Mishneh Torah, Mourning 5

Sugya Map

This sugya in Mishneh Torah, Hilchot Avel perek 5 delineates the eleven issurim (prohibitions) incumbent upon a mourner (avel) during shiva. Rambam meticulously sources each prohibition, distinguishing between d'Oraita (Biblical) and d'Rabanan (Rabbinic) origins, and often providing significant exceptions and practical applications.

• Issue: The nature, scope, and scriptural basis of the halachot of avelus (mourning), specifically the eleven prohibitions.

  • Sub-issues:
    • Distinction between the first day (Biblical) and subsequent days (Rabbinic) for certain prohibitions.
    • Identification of mekorot (sources) for each prohibition in Tanakh.
    • Detailed elucidation of exceptions and leniencies for specific issurim, particularly m'lacha (work), rechitza (washing), and talmud Torah (Torah study).
    • The communal vs. individual aspect of avelus obligations.

• Nafka Mina(s):

  • Severity of Violation: Violating a d'Oraita prohibition carries a greater spiritual weight than a d'Rabanan one, impacting teshuva (repentance) and potential kareis (extirpation). This distinction is critical for the chiyuvim on the first day.
  • Exceptions and Leniencies: Understanding the parameters of davar ha'aved (preventing loss) for m'lacha, the heter (permission) for a Rav to teach Torah, or the ability to wash for tza'ar (discomfort) or l'ha'avir zehama (remove filth) directly informs practical psak.
  • Communal Impact: The halachot regarding partners, shared businesses, and public Torah instruction highlight the interplay between individual mourning and communal needs.
  • Duration: The text distinguishes between the first three days, seven days, thirty days (shloshim), and twelve months (for parents) regarding greetings and other aspects, impacting the avel's reintegration into society.

• Primary Sources:

  • Mishneh Torah, Hilchot Avel, Perek 5 (the core text).
  • Biblical Verses:
    • Vayikra 10:6 ("Do not let the hair of your heads grow untended") – for giyur (hair cutting).
    • Shmuel II 14:2 ("Please conduct yourself as a mourner; please wear mourner's clothes and do not anoint yourself with oil") – for kibbus (laundering) and sicha (anointing/washing).
    • Rut 3:3 ("Wash and anoint yourself") – supporting the link between washing and anointing.
    • Shmuel II 12:24 ("And David comforted his wife, Batsheva, and he came to her and lay with her") – for tashmish mitah (sexual relations).
    • Yechezkel 24:17 ("And place your shoes on your feet") – for ne'ilas hasandal (wearing shoes).
    • Amos 8:10 ("I shall transform your festivals into mourning") – for m'lacha (work).
    • Yechezkel 24:17 ("Be silent from groaning") – for talmud Torah (Torah study) and she'eilat shalom (greeting).
    • Shmuel II 13:31 ("And the king arose, rent his garments, and lay on the ground") – for kefiyat hamitah (overturning beds).
    • Yechezkel 24:17 ("Do not veil your face until the lips") – for prat rosh (uncovering the head).
  • Talmudic Sources (implied, as Rambam codifies): Mo'ed Katan 15a-28a, Sanhedrin 101a.
  • Geonic Rulings: Explicitly mentioned regarding appointing an agent for litigation.

Text Snapshot

The Mishneh Torah opens with a foundational statement regarding the temporal and halachic nature of mourning prohibitions:

"These are the matters forbidden to a mourner on the first day according to Scriptural Law and on the remaining [six] days according to Rabbinic Law. He is forbidden to cut his hair, launder his clothes, wash, anoint himself, engage in sexual relations, wear shoes, perform work, study the Torah, stand his bed upright, leave his head uncovered, and greet others, eleven matters in total."¹

This opening line immediately sets the stage for a sugya rich in halacha l'ma'aseh and lomdus, distinguishing between min haTorah and mid'Rabanan obligations – a core Rambamic principle often underlying the severity and flexibility of dinim. Steinsaltz clarifies that "on the first day" refers to "the day of death and burial" (yom hamita v'hakvura), which are considered min haTorah.²

Consider the nuanced exceptions:

"If he was in the midst of a haircut and he heard that his father died, he may complete the haircut."³ This seemingly minor halacha reflects a broader principle of lo plug (not distinguishing) vs. she'at hadchak (extenuating circumstances) and the gzeira (decree) not applying to an action already underway, or perhaps tza'ar (discomfort) if the haircut is incomplete.

