upra note 5, at 225 ("[m]any of the changes wrought by the NewYork Legislature were illusory").184. BASCH,supra note 5, at 200, 202-03. Basch argues that the judiciary accomplishedthe limitation of the statutes in three ways:First, by declaring sections unconstitutional and void, they narrowed the applicabil-ity of the statutes. Second, by relying on equity precedents that required the delinea-tion of the married woman's estate to be clear and unambiguous, they limited thenumber of estates affected. Third, and most important, by professing their faith inthe propriety and the desirability of the old common law fiction of marital unity, andby applying that fiction to the countless situations the statutes did not spell out, they

eviscerated the spirit and intent of the legislation.Id. at 202-03.See, e.g., White v. White, 5 Barb. 474, 477-79 (1849) (statute was not applicable to wifewho had been married in 1819 and had inherited realty in 1828, and could not prevent hus-band from interfering with her rents and profits, because husband's rights were vested).BASCH, supranote 5, at 204.185. Id.

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ing the legitimacyof the common law.186The courts continued toregardthe wife as thoughshe was underher husband'spower,treat-ing her statutoryright to a separateestate as merelya bufferagainstspecial circumstances,such as the husband's debts acquiredbeforemarriage.187Furthermore,courts continuedto be plaguedby the is-sue of whethera married woman with a separateestate could enterinto a bindingcontract.188The only women who seemed to benefit from the new statuteswere those who brought their own propertyto the marriageor re-ceived propertyduringthe marriage.189 In such situations,the stat-utes enabledthem to keepthe property n a separateestate,freefromtheir husbands'common law encumbrances.It is beyondthe scope of this articleto pursuethe detailsof thedevelopmentof Anglo-Americanwomen's property rights up to thepresent. Suffice it to say that changes have been gradualand havecome late in the day in the view of manywomenactivists. Completeand absolute equality between men and women has not yet beenachieved. The flavorof the commonlaw doctrineof coverturecontin-ues to permeatethe thinkingof some judges and legislatorsto thisday. Courts today continue to view the woman primarilyas a wifeand mother, and her career as an addition to her primaryrole ofhomemaker.190Criticspoint out that the modern udiciarycontinuesto define women accordingto the functionsthey serve in relationtomen, and that it is the covertureconcept that has deprivedwomen,both single and married,of legal personhood.191The questionthat remainsto be resolved s what similaritiesanddifferencesexist between Jewish law and Anglo-Americancommonlaw, and whether one systemhas been moresuccessfulthanthe otherin protectingwomen'srights.

186. See, e.g., Switzer v. Valentine, 10 How. Pr. 109 (N.Y. Super. Ct. 1854) (assets whoseownership was uncertain were treated as property of the husband). Ely, supra note 127, at 299n.25.187. BASCH, upra note 5, at 213.188. Id. at 213-14. See, e.g., Van Allen v. Humphrey, 15 Barb. 555, 559 (1853) ([i]n orderto carry out the spirit of this statute, it will become necessary for the courts to adopt, to its fullextent, the equity rule that a wife having a separate estate, shall be taken to have bound it tothe payment of debts contracted by her"). Not all courts were of the same opinion.189. Id. at 222.190. Id. at 232.191. Id.

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JOURNALOF LAW & RELIGIONIV. WOMEN'S PROPERTY RIGHTS IN JEWISH LAW VERSUS

ANGLO-AMERICAN COMMON LAWA comparisonof the propertyrights affordedJewishwomen inHalachah (Jewishlaw) and Anglo-Americanwomenat commonlawrevealsthat the Jewish woman had a greaterabilityto own and dis-pose of property ree from her husband's nfluence,and was able to doso at an earlier ime in historythanherAnglo-Americancounterpart.Several comparisons are illustrative of the Jewish wife's superiorproperty rights.First, the melog assets192f the Jewishwife corresponded o thecommon law wife'sseparateestate,which was laterrecognizedby theAnglo-Americancourtsof equityandthe marriedwomen'sactsof the1800s.193 This property, which both the Jewish wife and the commonlaw wife acquiredeitherbefore or aftermarriage,belongedsolely toher and was not subjectto her husband'sdebts. She could keepall ofthe profitsgenerated rom that property,and was liable for any lossesin both legal systems.However,the Jewish wife was limited to conveyinga baretitle inmelogassets,with the actualpossession,enjoyment,and use deferreduntil she became widowed or divorce;she could only conveyfull titlealong with her husband. The marriedwomen'spropertyacts of themid-1800srepresentedan improvementover Halachah in that theyallowed the common law wife to hold her separateestate as thoughshe were a "femme sole." This "singlefemale"status permittedtheAnglo-Americanwife to do as she wished with her separateestate.Unlike the Jewishwife, she did not need her husband'spermission o

convey full title. Nevertheless,such devices as antenuptialagree-ments and trusts, which Jewish women had been using throughoutthe Talmudicperiod, only began to be recognizedby the courts ofequity in the seventeenthcentury. These tools enabledJewish wivesto maintainseparateestateslong beforethe American statutesof the1800s allowed Anglo-American wives to do so.194Second,the Jewish wife's "iron flock"assets195orresponded o192. See supranotes 61-68 and accompanying ext for discussionof melogassetsof the

