Shiur #23: The Laws governing The Nine Days and the Week of Tisha Be-Av

  • Harav Mosheh Lichtenstein

YESHIVAT HAR ETZION

ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)

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Halakha: A Weekly Shiur In Halakhic Topics

 

 

The Laws governing The Nine Days and the Week of Tisha Be-Av

Based on a Shiur by Rav Mosheh Lichtenstein*

 

 

The Nine Days – Mourning or Repentance?

 

            The Mishna (Ta'anit 4:6-7) states:

 

When Av begins, we reduce rejoicing.

During the week in which Tisha be-Av occurs, it is forbidden to cut hair or to launder.  On Thursday, however, this is permitted, in honor of Shabbat.

 

            In Halakha, it is uncommon to apply the laws of a given day 'early;' Erev Pesach is governed by special laws, but it seems to be a holiday in its own right.  It is with respect to Tisha be-Av that we find a special rule: certain of its laws go into effect before Tisha be-Av begins.  This rule has two applications in the Mishna:

 

1)         We reduce our rejoicing from the start of the month.

2)         During the week of Tisha be-Av (shavua she-chal bo), it is forbidden to engage in certain activities.

 

Thus, we have here a law governing the month and a law governing the week.  It might be argued that the law governing the month is merely declaratory: just like the month of Adar is a month of rejoicing, so too the month is Av is a month of sadness (Ta'anit 29a).  Alternatively, it might be argued that the term "when Av begins" ("mi-shenikhnas Av") is imprecise, and that in fact the reference in the first mishna is also to shavua she-chal bo.  An intermediate understanding is that "when Av begins" is an independent halakhic statement that applies from Rosh Chodesh, and it is not dependent upon the practices applying during shavua she-chal bo.

 

The tension between these three possibilities is evident in the Gemara in Yevamot (43a).  The solution proposed in that passage is the third alternative suggested above: that there are two separate categories, following from two separate principles, as we will see.  As is well known, the Shulchan Arukh rules (OC 551:3) that the mourning practices apply only during shavua she-chal bo, and it is the Rema who adds the laws of the Nine Days.  The law as it emerges from the Gemara seems to support the Shulchan Arukh, but if we accept the approach of this gemara, which attributes halakhic significance to both time periods, it turns out that the laws governing the Nine Days are not an Ashkenazic invention.

 

In the mishna there (4:10), Rabbi Yosei forbids a widow from remarrying immediately "owing to her mourning."  The gemara on 43a objects to this ruling:

 

Rav Chisda said: "It is a kal va-chomer (kal va-chomer) argument: if when laundering is forbidden, betrothal is permitted, how much more should betrothal be permitted when laundering is permitted!"  What is [the source]?  We have learned: "During the week in which Tisha be-Av occurs, it is forbidden to cut hair and to launder.  On Thursday, however, this is permitted, in honor of Shabbat."  And it was taught: "Before this time, the public reduces their activities in commerce, building and planting; it is permissible to betroth, though not to marry; nor may any betrothal feast be held."

 

            Rav Chisda's objection is that we find a period of mourning during which laundering is forbidden but betrothing a woman is permitted – i.e., shavua she-chal bo.  This poses a difficulty according to Rabbi Yosei, who understands that the law of mourning and the prohibition of betrothal are interdependent.  At the end of the passage, the difficulty is resolved, but let us first examine the assumption underlying the objection: that shavua she-chal bo falls under the laws of mourning.  If this assumption is correct, then indeed the kal va-chomer argument is valid: if in the laws of mourning, the prohibition of laundering is more severe than the prohibition of betrothal, then it follows that when laundering is permitted, betrothal is certainly permitted.  Rabbi Yosei can, of course, offer a simple answer, namely, that the laws of shavua she-chal bo are not laws of mourning, and so no objection can be brought from them; but if this is the answer, we must find an alternative foundation for shavua she-chal bo.

 

            As stated above, we do not find elsewhere that the special regulations governing a particular day affect the days around it.  It seems that Rav Chisda can only come up with a single parallel: mourning.  There too we find a series of distinctive periods after the death and burial of a loved one – e.g., three days, seven days (shiva), thirty days (sheloshim), twelve months (yud-bet chodesh).[1]  From this, he derives that the laws of Tisha be-Av are connected in some way to mourning.  This also follows from Ta'anit 29b, which cites the verse in Hoshe'a (2:13), "I have also ended all her mirth, her feast, new moon, and sabbath" as the basis of the dispute among the Tanna'im regarding the times of the prohibitions of the month of Av.  This verse deals with the laws of mourning, as is explained by Rav Chisda.  In addition to the two proofs mentioned above, all of the prohibitions of shavua she-chal bo are familiar to us from the laws of mourning.[2]  This seems to be the basis of Rav Chisda's argument.  As stated above, despite the proofs presented by Rav Chisda, Rabbi Yosei can disagree with the very principle and argue that laws of the Nine Days are not laws of mourning.