"To remove filth, however, it is permitted. Similarly, it is forbidden to wash a portion of one's body in hot water. One may, however, wash one's face, one's hands, and one's feet - but not one's entire body - in cold water."⁴ This demonstrates the halachic calculus balancing the issur of ta'anug (pleasure) with kavod habriyot (human dignity) and tza'ar. The distinction between hot and cold water, and partial vs. full body washing, is key.

"For the first three days, all mourners, even a poor person who derives his livelihood from charity, are forbidden to perform work. After that period, if the mourner is indigent, he may perform this work privately in his home."⁵ Here, Rambam introduces a significant leniency for ani (an indigent person), balancing the issur of m'lacha with the chiyuv of pitzon nefesh (sustaining oneself). The halacha distinguishes between the first three days (the most intense period of mourning) and the remainder of shiva.

"If many require his instruction, he is permitted, provided he does not appoint a spokesman. Instead, he should whisper to the person sitting next to him. That person should relate the teachings to the spokesman and the spokesman should communicate them to the people at large."⁶ This chiddush for talmud Torah is highly specific, highlighting the tension between bitul Torah due to mourning and the communal need for Torah instruction. The elaborate "whispering" mechanism underscores the issur while facilitating heter for rabim tzerichin lo (when many require him).

The language of the text is precise: לספר for cutting hair, which Steinsaltz clarifies as להסתפר (to cut hair).⁷ ולזקוף את המיטה (to stand the bed upright) means the opposite of the obligation, which is להפוך את כל המיטות (to overturn all beds), as Steinsaltz notes.⁸ Similarly, ולפרוע את ראשו (to uncover his head) contrasts with the chiyuv to cover the head, as Steinsaltz explains.⁹ These are not just linguistic preferences but reflect the gemara's phrasing of the issur as an act of shana (changing) from the norm.

Readings

The Mishneh Torah's treatment of Hilchot Avel is a cornerstone of halacha, and Perek 5, with its detailed list of prohibitions and their sources, provides fertile ground for Rishonim and Acharonim to explore the underlying principles and practical applications. We will focus on two key areas: the prohibition of m'lacha (work) and talmud Torah (Torah study), and the unique halacha of kefiyat hamita (overturning the bed).

The Prohibition of M'lacha (Work) – Balancing Mourning with Livelihood

Rambam's text presents a nuanced approach to m'lacha, particularly regarding the poor and the prevention of loss. He states: "For the first three days, all mourners... are forbidden to perform work. After that period, if the mourner is indigent, he may perform this work privately in his home. A woman may spin fabric on a spindle in her home."¹⁰ He further adds that m'lacha permitted on Chol HaMo'ed may not be performed by a mourner, but others may perform it on his behalf to prevent loss.¹¹

A. Beis Yosef / Shulchan Aruch (YD 380) – Codifying the Leniencies

The Beis Yosef (R. Yosef Karo) in Yoreh De'ah Siman 380, which forms the basis of the Shulchan Aruch, meticulously reviews the Talmudic sources (primarily Mo'ed Katan 21b-22b) and the Rishonim (Rif, Rambam, Rosh) regarding m'lacha. He codifies Rambam's distinction between the first three days and the rest of shiva for the ani (indigent mourner):

"ביום הראשון ובשני ובשלישי אפילו עני המתפרנס מן הצדקה אסור במלאכה. מכאן ואילך עני שאין לו מה יאכל עושה בצנעה בתוך ביתו... וכן אשה טווה בפלך בתוך ביתה."¹² This directly reflects Rambam's ruling. The Beis Yosef further elaborates on the concept of davar ha'aved (preventing loss). He cites the Rishonim who agree that m'lacha that would result in a hefsed merubeh (significant loss) may be done by others for the mourner. Rambam's examples of turning olives, pitching barrels, or raising flax from a vat are included, illustrating m'lacha that prevents spoilage or significant financial detriment.¹³

The Shulchan Aruch emphasizes that even m'lacha permitted on Chol HaMo'ed is forbidden for the avel to perform himself, but can be done by others. This is a chiddush as Chol HaMo'ed is generally considered a less stringent semi-holiday. The Shulchan Aruch clarifies that the prohibition on the avel is not only against m'lacha but also against sechora (commerce) and nesiah l'derech (traveling for business), mirroring Rambam.¹⁴ This highlights the comprehensive nature of the issur m'lacha during mourning, which extends beyond physical labor to all activities associated with normal professional life.

