Mishneh Torah, Mourning 1

Sugya Map

• Core Issue: The fundamental nature and duration of aveilut (mourning) for close relatives. Is the entirety of shiva (seven days) de'oraita (Scriptural Law) or derabanan (Rabbinic enactment)? What triggers the commencement of aveilut? Who is obligated, and who is exempt or excluded from its observances?
• Nafka Mina(s) (Practical Ramifications):
  • Severity of Prohibitions: The stringency of aveilut prohibitions (e.g., bitul Torah, she'eilat shalom, melakha) on the first day versus subsequent days, particularly in cases of d'chei Shabbat or Yom Tov.
  • Commencement of Aveilut: The precise moment aveilut begins (post-burial vs. post-death), impacting the dinim of aninut (pre-burial state) and the timing of shiva and shloshim (thirty days).
  • Scope of Aveilut: The halakhic status of those whose bodies are unrecoverable, dismembered, or whose burial is delayed indefinitely.
  • Definition of Life: The halakhic parameters for considering an infant viable enough to warrant aveilut, establishing the threshold of chayut (viability) for hilkhot aveilut.
  • Social & Ethical Boundaries: The halakhic stance on mourning for individuals who have committed suicide, mumarim (apostates), meshumadim (converts out of Judaism), or those executed by beit din versus malchut (government). This reflects the halakhic community's relationship with its members and those who deviate.
  • "ניתנה תורה ונתחדשה הלכה": The broader methodological implication of Matan Torah (Giving of the Torah) potentially re-calibrating or nullifying pre-Sinaitic practices, impacting how we derive halakha from Tanakh.
• Primary Sources:
  • Mishneh Torah, Hilkhot Avel 1:1-12: The foundational text under analysis.
  • Vayikra 10:19: "ואכלתי חטאת היום היטב בעיני ה'" (Leviticus 10:19) – Rambam's primary asmachta for aveilut de'oraita.
  • Bereishit 50:10: "ויעש לאביו אבל שבעת ימים" (Genesis 50:10) – The pasuk depicting Yaakov's mourning, which Rambam juxtaposes with Matan Torah.
  • Yirmiyahu 22:10: "אַל תִּבְכּוּ לְמֵת וְאַל תָּנוּדוּ לוֹ בְּכוּ בָכוֹ לַהֹלֵךְ כִּי לֹא יָשׁוּב עוֹד וְרָאָה אֶת אֶרֶץ מוֹלַדְתּוֹ" (Jeremiah 22:10) - Often cited in discussions about aveilut for the wicked.
  • Tehillim 139:21: "הֲלוֹא מְשַׂנְאֶיךָ ה' אֶשְׂנָא וּבִתְקוֹמְמֶיךָ אֶתְקוֹטָט" (Psalms 139:21) – Rambam's asmachta for celebrating the demise of enemies of God.
  • Yerushalmi Moed Katan 3:5 (83c): Source for "ניתנה תורה ונתחדשה הלכה" regarding aveilut.
  • Yerushalmi Ketubot 1:1 (2a): Source for "משה רבינו תיקן שבעה ימי אבילות ושבעה ימי המשתה".
  • Shmuel II 12:15-23: David's actions after the death of his son, which inform the din aninut.

Text Snapshot

The Rambam opens Hilkhot Avel with several critical statements that lay the groundwork for understanding the nature of aveilut.

1. Mishneh Torah, Mourning 1:1: "מצות עשה היא להתאבל על הקרובים שנאמר ואכלתי חטאת היום היטב בעיני ה', מפי השמועה למדו שמצוה זו ביום הראשון בלבד, שהוא יום המיתה ויום הקבורה. אבל שאר השבעה ימים אינו דין תורה, אע"פ שנאמר בתורה ויעש לאביו אבל שבעת ימים – ניתנה תורה ונתחדשה הלכה."

   • Dikduk/Leshon Nuance:
     • "מצות עשה היא להתאבל": The mitzvah is a positive commandment. This is a crucial chiddush for some Rishonim, as many view aveilut as a state rather than an active mitzvah.
     • "שנאמר ואכלתי חטאת היום היטב בעיני ה'": The pasuk from Aharon's response to Moshe (Leviticus 10:19) is presented as the Scriptural source. This is perplexing, as it primarily addresses aninut (pre-burial mourning) and the prohibition for an onen (one whose relative awaits burial) to eat korbanot. Its connection to a positive commandment of aveilut for all Yisrael for a full day requires explanation.
     • "מפי השמועה למדו": This phrase typically denotes a Halakha LeMoshe MiSinai or a firmly established tradition, implying that the derashah from Vayikra 10:19 is not a simple textual inference but a received teaching.
     • "ביום הראשון בלבד, שהוא יום המיתה ויום הקבורה": The de'oraita component is limited to the first day, encompassing both death and burial. This specification is critical.
     • "אע"פ שנאמר בתורה ויעש לאביו אבל שבעת ימים": The Rambam directly confronts the pasuk from Bereishit 50:10, where Yosef mourned for Yaakov for seven days. This pasuk seems to indicate a de'oraita seven-day mourning period.
     • "ניתנה תורה ונתחדשה הלכה": This powerful statement resolves the apparent contradiction, asserting that Matan Torah (the Revelation at Sinai) recalibrated or renewed the halakha, implying that pre-Sinaitic practices, even those of the Avot, do not automatically establish halakha post-Sinai.

2. Mishneh Torah, Mourning 1:2: "משה רבינו תיקן להם לישראל שבעה ימי אבילות ושבעה ימי המשתה. מאימתי מתחייב אדם באבילות? משנקבר המת. אבל כל זמן שלא נקבר המת, אינו חייב בשום דבר מדברים האמורים באבל. ולפיכך דוד המלך רחץ וסך כשמת בנו קודם שיקבר."