 

            The Gemara's answer to Rav Chisda's objection is: "That was taught regarding the period before that time" — in other words, the period prior to Tisha be-Av must be divided into two, as explained above.  From the beginning of Av, we reduce joyful pursuits: people must restrict their activities in commerce, building, planting, etc.  This is "the period before that time." It is important to note that only these prohibitions apply, but no others.  The prohibition of laundering only begins with the onset of the second period, the week in which Tisha be-Av occurs.  How does this answer Rav Chisda's objection?  Apparently, shavua she-chal bo is governed by the laws of mourning.  Before that time, all that we must do is restrict commerce and the like.  The proof is that shavua she-chal bo is governed by laws familiar to us from the laws of mourning, whereas before that time, there are different rules.  Therefore, it is only during the first period, when there is no mourning, that betrothing a woman is permitted, but not during shavua she-chal bo.

 

            In effect, the distinction between the objection and the resolution is whether the laws pertaining to the Nine Days are exclusively laws of mourning or they are more; perhaps, there are two sets of laws here, one of mourning, which applies during shavua she-chal bo, and another set that begins on Rosh Chodesh. 

 

            Tosafot in Yevamot (43a, s.v. U-ma) ask:

 

What about before that period of time, when it is permitted to cut hair?  Furthermore, it is perplexing, for haircuts should be forbidden before that period of time, by way of a kal va-chomer from the thirty days of mourning, when commerce is permitted.  Alternatively, either commerce should be forbidden during the thirty days of mourning, by way of a kal va-chomer argument from cutting hair before that period of time; or haircuts should be permitted during the thirty days of mourning!

 

            In other words, how does the Gemara's answer help?  Rav Chisda can raise the same objection: if during the Nine Days, when construction and planting are forbidden, betrothal is permitted, then a widow, who is permitted to build and plant, should certainly be permitted to be betrothed!

 

            Tosafot's objection is indeed valid, but it depends on Rav Chisda's assumption, that the laws under discussion are laws of mourning.  If we disagree with this thesis and establish that the laws of Tisha be-Av are the laws of a fast (seasonal laws from Orach Chayyim rather than laws of mourning from Yoreh De'a), Tosafot's objection falls away.  Tosafot apparently refuse to accept this assumption, and thus they remain with the difficulty.  This parallels Rav Chisda, who is left with an objection against Rabbi Yosei and does not consider the possibility that Rabbi Yosei rejects the premise and argues that proof cannot be adduced from the Nine Days, because they are not governed by laws of mourning.

 

            As stated, the question that arises according to the position of Rabbi Yosei and the Gemara's answer is: if the laws of Tisha be-Av are not based on those of mourning, what is their model?  The answer to this question may be found in the gemara in Ta'anit that deals with the fasts observed during years of drought.  The fasts for rain are not connected in any way to mourning, as they relate not to the past, but to what hopefully will occur in the future.  The Rambam emphasizes the fact that the goal of fasting during periods of drought is to lead the people to repentance.  At the beginning of Hilkhot Ta'aniyyot (1:2), he writes:

 

And this is one of the paths to repentance.  When trouble arrives, and people cry out and sound an alarm, all will know that it is on account of their evil ways that evil befalls them.  As it is written (Yirmeyahu 5:25): "Your iniquities have turned away these things," etc.  And this will cause their trouble to be removed from them.

 

            According to this, we are dealing with repentance.

 

            The most stringent level of fasting is mentioned in the mishna in Ta'anit (1:7):

 

[If] these [fast days] pass and they have not been answered, they reduce their business transactions, building and planting, betrothals and marriages, and personal greetings, like people who are reprimanded by God.

 

            There is a high level of correspondence between this list and the list mentioned in the Gemara in Yevamot regarding the Nine Days.  Indeed, the laws of the Nine Days according to Rabbi Yosei and according to the Gemara's answer in Yevamot are drawn from the laws of fast days.  We are dealing then with two principles: the principle of fasts and the principle of mourning.

