Shiur #06: Aveilut During the Seven Days of Wedding Celebration
Our sugya discusses a situation where a conflict arises between the obligation of simcha (celebration) for a newlywed bride and groom and the obligation of aveilut (mourning). The Gemara (3b) cites the following berayta: "In a case where the bread was baked, the delicacies prepared, and the wine poured, and the groom's father or bride's mother died, the deceased is brought into a room; he performs the 'be'ilat mitzva' [the consummation of the marriage] and separates [from the bride]. He observes the seven days of celebration and thereafter he observes the seven days of mourning." Before discussing this sugya, we should take note of the Gemara in Mo'ed Katan (14b), which discusses the confrontation between the obligation of simcha and that of aveilut in a different context: "A mourner does not observe his period of mourning on a festival, as it says, 'You shall rejoice on your festival.' If aveilut had set in first, the public obligation [of celebrating on the festivals] comes and overrides the personal obligation; if the mourning set in only now [during the festival], then the personal obligation cannot come and override the public obligation." Here the Gemara deals with the obligation of simchat Yom Tov, a public obligation, which overrides aveilut, a personal obligation, even if the latter had taken effect first. This implies that in a case of the simcha of bride and groom, which is also a personal obligation, whether or not this mitzva would override the requirements of aveilut would depend on which took effect first. If the mitzva of mourning took effect first, the requirement for a bride and groom to celebrate will not displace it. If, however, the obligation of simcha set in first, then the obligation of aveilut would not override it. Accordingly, if the groom's father died after the chupa, he should, presumably, observe the seven-day celebration period before the seven days of mourning. This is indeed the implication of the Rambam: "The seven days of wedding celebration are akin to a festival. One who loses a relative during the days of celebration, even his father or mother, completes the seven days of celebration and thereafter observes the seven days of mourning" (Hilkhot Avel 11:7).
We may, however, question this comparison in light of the fact that seemingly, the mitzva of simchat chatan ve-kalla (the celebration of bride and groom) constitutes but a rabbinic requirement, whereas aveilut involves a Torah obligation. The Biblical origins of mourning are implied by the aforementioned discussion in Mo'ed Katan, where the Gemara weighs the obligation of aveilut against that of simchat Yom Tov. Indeed, the Rambam writes in his Sefer ha-Mitzvot (mitzva 37):
"He commanded us that kohanim should become tamei to the relatives mentioned in the Torah… this itself is the mitzva of mourning, meaning, that every person in Israel is obligated to mourn for his relatives - meaning, the five 'metei mitzva' [deceased relatives to whose burial needs one must tend]. To reinforce this obligation, it [the Torah] presented it in the context of the kohen who is prohibited from becoming tamei, that he must nevertheless become tamei [to these relatives] like anyone else in Israel, in order that the law of aveilut not be uprooted. It has already been explained that the first day of mourning is a Torah requirement."
He similarly writes at the beginning of Hilkhot Avel:
"There is a positive commandment to mourn for relatives, as it says, 'and if I would eat the sin-offering today - would it be pleasing in the eyes of the Lord?!' The Torah obligation of aveilut applies only on the first day, namely, the day of the death and burial. The other seven days, however, are not required by Torah law. Although it says in the Torah, 'He made for his father a mourning period for seven days,' the Torah was given and a new halakha was introduced. Moshe Rabbenu instituted for Israel the seven days of mourning and the seven days of celebration [after marriage]."
By contrast, Tosefot there in Mo'ed Katan (s.v. "aseih de-yachid") raise the possibility that aveilut is in fact rabbinic in origin, and the Gemara compared it to simchat Yom Tov because the latter, too, constitutes a rabbinic requirement nowadays, in the absence of a Temple: "However, it appears to me that the festival celebration is also rabbinic, and [the verse] 'you shall rejoice' refers to shalmei simcha ['joy' offerings], as stated in Chagiga [8a]." Therefore, even if the mitzva of simchat chatan ve-kalla is a rabbinic requirement, nevertheless, if it takes effect before the obligation of aveilut, the latter does not supersede it, as both mitzvot originate from rabbinic enactment.