Jewish wife.193. See supranotes 146-52and 169-79 and accompanying ext for a discussionof therecognitionof the common law wife's separateestate by the courtsof equity,and a similarrecognitionby the marriedwomen'spropertyacts of the 1800s.194. Seesupranote 86 andaccompanyingext fordiscussionof trustscreatedby women nJewishlaw, and the fact that Talmudists rownedupon them.195. See supranotes 69-76 and accompanyingext for discussionof "iron flock" assets ofthe Jewish wife.

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WOMEN'SPROPERTYRIGHTSthe propertythat the Anglo-Americancommon law wife broughttothe marriage.196Although in both legal systemsthe wife maintainedlegal title to such property,the husbandacquiredvaryingdegreesofcontrol over these assets. Jewish law placed some advantageousre-straintson the husband that the common law did not. Most signifi-cantly, the Jewishhusbandcould not sell his wife's "ironflock" assetsor subjectthem to his debts;he could only have the use and enjoy-ment of the lands and chattels. By requiring he husbandto becomean insureragainstthe loss, damage,or impairmentof the "iron flock"assets,Halachahmanaged o furtherprotectthe interestsof the wife'sassets.In contrast,Anglo-Americancommonlaw grantedthe husbandcomplete powerand controlover his wife'sproperty. Due to the factthat he acquireda life estate in such property,the common law hus-band was free to sell, mortgage,or lease the interest he possessedinhis wife's assets, as well as subjectthem to the demandsof his credi-tors. This schemedid not affordmuchprotection o the Anglo-Amer-ican wife, but was nevertheless consistent with the common lawconceptof coverturewherebythe wife'spropertyandidentitymergedwith that of her husband'sat the time of marriage.197A furtheradvantageof Halachah was that it allowed the wife toexecute a binding transferof "iron flock" assets, providedthat shehad freelytaken the initiativeand that her husband ater ratifiedthetransaction. The Anglo-Americancommon law wife could not exe-cute such a transfer;at most, she could incur debts based on suchassets only while acting as an agent on behalf of her husband.Third,Jewish law was more advancedin that it recognizedtheabilityof the wife to incurdebts,be sued,and suffer udgmentagainsther long before the common law did. Generally,when enteringcon-tracts, both the Anglo-Americanwife and the Jewishwife were lim-ited to acting as their husband'sagent, and the husband was heldliable for his wife's business transactions.198Furthermore, he hus-band in both systemshad the obligationto supportand maintain hiswife, and to provideher with the necessariesand comforts of life towhich she had becomeaccustomed.199Despite these limitations,the

196. See supra notes 130-35 and accompanying text for discussion of the Anglo-Americanwife's rights in property she brought to the marriage.197. See supra notes 128-35 and accompanying text for discussion of the concept of cover-ture and the minimal rights afforded to common law wives.198. See supra notes 81, 137, and 130 and accompanying text.199. See supra notes 48, 81, and 137 and accompanying text, which demonstrate that both

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JOURNALOF LAW& RELIGIONJewishwife achieved a degreeof economicautonomyduringthe Tal-mudicperiodthat herAnglo-Americancounterpartdid not enjoyun-til the mid-nineteenth entury. This was due in partto the abilityofthe Jewish wife to conduct certainlimited conveyancesthroughhermelog assets and those assets specifically set aside in a separateestate.200

Lastly, the inheritancerules in Jewishlaw and Anglo-Americancommon law each offered women their own set of advantagesanddisadvantages.The Jewishwife's inheritancerights in her husband'spropertydiffered n significantways from the Anglo-Americancom-mon law. The Jewish widowwas considereda creditorandwasthere-fore allowed to collect her "statutory"portion201rom her husband'sestatebeforeother creditorsand the legalheirs. The Anglo-Americancommonlaw widow,on the otherhand,was only entitled to dower,aone-third ife interest n the property n whichher husbandhadheld afee simpleinterestduringcoverture.The majordrawbackof the com-mon law dowerwas that the widow was only able to claim her shareafter all of the husband'sdebts had been paid off. This was clearlydisadvantageousor a widow whose husband had a small estate andmany debts. The advantageof the Halachic inheritanceschemewasthat it assuredthe widow of some financialsupportby allowingthecollection of her "statutory" hare to take precedenceover all otherclaimants. The disadvantageay in the fact that it prevented he Jew-ish widow from claiminga share of the estate along with the otherheirs, which,in somecases,mayhave been moreadvantageousorherif a largeestatewas involved.202 n both systems,however,local cus-tom attemptedto alleviate the apparentharshnessof the inheritanceJewish law and Anglo-American common law placed the same obligations on the husband toprovide his wife with the basic necessities of life.200. See supra notes 66-68 and 82-86 and accompanying text for further discussion.201. See supra note 69 and accompanying text. This "statutory portion" included theketubah and the "iron flock" assets which the wife brought to the marriage as dowry.202. Meiselman argues that Jewish women were actually better off in the inheritancescheme because their claim preceded all other creditors and heirs. "The choice," he claims"represents a realistic approach to the needs of women. The [Jewish] law recognizes that it iseasier and preferable foi men to go out and earn a living than for women." Supra note 5, at90-91.

