[In response to numerous people requesting articles on Aveilus, we present this series. May the learning of these laws be a z’chus for arichas yamim and good health for all.]
Question: May a mourner wear t’filin after burial where the burial takes place the day after the death?
Short Answer: This issue is dependent on whether the first day of shiv’ah is a Biblical commandment or a Rabbinic enactment. Practically, many hold that the mourner should put on t’filin privately and without a brachah after the burial.
I. Fully Biblical
Is shiv’ah a Biblical commandment or a Rabbinic enactment?
The Rif (B’rachos 9b) cites an opinion that all seven days of aveilus are Biblical, based on a pasuk (VaY’chi, Chap. 50) that the brothers observed seven days of aveilus when Yaakov Avinu died. This opinion is based on a Yerushalmi that also cites this pasuk, as well as some additional p’sukim.
II. Only the First Day
The Rif, however, disagrees with this opinion and, instead, holds that only the first day of aveilus, which is the day of death, is Biblical. The basis for this one day is the Gemara (Z’vachim 101a) that expounds on the pasuk (Sh’mini – VaYikra 10:19) that Aharon HaKohen pushed off eating a chatas until the day after his sons died, because it would be improper to eat kodashim as an onein on the day they died. The implication, though, is that Aharon ate the kodashim the following day, which is only Rabbinic in nature.
This is, likewise, the opinion of the Rambam (Hilchos Aveilus 1:1), who adds that even though the brothers mourned Yaakov Avinu for seven days, this was pre-Matan Torah and not a valid source for our aveilus. Indeed, after the Torah was given, adds the Rambam, Moshe enacted a Rabbinic decree that both aveilus and sheva b’rachos span seven days.
Moreover, Tosafos (Moed Katan 20a) suggests that the pasuk concerning Yaakov Avinu is irrelevant to our discussion, as that pasuk was written before Yaakov was buried, and our whole discussion of shiv’ah is, of course, after burial.
III. Completely Rabbinic
Rabbeinu Tam and the Ri (cited in the Tur, Yoreh Dei’ah 398:1) hold that the entire shiv’ah is only Rabbinic. Only aninus, a completely separate concept, is Biblical. This opinion is cited in the Rosh (Moed Katan 3:3), as well.
IV. The Law and Ramification
The Shulchan Aruch (Yoreh Dei’ah 398:1) cites two opinions. First, the Rif, that only the first day is Biblical, and second, Rabbeinu Tam, that the entire shiv’ah is only Rabbinic.
One ramification of this discussion is where a niftar is buried on the second day of Yom Tov (as is the minhag in certain places). According to the first opinion, the Rif, since the first day is Biblical, the aveil must sit shiv’ah on the second day of Yom Tov after the burial. However, according to the second opinion, Rabbeinu Tam, since shiv’ah is only Rabbinic, it is not done on the second day of Yom Tov.
The Shulchan Aruch (Yoreh Dei’ah 399:13) notes that, according to the Rif, the aveil should sit shiv’ah on the second day of Yom Tov, but that ultimately the minhag is to not sit shiv’ah. The Rama (ibid) adds that there is no shiv’ah on the second day of Yom Tov because we follow the opinion of Rabbeinu Tam, that the entire week is Rabbinic.
V. A Second Ramification: T’filin
A second ramification whether we pasken that the first day of shiv’ah is Biblical (Rif) or Rabbinic (Rabbeinu Tam) is concerning t’filin. The Shulchan Aruch (Yoreh Dei’ah 388:1) rules that an aveil does not wear t’filin on the first day of shiv’ah, as well as the second day before neitz (sunrise). The Shach (ibid) notes that some hold that he can wear t’filin on the second day, even before neitz.
But what about where the burial occurs on the day after the day of death? Is the aveil still forbidden to wear t’filin on the day of burial? The Maharitz (cited in the Pischei T’shuvah ibid) suggests that the aveil is permitted to wear t’filin on the day of burial in this scenario. Since the whole prohibition for t’filin is based on the fact that the first day of shiv’ah is Biblical (like the Rif), this prohibition does not apply here. Since the burial here takes place on a later day than the day of death, the day of burial is Rabbinic even according to the Rif. However, according to Rabbeinu Tam, t’filin is prohibited in general on the first day despite that the first day is only Rabbinic. Thus, even here, where the burial takes place the day after the day of death, t’filin is prohibited.
Practically, the Mishnah B’rurah (Orach Chayim 38:16) follows the opinion of Rabbeinu Tam and prohibits the mourner from wearing t’filin even in this scenario where the burial takes place on the day after the death. Nit’ei Gavriel (Aveilus 82:4) cites both sides of this argument and concludes that the aveil should put on t’filin privately and without a brachah. The sefer Mourning in Halachah (ArtScroll, p. 160), based on the P’nei Baruch, cites all these opinions, but does not come to any conclusion. However, it cites Rav Shlomo Zalman Auerbach zt”l who ruled that minhag Yerushalayim was to put on t’filin privately and without a brachah.
Next Week’s Topic: What is the proper date of the first yahrzeit: the date of death or date of burial?