The Rosh (5) cites the view of the Rama who draws a comparison between the obligation of aveilut and that of simchat chatan on a different plane. In his view, a Torah obligation of aveilut exists on the first day, while the remaining six days of mourning are required by Chazal. Similarly, he argues, the first day of a wedding celebration constitutes a Torah obligation, whereas the rest are of rabbinic origin.
In order to complete the picture, we should note that one Biblical source indeed suggests a seven-day obligation of mourning: "He [Yosef] made for his father a mourning period for seven days" (Bereishit 50:10). Those Rishonim who maintain that the seven days are not required by Torah law dismiss this source on the grounds that an event prior to Matan Torah cannot serve as a basis for Torah law, since "nitena Torah ve-nitchadesha halakha" - the Torah was given and introduced a new halakha. Recall that the Rambam made this point in the beginning of Hilkhot Avel. One view in the Geonim, however, maintains that Torah law requires the seven-day period of aveilut. According to this position, even should we accept the view of the Rosh, one must still discontinue the wedding celebration for the seven day mourning period even if an obligation of mourning takes effect after the first day. However, the "Mishkenot Yaakov" claims that even the seven-day wedding celebration has a Biblical source - "malei shavua zot" ("complete this week" - Bereishit 29:21). Thus, if one believes that the laws of mourning did not undergo any change with Matan Torah, then the seven days of celebration must be seen as a Torah obligation, as well.
All this applies only to one who already married and lost a relative afterward. Our sugya deals with one who lost a relative before the chupa. At first glance, based on what we have seen, we would expect the halakha to require the observance of aveilut before commencing the days of celebration. This question, however, hinges on a debate among the Rishonim as to when the halakhot of mourning take effect. Some Rishonim understood that although the laws of aninut apply immediately after the relative's death, the prohibitions of aveilut take effect only after the burial. If so, then the berayta deals with a situation where the mitzva of simchat chatan in fact preceded that of mourning. This approach would appear to flow from the straightforward reading of the sugya (4b): "Aveilut in this case - since the rabbis were lenient, he may come to make light of it. Wherein lies the leniency? If you will answer that it says in the berayta, 'he performs the be'ilat mitzva and separates,' that is because the mourning has not yet taken effect. According to Rabbi Eliezer, [aveilut does not take effect] until [the corpse] leaves the entranceway to the house [on its way to burial]; and according to Rabbi Yehoshua, [aveilut does not take effect] until the placing of the burial stone." This implies that before the burial, we allow the couple to consummate the marriage, despite the fact that the prohibitions of aveilut include marital relations, since the laws of aveilut have yet to begin. This is the approach taken by both Rashi (3b s.v. "aviv") and Tosefot (4a, s.v. "bo'el).
By contrast, the Rashba (4b, s.v. "mai kiluta") writes that marital relations are prohibited during aninut, just as during aveilut. Thus, the Sages indeed introduced a significant leniency by permitting the bride and groom to consummate the marriage before the burial in this case. He understands the Gemara to mean that this halakha marks a leniency not in the laws of aveilut, but rather in the laws of aninut. The origins of the Rashba's view are to be found in the Ramban's monumental work on aveilut Torat ha-Adam, where the Ramban establishes that aveilut essentially begins immediately after death, while only several laws of aveilut are suspended until after the completion of the burial. The Ramban provides two explanations as to why certain halakhot take effect immediately after the relative's death, whereas others begin only after the burial:
1. Chazal suspended certain prohibitions in order for the onein to involve himself in his relative's burial needs. "They said only that he does not remove his shoe or sandal, and that he does not wrap his head and is not obligated in overturning his bed. In these matters they were lenient towards him because he is preoccupied with the needs of the deceased and has the responsibility to bury him and accompany him from city to city. If we would be stringent towards him with regard to removing his sandal and shoe and wrapping his head, the needs of the deceased would likewise suffer as a result; they were therefore not stringent towards him regarding these matters."
2. Chazal required of an onein only that he abstain from forms of enjoyment forbidden to a mourner by the Torah. The requirements of tza'ar (self denial) prohibited for a mourner by Chazal take effect only after the burial. "It further seems that the main aveilut, required by the Torah, consists only of [the abstention from] enjoyments such as bathing, applying lotion, relations, celebration, tefillin, since they are considered an adornment, laundry and haircutting, since they are matters of joy, and literal aveilut - that he occupies himself not with matters of joy, but in matters of mourning. But shoes, sandals and wrapping [the head] are not [required] from the Torah, for the Torah did not dictate that one afflict and distress himself with regard to normal activities. They were therefore lenient with respect to these [halakhot] until [the deceased] is buried."