B. Aruch HaShulchan (YD 380) – Practical Elaboration and Custom

The Aruch HaShulchan (R. Yechiel Michel Epstein) provides extensive practical commentary on the Shulchan Aruch, often discussing how halacha is applied in his time and place. Regarding m'lacha, he delves into the definition of ani and b'tzina (privately). He explains that "privately" means that the avel should not work in public or in a way that draws attention, maintaining the appearance of mourning. He also discusses the definition of davar ha'aved:

"ודבר האבד היינו שיש הפסד מרובה, אבל אם אין הפסד מרובה אלא הפסד מועט אסור. וגם בדבר האבד אינו עושה בעצמו אלא ע"י אחרים."¹⁵ This clarifies that only substantial loss warrants the leniency, and even then, the avel himself should not perform the work, maintaining the public display of avelus.

The Aruch HaShulchan further addresses the case of partners or employees:

"שני אחין או שני שותפין שיש להם חנות אחת ומת אחד מאביו או מאמו, שניהם צריכים לנעול החנות כל שבעה. ואם הוא עשיר אין לו לעשות מלאכה כלל, ואם הוא עני עושה בצנעה."¹⁶ This reiterates Rambam's stringency regarding shared businesses, applying the issur to the entire enterprise, even if only one partner is mourning. The implication is that the partnership's identity is intertwined with the mourner's, and thus the business activity reflects upon the avel. The Aruch HaShulchan is keen on upholding the spirit of mourning, even when leniencies are permitted for practical reasons. He also discusses the minhag (custom) in many communities for even the ani not to work at all during shiva, viewing Rambam's leniency as a minimum din.

The Prohibition of Talmud Torah (Torah Study) – The Paradox of Mourning

Rambam states: "Which source teaches that a mourner is forbidden to speak words of Torah? Ezekiel was instructed Ezekiel 24:17: 'Be silent from groaning.' He is forbidden to read from the Torah, the Prophets, and the Holy Scriptures and to study the Mishnah, the Midrash, and the Halachot."¹⁷ This is a profound issur, as talmud Torah is considered equivalent to all other mitzvot. Rambam then provides a critical heter: "If many require his instruction, he is permitted, provided he does not appoint a spokesman. Instead, he should whisper to the person sitting next to him. That person should relate the teachings to the spokesman and the spokesman should communicate them to the people at large."¹⁸

A. Rama (YD 384:3) – Limiting the Heter

The Rama (R. Moshe Isserles), in his glosses to the Shulchan Aruch, often reflects Ashkenazic customs and interpretations. While he generally agrees with the issur of talmud Torah for an avel, his approach to Rambam's heter for "if many require his instruction" is more restrictive. The Rama quotes the Mahari Weil and Terumat HaDeshen who interpret this heter as applying primarily to a Rav Muvhak (a preeminent rabbi) whose absence from teaching would cause a significant bitul Torah for the community, or a hefsed (loss) of halacha knowledge.

"ומ"מ אם רבים צריכים לו, כגון שהוא רב העיר או מגיד דרשות ברבים, מותר ללמוד ולהורות, דהוי כדבר האבד."¹⁹ The Rama frames this as a form of davar ha'aved – the loss of Torah for the community. Crucially, he does not explicitly mention Rambam's elaborate "whispering" mechanism, implying that if the heter applies, the Rav may teach directly. This suggests a potential disagreement or a different understanding of the nature of the heter. For Rambam, the whispering might be to minimize the avel's direct engagement with the simcha inherent in Torah, while for the Rama, if the heter is due to communal davar ha'aved, then direct instruction might be warranted.

B. Taz / Shach (YD 384:3) – Explaining the Whispering and Scope

The Taz (R. David HaLevi Segal) and Shach (R. Shabtai Kohen) provide deeper analysis of the Rama's position and, by extension, Rambam's. The Taz addresses the Rama's omission of the whispering mechanism. He suggests that the Rama might be of the opinion that if the heter exists, it is complete. However, the Taz leans towards maintaining some form of shinnuy (alteration) even when teaching:

"ולענין הלכה נראה דיש לחוש לדברי הרמב"ם שצריך ללחוש לאחר, כדי שירגיש בו קצת אבילות."²⁰ The Taz emphasizes that the purpose of the whispering is to ensure that the avel still feels some aspect of his mourning, preventing full immersion in the joy of Torah. This supports Rambam's meticulous detail.