   • Dikduk/Leshon Nuance:
     • "משה רבינו תיקן להם לישראל שבעה ימי אבילות ושבעה ימי המשתה": This explicitly attributes the seven-day aveilut (and sheva yemei hamishteh for weddings) to a Rabbinic enactment by Moshe. This firmly establishes the derabanan nature of the remaining six days. The pairing with sheva yemei hamishteh suggests a symmetrical takanah.
     • "מאימתי מתחייב אדם באבילות? משנקבר המת": This clearly defines the commencement of aveilut proper, distinguishing it from aninut.
     • "כל זמן שלא נקבר המת, אינו חייב בשום דבר מדברים האמורים באבל": A definitive statement on the aninut period – the onen is exempt from aveilut prohibitions, focusing instead on burial preparations.
     • "ולפיכך דוד המלך רחץ וסך כשמת בנו קודם שיקבר": King David's actions after his son's death (Shmuel II 12:20) are brought as a practical asmachta for the din aninut, demonstrating that aveilut prohibitions are not in effect before burial.

These initial halakhot establish the twin pillars of aveilut: its de'oraita foundation (first day, derived from Aharon's pasuk) and its derabanan expansion (seven days, enacted by Moshe), all commencing only after burial, with David's actions serving as a key illustration. The principle of "ניתנה תורה ונתחדשה הלכה" is introduced as a critical hermeneutical tool.

Readings

The Rambam's opening halakhot in Hilkhot Avel are dense with fundamental chiddushim concerning the nature, duration, and commencement of mourning. The commentators grapple with his sources, his unique categorizations, and the implications of his pronouncements.

R. Meir Simcha of Dvinsk (Ohr Sameach) on Mishneh Torah, Mourning 1:1-2

The Ohr Sameach (R. Meir Simcha HaKohen of Dvinsk, 1843-1926) offers a concise, yet profound, contribution to understanding these halakhot, primarily by pinpointing the Yerushalmi sources that underscore the Rambam's claims. His notes, though brief, are crucial for validating the Rambam's often laconic presentation.

1. "נתנה תורה ונתחדשה הלכה": Regarding the Rambam's statement that "although it says in the Torah, 'And he made mourning for his father seven days,' when the Torah was given, the halakha was renewed," the Ohr Sameach simply notes: "נ"ב ירושלמי ולמדין דבר מקודם מתן תורה עיין שם" (Ohr Sameach, Mourning 1:1:1). This refers to the Yerushalmi in Moed Katan 3:5, which explicitly raises the question of learning halakha from pre-Sinaitic events. The Yerushalmi posits that "שמא משניתנה תורה נתחדשה הלכה" (perhaps since the Torah was given, the halakha was renewed). The Ohr Sameach's terse comment serves as a direct source-reference for the Rambam's profound declaration. This confirms that the Rambam is not inventing this principle but drawing from a recognized Yerushalmi sugya. The implication is that the Yerushalmi itself grappled with the apparent contradiction between Yaakov's seven-day mourning and the de'oraita restriction to one day. The Ohr Sameach effectively says: "This isn't a Rambam original; it's a Yerushalmi principle." This clarifies that the Rambam's statement is not an ad-hoc resolution but a deeply rooted halakhic hermeneutic.

2. "ומשה רבינו תקן כו'": Similarly, for the Rambam's statement that "Moshe Rabbeinu ordained for the Jewish people the seven days of mourning and the seven days of wedding celebrations," the Ohr Sameach points to: "נ"ב ירושלמי כתובות פ"ק ה"א" (Ohr Sameach, Mourning 1:1:2). This refers to Yerushalmi Ketubot 1:1, which states: "משה התקין שבעת ימי המשתה ושבעה ימי האבל" (Moshe ordained seven days of feasting and seven days of mourning). Again, the Ohr Sameach's note is a direct and precise source attribution. This validates the Rambam's claim that the extended seven-day mourning period is a takanah (rabbinic enactment) of Moshe, rather than a direct de'oraita obligation. The symmetry between sheva yemei aveilut and sheva yemei hamishteh (seven days of wedding celebrations) is also explicitly stated in the Yerushalmi, confirming the Rambam's formulation. This highlights that these two institutions, both central to Jewish life cycle, share a common rabbinic origin attributed to Moshe himself, emphasizing their fundamental importance as national takanot.

The Ohr Sameach's contribution, while not an extensive lomdus analysis, is foundational. By supplying the Yerushalmi sources, he grounds the Rambam's seemingly radical assertions within the established corpus of Chazal. This is crucial for Acharonim who seek to understand the Rambam's psak by tracing its origins, ensuring that the Rambam is not seen as introducing novel concepts without basis but rather as distilling and codifying existing traditions, particularly those found in the Yerushalmi which he highly valued. His notes serve as an indispensable guide for further, deeper lomdus by clarifying the textual bedrock upon which the Rambam builds his edifice of Hilkhot Avel.

R. Eitan David ben R. David ben Eitan (Yad Eitan) on Mishneh Torah, Mourning 1:1

The Yad Eitan (R. Eitan David ben R. David ben Eitan, 1869-1940) delves deeper into the principle of "אין למידין מקודם מתן תורה" (one does not derive halakha from before the Giving of the Torah), which the Rambam invokes to explain why Yaakov's seven-day mourning is not de'oraita.

1. The Source and Its Purpose: The Yad Eitan expands upon the Ohr Sameach's brief mention, stating: "כ"מ מדאיתא בירושלמי והובא בתוס' במועד קטן (דף כ') דאין למידין מקודם מתן תורה" (Yad Eitan, Mourning 1:1:1). He confirms the Yerushalmi (Moed Katan 3:5) as the source, but significantly adds that this principle is "והובא בתוס' במועד קטן (דף כ')" (and brought in Tosafot on Moed Katan 20a). This highlights the principle's importance, not just in the Yerushalmi, but also in the Rishonim of the Ba'alei Tosafot, who primarily engaged with the Bavli. By noting its presence in Tosafot, the Yad Eitan underscores its widely accepted nature as a halakhic axiom. The principle explains that while actions of the Avot (Patriarchs) might have been mitzvot for them, or simply pious customs, they do not automatically become binding halakha for Klal Yisrael after Matan Torah unless explicitly re-established or commanded. The Torah, given at Sinai, serves as the definitive legal code, superseding prior practices unless validated by the Sinaitic tradition.