Many women today would take offense at Meiselman's claim, particularly because in oursociety it has become increasingly easy for women to obtain jobs to support themselves. Asecond problem with his argument is the assumption that Jewish widows benefitted from theirposition as creditors vis-a-vis their husbands' estates. Although in some situations this couldhave proven advantageous, many Jewish women would have preferred to stand in line with theother heirs, particularly when a larger estate was involved. Inequity also stemmed from thefact that women were limited to the portion of the estate to which they were statutorily enti-tled, and depended on their husbands' and fathers' good will to assign them more than their

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WOMEN'SPROPERTYRIGHTSscheme,and husbandsoften designatedspecificshares of theirestatesto their wives in addition to the "statutory"amount.It is difficult to assess which legal system was ultimatelymoreadvantageous or women. The two systemscannot be considered n avacuum,becausemany other historical and social factorsshapedthedevelopmentof Jewish law and Anglo-Americancommonlaw. Nev-ertheless,even this cursoryglance at the two legal systems supportsthe premisethatHalachah(Jewish aw) has been much moreprogres-sive in its tolerancefor the propertyrightsof women,and recognizedthe existenceof women as valid participants n the legal scheme at amuch earlier time in history than Anglo-Americancommon law.This much is readilyapparent;but the more difficultquestionis whythis is so. An examinationof the concept of marriage n each legalsystem providesa plausibleexplanation.

Accordingto Sir WilliamBlackstone,203man and a woman the-oreticallyapproachedmarriageas equalsand wereconsideredpoten-tial partiesto a civil contract.204As such, they had to be willing andable to contract,and had to contractin fact in orderfor their mar-riage to be deemed valid.205This image of marriageas a contractbetween two able and equalindividualsgave rise to some seriousim-plications,206nd at this point Jewishlaw and Anglo-Americancom-mon law diverged. At the core of the Anglo-Americancommonlawof marriage ay a single prevailingconcept:the mergingof the wife'slegal identityinto that of her husband's, he concept of coverture.207By giving up her identity and her economic and legal freedom,thecommon law wife was relegated o the tasks of producingand raisingoffspring,and tendingto household matters. Sir Blackstone's heorythat such a bilateral contract could be negotiatedfreely, and bothsides could set the termsthey desired,was simplynot true in reality,and was overriddenby the "husbandand wife as one, and the hus-band as the one" image.208The mannerin which Anglo-Americancommonlaw viewedwomen while in a state of coverture,as nonlegalstatutory share. See supra notes 110-13 and 121-24 and accompanying text for further discus-sion of Jewish women's inheritance rights.

203. W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR BOOKS (T.Cooley ed. 1899) cited in BASCH, supra note 5, at 48.204. Id. at 48.

205. Id.206. Id.207. Id.208. See supra notes 127-29 and accompanying text for a discussion of the common lawdoctrine of coverture and its effect on Anglo-American women.

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JOURNAL OF LAW& RELIGIONentities,infected how society in generalviewedAnglo-Americanwo-men:as second-classcitizens.In contrast,the essence of marriagewas regardedmuch differ-ently in Jewish aw. Despitethe earlybiblical magesof the husband'sacquisitionof a wife as analogousto acquiringa piece of property,Halachah later departedfrom such concepts and began to view wo-men as citizens in their own right. Sir Blackstone'scontracttheory,while equallyapplicableto the Jewish law of marriage,was actuallyfulfilled n reality. This "marriage ontract,"signifiedby the ketubah,represented he individual ermsand desires of the husbandand wife,and allowed them to enter into marriageas more or less equal con-tractingparties.209As a result,Jewishwomen attaineda higherstatusin the Jewishcommunityat a much earliertime than womenin othersocieties. They were viewed as an essentialpartof a man'slife, and aJewish man was regardedas incompletewithout a wife.Criticsoften point to the exclusion of Jewishwomen frommanyreligiouspracticesas a sign that women have had a lower social statusin the Jewishcommunity. A possibleexplanation s that Jewishwo-men were excused from such time-consumingreligiousobligations norder that they could devote their full attention to household andfamily matters. The sphere of activities of Jewish men was simplydifferent han that of Jewish women. Jewishmen devoted their livesto the study of the Torah,while Jewishwomen occupiedthemselveswith family and home; one activity was no less importantthan theother. Jewishmen and women were thus equals in one sense of theword, while operatingin two differentspheresof eq

A Comparative Analysis of Women's Property Rights in Jewish Law and Anglo-American Law

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