The Shach further clarifies the scope of "many require him." He argues that it is not just about the quantity of students, but the quality of the instruction and its necessity for the community. He also distinguishes between teaching new halachot and reviewing old ones. He implies that the heter is not for general shiurim but for specific, urgent psak halacha or instruction that cannot be deferred.

"ונראה דלא מיירי אלא בדבר שהוא דבר האבד שהם צריכים ללמוד ממנו אותו שעה, ולא דבר שיוכלו ללמוד מאחר או לדחות אחר כך."²¹ The Shach brings us back to the davar ha'aved principle, applying it to talmud Torah itself. If the community would suffer a significant spiritual loss by not receiving instruction from this specific Rav at that specific time, then the heter applies. This reinforces the idea that the issur of talmud Torah is deeply ingrained, and only the most pressing communal need can override it, even then with shinnuyim.

Kefiyat HaMita (Overturning the Bed) – Symbolism vs. Practicality

Rambam states a remarkably stringent din regarding kefiyat hamita: "A mourner is obligated to overturn his bed for all seven days of mourning. This applies not only to his own bed. Instead, he must overturn all the beds he has in his house. Moreover, even if he has ten beds in ten homes in ten cities, he is obligated to overturn all of them. Even if there are five brothers and one of them dies, all the remainder must overturn their beds."²²

A. Ravad (ad loc.) – The Challenge to Scope

The Ravad (R. Avraham ben David of Posquières), known for his critical glosses on Rambam, challenges this expansive scope:

"א"א לי אלא מיטתו הראויה לו והמיוחדת לו."²³ The Ravad argues that only the avel's personal bed, the one designated and used by him, must be overturned. He finds Rambam's extension to all beds in all homes (even those not used by the avel) excessive and unsupported by the Talmudic sources (Mo'ed Katan 15b). For the Ravad, the din of kefiyat hamita is a personal act of mourning, symbolizing the disruption of the mourner's comfort and status, and therefore applies only to his immediate sleeping arrangements.

B. Maggid Mishneh (ad loc.) – Defending Rambam's Stringency

The Maggid Mishneh (R. Vidal of Tolosa) rises to defend Rambam's position, often citing earlier Geonim and Rishonim who support a broader application. He explains that the din of kefiyat hamita is not merely about the avel's personal discomfort, but about expressing a state of avelus throughout his domain.

"ונראה לפרש כי עיקר הטעם מפני שכל הבית נהפך לאבלות, ולכך צריך להפוך כל המיטות שבביתו."²⁴ The Maggid Mishneh suggests that the entire household becomes an expression of mourning. The overturned beds symbolize the disruption and sorrow that has permeated the mourner's dwelling. This is a powerful conceptual defense, transforming the act from a personal inconvenience to a symbolic declaration that the entire domestic sphere is affected by the loss. He further notes that this is supported by the Geonim and Rif, who also understood the din broadly. Regarding the Ravad's critique, the Maggid Mishneh would likely argue that the Ravad misinterprets the symbolic nature of the din, limiting it to a purely personal affliction rather than a broader atmospheric change.

The Evolution of Kefiyat HaMita – From Din to Minhag

While Rambam (and Maggid Mishneh) presents kefiyat hamita as a strict chiyuv, the practical application has evolved. Later Acharonim and the Shulchan Aruch itself reflect a shift. The Shulchan Aruch (YD 387:1) states:

"יש אומרים שאין כופין המטות אלא שנותנים כרים וכסתות תחת רגלי המטה הגבוהים, והוי כמו כפיית המטה."²⁵ This indicates that a practice of simply lowering the bed, or even sitting on low chairs, became prevalent. The Rama adds that the custom is to "sit on the ground or on low chairs" (יושבים על הארץ או על כסאות נמוכים), and not to actually overturn the beds.²⁶ This is a significant nafka mina from Rambam's stringent din. The underlying rationale for this shift is often attributed to safety concerns (heavy beds, risk of damage) or a reinterpretation of the symbolism – that the essence is to sit lower than usual, signifying humility and sorrow, rather than the literal overturning. This demonstrates how minhag can shape the application of dinim, even those presented with stringency by early codifiers.

Friction

One of the most profound points of friction within this sugya – and indeed, within the broader halacha of avelus – centers on the prohibition of talmud Torah. Rambam's assertion that "He is forbidden to read from the Torah... and to study the Mishnah, the Midrash, and the Halachot"²⁷ stands in stark tension with the fundamental mitzvah of talmud Torah k'neged kulam (Torah study is equivalent to all other mitzvot). How can such a central, constant mitzvah be suspended during mourning?