2. The Nafka Mina and the Kushya: The Yad Eitan then offers a profound nafka mina for this principle: "והטעם פי' בס' לוית חן פרשת ויחי דיוצא מזה קולא לענין ביטול תלמוד תורה ושבת שלא היה קודם מ"ת" (And the reason is explained in Sefer Livyat Chen, Parshat Vayechi, that a leniency emerges from this regarding bitul Talmud Torah and Shabbat, which did not exist before Matan Torah). This is a crucial insight. The Livyat Chen (R. Mordechai Zev Horowitz, 19th cent.) posits that the reason we don't learn from pre-Sinaitic events is that certain fundamental concepts, like Talmud Torah and Shabbat, were not yet fully actualized or defined as mitzvot with their current legal parameters. If Yaakov's seven days of mourning were de'oraita based on pre-Sinaitic practice, it would imply a bitul Talmud Torah or aveilut on Shabbat that predates their current halakhic definitions. By stating that the halakha was renewed at Matan Torah, the Rambam (and Chazal) ensures that the dinim of aveilut are properly aligned with the dinim of Talmud Torah and Shabbat as they emerged from Sinai. This explanation resolves a potential kushya: If the Avot performed mitzvot, why are their actions not binding precedents? The answer is that the entire halakhic framework underwent a transformation at Sinai, and thus, applying pre-Sinaitic minhagim could lead to inconsistencies with the newly minted mitzvot and their intricate dinim.

3. Resolving the She'eilat Shalom Objection: Finally, the Yad Eitan addresses a potential objection raised by the Sefer She'eilat Shalom (R. Shalom Shachna Yellin, 19th cent.): "ובזה אתי שפיר דלא קשה מ"ש בספר שאילת שלום דבכ"ד ילפינן מקודם מתן תורה" (And with this, it is well explained, and it is not difficult what is written in Sefer She'eilat Shalom, that in all other places we do learn from before Matan Torah). The She'eilat Shalom presumably asks why, if we generally don't learn from before Matan Torah, do we find many instances where Chazal do derive halakhot from the actions of the Avot (e.g., ma'aser, tefillah, semicha)? The Yad Eitan, by citing the Livyat Chen, offers a nuanced response: The principle "אין למידין מקודם מתן תורה" is not absolute. It applies specifically where a nafka mina would create a conflict with the post-Sinaitic halakhic system, particularly concerning fundamental mitzvot like Talmud Torah and Shabbat. In cases where no such conflict arises, or where the Avot's actions are explicitly re-affirmed or serve as an asmachta for a later mitzvah, Chazal do learn from them. Thus, the Yaakov-Aveilut case is a specific instance where the pre-Sinaitic practice cannot define the de'oraita halakha due to the conflict it would generate with other Sinaitic mitzvot.

The Yad Eitan provides a sophisticated understanding of "ניתנה תורה ונתחדשה הלכה," elevating it from a simple statement of fact to a principled halakhic methodology that protects the integrity and coherence of the Sinaitic mitzvot.

R. Nachum Mordechai Friedlander (Tziunei Maharan) on Mishneh Torah, Mourning 1:1-2

The Tziunei Maharan (R. Nachum Mordechai Friedlander, 1904-1985) offers a comprehensive analysis that primarily focuses on identifying and validating the Rambam's sources, especially those from the Yerushalmi, which were often obscure to later Acharonim. He also clarifies the Yerushalmi's nuance.

1. Addressing the Beit Hillel's Query: The Tziunei Maharan begins by noting that the Kessef Mishneh (R. Yosef Karo, 16th cent.) did not provide sources for these statements, leading to confusion among later authorities. He specifically cites the Beit Hillel (R. Hillel ben Naftali Hertz, 17th cent.) on Yoreh De'ah 398, who explicitly stated: "וגם מש"כ שתיקן להם משה ז' ימי המשתה לא ידעתי מנ"ל הא דלא מצינו בשום מקום ע"ש" (Tziunei Maharan, Mourning 1:1:1). The Beit Hillel admitted he could not find a source for the Rambam's claim that Moshe ordained seven days of feasting, implying uncertainty about the source for seven days of mourning as well. The Tziunei Maharan's work is thus a crucial response to this historical kushya, providing the missing links.

2. Source for "ניתנה תורה ונתחדשה הלכה": The Tziunei Maharan directly quotes the relevant passage from the Yerushalmi: "והנה מש"כ רבינו אע"פ שנאמר בתורה ויעש לאביו אבל כו' הוא בירושלמי מו"ק פ"ג ה"ה מנין לאבל מה"ת שבעה ויעש לאביו אבל שבעת ימים ולמידין דבר קודם למתן תורה (בתמיה) שמא משניתנה תורה נתחדשה הלכה, וע"ש בפ"מ" (Tziunei Maharan, Mourning 1:1:1).

   • He precisely identifies the source: Yerushalmi Moed Katan 3:5.
   • He highlights the Yerushalmi's own questioning tone: "ולמידין דבר קודם למתן תורה (בתמיה)" – "Do we learn a matter from before the giving of the Torah (with a question mark/amazement)?" This reveals that the Yerushalmi itself presents the idea of learning from pre-Sinaitic events as problematic, requiring the resolution of "שמא משניתנה תורה נתחדשה הלכה" (perhaps since the Torah was given, the halakha was renewed). This shows that the Rambam's statement is not an arbitrary declaration but a direct quote and distillation of a Yerushalmi sugya that grapples with the authority of minhagei Avot post-Sinai. The parenthetical "(בתמיה)" is critical, indicating the Yerushalmi's initial surprise or challenge to the idea.

3. Source for "משה רבינו תקן": Similarly, the Tziunei Maharan provides the precise source for Moshe's takanah: "ומש"כ רבינו ומשה רבינו תקן להם לישראל כו' הוא בירושלמי כתובות פ"א ה"א משה התקין שבעת ימי המשתה ושבעה ימי האבל ע"ש" (Tziunei Maharan, Mourning 1:1:1).