 

            These two principles determine the laws of Tisha be-Av, the day of the destruction of the Temple.  The destruction of the Temple involves two elements.  On the one hand, there is calamity, tragedy and loss; but on the other, there is a sense of relief that God has emptied His anger on wood and stones, allowing the people to survive (Eikha Rabba 4:14). Our catastrophe is a punishment as well.  Now, if the day has a double nature, it requires a double response.  On the one hand, the people of Israel – God's beloved – must sit "like a widow," as stated in the opening verse of the Book of Eikha.  In this framework, the reaction to Tisha be-Av is the seven haftarot of consolation, the portions from the Prophets (specifically, Yeshayahu) read on the seven Shabbatot after Tisha be-Av.  They parallel the consolation of mourners.  The most famous expression of this equation between personal mourning and Tisha be-Av is found in the baraita at the end of Ta'anit (30a):

 

Our Rabbis taught: "All the commandments that apply during mourning apply on Tisha be-Av.  Forbidden are eating, drinking, anointing, wearing [leather] shoes and marital relations; and it is forbidden to read from the Torah, the Prophets or the Writings, or to learn Mishna, Talmud, Midrash, halakhic or aggadic material."

 

            On the other hand, we are not dealing exclusively with mourning, but also with the need to repent.  The Rambam, at the beginning of the fifth chapter of Hilkhot Ta'aniyyot, writes:

 

There are days on which all of Israel fasts because of the calamities that occurred on them, in order to stir the hearts and open the paths of repentance.  And this will serve as a reminder of our evil deeds and of the deeds of our fathers that were like our deeds now, to the point that they brought these calamities upon themselves and upon us.  For when we remember these things, we will return to do good, as it is stated (Vayikra 26:40): "And they shall confess their sins, and the sins of their fathers."

 

            In other words, remembering these difficult events, the destruction of the Temple included, leads to repentance, not only to mourning.  This finds expression in the Gemara in Pesachim 54b: "Shemu'el said, 'The only public fast day in Babylonia is Tisha be-Av.'" In other words, Tisha be-Av is not only a day of mourning, but also a public fast, a day of repentance.

 

            Eikha as well is not only a book of lamentations, but also a book of repentance: "Let us search and try our ways, and turn back to God" (Eikha 3:40).  Tosafot in Megilla (31b, s.v. Rosh Chodesh) cites the concept of "two [haftarot] of repentance," as found in the Pesikta.  Thus, the three haftarot of calamity before Tisha be-Av give rise to two responses: 1) seven haftarot of consolation for the grief, and 2) three haftarot of repentance.  Owing to the necessary delay, the haftarot of repentance are not read until the High Holiday season.

 

            Another expression of the twofold nature of the day is the custom of the Geonim to recite Selichot (penitential prayers) on Tisha be-Av.  It is our custom to recite Kinot (elegies), because we emphasize the dimension of mourning, but on Tisha be-Av there is also room for Selichot — that is to say, repentance.

 

            We are dealing then with two principles and two systems, one of mourning and one of repentance.  Rabbi Yosei and the Gemara's answer in Yevamot accept both systems.  According to them, the mishna in Ta'anit establishes that even if the fast days fail to bring benefit — namely, they have all been observed, but rain has still not come — we must still search for the appropriate formula for repentance.  Up to a certain point, the attempt is made to bring about mass repentance, but then a different formula for repentance is adopted, though the pious individuals continue to fast on Mondays and Thursdays until the end of the month of Nisan.

 

            On Tisha be-Av, the element of mourning seizes center stage, and the element of repentance is somewhat pushed to the side.  The Rambam implies otherwise, but this is the plain sense of most of the Talmudic passages.  Therefore, the Gemara's answer also creates the same model: during shavua she-chal bo, mourning dominates, and in the wider circle, that is, from the beginning of Av, room is also made for repentance.

 

            Rav Chisda totally denies this approach, arguing that it is all an issue of mourning.  This might follow from a novel understanding of the passage in Ta'anit.  According to him, if all the days mentioned in the mishna have passed, and still there has been no answer, a white flag is raised, and instead of repentance, we enter the world of mourning.  The mishna describes that world as "reprimanded by God."  We are dealing with a ban of excommunication, and as we know, there is much in common between an excommunicated person and a mourner.  During the Nine Days, therefore, it is forbidden to build and plant, as it is a period of excommunication; this itself is the expression of mourning.  This is different from the Gemara's answer in Yevamot, which maintains that if all the fasts pass with no answer, there is room not only for mourning, but also for repentance.[3]

 

The Practical Difference Between Mourning and Fasting

 

            To summarize, Rav Chisda maintains that we are dealing with a single system of mourning, while according to the Gemara's answer we are dealing with two systems, one of repentance and one of mourning.  The Gemara goes off to discuss different issues, but at the end (43b), it returns to the matter of Tisha be-Av:

 

Rather, it is a dispute between the Tanna'im.  For it was taught: "From the first day of the month until the fast, the public must restrict their activities in trade, building and planting; and no betrothals or marriages may take place.  During the week in which the Ninth of Av occurs it is forbidden to cut hair or to launder; and others say that this is forbidden during the entire month."