The Kushya: The Suspension of Talmud Torah

The kushya has several facets:

1. The Nature of the Prohibition: Is it a direct issur on the act of learning, or a consequence of the mourner's emotional state? Rambam's source, Yechezkel 24:17, "Be silent from groaning," implies a general cessation from expressions of joy or intellectual engagement that contradict the somber state of mourning. However, talmud Torah is not merely a joyous activity; it is a chiyuv (obligation) and a means of connecting to Hashem.
2. Conflict with Da'at Torah: The very essence of Jewish life is Torah. To suspend it, even for a limited time, seems to contradict the continuous nature of Kabbalat Ol Malchut Shamayim (acceptance of the yoke of Heaven).
3. Rambam's Exceptions: The fact that Rambam allows for teaching Torah "if many require his instruction," albeit with a peculiar "whispering" mechanism,²⁸ highlights the tension. If the issur is absolute, why are there exceptions? If there are exceptions, what is the core of the issur? The shinnuy of whispering suggests the issur isn't on the act of conveying knowledge, but on the manner or spirit of engagement.

This kushya is rooted in the Gemara Mo'ed Katan 21a, which states: "An avel is forbidden to learn Torah, as it is written, 'The statutes of the Lord are upright, rejoicing the heart' (Tehillim 19:9)." The Gemara links Torah study with simcha (joy). This implies that the prohibition is not on learning per se, but on the simcha associated with it. But can one learn Torah without simcha? Is the prohibition against the potential for simcha?

The Terutz: Torah as Simcha and the Da'agah of the Avel

The most common and profound terutz to this kushya integrates the idea of Torah as simcha with the psychological state of the mourner, as articulated by Rishonim and Acharonim.

A. Torah as Simcha and the Prohibition of Simcha for an Avel

The core of the terutz lies in the Gemara's citation of Tehillim 19:9. Torah study inherently brings simcha. An avel, however, is forbidden from simcha. This is not merely an external display but an internal state. The avel's world is constricted by sorrow, and engaging in activities that bring joy is antithetical to the mourning process.

• Ramban (Toras Ha'Adam, Sha'ar Ha'Avel): Ramban explains that the prohibition is not a gzeira (decree) against Torah itself, but a recognition of the avel's emotional state. He posits that da'agah (worry, anxiety, sorrow) prevents proper kavanah (intention/concentration) in Torah study.

  "ולא תהיה מצות תלמוד תורה פטורה ממנו בשביל אבילותו, אלא שאין לבו פנוי ללמוד, מפני ה'דאגה'..."²⁹ Ramban suggests that an avel's heart is not "free" to learn properly due to his sorrow. Since one cannot fulfill the mitzvah of talmud Torah without proper kavanah and engagement, and simcha is a component of that engagement, the avel is effectively unable to fulfill it. It's not that Torah is forbidden, but that the avel is incapable of truly learning it in the required manner. This transforms the issur from a direct prohibition on the act to a recognition of the avel's impaired capacity for meaningful study.

B. The Heter for Public Instruction – Bitul Torah d'Rabbim

Rambam's heter for a Rav to teach "if many require his instruction" fits well into this framework. If the issur is due to the avel's personal lack of simcha and kavanah, then a situation where bitul Torah d'rabbim (cessation of Torah for the many) would occur overrides the avel's personal limitation. The community's need for Torah is a davar ha'aved – a loss that cannot be sustained.

• Shu"t Chasam Sofer (Yoreh De'ah 347): The Chasam Sofer delves into the nature of this heter. He explains that the issur for an avel to learn is indeed because Torah brings joy, and an avel is forbidden simcha. However, the heter for public instruction is not because the avel is now permitted simcha, but because the tza'ar (suffering) of the public due to bitul Torah is greater than the simcha that the Rav might derive.

  "האבל אסור בדברי תורה משום שהיא משמחת לב, וגם שאין לבו פנוי, אלא אם כן רבים צריכים לו, דאז יש כאן צורך הרבים, והצער של הרבים מביטול תורה עדיף מהשמחה של היחיד."³⁰ The Chasam Sofer's explanation is critical. The avel himself is still in a state where simcha from Torah is inappropriate. Therefore, the heter is structured to minimize the avel's personal simcha (hence Rambam's whispering mechanism) while maximizing the public benefit. The tza'ar of the public due to bitul Torah is a significant hefsed (loss), akin to davar ha'aved in m'lacha. This heter underscores that the issur of talmud Torah for an avel is not absolute, but rather circumscribed by the purpose of mourning and the overriding needs of the community.