   • He cites Yerushalmi Ketubot 1:1, explicitly stating that Moshe instituted both seven days of feasting and seven days of mourning. This directly answers the Beit Hillel's kushya and solidifies the Rambam's position that the expanded seven-day mourning period is a derabanan enactment, albeit one of the highest order, attributed to Moshe himself. The ability to locate these specific Yerushalmi passages was a significant chiddush in its time, providing much-needed clarity on the Rambam's methodology and sources.

The Tziunei Maharan's contribution is invaluable for its rigorous source criticism and direct textual evidence. He not only confirms the Rambam's reliance on the Yerushalmi but also elucidates the Yerushalmi's internal logic, particularly the interrogative stance towards pre-Sinaitic precedents. His work allows for a more confident and informed lomdus discussion, knowing that the Rambam's seemingly bold statements are deeply rooted in Chazal.

R. Adin Even-Israel Steinsaltz (Steinsaltz) on Mishneh Torah, Mourning 1:1-3

R. Adin Even-Israel Steinsaltz (1937-2020) provides a concise, yet illuminating, commentary that focuses on clarifying the pesukim and introducing alternative interpretations from other Rishonim, enriching our understanding of the Rambam's initial halakhot.

1. The Source for Aveilut De'oraita (Leviticus 10:19): Steinsaltz explains the context of Aharon's statement: "אלו דברי אהרן למשה ביום מיתת שני בניו, נדב ואביהוא, שאינו יכול לאכול את קרבן החטאת אף שאכילת הקרבנות היא מצוות עשה, מפני שבניו מתו באותו היום, ומכאן נלמד שמצוות האבלות היא ביום הראשון בלבד" (Steinsaltz, Mourning 1:1:1). He clarifies that Aharon, as an onen (one whose relative awaits burial), was prohibited from eating korbanot, even though eating them is a mitzvah. This prohibition, inferred from Aharon's rhetorical question ("Were I to partake of a sin offering today, would it find favor in God's eyes?"), is the source for the de'oraita aspect of aveilut on the first day. Steinsaltz highlights the tension: a positive mitzvah (eating korbanot) is overridden by the state of mourning. This explains why the Rambam uses this pasuk as the source for the chiyuv of aveilut itself, or at least for its primary issurim (prohibitions) for that first day.

2. Alternative Sources for Aveilut De'oraita: Crucially, Steinsaltz points out that the mitzvah of aveilut itself might be derived from other sources: "אבל עצם מצוות האבלות נלמד מהפסוק “לה יטמא“ (ויקרא כא,ג) המחייבת את הכהן להיטמא לקרוביו במיתתם, וממילא גם להתאבל עליהם (קנאת סופרים על סה“מ מ“ע לז, לח“מ, וראה לקמן ב,ו; וראה רדב“ז שהסביר באופן אחר)" (Steinsaltz, Mourning 1:1:1).

   • He introduces the view that the mitzvah of aveilut is derived from Leviticus 21:3 ("to her [a relative] shall he defile himself"), which mandates Kohanim to defile themselves for close relatives. This tuma (ritual impurity) is understood to imply a corresponding obligation to mourn.
   • He cites the Kinat Sofrim (R. Yerucham Fishel Perla, 19th-20th cent., on Sefer HaMitzvot Positive Commandment 37) and Lachmei Todah (R. Avraham Halevi, 17th cent., on Hilkhot Avel), who prefer this pasuk.
   • He notes that the Radbaz (R. David ibn Zimra, 15th-16th cent.) explained it differently. This opens up a significant lomdus discussion: Is Aharon's pasuk the source for the chiyuv of aveilut, or merely for its prohibitions (like onen), while the chiyuv itself stems from a different pasuk (like Kohanim defiling themselves)? The Rambam's formulation in Sefer HaMitzvot (PC 37) does explicitly state "והמצוה השלושים ושבעה היא שצונו באבל" (the 37th mitzvah is that He commanded us in mourning), deriving it from Vayikra 10:19. So Steinsaltz is highlighting a debate among Rishonim and Acharonim about the precise derivation, even while acknowledging the Rambam's chosen source.

3. The Day of Burial vs. Day of Death: Steinsaltz addresses a nuance in the Rambam's phrase "יום המיתה ויום הקבורה" (the day of death and the day of burial): "אבל אם הקבורה ביום אחר, אין אבלות מן התורה לא ביום המיתה ולא ביום הקבורה (ערוה"ש שצח,א, אך ראה לח"מ)" (Steinsaltz, Mourning 1:1:2). He notes that if death and burial occur on separate days, there is no aveilut de'oraita on either day, according to Aruch HaShulchan (R. Yechiel Michel Epstein, 19th-20th cent., Yoreh De'ah 398:1). This is a significant nafka mina, as it suggests the de'oraita obligation is contingent on the full event (death and burial) occurring within a single day. He contrasts this with the Lachmei Todah, implying a debate. The Rambam's terse phrase could be interpreted as either (death and burial on the same day) or (death or burial on the first day). Steinsaltz clarifies that the more stringent interpretation, requiring both events on the same day for de'oraita aveilut, is supported by Acharonim.

4. Context of Yaakov's Mourning: For "אף על פי שנאמר בתורה ויעש לאביו אבל", Steinsaltz simply provides the context: "כשהוליכו יוסף ואחיו את יעקב אבינו לקבורתו" (Steinsaltz, Mourning 1:1:3). This reminds the reader of the specific narrative in Genesis 50:10, grounding the pasuk in its original historical and familial setting.

Steinsaltz's commentary, true to his style, makes complex halakhic nuances accessible. He not only explains the Rambam's text but also positions it within a broader halakhic discourse by presenting alternative derivations and nafka minot regarding the de'oraita component, thereby inviting further intellectual engagement with the sugya.

Friction

The Rambam's opening halakhot in Hilkhot Avel are rich with chiddushim that spark considerable lomdus friction. We will focus on two major areas of conceptual challenge.