 

Rav Ashi objected: "Is it proven that betrothal means actual betrothal?  Is it not possible that it is only forbidden to hold a betrothal feast, but betrothal itself is permitted?"

 

If so, does "no… marriages may take place" also mean that only holding a wedding feast is forbidden, but marriage itself is permitted?

 

Not at all!  In the case of a marriage without a feast there is still sufficient rejoicing; in the case of betrothal, however, is there any rejoicing when no feast is held? 

Rav Ashi said: "The fact is that recent mourning is different from ancient mourning, and public mourning is different from private mourning."

 

            We see then that the Tanna'im disagree about whether or not betrothal is permitted during the Nine Days.  It is possible to understand that they disagree about the laws of mourning: according to Rabbi Yosei, betrothal is forbidden during a period of mourning; whereas according to the others, it is permitted.  Alternatively, it might be argued that the Tanna'im disagree about the character of the Nine Days, whether we are dealing with days of mourning or of repentance.

 

            At the end of the passage, Rav Ashi proposes an essential distinction between Tisha be-Av and the standard laws of mourning, between "ancient mourning" and "recent mourning."  Rav Chisda assumes that on Tisha be-Av, there is mourning, but he does not say this explicitly.  Rav Ashi makes explicit mention of the term "mourning," though he does not speak of standard mourning, but rather of "ancient mourning."

 

            The Rishonim disagree about how to understand the concept of "ancient mourning."  Some understand that ancient mourning is not really mourning at all (as the essence of mourning is grief over the loss of someone who has just passed away); all it means is learning historical lessons, in accordance with the Rambam's approach: remembering things that will lead us to do good.  Thus, the term "mourning" is deceptive, as we are dealing with repentance.

 

            There are, however, Rishonim who understand that when Rav Ashi speaks of mourning, this is precisely what he means, and therefore we must find specific and local differences between old mourning and new mourning.

 

The difference between these two approaches arises in the words of the Rosh in the fourth chapter of Ta'anit (32), dealing with Tisha be-Av that falls out on Shabbat:

 

The Yerushalmi (4:6) says, "Rabbi Ba bar Kohen said before Rabbi Yosei, in the name of Rabbi Abbahu: 'If Tisha be-Av falls out on Shabbat, both weeks are permitted'" — since the fast is pushed off to Sunday, there is no week in which Tisha be-Av occurs. 

 

The Tosefta (3:13) says: "If Tisha be-Av falls out on Shabbat, a person eats as much as he wants, even as much as the feast of Shelomo in his day, depriving himself of nothing" — that is to say, he does not refrain from washing, anointing, or marital relations, and he does not have to observe [mourning] practices that are observed in private.

 

Rabbi Me'ir, of blessed memory [the Maharam of Rotenberg], writes in his laws of mourning: "'Rav Yitzchak of Vienna [the Or Zarua] writes that when Tisha be-Av falls out on Shabbat, even though we push it off until the next day, on that day one is forbidden to engage in marital relations.  This is similar to one who buries his dead during a festival; his mourning is pushed off until after the festival, but nevertheless he must observe those practices that are observed in private on the festival.  Here too, this Shabbat, with respect to Tisha be-Av, is like a festival, and marital relations are forbidden.  Tisha be-Av and mourning are related, as Rav Chisda says in the first chapter of Ta'anit (13a).'  Thus far are the words of my master.

 

"The ruling issued forth from the holy mouth of my master, and the entire congregation of Israel must observe it.  The house of our God is worthy that we should forfeit cohabitation on its account once a year.  It is true that I could answer that Tisha be-Av and mourning are distinct in several ways, as it is stated in Chapter Ha-choletz (Yevamot 43a)…  And Rabbeinu Tam explains: 'Recent mourning is different in that betrothal is forbidden, which is not the case regarding ancient mourning.  For in matters relating to the individual, they were more lenient regarding ancient mourning.  But in the matter of commerce, there is a difference between private mourning, regarding which they permitted commerce, and public mourning, regarding which they forbade all things that the public engage in, e.g., commerce; for it is public knowledge, and it would appear as if they are not concerned about mourning over Jerusalem.'  This implies that in private matters, pertaining to the individual, it can be that we are more stringent regarding mourning than regarding Tisha be-Av. 