However, according to the Ramban's view, the Rashba's explanation of the sugya is not entirely clear. The leniency applied regarding aninut, by which Chazal permitted the consummation of the marriage, essentially amounts to a leniency regarding aveilut. Thus, the Gemara's assertion that the leniency does not involve aveilut, since aveilut begins only after the burial, becomes difficult to understand.
The Ritva seeks to explain how in our case Chazal permitted an onein to engage in marital relations, and he adds, "We may say that regarding aninut they were lenient and considered him like one who has despaired from burying [the deceased], who may eat meat and drink wine and engage in relations" (Ritva 3b, s.v. "makhnisin"). This explanation is exceedingly difficult. The permission granted to a relative to partake of meat and wine when he has "despaired" from burying the dead results from the simple fact that the term of aninut has ended, thus ushering in all the halakhot of aveilut even before the burial, as mentioned clearly in Masekhet Semachot, chapter 2. Of what use is the Ritva's claim that Chazal equated the bride and groom in this case to a relative who has no plans of burying the dead? We deal here with the issue of marital relations, which are forbidden during the period of aveilut.
Before attempting to explain these opinions, let us look at the Rambam.
The Rambam disagrees with the position of the Ramban, and maintains that the prohibitions of aveilut begin only after the burial. "When does a person begin the period of mourning? When the burial stone is placed. But so long as the deceased is not buried, he [the mourner] is not prohibited from any of the activities forbidden to a mourner. For this reason, David bathed and smeared [lotion] when the child [born to Batsheva] died, before it was buried" (Hilkhot Avel 1:2). As mentioned, the Rambam's position works well with our sugya. Nevertheless, it raises considerable difficulty. The Rambam himself derived the mitzva of aveilut from the verse, "if I ate the sin-offering today," which deals with the halakha disqualifying an onein from the consumption of sacrificial meat. (We should note that the term onein has two distinct meanings. Here we are referring to an onein who may not eat kodshim - sacrificial meat - the entire first day, even after the burial. This concept thus differs from "mi she-meito mutal lefanav," one whose relative has passed away but yet to be buried, who is also considered an onein but only until the burial.) But this disqualification does not begin with the burial, but rather with the death. How then could the Rambam claim that the prohibitions of aveilut begin only after the burial? Also his comments in Sefer ha-Mitzvot, that we derive the mitzva of aveilut from the obligation for kohanim to become tamei to relatives, contradict his view as to when aveilut takes effect - after all, this obligation is relevant only at the time of burial, not afterwards.
What seems to me regarding this sugya is that even the Rambam agrees that aveilut takes effect at the time of death, but the mitzva of aveilut consists of two distinct components. The first takes effect at the time of death, and it exhausts itself through the involvement in the burial needs. When one's deceased relative lay before him, he bears an obligation to tend to the needs of the burial. Through this almost obsessive involvement, which overrides every other concern of his, including the fulfillment of mitzvot, the onein expresses his aveilut. In fact a kohen bears an obligation to become tamei specifically so that he can tend to the burial needs. According to the Rambam (Hilkhot Avel 2:6), this obligation is cast specifically on male kohanim, to whom the general prohibition against becoming tamei applies. Female kohanim, who are not included in the prohibition against contracting tum'a, bear no obligation to become tamei to deceased relatives. I heard from my esteemed mentor, Rav Soloveitchik zt"l, that the requirement of tum'at kohanim is not meant simply to help facilitate the burial, for if that were the case it would be absurd to exclude women. Rather, the kohen must violate the general prohibition against becoming tum'a thus desecrating himself and this defilement itself marks a fulfillment of the mitzva of aveilut. This obligation thus does not apply to female kohanim, who are not prohibited from coming in contact with tum'a and therefore are not desecrated as a result. Similarly, the Yerushalmi maintains that an onein may not fulfill mitzvot so long as he is preoccupied with the burial needs (see Tosefot, Berakhot 17b). According to what we have said, we could view this prohibition which involves desecration of kedushat yisrael through the onein's concern with the burial as a fulfillment of the mitzva of aveilut.