1. The Paradox of "ניתנה תורה ונתחדשה הלכה"

The Kushya: The Rambam states that "although it says in the Torah, 'And he instituted mourning for his father for seven days,' when the Torah was given, the laws were renewed." This declaration, drawing from the Yerushalmi (Moed Katan 3:5), presents a profound hermeneutical challenge. How can a practice explicitly described in the Torah (Bereishit 50:10) as performed by a Patriarch (Yosef for Yaakov), which appears to be a mitzvah or at least a pious custom, be effectively nullified or downgraded by Matan Torah? Does this imply that Halakha is fluid, changing retroactively, or that the Avot were not bound by the same Halakha as Klal Yisrael? If the Avot kept the mitzvot, why are their actions not binding precedents unless explicitly re-affirmed post-Sinai? This seems to contradict the many instances where Chazal do derive halakhot from the Avot's actions (e.g., ma'aser, tefillah, semicha). The She'eilat Shalom, as noted by the Yad Eitan, directly raises this point.

Terutz 1: The Principle of "אין למידין מקודם מתן תורה" (Tosafot / Yad Eitan)

This terutz posits that the principle "אין למידין מקודם מתן תורה" (one does not derive halakha from before the Giving of the Torah) is a fundamental axiom in Chazal. The Yerushalmi (Moed Katan 3:5), upon which the Rambam relies, indeed queries the practice of learning from pre-Sinaitic events. The implication is that while the Avot (Patriarchs) observed mitzvot—either by prophetic tradition, personal piety, or as Noachide laws—their practices do not automatically establish normative halakha for Klal Yisrael after the covenant at Sinai. Matan Torah established a new, comprehensive legal framework for the Jewish people. Any mitzvah or practice that existed prior to Sinai required re-establishment or re-affirmation within this new framework to become binding. If it was not re-established, or if its re-establishment was in a modified form (e.g., aveilut for only one day de'oraita), then the pre-Sinaitic practice is superseded.

The Yad Eitan, citing Sefer Livyat Chen, further refines this, suggesting that the reason for this principle is to prevent conflicts with other mitzvot that gained their full halakhic definition only at Sinai. For instance, the mitzvot of Talmud Torah and Shabbat were fully codified at Sinai. If Yaakov's seven-day mourning were de'oraita, it would imply an obligation that could potentially override Talmud Torah or Shabbat in ways not consistent with their post-Sinaitic definitions. By declaring that the halakha was "renewed," Chazal ensured that the dinim of aveilut were harmonized with the broader halakhic system established at Sinai. Yaakov's mourning was perhaps a minhag avot (custom of the patriarchs) or a din specific to his prophetic level, but not a universal chiyuv that would bind all generations de'oraita. The "renewal" means the halakha was now definitively set for Klal Yisrael within the Sinaitic covenant. This addresses the She'eilat Shalom's query: we do learn from the Avot in many cases, but only when their practices do not contradict or introduce inconsistencies with the post-Sinaitic halakhic system, or when their actions are understood as mere asmachtot (supportive references) for mitzvot derived elsewhere. The aveilut case, with its implications for Shabbat and Talmud Torah, is one where such a potential conflict exists.

Terutz 2: The Nature of Pre-Sinaitic Mitzvot (Ramban / Ritva)

Another terutz focuses on the very nature of mitzvot before Matan Torah. Many Rishonim, including the Ramban (Nachmanides) and Ritva (R. Yom Tov ben Avraham Asevilli), discuss whether the Avot observed the mitzvot of the Torah even before they were formally given at Sinai. Some contend they observed them as "קיים כל התורה כולה עד שלא ניתנה" (they fulfilled the entire Torah even before it was given), but this observance was perhaps voluntary, prophetic, or a chiyuv for individuals, not a collective chiyuv for a nation under a covenant.

The "renewal" of halakha at Matan Torah can be understood not as a nullification of a previously binding law, but as the formal establishment of a national covenant with its halakhic code. Before Sinai, the Jewish people (though not yet a formal nation) did not have a collective halakha binding on all its members in the same way. Yaakov's mourning, while a righteous act, was not a universal de'oraita requirement that Klal Yisrael would be held to. Matan Torah thus didn't change an existing law; rather, it instituted the definitive law for Klal Yisrael. The pasuk in Bereishit 50:10 simply describes an event, not necessarily prescribes a universal chiyuv. The Torah, in its later sections, defines the parameters of aveilut for Klal Yisrael. Therefore, "ניתנה תורה ונתחדשה הלכה" signifies the transition from individual or family-specific religious practices to a nationally binding halakhic system, where the rules for aveilut were then definitively set. The seven days of mourning, though practiced by Yaakov, were then relegated to a derabanan status, attributed to Moshe's takanah, because the de'oraita component was limited by the Sinaitic revelation.

2. The Source for Aveilut De'oraita (Leviticus 10:19)

The Kushya: The Rambam states that the mitzvah of aveilut (for the first day) is de'oraita, "as implied by Leviticus 10:19: 'Were I to partake of a sin offering today, would it find favor in God's eyes?'" This pasuk describes Aharon's rhetorical question after the death of Nadav and Avihu, when he was an onen (one whose relative awaits burial). The context is Aharon's inability to eat the korban chatat (sin offering). The kushya is manifold:

1. From Aninut to Aveilut: Aharon's situation is one of aninut (pre-burial mourning), which precedes aveilut proper and has distinct halakhot (e.g., prohibition of korbanot). How does a pasuk describing aninut, and specifically a Kohen's prohibition, become the de'oraita source for the positive mitzvah of aveilut for all Yisrael post-burial?
2. Positive vs. Negative: The pasuk implies a prohibition (Aharon cannot eat), yet the Rambam lists aveilut as a positive commandment. How does a negative inference yield a positive mitzvah?
3. Generalization: How does a specific situation of Aharon, a Kohen Gadol (even if not strictly Kohen Gadol at that moment, still a Kohen and a leader), apply to all of Klal Yisrael?

