The Exemption of an Onen from Mitzva Performance

  The first mishna in the third perek of Berakhot describes the exemption of an onen from performing mitzvot. The mishna lists specifically the mitzvot of shema, tefillin, and tefilla, and the Rif indeed limits the exemption to those mitzvot. Since the onen is psychologically “burdened” by the looming burial, he cannot properly mentally focus upon these three mitzvot, which demand kavana. Most Rishonim, however, maintain that an onen is exempt from mitzvot in GENERAL; these three are only listed by way of example. What logic would justify a general exemption of mitzvot for an onen, assuming that one exists?

 

Rabbenu Yona attributes his exemption to the notion of osek ba-mitzva patur min ha-mitzva. As previous shiurim described, a person involved in a prior mitzva is exempt from performing a subsequent one. Since the onen is involved in burying his deceased relative, he is defined as osek be-mitzva and is excused from all other mitzvot.

 

The problem with this logic stems from a gemara in berakhot (19a) which exempts an onen from mitzvot EVEN when he is not DIRECTLY INVOLVED in the burial. The gemara contrasts the onen with those involved in the eulogy process. The gemara exempts the latter group from mitzvot when they are actively involved in attending to the deceased, but the gemara claims that the onen should remain idle (without mitzva performance) EVEN WHEN NOT DIRECTLY involved in burial or eulogy. This extensive allowance may not be consistent with the parameters of osek ba-mitzva and may indicate that a different principle exempts the onen.

 

To a certain degree, this question depends upon the scope of osek ba-mitzva exemption, an issue discussed in shiur 17. According to the Ran, osek ba-mitzva DOES afford a very broad exemption, excusing the performance of the second mitzva even when the first mitzva isn’t compromised. However, Tosafot disagreed and severely limited the range of the osek exemption. The first mitzva only exempts one from the second if they can not be fulfilled simultaneously. According to Tosafot, an onen SHOULD NOT be excused from mitzvot during “down time” if the onen exemption were based purely upon osek ba-mitzva. Evidently, then, a different logic exempts an onen from mitzva performance.

 

            The Yerushalmi introduces a completely different reason for the onen exemption: mitzva observance would be INSULTING to the honor of the dead person. The Yerushalmi does not elaborate on this reasoning. Perhaps the insult stems from the fact that the dead person can no longer perform mitzvot. Subsequent gemarot in Berakhot demand general sensitivity when visiting cemeteries; in light of the inability of the dead to perform mitzvot, tzizit should not be conspicuously worn. Alternatively the insult may stem from the onen’s nonchalance about the burial. By “diverting” to mitzvot, he is offending the dead person. Whatever its reasoning, the Yerushalmi devises a different logic to excuse an onen. Independent of his status as osek ba-mitzva, he cannot “divert” from burying the relative to mitzva performance because it would be discourteous to the dead person.

 

One obvious distinction between exempting the onen because of the legal mitzva of burial and the ensuing status of osek as opposed to the unique exemption of kavod ha-met would be an instance in which an onen chooses not to accept the exemption. If the onen's exemption were based completely upon osek ba-mitzva, he may be allowed to forgo the exemption and attempt to "have it all" and perform the mitzva. However, if the exemption were based (in part) upon kavod ha-met, his “chumra-seeking” would be offending the dead person and would be disallowed. In fact, the Yerushalmi, which introduces the additional /novel logic of kavod ha-met, addresses the issue of an onen who seeks to skip the exemption and claims that the kavod ha-met factor would indeed disallow this chumra option.

 

A second interesting issue that the Yerushalmi introduces as a nafka mina between the two approaches is an instance in which others are attending to the burial (acherim oskim). Intuitively, if the exemption were based upon osek ba-mitzva, the exemption would then be terminated, since he is not actually involved in burial. However, the kavod ha-met based exemption would be more complicated to trace. Perhaps the insult to the dead person is unrelated to the diverting away from burial. Perhaps ANY mitzva performance by a close relative between death and burial would constitute an affront to the dead person.

 

Interestingly, the Bavli does not address this situation, leaving the impression that NO transfer of the dead body whatsoever would discontinue the exemption. The Bavli may be extending the exemption unconditionally until the point of burial, leaning toward a strict kavod ha-met logic.