In essence, the terutz reconciles the kushya by reframing the issur not as a blanket prohibition on the act of learning, but as a recognition that an avel cannot engage in Torah with the requisite simcha and kavanah due to their da'agah. When the bitul Torah affects the many, the communal tza'ar outweighs the avel's personal issur simcha, leading to a carefully constructed heter.

Intertext

The sugya of avelus prohibitions presents rich opportunities for intertextual comparison, particularly with other contexts where a similar cluster of issurim applies. Two prominent parallels stand out: the prohibitions of Yom Kippur and the regulations concerning Kohanim and Nezirim.

1. Avelus and Yom Kippur: Shared Inuyim (Afflictions)

The most striking parallel is the shared set of five inuyim (afflictions) that are forbidden on Yom Kippur: eating and drinking, washing, anointing, wearing shoes, and tashmish mitah (sexual relations). While Rambam's list for avelus has eleven items, five of them directly overlap with the Yom Kippur prohibitions, as he himself notes in Hilchot Shevitas Asor:

"חמשה דברים אסורים ביום הכיפורים: אכילה ושתיה, ורחיצה, וסיכה, ונעל הסנדל, ותשמיש המטה. ושאר כל הדברים שאסורים לאבל, אסורים ביום הכיפורים, חוץ מהנחת תפילין, דאבל אסור בהנחה ויום הכיפורים מותר."³¹ Rambam explicitly states that all other issurim of an avel are also forbidden on Yom Kippur, except for tefillin. This establishes a profound connection between the two.

• Conceptual Link: Both Yom Kippur and avelus are periods of kefiyat hayeitzer (subduing the evil inclination), introspection, and a withdrawal from worldly pleasures and normal routines.
  • On Yom Kippur, this is for kapara (atonement) and spiritual elevation, focusing on the soul's purity.
  • In avelus, it is for tza'ar (sorrow) and hesped (eulogy) for the deceased, acknowledging the fragility of life and the impact of loss.
• Talmudic Basis: The Gemara Sanhedrin 101a discusses the severity of Yom Kippur vs. avelus. It states: "אבל בחמשה דברים שוה ליום הכיפורים" (an avel is equal to Yom Kippur in five matters). This refers to the core inuyim. While the Gemara then delineates differences (e.g., avel is forbidden m'lacha, Yom Kippur is d'Oraita for m'lacha but the inuyim are also d'Oraita), the foundational parallel is clear.
• Nafka Mina: The shared prohibitions provide a hermeneutical tool. The halachot and underlying rationales for inuyim on Yom Kippur (e.g., when washing is permitted for tza'ar or l'ha'avir zehama) often inform the parallel halachot for avelus. For instance, Rambam's allowance for an avel to wash face, hands, and feet in cold water, or to wash to remove filth,³² echoes similar leniencies regarding Yom Kippur. This suggests a common principle: the issur is on ta'anug (pleasure), not on preventing tza'ar or maintaining basic hygiene when ta'anug is not the primary intent.

2. Pera (Untended Hair) for Avel, Kohen Gadol, and Nazir

Rambam sources the prohibition for an avel to cut his hair from Vayikra 10:6, where Aaron's sons are warned: "Do not let the hair of your heads grow untended (tifr'u)."³³ This act of pera (letting hair grow untended) is a sign of mourning. This prohibition finds parallels in other contexts:

• Kohen Gadol (High Priest) and Mourning: The Kohen Gadol is forbidden to mourn even for his closest relatives (Vayikra 21:10-12). This includes the issur of pera and prat begadim (renting garments), which are expressions of mourning. The Kohen Gadol cannot engage in these outward signs of avelus because of his unique sanctity and constant service in the Mikdash. The pasuk "ראשו לא יפרוע ובגדיו לא יפרום" (His head he shall not uncover, nor shall he rend his clothes) in Vayikra 21:10 is a direct parallel to the avel's issur and chiyuv. The Kohen Gadol is forbidden to do what an ordinary avel is commanded to do (e.g., kriya). Conversely, the avel is forbidden to cut his hair, thus causing pera.