Terutz 1: Halakha LeMoshe MiSinai and Asmachta (Rambam's Method)

The most straightforward terutz for understanding the Rambam's use of Vayikra 10:19 is that this is not a derashah (exegetical derivation) based on simple logic, but rather a Halakha LeMoshe MiSinai (a law given to Moshe at Sinai) that uses this pasuk as an asmachta (a mnemonic or scriptural support). The phrase "מפי השמועה למדו" ("they learned by tradition") explicitly indicates this. This means the chiyuv of aveilut de'oraita for the first day is a received tradition, and the pasuk from Aharon serves as the textual hook that Chazal were given to connect it to the Torah.

The asmachta functions by highlighting the core concept of aveilut. Aharon's question reveals that the state of mourning is so profound that it impacts one's ability to participate in sacred avodah (service), even to the extent of overriding a positive mitzvah (eating korbanot). This demonstrates the inherent chiyuv and seriousness of mourning. While Aharon was an onen, the underlying principle—that death creates a state of disconnect from regular life and sacred activities—is applicable to aveilut proper. The positive commandment to mourn can be understood as an obligation to feel and demonstrate this disconnect, which manifests in various prohibitions. The Rambam, in Sefer HaMitzvot (PC 37), defines the mitzvah as "להתאבל על הקרובים" (to mourn for relatives), and the prohibitions are the expression of this mitzvah. Thus, Aharon's case, while technically aninut, provides a powerful illustration of the de'oraita gravity of mourning that must be observed for at least one day. The asmachta bridges the gap by pointing to the underlying inyan (concept).

Terutz 2: Aveilut from Tumat Kohanim (Kinat Sofrim / Radbaz cited by Steinsaltz)

Some Rishonim and Acharonim (like the Kinat Sofrim and Radbaz, as cited by Steinsaltz) find the Rambam's asmachta for Vayikra 10:19 challenging and propose an alternative pasuk for the de'oraita chiyuv of aveilut. They suggest that the mitzvah is derived from Vayikra 21:3, "לה יטמא" (to her [a close relative] shall he defile himself), which obligates a Kohen to become tamei for his relatives. The argument is that if a Kohen (who is generally prohibited from tuma) is commanded to become tamei for his relatives, it implies a fundamental chiyuv of mourning for all Yisrael. The tuma is a physical manifestation of the state of mourning, and thus the chiyuv of tuma for Kohanim reflects a more general chiyuv of aveilut for everyone.

According to this approach, the pasuk from Aharon (Vayikra 10:19) would then serve a different purpose for the Rambam. It might be the source for specific prohibitions of aninut (like not eating korbanot) or a detail of the de'oraita aveilut (e.g., its duration of one day), rather than the source for the chiyuv itself. This offers a more direct derivation for the positive commandment of aveilut from a pasuk that explicitly mandates an action (defilement) related to a deceased relative, which is then extended through derashah to a general obligation of mourning. The Rambam, however, chose Vayikra 10:19, perhaps understanding it as a comprehensive source that encapsulates both the chiyuv and its primary issurim for the initial day, given the Halakha LeMoshe MiSinai tradition.

Terutz 3: Distinct Aninut vs. Aveilut (R. Chaim Soloveitchik's Approach)

R. Chaim Soloveitchik (19th-20th cent.) in his Chiddushei Rabbeinu Chaim HaLevi often analyzes the Rambam's precise language to delineate unique conceptual categories. Regarding aveilut, R. Chaim might argue that the Rambam distinguishes between the state of aninut and the mitzvah of aveilut de'oraita. Aharon's pasuk indeed describes aninut, a state of pre-burial distress and unsuitability for korbanot. The Rambam's chiddush could be that the de'oraita mitzvah of aveilut itself, which begins after burial, is a continuation or extension of this initial aninut state, but with its own distinct character.

The pasuk highlights that the death of a relative creates a halakhic disruption so severe that it impacts one's spiritual eligibility. This inherent halakhic "state" of mourning, triggered by death, is the de'oraita foundation. The mitzvah is to enter and observe this state. The Halakha LeMoshe MiSinai then clarifies that this de'oraita obligation, which begins with the death (manifesting as aninut), transitions into a full aveilut obligation after burial, but for only one day de'oraita. The transition means that the aninut prohibitions are replaced by aveilut prohibitions, but the underlying chiyuv to mourn for a day is rooted in the same inherent spiritual disruption that Aharon's pasuk implies. Thus, the pasuk serves as the conceptual bedrock for the entire de'oraita mourning period, spanning both aninut and the initial post-burial aveilut, even if the specific prohibitions change. The "positive commandment to mourn" is to acknowledge and live within this halakhically mandated state of grief and disruption.

Intertext

The Rambam's initial halakhot on aveilut are deeply interwoven with various threads of Jewish literature, from Tanakh to Gemara and later Rishonim, offering a rich tapestry of intertextual connections.

1. King David's Mourning for his Son (Shmuel II 12:15-23)

The Rambam explicitly cites King David's actions as a prooftext: "For this reason, King David washed and anointed himself when his son died, before he was buried" (Mourning 1:2). This refers to the narrative in Shmuel II, Chapter 12. After David's son (born from Batsheva) fell ill, David "fasted and went in and lay on the ground" (12:16). He refused food and drink for seven days. However, the critical juncture for the Rambam is after the child's death. When his servants feared to tell him, David perceived the death. "Then David rose from the ground, washed and anointed himself, changed his clothes, and came to the House of God and prostrated himself. Then he came to his house and requested food, and they placed it before him, and he ate" (12:20).

• Connection to Rambam: This narrative provides the bedrock asmachta for the fundamental halakhic distinction between aninut (the period from death until burial) and aveilut (the period from burial onwards). David's intense mourning before the child's death and while the child was alive but sick is distinct from the aninut period. His actions after the child's death but before burial—washing, anointing, changing clothes, and eating—are a direct counter-example to the prohibitions of aveilut proper. The Rambam concludes from this, "But until the corpse has been buried, a mourner is not bound by any of the prohibitions incumbent on a mourner" (Mourning 1:2). This demonstrates that during aninut, the onen is exempt from aveilut prohibitions, allowing them to focus on burial preparations. David's explanation to his servants, "While the child was still alive, I fasted and wept... But now that he is dead, why should I fast? Can I bring him back again?" (12:22-23), resonates with the halakhic shift: once the met is no longer nimna meleket hakodashim (preventing sacred work) or requiring immediate attention for burial, the formal period of aveilut begins, but only after the closure of burial. The Rambam thus uses a powerful biblical narrative to illustrate a key halakhic principle.