 

"The statement in the fourth chapter of Ta'anit (30a) that 'All the commandments that apply during mourning apply on Tisha be-Av' means: on the day of the fast of Tisha be-Av.  There is also another leniency – regarding Tisha be-Av, in a place where cutting hair and laundering is forbidden, e.g., during the week in which Tisha be-Av occurs, it is taught there: 'On Thursday, however, this is permitted, in honor of Shabbat.'  But regarding mourning, in a place where cutting hair and laundering is forbidden, they did not permit these things in honor of Shabbat.  It is right, however, to be stringent, in accordance with my master.  Even were he lenient and I stringent, we should follow him, and all the more so when he is stringent and I lenient." 

 

Thus far are the words of Rabbi Meir, of blessed memory.  The wording of the Tosefta, however, implies that one does not refrain [from anything], and this is the common practice.

 

            The Or Zarua understands that Tisha be-Av and mourning are connected, but according to the Maharam of Rotenberg, the gemara in Yevamot proves that there are fundamental differences between them, and that ancient mourning is not recent mourning with slight changes, but rather an altogether different phenomenon.  We see then that the two approaches proposed above parallel the dispute between Maharam and the Or Zarua, as explained by the Rosh.  The Maharam makes an additional jump, explaining that Tisha be-Av moves to the tenth of Av when Tisha be-Av falls out on Shabbat.  Of course, if we are dealing with a yarzheit, the date cannot be changed; but if we are dealing with a day of repentance, it is easier to play with the date.  In other words, if we are dealing with mourning, the focus is on the past, and the past cannot be changed; if, however, we are dealing with repentance, the focus is on the present, and there is room for a total change of the date, and not just a transfer of the laws of Tisha be-Av to the tenth of Av.

 

            We see then that the debate continues throughout the entire length of the Talmudic passage, and that it also finds expression in the various approaches of the Rishonim to Rav Ashi's conclusion.

 

            The disagreement between the Or Zarua and the Maharam finds expression in the views of other Rishonim as well.  Tosafot in Yevamot 43a write, concerning the restrictions on construction, "in the last chapter of Ta'anit [in the Yerushalmi], this is restricted to joyous building and planting, e.g., a regal banqueting tent."

 

            In contrast to the words of Tosafot, the Tur (OC 551) writes:

 

And some say that since our Gemara forbids building without specifying the type, all building is included, just as it forbids all commerce.  Just as a mourner is forbidden in everything, [so is the public before Tisha be-Av,] so that they should appear as if they are mourning over Jerusalem.

 

            According to the Tur, then, there is no difference between joyous building and simple renovations, because the prohibition is rooted in the laws of mourning, which forbid all building.  According to Tosafot, on the other hand, the prohibition is limited to joyous building.  The Bet Yosef notes the difference between the Tur and Tosafot, and he explains that it stems from the question whether the laws of Tisha be-Av are laws of mourning, proscribing all building, or laws of public fasts, forbidding only joyous building.

 

            Tosafot mention another practical difference between the two approaches (Yevamot 43b, s.v. Shani):

 

But during the week in which Tisha be-Av occurs, betrothing a woman is forbidden; were it permitted, there would be a kal va-chomer argument from laundering.  According to Megillat Setarim, however, betrothing a woman is permitted even on Tisha be-Av, so that another man not betroth her first.

 

            Tosafot write that in practice Rav Ashi refers only to the Nine Days, but not to shavua she-chal bo.  This means that the days of ancient mourning are days of repentance, and therefore Rav Ashi permits betrothals.  During shavua she-chal bo, we are dealing with ordinary mourning, and therefore betrothing a woman is forbidden.  Rav Nissim Gaon (author of Megillat Setarim) argues that we are dealing with days that are only days of repentance, and therefore one is permitted to betroth a woman even on Tisha be-Av itself, lest another man seize the opportunity and betroth her first.