However, after the burial, the mitzva of aveilut takes on a different form. If until now one observed aveilut by occupying himself with the needs of the deceased, after the burial it is observed by detaching oneself from the deceased and mourning his loss. Therefore, only after the burial does the entire range of hilkhot aveilut take effect.
Accordingly, the Rambam is correct in pointing to the prohibition against the consumption of kodshim by an onein as the source for the mitzva of aveilut, even though this prohibition begins immediately after the death. This halakha applies so long as the individual has the status of "avel" - from the moment of death until after the burial at the end of the day. Throughout this period, the relative must bring all his activities to a halt in order to absorb himself in his mourning. With regard to the specific manner of relating to the deceased, and with respect to the halakhot of this avel, there is a distinction drawn between the initial period of aveilut, before the burial, and the second period, after the burial.
Quite possibly, even the Ramban and his camp accept this principle of the dual nature of aveilut. They argue only concerning one specific detail: whether or not certain prohibitions of aveilut apply even in the initial period, when aveilut is characterized by the preoccupation in the burial needs. As we saw, the Rambam maintains that no prohibitions of aveilut apply during this period. The Ramban perhaps argues on this point and holds that aveilut which finds its expression through the involvement in the burial needs is observed also through certain prohibitions of aveilut, such as marital relations.
We can now readily understand the Ritva's explanation, that Chazal allowed the consummation of the marriage to take place by equating the bride and groom with one who is not burying the deceased. We asked, if we consider them as a relative who does not involve himself in the burial needs, then the prohibition against relations will certainly apply, since aveilut has now taken effect. According to our approach, we may explain that two halakhot apply in a situation of nitya'eish mi-li-kovro (the relative who does not plan on tending to the burial needs). On the one hand, the moment he makes this decision marks the end of the first stage of aveilut, the mourning related to the burial. But additionally, it is akin to the burial itself, thus ushering in the second stage of aveilut. In our situation, however, the mourner has not actually despaired from burying the parent. Chazal ordained merely that the deceased be relocated to a different room, temporarily suspending the obligation for the mourner to concern himself with the burial. After the wedding, the mourner must indeed tend to the burial needs. Therefore, although we have eliminated the halakha of aveilut with respect to the burial, we cannot yet apply the second stage of aveilut, since we cannot equate the current situation with the end of the burial.
According to this approach, we can also resolve the difficulty we raised against the Ramban's view from the Gemara's assertion that the leniency in this case does not relate to the laws of aveilut. We saw that the Rashba explained this to mean that we have here a leniency with respect to aninut, rather than aveilut. But if, as the Ramban establishes, there is but a single halakha of aveilut that begins at the death, then the permission granted to consummate the marriage indeed marks a leniency in the laws of aveilut. However, once we claim that even according to the Ramban, there exist two distinct halakhot of aveilut, we can explain that the leniency applied to the first stage of aveilut, that which relates to the burial, will not result in a disregard for the second phase, which begins only after the burial.
Sources for next week's shiur:
1. 5b: "Ibaya lehu… bi-psik reisha ve-lo yamut"; 6b: "Amar Rava tanai hi… ve-lo akir."
2. Tosefot, 5b - s.v. "im timtzei lomar" (both); Sanhedrin 84b: "ve-ha-ditnan machat shel yad… patur aleha"; Tosefot, Shabbat 75a - s.v. "tefei."
3. Tosefot, 6a - s.v. "hai"; Shabbat 73a: "Tanu rabbanan ha-toleish… de-chavrei," Tosefot - s.v. "lo"; Ramban, Shabbat 111a - s.v. "hai" [until "eino ro'eh ke-metaken"].
4. Kesef Mishneh, Hilkhot Shabbat 1:7" - "m"k."
1. According to Rabbi Shimon, that one is liable for punishment in a case of mekalkel be-chabura, must we also hold one liable for punishment in a case of melakha she-eina tzerikha le-gufa?
2. Wherein lies the difference between melakha she-eina tzerikha le-gufa and davar she-eino mitkavein?
3. What is the debate among the Rishonim concerning pesik reisha de-lo nicha lei?
4. Why does Rabbi Shimon concede in a case of pesik reisha?
Translated by David Silverberg