DAUGHTER IN JEWISH LAW:

By: Louis Ginzberg, David Werner Amram

The legal status of a daughter in Jewish law changed very materially from patriarchal times to the Talmudic era. In the former period the daughter had no appreciable legal rights; she was merely a member of her father's household, and as such was, in common with the other members of the household, subject to the power of her father, who was accountable to no one for his treatment of her. This state of absolute subjection to the parental control was somewhat modified by the Mosaic law; but it was not until the days of the rabbinical authorities that this ancient patriarchal authority was abolished, and legal rights secured for the daughter, resulting in her practical emancipation from parental government upon reaching her majority at the age of twelve years and six months.

In illustration of the power of the father in patriarchal times, many incidents may be cited from the Bible, of which a few will suffice. The right of the father to kill his daughter is apparently not questioned in Judges xi. 34-39, though some commentators (e.g., Levi ben Gershon and David Ḳimḥi, also Nicholas de Lyra) hold that the passage must not be interpreted as indicating that Jephthah actually killed his daughter in this case. In later times this extraordinary power, more especially when used to offer up sons and daughters as sacrifices, is condemned (II Kings xxiii. 10; Ps. cvi. 37, 38; Ezek. xvi. 20, 21). A man could sell his daughter to be a maid servant (Ex. xxi. 7), and, like Laban, he could also sell her in marriage (Gen. xxxi. 15; compare Gen. xxix. 21-30). The incident in reference to Lot's daughters (Gen. xix. 8), as well as a similar incident in Judges xix. 24, shows the extent of paternal authority. Since the daughter was practically the property of her father, damages for an injury done to her were demandable by the father (Ex. xxi. 31). The father was likewise entitled to damages for slander of the good name of his daughter (Deut. xxii. 19) and for her seduction (Ex. xxii. 16; Deut. xxii. 29).

Laban, after having given his daughters in marriage to Jacob, claimed the right of paternal authority over them long after their marriage (Gen. xxxi. 43); and it seems that Jacob, to a certain extent, recognized this right (ib. xxxi. 31). In Judges xv. 1, 2, and in I Samuel xxv. 44, incidents are recorded showing the exercise of paternal authority over the married daughter; for in both cases the married daughter is taken from her husband by her father, and given in marriage to another without the husband's consent.

In the Talmudic and post-Talmudic law there is an entire change in the legal status of the daughter. Thus, of the law in Ex. xxi. 7, according to which the father was permitted to sell his daughter to be a maid servant, the Talmud says that it was in force only as long as the law concerning the jubilee was in force (Ḳid. 69a; Maimonides, "Yad," 'Abadim, i. 10); and the Talmud bases this view upon the ground that in the year of the jubilee all slaves were absolutely free, and that, therefore, when the jubilee year was no longer observed, the right of the father to sell his daughter to be a maid servant must necessarily be taken away, because the safeguard against her continuance in perpetual slavery no longer existed.

According to another tradition, the jubilee year was not observed after the destruction of the First Temple ('Ar. 12b); thus, according to the Talmud, the right of the father to sell his daughter was taken away at least as early as the sixth century before the common era. The mother never had the right to sell her daughter (Soṭah iii. 8).

The Talmudic law practically emancipated the daughter from parental authority when she attained her majority. The daughter was a minor ("ḳeṭannah") under the age of twelve years; between the ages of twelve and twelve and a half she was called "na'arah"; and upon attaining the age of twelve years and six months she became "bogeret," and was no longer under parental control. All of the father's rights over his daughter's person and propertyerty which survived in Jewish law from patriarchal times ceased when she became bogeret. These rights are thus summed up in the Mishnah (Ket. iv. 4; ib. Gem. 46b): While the daughter is a minor, the father may give her in marriage; he is entitled to her earnings and to that which she finds; he may annul her vows; and he must receive the bill of divorce when one is given by her husband. She becomes sui juris upon attaining the age of twelve years and six months, or upon her betrothal earlier (Mishnah B. M. i. 5; Ket. iii. 8, iv. 4; Nid. v. 7).

The right of the father to annul his daughter's vow is based upon Biblical law (Num. xxx. 4-6). His right to give her in marriage while she is a minor is admitted in the Mishnah (Ket. iv.); but it is condemned as immoral by the Rabbis, who are of the opinion that the father should not give his daughter in marriage during her minority, but that he must wait until she is old enough to decide whether or not she is satisfied (Ḳid. 41a).

The father is entitled to the custody of his daughter; but, if he divorces his wife, his daughter remains with her mother (ib. 102b). According to the later law, however, which seems to have followed the decisions of the Roman law, the court must determine whether the mother in such cases is a proper guardian for the daughter; and the question of the custody of the girl is one to be judicially determined according to the best interests of the child (Shulḥan 'Aruk, Eben ha'Ezer, 82, 7).

The father must support his daughter while she is a minor (Ket. 49a), even though she has been given into the custody of her mother who has been divorced ("Yad," Ishut, xxi. 17); but the father is not obliged to support his daughter after she has attained the age of six years, if she has a separate estate which is sufficient for her maintenance (Eben ha-'Ezer, 71, 1). If the daughter, after attaining her majority, remains with her father, and is supported by him, he continues to be entitled to her earnings and to that which she finds (B. M. 12a; and Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 270, 2).