 

The Mourning of Sheloshim (thirty days)

 

            We must ask another question: which framework of mourning should we follow?  Rav Yosef D. Soloveitchik understands that the Three Weeks correspond to yud-bet chodesh, the Nine Days to sheloshim, and Tisha be-Av to shiva.  In this context, we should mention the disagreement between the Rishonim regarding the nature of sheloshim in general.  There is a basic question regarding mourning, whether the rites of mourning are observed in honor of the deceased or in order to allow the survivor to express loss.  Rashi (Sukka 25a) clearly adopts the first approach, explaining that a mourner is not obligated to experience grief, but merely to demonstrate respect for the dead.  The Ramban, throughout his Torat Ha-adam, endorses the opposite view, namely, that the essence of mourning is grieving, not honoring the dead.

 

This question impacts on the laws of sheloshim as well, and on this point the Rambam and Ra'avad disagree (Hilkhot Evel 6:1).  According to the Rambam, this month of mourning is derived from the crying of a captive woman (Devarim 21:14) for her parents — who are, presumably, still alive, though they are dead to her.  According to the simple understanding of the words of the Ra'avad, the laws of sheloshim are derived from the case of Nadav and Avihu (Vayikra 10:6), in which their father and brothers were forbidden to grieve; thus, the purpose must be to honor the dead.

 

            In our case, it is more reasonable to speak of grief.  It is not clear how to apply the position of the Ra'avad in our context – why should it be necessary to honor Jerusalem precisely on this day?[4]  It would seem that according to the Ra'avad, on Tisha be-Av there is ancient mourning in a new sense — that is to say, we are dealing with repentance, not mourning; the laws of mourning are laws of honoring the dead, but here there is no clear reason to honor the Temple.

 

The Prohibitions of Bathing, Eating Meat and Drinking Wine

 

            We must of course also consider the other stringencies that are currently observed from Rosh Chodesh Av, especially the prohibitions of bathing, drinking wine and eating meat.[5]  We are talking about customs that were ancient practices already in the eleventh century, but are not mentioned in the Gemara.  In this context, there is room to distinguish between bathing and the consumption of meat and wine.  The prohibition of bathing, at a certain level, is familiar to us from the laws of mourning: during shiva, and perhaps even during the sheloshim, a mourner is forbidden to bathe.  The prohibition of meat and wine is not found in the laws of mourning.

 

The clearest expression of the prohibition of bathing during the Nine Days is found in the words of the Terumat Ha-deshen and Mahari Bruna, who discuss whether the customary prohibition of bathing is connected to the laws of mourning or to the laws of fasting and repentance.  The Gemara in Ta'anit clearly establishes that there is a difference between the prohibition of bathing on a fast day and the prohibition of bathing for a mourner.  A mourner is forbidden to bathe even in cold water, whereas on a fast day only bathing in hot water is forbidden, but bathing in cold water is permitted.  If we understand that ancient mourning is standard mourning, the prohibition should apply even to bathing in cold water.  This is the position of the Terumat ha-Deshen (no. 150).  At the end of the responsum, however, he testifies that in his youth he saw that people would bathe in cold rivers even after Rosh Chodesh.  Either way, the prevalent custom is a mourning custom.  The Mahari Bruna (no. 12) also records that many are lenient about bathing in rivers, only forbidding bathing in a bathhouse (where the water is hot).  The reason for the allowance is that in the hot days of Av, we are all regarded as finicky people — that is to say, Rabban Gamli'el's dispensation for fastidious mourners (Berakhot 2:6) applies.  In other words, we are dealing with mourning, and therefore an allowance must be found within its parameters.  The common denominator between the Terumat Ha-deshen and Mahari Bruna is that we are dealing with mourning, rather than repentance.

 

Regarding consuming meat and wine, we must examine the Rambam's rulings (Hilkhot Ta'aniyyot 5:6) more carefully:

 

When Av begins, we reduce rejoicing.  During the week in which Tisha be-Av occurs, it is forbidden to cut hair, to launder, and to wear ironed clothes, even those of linen, until after the fast.  It is even forbidden to launder and set them aside until after the fast.  It is the custom in Israel not to eat meat during this week and not to enter the bathhouse until after the fast, and there are places where it is customary to desist from slaughtering animals from Rosh Chodesh until the fast day.

 

            Rav Soloveitchik explains that shechita is not forbidden in any way for a mourner, and therefore we must be dealing with a prohibition commemorating the destruction of the Temple: just as there is no longer any shechita in the Temple, we too will not engage in shechita.  According to this, we are dealing with a wider framework of reminders of the destruction, and there is no direct connection to mourning or grief.  This principle appears also in the words of other Rishonim.  The Orechot Chayyim (Hilkhot Tisha be-Av, no. 4) writes:

 

Rabbi Asher, of blessed memory, wrote: "And I have seen distinguished women desisting from drinking wine and eating meat from the 17th of Tammuz until the 10th of Av.  They say that this is what they received from their mothers, generation after generation."