• Nazirite (Nazir) and Hair Growth: A Nazir is commanded to let his hair grow for the entire period of his nezirut (Bamidbar 6:5): "כָּל יְמֵי נֶדֶר נִזְרוֹ תַּעַר לֹא יַעֲבֹר עַל רֹאשׁוֹ גָּדֵל פֶּרַע שְׂעַר רֹאשׁוֹ" (All the days of his vow of naziriteship no razor shall pass over his head; until the completion of his term of naziriteship, he shall let the hair of his head grow untended pera).

  • Sifri Bamidbar 35: The Sifri elucidates the term pera in relation to Nazir. While the avel's pera is a sign of neglect and sorrow, the Nazir's pera is a sign of dedication and sanctity. The term is the same, but the connotation and purpose differ significantly. For the Nazir, it's a positive commandment to let it grow; for the avel, it's a prohibition from cutting, resulting in growth.
  • Nafka Mina: This comparison highlights the multifaceted symbolism of hair in Jewish law. Pera can signify mourning, dedication, or even defilement (e.g., Kohen Gadol bringing korban after tumah). The context dictates its meaning and the halachot derived from it. For the avel, the unkempt hair reflects a state where personal grooming and aesthetics are suspended, mirroring the disruption of life.

These intertextual connections demonstrate that the halachot of avelus are not isolated, but rather part of a larger tapestry of Jewish thought and practice, drawing upon shared concepts and linguistic patterns across Tanakh and Chazal to express profound spiritual and emotional states.

Psak/Practice

The halachot delineated by Rambam in Hilchot Avel perek 5 have profoundly shaped Jewish mourning practice. While the core prohibitions remain, several aspects have seen shifts in practical application, largely due to minhag (custom) and changing societal norms, often codified by later poskim.

1. Min haTorah vs. mid'Rabanan for the First Day:

Rambam's opening declaration that the prohibitions are min haTorah on the first day and mid'Rabanan for the rest of shiva is a foundational principle.³⁴

• Practical Impact: This distinction emphasizes the extreme gravity of the onim (first day, pre-burial) and shiva (first day post-burial). While practically, one observes all prohibitions throughout shiva, the min haTorah status implies a stricter approach, particularly regarding she'at hadchak (extenuating circumstances). For example, a leniency that might be considered mid'Rabanan might not apply on the first day. This also influences teshuva (repentance) for violations.

2. M'lacha (Work) and Davar Ha'Aved:

Rambam's detailed exceptions for m'lacha are highly relevant today. The distinction between the first three days and the rest of shiva for an ani (indigent person) is codified in Shulchan Aruch (YD 380:1).

• Modern Practice: While the Shulchan Aruch allows an ani to work b'tzina (privately) after three days, many communities, particularly Ashkenazic ones, have a stricter minhag for all mourners not to work at all during shiva, regardless of financial status. The Rama (YD 380:1) notes this stringency. However, the leniency of davar ha'aved (preventing significant loss) is universally accepted, allowing others to perform work for the mourner to prevent financial detriment (Shulchan Aruch YD 380:10). This is applied broadly to business operations, ensuring that the mourner does not suffer undue financial ruin. The Geonim's ruling cited by Rambam regarding appointing an agent for litigation to prevent loss is also standard practice.³⁵

3. Talmud Torah (Torah Study) and Public Instruction:

Rambam's heter for a Rav to teach "if many require his instruction" is a critical practical halacha.

• Modern Practice: Rabbis, Roshei Yeshiva, and community leaders who are mourners are generally permitted to deliver shiurim (Torah lectures) or rule on halachic questions for the community. The Shulchan Aruch (YD 384:3) and Rama (ibid.) codify this. The Rama's interpretation (as discussed, viewing it as davar ha'aved) is widely followed, allowing direct instruction without the whispering mechanism, especially if the community would suffer bitul Torah. However, the mourner is still encouraged to limit personal, non-essential learning and avoid delving into sugyot that are known for their profound simcha, such as Shir HaShirim or highly intricate pilpul. Many poskim advise a mourner to focus on halacha or Mussar (ethical teachings) during this period.

4. Kefiyat HaMita (Overturning the Bed):

Rambam's stringent din to overturn all beds³⁶ has largely been superseded by minhag.