After the death of her father, his son and heir must support the daughters out of the patrimonial estate until their marriage (Ket. 52b; B. B. 116b). The daughter's right to be supported out of the estate of the father is limited to that part of the estate which actually was in her father's possession at the time of his death. She has no right to demand support out of any part of the estate which has accrued to the heirs after the father's death, and which may be the increase or increment of the estate which they received from him (Bek. 52a; Ishut, xvi. 5). The right of the daughter to be supported out of the father's estate is recognized by an early decision, delivered in Jerusalem by Judge Admon (c. 40 C.E.), whose decision was approved by Rabban Gamaliel. Admon said: "If a man die, leaving sons and daughters, and his estate be large, the sons inherit it and the daughters are maintained by it; but if the estate be small the daughters are maintained by it and the sons may go begging" (Mishnah Ket. xiii. 3; ib. Gem. 108b). If the heirs are spendthrifts, and the estate is in danger of being dissipated by them, the court will set aside a certain portion of the estate beyond the control of the heirs, in trust for the support of the daughters (Eben ha'Ezer, 112, 11, gloss). It seems that, inasmuch as the mother is not liable for the support of her daughter, the latter can not claim maintenance out of the estate of the mother (Mishnah B. B. viii. 4; Gem. 122b).

The Talmudic law provides furthermore (Mishnah Ket. iii. 11; ib. Gem. 52b) that the husband shall include in the marriage contract (Ketubah) a clause providing that any daughters which may be born to him shall live in his house and be supported by his estate until their marriage. This right of support or alimentation is technically known as "mezonot," and is to be distinguished from "parnasah," or the right of dotation which the daughter has in her father's estate.

The law requires that the father shall provide the daughter with a suitable dowry upon her marriage; and the obligation to provide the Dowry rests upon the father's heirs (Mishnah Ket. vi. 6; Gem. 68a). There is a difference of opinion among the authorities as to the right of a daughter to receive a dowry from her mother's estate, although the preponderance of authority is in favor of this right (Eben ha-'Ezer, 113, 1, gloss).

The daughter may inherit her father's estate if he has left no son or issue of a deceased son. The right of the daughters to inherit was originally established by the Mosaic law in the case of the daughters of Zelophehad (Num. xxvii. 7); and the decision in this case was made a general law (ib. verse 8). The right of the daughter to inherit was qualified by a later decision in the same case, providing that the heiress of her father's estate was obliged to marry one of the family of the tribe of her father, in order to preserve the inheritance within the tribe. Rabba said that this provision of the law applied only to the time of the division of the land of Palestine among the different tribes, and that it had no application in later times (B. B. 120a); so that a daughter inheriting the estate of her father might marry any one she pleased, more especially because, since the destruction of the Temple and the dispersion of the people, all laws relating to the land of Palestine were in abeyance.

The laws of inheritance are the same with reference to the sons and daughters, with the exception that the law of primogeniture does not apply to daughters (Bek. 52a; B. B. 122b).

The Talmudic authorities disagreed as to whether the son and the daughter inherit the mother's estate equally or whether the sons inherit to the exclusion of the daughters (ib. 111a). It was finally decided, however, that the same rule applied as to the father's estate, the sons being preferred (Ḥoshen Mishpaṭ, 276, 4). If the maternal inheritance descends to the daughter while she is yet a minor, it is nevertheless beyond the control of her father; and the general rule, that the father is entitled to all the property of his minor daughter, does not apply in this case (Ḳid. 46b).

In order to evade the law of inheritance, which prefers the sons to the exclusion of the daughters,it has become customary since the Middle Ages for the father to provide an inheritance for his daughter upon her marriage, by executing an agreement wherein he confesses that he has received a certain sum of money from his daughter in cash. He acknowledges this as a debt due by him and his heirs, to become payable upon his death in cash; and he thereby pledges or mortgages all of his goods, movable and immovable, to pay the same. He furthermore states that it was a condition of the loan that, when his male heirs enter upon their inheritance, they shall have the right either to pay the said sum in cash or to give to the daughter a share in his estate equal to one-half of the share of one son (not the first-born). By this agreement the daughter is assured of a share in her father's estate or of a sum of money equivalent to it (Eben ha'Ezer, 113, 2; Ḥoshen Mishpaṭ, 281, 7, gloss). The form of this contract is given in Appendix F to Mendelssohn's "Ritualgesetze der Juden," and it is known as the "shetar ḥaẓi zakar" (contract for a son's half share).

If a man marries a widow who has a daughter by her first husband, and, as part of the consideration of the contract of marriage, agrees to support the daughter for a specific number of years, it is a binding contract which may be enforced by the daughter, even though the mother is divorced and leaves the house of her husband taking her daughter with her, or even if the daughter is married (Mishnah Ket. xii. 1; ib. Gem. 101b; "Yad," Ishut, xxiii. 17, 18; Eben ha-'Ezer, 114, 1).

Compare Child; Divorce; Dowry; Inheritance; Ketubah; Slaves and Slavery.