 

            According to this, we are dealing with a third factor.  In addition to mourning and repentance, it is necessary to commemorate the destruction of the Temple.  This, of course, connects with the famous gemara in Bava Batra 60b:

 

When the Temple was destroyed for the second time, large numbers in Israel became ascetics, binding themselves neither to eat meat nor to drink wine.  Rabbi Yehoshua got into conversation with them and said to them: "My sons, why do you neither eat meat nor drink wine?" 

 

They replied: "Shall we eat meat, which used to be brought as an offering on the altar, now that the altar is gone?  Shall we drink wine which used to be poured as a libation on the altar, but now no longer is?"

 

He said to them: "If that is so, we should not eat bread either, because the meal offerings have ceased." 

 

They said: "[Indeed,] we can manage with fruit."

 

"We should not eat fruit either, because there is no longer an offering of firstfruits."

 

"Then we can manage with other fruits."

 

"But, we should not drink water, because there is no longer any ceremony of the pouring of water."  To this they could find no answer, so he said to them: "My sons, come and listen to me.  Not to mourn at all is impossible, because the blow has fallen.  To mourn overmuch is also impossible, because we do not impose on the community a hardship which the majority cannot endure…  The Sages (Tosefta, Sota 15:12-14) therefore have ordained thus, 'A man may stucco his house, but he should leave a little bare…  A man can prepare a full-course banquet, but he should leave out an item or two…  A woman can put on all her ornaments, but leave off one or two… as it says (Tehillim 137:6): "If I forget you, Jerusalem, let my right hand forget; let my tongue cleave to the roof of my mouth if I remember you not… [above my chief joy.]"'"

 

What is meant by "my chief joy"?  Rav Yitzchak said: "This refers to the fireplace ashes which we place on the head of a bridegroom." 

 

Rav Pappa asked Abbayyei: "Where should they be placed?" 

 

[He replied]: "Just where the phylactery is worn, as it says (Yeshayahu 61:3) 'To appoint unto them that mourn in Zion, to give then a garland [pe'er] for ashes [efer].'"  

 

Whoever mourns for Zion will be privileged to behold her joy, as it says (ibid. 66:10): "Rejoice you with Jerusalem… [all who mourn for her.]"

 

It has been taught: "Rabbi Yishma'el ben Elisha said: 'Since the day of the destruction of the Temple we should by rights bind ourselves neither to eat meat nor to drink wine, but we do not lay a hardship on the community unless the majority can endure it."

 

            Another series of stringencies is that of the Rema, who writes that all the prohibitions of shavua she-chal bo apply already from Rosh Chodesh Av.  The Rema apparently understands that we are dealing with laws of mourning; therefore, they can be pushed up several days.

 

The Three Weeks

 

            There is no ancient source for the prohibitions observed during the Three Weeks.  They are mentioned only in a few midrashim (Eikha Rabba 1:29, Midrash Tehillim 91:3), which identify the period as one of danger, during which one should refrain from physically chastising children, setting out on a journey alone at certain hours of the day, and the like.  The Pesikta refers to the period with respect to the three haftarot of calamity.  We see then that the Midrash gives expression to the period of the Three Weeks, but there is no such halakhic entity.  The Rishonim mention various customs: not to eat meat or drink wine, not to cut hair, etc.  As stated, these prohibitions have the authority of custom, not of strict law.  Rav Soloveitchik understands that while we are indeed dealing with custom, the custom fits in to the general framework of mourning: yud-bet chodesh.

 

            There are two difficulties with this position:

 

1)         The approach itself is problematic, inasmuch as the practices came into being as customs, and it is not at all clear that they can be interpreted with well-founded halakhic concepts.  Similarly, the Terumat Ha-deshen understands that the laws of the Nine Days are based on mourning, but he says that it is customary practice to bathe in cold water even after Rosh Chodesh.  This problem gives rise to the question whether it is possible to cast all of the laws governing yud-bet chodesh on the Three Weeks — for example, shaving on Fridays.  During yud-bet chodesh, haircutting is permitted when it becomes socially unacceptable, and therefore Rav Soloveitchik permits shaving during the Three Weeks.  If we approach the matter from a conceptual perspective, this is very reasonable.  If, however, we are dealing with a matter of custom, we must observe the people, and if the common practice is not to shave, we should not shave even if this does not fit in with the framework established by Rabbi Soloveitchik.