2. The Yerushalmi as a Source for Halakha (Moed Katan 3:5 & Ketubot 1:1)

As extensively discussed by the Ohr Sameach and Tziunei Maharan, the Rambam's foundational statements are sourced directly from the Yerushalmi.

• Yerushalmi Moed Katan 3:5 (83c) is the explicit source for "ניתנה תורה ונתחדשה הלכה." The Yerushalmi asks, "מנין לאבל מה"ת שבעה? ויעש לאביו אבל שבעת ימים. ולמידין דבר קודם למתן תורה? שמא משניתנה תורה נתחדשה הלכה" (From where do we know that mourning is seven days de'oraita? "And he made mourning for his father seven days." Do we learn a matter from before the giving of the Torah? Perhaps since the Torah was given, the halakha was renewed). This sugya is critical because it reveals that Chazal themselves grappled with the authority of pre-Sinaitic practices and established the principle that Matan Torah could indeed recalibrate halakha. The Rambam's adoption of this principle is pivotal for his entire halakhic system, especially where minhagei Avot appear to conflict with later halakha.
• Yerushalmi Ketubot 1:1 (2a) states, "משה התקין שבעת ימי המשתה ושבעה ימי האבל" (Moshe ordained seven days of feasting and seven days of mourning). This Yerushalmi passage directly supports the Rambam's attribution of the seven-day derabanan mourning period to Moshe Rabbeinu. The pairing of sheva yemei aveilut with sheva yemei hamishteh for weddings indicates a parallel rabbinic institution, emphasizing their communal and foundational nature. The Yerushalmi context often provides the rationale or historical background for takanot that the Bavli might take for granted. The Rambam, in his codification, frequently elevates Yerushalmi traditions that align with his systematic view of Halakha.

These Yerushalmi connections are not merely source-checking; they highlight the Rambam's methodology of integrating the diverse traditions of Chazal into a coherent halakhic framework, often giving preference to Yerushalmi sources for takanot or principles of psak.

3. The Distinction between Mumarim and Metzei Din (Mishneh Torah, Mourning 1:10-11)

The Rambam makes stark distinctions regarding for whom aveilut is observed: "We do not mourn for heretics, apostates, and people who inform on Jews to the gentiles. Instead, their brothers and their other relatives wear white clothes, robe themselves in white, eat, drink, and celebrate for the enemies of the Holy One, blessed be He, have perished" (Mourning 1:10). This contrasts sharply with the treatment of those "executed by the government" (Mourning 1:9), for whom full mourning is observed. However, for "those executed by the court," aninut is observed, but not aveilut, and they are not buried with their ancestors until their bodies decompose (Mourning 1:10).

• Connection to Rambam: This section reflects a profound intertextual dialogue within Halakha about communal identity and the boundaries of compassion.
  • Sources for Mumarim: The celebration for the demise of mumarim and informers is rooted in Midrash Tehillim on Psalms 139:21, "הֲלוֹא מְשַׂנְאֶיךָ ה' אֶשְׂנָא" (Those who hate You, O God, will I hate), and Sanhedrin 47a, which discusses not mourning for the wicked. This reflects a halakhic response to those who actively betray the covenant or endanger the community. The severity of the transgression dictates the communal response, prioritizing the sanctity of the Torah over familial ties.
  • Sources for Metzei Din: The differential treatment of those executed by Beit Din (Jewish court) is also found in Sanhedrin 46a-47a. The rationale for not observing aveilut for them and for the delayed burial is to emphasize the gravity of their crime and the justice of their punishment, serving as a public atonement. The aninut (bitter regret) is, as the Rambam says, "an expression of the feelings in one's heart," acknowledging the human tragedy without affording the full halakhic status of a mourned individual.
  • Sources for Metzei Malchut: Mourning for those executed by the government, even if they were criminals according to Torah law, is based on the principle of dina d'malchuta dina (the law of the land is law) and the recognition that malchut execution does not carry the same halakhic implications for aveilut as a Beit Din execution, which is an act of atonement.

This section, while seemingly distant from the opening halakhot on de'oraita vs. derabanan, shows how the halakhic framework of aveilut is not merely about individual grief but also about the community's relationship with the deceased, shaped by their fidelity to the covenant.

4. Psak of Shulchan Aruch and Later Codifiers (Yoreh De'ah 398)

The principles established by the Rambam form the bedrock of later halakhic codification. The Tur and Shulchan Aruch (Yoreh De'ah 398) explicitly adopt the Rambam's fundamental distinctions.

• Connection to Rambam:
  • Duration: The Shulchan Aruch begins: "מצות עשה להתאבל על הקרובים ביום ראשון של אבל, שהוא יום מיתה וקבורה. אבל שאר השבעה ימים אינו אלא מדרבנן" (It is a positive commandment to mourn for relatives on the first day of mourning, which is the day of death and burial. But the rest of the seven days is only derabanan) (Yoreh De'ah 398:1). This is almost a direct quote of the Rambam, showcasing the Rambam's profound influence on the structure and content of normative halakha.
  • Commencement: The Shulchan Aruch continues: "מאימתי מתחייב באבילות, משנקבר המת. וכל זמן שלא נקבר אינו חייב בשום דבר מדברים האמורים באבל" (From when is one obligated in mourning? From when the dead is buried. And as long as the dead is not buried, one is not obligated in anything of the matters mentioned for a mourner) (Yoreh De'ah 398:2). Again, this mirrors the Rambam's formulation, including the reference to King David's actions in the Rema's gloss.
  • Exclusions: The exclusions for mumarim, meshumadim, and mit'abdim (suicides) are also codified by the Shulchan Aruch (Yoreh De'ah 340:5-6, 345:5, 399:1). The Shulchan Aruch refers to these cases with the same halakhic and emotional distinctions made by the Rambam. For example, for a suicide, the Shulchan Aruch states, "אין קורעין עליו ואין חולצין ואין מספידין אותו ואין מתאבלין עליו, אבל עומדים בשורה ומברכין ברכת אבלים ומדברים עמו דברי תנחומים" (One does not tear clothes for him, nor bare the shoulder, nor eulogize him, nor mourn for him; but they stand in a line and recite the blessing of mourners and speak words of comfort to him) (Yoreh De'ah 345:5), reflecting the Rambam's precise calibration of respect for the living versus mourning for the deceased.