 

The Yerushalmi DOES speak of a situation in which the relative is not involved in burial and must perform mitzvot. The Yerushalmi raises a scenario in which the dead body was actually delivered to the team of people assigned to bury (le-katafim). In this instance, the Yerushalmi discontinues the exemption and obligates the onen in mitzvot. That in this instance the onen must perform mitzvot would be coherent regardless of whether a general onen is exempt because of osek ba-mitzva or because of kavod ha-met. Either way, the relative has ATTENDED to the burial, since yielding to the chevra kadisha is the standard burial procedure. The dead person has been properly honored since his burial has been properly executed.

 

There are two intriguing positions in the Rishonim that discuss intermediate situations, in which the dead body has not been delivered to the chevra kadisha but the relative/onen has been ACTIVELY "sidelined." The Ramban in his Sefer Torat Ha-Adam discusses a situation in which the onen was imprisoned and was unable to attend to the burial. The Ramban obligates him in mitzvot since he is not ABLE to be involved in burial. Does this indicate that the Ramban viewed the exemption as osek ba-mitzva based? If kavod ha-met is the source of the exemption, perhaps it applies to EVERY onen unless the body has been delivered to the chevra kadisha.

 

Similarly, Rabbenu Tam was involved in a personal situation in which his sister died in a different town and her husband attended to the burial arrangements. Rabbenu Tam determined that he was not an onen and he actually ate meat and drank wine. This situation is even more radical than the Ramban scenario, since Rabbenu Tam was legally capable of attending to the burial; he was simply separated by distance. Does this indicate that Rabbenu Tam also rendered the exemption as osek ba-mitzva based and therefore did not apply it to anyone who is not directly involved in burial?

 

This issue presents complex questions, particularly in the modern context in which dead bodies are transported to facilitate proper burial. At what point does the exemption begin for a person who is not proximate to the dead person or involved in burial arrangements? Similarly, at what point does the exemption expire once the dead body has been delivered to the next stage of transportation? The Shulchan Arukh (Orach Chayim 71:1 and Yoreh De'ah 341:1) discusses these scenarios, and the Vilna Goan (cited by the Bi'ur Halakha in OC) clearly assumes that a kavod ha-met model of exemption would be more broadly applied.

 

Tosafot in Berakhot (17b) raise an additional issue regarding the status of mitzvot for an onen on Shabbat. On the one hand, he is legally forbidden from any preparations and cannot be deemed an osek ba-mitzva. However, toward the end of Shabbat, a person is allowed to walk toward the limits of a techum Shabbat in order to expedite burial immediately after Shabbat. Hence, Shabbat is not entirely severed from burial related experiences. Tosafot cites an apparent contradiction between the Yerushalmi, which extends the onen status to Shabbat, and the Bavli, which discontinues that status on Shabbat.

 

Tosafot suggest different approaches toward solving this contradiction, but it seems as if the Tanna’im themselves disputed the question of whether “end of Shabbat” interest and involvement in slight expedition of the burial should mandate onen status for the entire Shabbat. As Tosafot themselves articulate, this issue would seem to revolve around the nature of the exemption. If an onen is excused based upon osek ba-mitzva, Shabbat would probably NOT “enjoy” the exemption, since an onen is not directly involved or even marginally involved most of the day. In contrast, if the onen exemption were based upon kavod ha-met, ANY connection to the burial MAY BE SUFFICIENT to excuse the onen. The fact that, at the tail end of Shabbat, burial can be expedited, should render any mitzva observance a violation of kavod ha-met.

 

Having established the logic of kavod ha-met as a potential model for the exemption of an onen from mitzvot, it is possible that an extreme position stated by an amora may be based upon this model. As mentioned above, the general trend is to extend the exemption more broadly if its logic stems from kavod ha-met. It would apply even to people “marginally” involved in burial (an imprisoned onen, or even on Shabbat). However, R. Pappa may have employed this same kavod ha-met logic to SEVERELY RESTRICT the scope of the exemption. To answer a contradiction, he claimed (Berakhot 18a) that the exemption only applies if the onen is in the very same room as the dead person. Theoretically, an onen may be MORE involved in actual burial when he leaves the room, and yet according to R. Pappa, the exemption is discontinued! Evidently, R. Pappa assumed that the exemption was based solely upon kavod ha-met and a very strict interpretation of kavod ha-met may apply only to spatial or visual contact between the onen and the dead person.

 

Ultimately, R. Ashi disagrees and extends the onen exemption even to situations in which the onen has departed to another room. Does this mean that he abandons the kavod ha-met logic and implements the osek logic (which would apply to all cases of involvement, even when the onen is not present)? Or does R. Ashi also adopt the kavod ha-met logic but claim that the potential insult to the dead person may occur even if the onen performs the mitzva outside the “view” of the dead person?