 

2)         On the conceptual plain, we must ask whether the laws of yud-bet chodesh apply during the Three Weeks.  These laws are different from all the laws of mourning: they only apply in the case of a parent's death.  One possibility is that mourning over parents is a more profound mourning; alternatively, it can be suggested that the laws of mourning apply for only thirty days, while the laws that continue for twelve months are rooted in the mitzva of honoring parents.  A simple practical ramification of this question is the issue disputed by the Acharonim regarding a waiver: the Shakh (YD 344) writes that a parent can free a child from the laws governing yud-bet chodesh, inasmuch as it is a fulfillment of the mitzva to honor parents.  If we accept this approach, it is difficult to apply these laws to the Three Weeks, where there is no such mitzva.  Only if we say that we are dealing with a more profound type of mourning is there room to say that that the mourning of yud-bet chodesh parallels the mourning of the Three Weeks.

 

It is customary practice to refrain from reciting the Shehecheyanu blessing, over new and seasonal experiences, during the Three Weeks (OC 551:17). The Magen Avraham rules that if the laws governing the Three Weeks are laws of mourning, there is no room to forbid Shehecheyanu.  The practice must, then, be anchored in other factors: It is inappropriate to recite "Who has granted us life and sustenance and permitted us to reach this season" during a period of calamity.  The Vilna Gaon explains that the only factor that is operative here is mourning.  Therefore, if the laws of mourning permit the recitation of Shehecheyanu, it should be permitted to recite Shehecheyanu during the Three Weeks.  We see from here that the Vilna Gaon takes a concept and applies it in practice.  The Magen Avraham explains that the concept is irrelevant, inasmuch as we are dealing with a custom: even if the laws of mourning permit Shehecheyanu, it should be forbidden during the Three Weeks by common practice.

 

Conclusion

 

            We have seen that "ancient mourning" means identifying with the Jewish people's past suffering.  Rav Soloveitchik explains that in the case of individual mourning, the mourner reintegrates himself into the cycle of life, not out of apathy or indifference, but out of grief and pain.  The problem with ancient mourning is that we are insufficiently connected to it.  By way of a gradual process, Halakha tries to create the appropriate atmosphere: the Three Weeks, the Nine Days, shavua she-chal bo, and Tisha be-Av itself.

 

            In practice, Halakha is worried that the calamities of the past will appear distant and far-removed from us.  Most of those who died sanctifying God's name would in any event be dead today, and therefore their deaths do not really bother us as they should.  The key idea is to fight apathy and indifference.  It is important to remember that a life cut short is frozen forever.  A murdered child will always remain a child, a life unrealized.  The tragedy should not decrease; the pain should not wane; the loss should remain as fresh as it was.  "Ancient mourning" is meant to serve this very purpose: remembering what happened brings us once again to mourn, to break out of the indifference, and to feel the pain even in our times.  This applies as well, of course, to the main focus of Tisha be-Av, the Temple: we must learn to appreciate the significance of the exile of God's Presence and to understand the meaning of the destruction of the Temple.

 

(Translated by David Strauss)



*        This shiur was summarized by Avihud Schwartz; it has not been reviewed by Rav Lichtenstein. 

[1]               The same model is found in the celebration of a wedding, which is the flip side of the same coin. 

[2]               It seems that the reason that the Posekim search for a source for the prohibition of wine and meat is that they are not forbidden to a mourner.  Regarding laws rooted in the laws of mourning, the Gemara makes no attempt to identify a source.

[3] According to this answer, it is possible that there are two different laws in the mishna in Ta'anit: 1) a prohibition to build and plant, which is part of the fasting and repentance; and 2) a prohibition to greet people, which is connected to mourning and excommunication.  A strong proof for this is that in Yevamot it says that betrothal is permitted, whereas in Ta'anit it says that betrothal is forbidden.  In other words, the prohibition of betrothal in the mishna in Ta'anit is connected to mourning, and this does not apply to the Nine Days.  In the Gemara in Yevamot there is only repentance, but no mourning, and therefore betrothal is not a problem.  The prohibition of betrothal only applies on days of mourning, i.e., during shavua she-chal bo, or in the mishna in Ta'anit, when all the fasts have been observed, but no rain has fallen.

[4] Tosafot (Yevamot 43b) say that it would be disrespectful to Jerusalem were people to engage in commerce during the week of the Temple's destruction.  According to this, we are dealing with a law of honoring Jerusalem, not a law of mourning.

[5] The Rambam (Hilkhot Ta'aniyyot 5:6) writes that the prohibition applies even to slaughtering an animal (shechita).