The Shulchan Aruch's heavy reliance on the Rambam for these fundamental halakhot underscores the Rambam's role as a definitive codifier whose interpretations became the standard for generations.

Psak/Practice

The foundational halakhot laid out by the Rambam in Hilkhot Avel Chapter 1 form the essential framework for observing aveilut in Jewish law, influencing both practical psak and broader meta-psak heuristics.

1. The De'oraita vs. Derabanan Distinction and its Ramifications:

   • First Day Stringency: The Rambam's assertion that only the first day of aveilut is de'oraita (Mourning 1:1) is a cornerstone of halakha. This means that the prohibitions of mourning on the first day carry a greater weight than those on the subsequent six days. For instance, while bitul Torah is generally prohibited during shiva, some Acharonim suggest that on the first day, the bitul is more severe. Similarly, the minhag to sit on low chairs begins only after burial, but the core issurim (like not washing, anointing, or wearing leather shoes) apply immediately from burial.
   • Shabbat and Yom Tov: This distinction is crucial for aveilut on Shabbat and Yom Tov. While Shabbat "counts" towards shiva (meaning one day of shiva is completed), the visible aveilut practices (e.g., sitting low, not wearing leather shoes) are suspended. Yom Tov (festival), however, bitul shiva (nullifies the shiva) if it falls before the completion of shiva. If the death occurs on Yom Tov, aveilut does not begin until after Yom Tov. This entire complex system hinges on the understanding of the derabanan nature of most of shiva and the unique halakhic status of Shabbat and Yom Tov in relation to aveilut. The de'oraita nature of the first day suggests that its fundamental issurim would remain even on Shabbat were it not for specific derashot or takanot.

2. Commencement of Aveilut: Aninut vs. Aveilut:

   • The Rambam firmly establishes that aveilut proper begins only after burial (Mourning 1:2), citing King David's actions. This defines the state of aninut (from death until burial) as distinct. During aninut, the onen is primarily occupied with burial preparations and is exempt from all positive mitzvot (including tefillin, kriyat Shema, tefillah) and the prohibitions of aveilut. This is a significant kula (leniency) to allow full focus on the kavod ha'met (honor of the deceased). This distinction is universally accepted and codified in Shulchan Aruch (Yoreh De'ah 341).

3. Defining Viability for Aveilut (Infants):

   • The Rambam's detailed criteria for mourning an infant (Mourning 1:6-8) are critical for practical halakha. The 30-day threshold for viability (unless born after a full nine months) is a standard rule, reflecting a deep halakhic understanding of fetal and infant development. These rules guide families and rabbanim in intensely emotional situations, providing clear boundaries for when the full dinim of aveilut apply, tempering grief with halakhic precision.

4. Exclusions from Aveilut: Mumarim, Mit'abdim, and Metzei Din:

   • The Rambam's definitive statements on not mourning for mumarim, meshumadim, mosrim (informers), and mit'abdim (suicides), and the nuanced approach to metzei din (those executed by Jewish court) (Mourning 1:9-11), are central to psak.
   • Meta-Psak Heuristic: These exclusions reveal a powerful meta-psak heuristic: aveilut is not merely a personal expression of grief but a halakhically sanctioned communal observance that reflects the deceased's standing within the covenant. When an individual fundamentally severs ties with the community or acts in extreme defiance of Hashem's will, the community, by halakha, re-calibrates its response. The instruction to "celebrate" the demise of enemies of God, even within one's own family, is a stark reminder of the primacy of Klal Yisrael's covenantal identity over individual familial bonds in extreme cases.
   • Suicide: For a mit'abed, the Rambam's careful definition ("not necessarily one who climbs up on a roof... but rather, one who says: 'I am going up to the top of the roof.' If we see him climb up immediately in anger or know that he was distressed and see him fall and die, we presume such a person is one who committed suicide") is crucial. This reflects a compassionate halakhic presumption that most suicides are not committed with full da'at (knowledge/intent) or free will, thus allowing for a degree of comfort for the family (e.g., shura and birkat avelim) and avoiding the full severity of the exclusions, while still withholding certain kavod (honor) from the deceased (Mourning 1:12). This nuance is universally applied in psak.

5. "ניתנה תורה ונתחדשה הלכה" as a Principle of Psak:

   • This principle, while specific to aveilut, serves as a broader meta-psak heuristic. It teaches that Matan Torah represents a definitive shift in halakha. While minhagei Avot are revered, they do not automatically establish binding halakha for Klal Yisrael post-Sinai. This principle allows Chazal to delineate the precise scope and nature of mitzvot as they were revealed at Sinai, even if they appear to differ from earlier practices. It underscores the dynamic, yet authoritative, nature of Halakha as it evolved from primordial practice to a divine covenant.

In essence, the Rambam's first chapter on aveilut provides the core definitions, durations, triggers, and exceptions that govern Jewish mourning, profoundly shaping how individuals and communities navigate loss within the halakhic framework, balancing human emotion with divine decree and communal identity.

Takeaway

The Rambam masterfully constructs the halakha of aveilut by seamlessly weaving together de'oraita and derabanan elements, demonstrating Halakha's precise calibration of human grief within a divinely ordained framework. The principle of "ניתנה תורה ונתחדשה הלכה" stands as a powerful testament to the transformative and definitive nature of the Sinaitic covenant, recalibrating prior practices into a coherent and binding legal system.