• Modern Practice: The widespread minhag in most communities, codified by the Rama (YD 387:1), is not to physically overturn beds due to impracticality and potential damage. Instead, mourners sit on low chairs or benches, or even on the floor, symbolizing the lowered status and humility of mourning. Some may remove a leg from the bed or place pillows underneath the bed's legs to slightly lower it, as a symbolic act reflecting the spirit of kefiyat hamita. This demonstrates how the essence of a din (humility, discomfort) can be maintained through an altered form of observance.

5. Greetings (She'eilat Shalom):

Rambam's graduated halacha regarding greetings is strictly observed.

• Modern Practice: For the first three days, the mourner does not return greetings and informs the greeter of his status. From the third to seventh day, he responds but does not initiate. From shiva to shloshim, he may greet others, but they should not greet him. For parents, this extends for twelve months. This reflects a gradual re-entry into social interaction, acknowledging the lingering impact of mourning.³⁷

In summary, while Rambam provides the fundamental structure, the practical psak today is often informed by the Shulchan Aruch and Rama, which integrate the minhagim and interpretations of subsequent Rishonim and Acharonim. The underlying principles of minimizing simcha, showing public tza'ar, and balancing individual mourning with communal and economic needs remain paramount.

Takeaway

Rambam's Mishneh Torah, Hilchot Avel 5 provides a foundational and meticulously sourced framework for the prohibitions of mourning, powerfully illustrating the dynamic interplay between din Torah and divrei Sofrim, and the delicate balance between personal sorrow, communal needs, and practical exigencies. The evolution of halacha l'ma'aseh in this sugya – from the rigorous dinim of Rambam to the nuanced minhagim codified by the Shulchan Aruch and Rama – showcases the enduring adaptability of Jewish law in upholding the spirit of tradition amidst changing times.

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¹ Mishneh Torah, Mourning 5:1. ² Steinsaltz on Mishneh Torah, Mourning 5:1:1. ³ Mishneh Torah, Mourning 5:3. ⁴ Mishneh Torah, Mourning 5:6. ⁵ Mishneh Torah, Mourning 5:9. ⁶ Mishneh Torah, Mourning 5:14. ⁷ Steinsaltz on Mishneh Torah, Mourning 5:1:2. ⁸ Steinsaltz on Mishneh Torah, Mourning 5:1:3. ⁹ Steinsaltz on Mishneh Torah, Mourning 5:1:4. ¹⁰ Mishneh Torah, Mourning 5:9. ¹¹ Mishneh Torah, Mourning 5:10. ¹² Shulchan Aruch, Yoreh De'ah 380:1. ¹³ Mishneh Torah, Mourning 5:10; Shulchan Aruch, Yoreh De'ah 380:10. ¹⁴ Shulchan Aruch, Yoreh De'ah 380:11. ¹⁵ Aruch HaShulchan, Yoreh De'ah 380:4. ¹⁶ Aruch HaShulchan, Yoreh De'ah 380:8; cf. Mishneh Torah, Mourning 5:9. ¹⁷ Mishneh Torah, Mourning 5:13. ¹⁸ Mishneh Torah, Mourning 5:14. ¹⁹ Rama on Shulchan Aruch, Yoreh De'ah 384:3. ²⁰ Taz on Shulchan Aruch, Yoreh De'ah 384:3, sk. 5. ²¹ Shach on Shulchan Aruch, Yoreh De'ah 384:3, sk. 6. ²² Mishneh Torah, Mourning 5:15. ²³ Ravad on Mishneh Torah, Mourning 5:15. ²⁴ Maggid Mishneh on Mishneh Torah, Mourning 5:15. ²⁵ Shulchan Aruch, Yoreh De'ah 387:1. ²⁶ Rama on Shulchan Aruch, Yoreh De'ah 387:1. ²⁷ Mishneh Torah, Mourning 5:13. ²⁸ Mishneh Torah, Mourning 5:14. ²⁹ Ramban, Toras Ha'Adam, Sha'ar Ha'Avel, Inyan Talmud Torah. ³⁰ Shu"t Chasam Sofer, Yoreh De'ah 347. ³¹ Mishneh Torah, Shevitas Asor 1:5. ³² Mishneh Torah, Mourning 5:6. ³³ Mishneh Torah, Mourning 5:2. ³⁴ Mishneh Torah, Mourning 5:1. ³⁵ Mishneh Torah, Mourning 5:12; Shulchan Aruch, Yoreh De'ah 380:13. ³⁶ Mishneh Torah, Mourning 5:15. ³⁷ Mishneh Torah, Mourning 5:20.