Question: May an aveil who is sitting shiv’ah in the house of the deceased (or of another aveil) return to his own home at night to sleep? May he attend shul if there is no minyan at the beis aveil?
Short Answer: If the aveil has trouble sleeping in other people’s houses (or there is no room in the beis aveil), the aveil may return home at night by car. If there is no minyan at the beis aveil, some poskim allow the aveil to attend shul.
Explanation:
I. Do Not Leave The House
The Gemara (Moed Katan 23a) sets forth certain restrictions for an aveil during the first few weeks after the death. The Gemara relates that the aveil should not leave the “doors of his house” during the week of shiv’ah.
The T’shuvos HaRosh (27:2) explains that the aveil should not even leave his home to participate in a mitzvah activity such as a wedding or a bris milah. Even though the aveil is obligated to perform all mitzvos, this simply refers to mitzvos “she’b’gufo” (incumbent on him) such as t’filin or tzitzis, but does not mean that the aveil may leave his house to perform mitzvos shel g’milas chasadim that are not incumbent on him to perform.
This Gemara and Rosh are codified in the Shulchan Aruch (Yoreh Dei’ah 393:2).
II. The Night and Business Exception
The T’rumas HaDeshen (290) writes that if an aveil has a compelling need to leave the house at night during shiv’ah, he may do so. We only require the aveil to remain in the beis aveil during shiv’ah because we want to ensure that he does not forget “mourning” and it is clear to all that he is in the week of shiv’ah. We therefore keep him from being together with his normal friends/routine. However, at night, where the streets are empty, this reason does not apply, and the T’rumas HaDeshen writes that he may return to his own home to sleep (if necessary).
The Rama (ibid), citing the T’rumas HaDeshen, writes that if the aveil “needs” to leave the house at night, there is room to be lenient and to allow him to leave. Similarly, the Rama cites Tosafos who rule that the aveil is permitted to leave the beis aveil – even during the day – for things that are “davar ha’aveid” (would otherwise be lost/ruined). [In other words, the Rama seemingly would allow an aveil to leave the beis aveil to prevent a large monetary loss.]
III. Sleeping at Home
It would appear from the words of the T’rumas HaDeshen, that where the aveil “needs” to sleep at his own home (and not the beis aveil) for whatever reason, he is permitted to leave at night to do so.
The Chochmas Adam (165:11), on the other hand, rules that an aveil may return to his own home at night to sleep, but makes no mention of limiting this leniency to cases where it is “necessary” to do so. Instead, the Chochmas Adam supports this leniency from the words of Maseches Sofrim (Chapter 11), which – in a different context – notes a case where five brothers were sitting shiv’ah together and returned home at night to their respective houses to sleep.
The Igros Moshe (Yoreh Dei’ah 2:172), however, understands that both the T’rumas HaDeshen and the Chochmas Adam only allow the aveil to return home at night to sleep where it is “necessary,” such as where the aveil has trouble sleeping outside his own home. This “necessity” is obviously subjective and thus only applies where the aveil truly does not frequently sleep in other places. The Nit’ei Gavriel (1:112:13) agrees with the Igros Moshe.
The T’shuvos V’Hanhagos (1:699) also agrees with the Igros Moshe, but adds that the aveil should only travel by car, as he will not encounter anyone on the way. [The T’shuvos V’Hanhagos also argues with numerous Acharonim who are lenient and allow the aveil to return home for Shabbos on Friday at midday. The T’shuvos V’Hanhagos rules that the aveil may only return home after Minchah K’tanah on Erev Shabbos.]
Yet, some Acharonim take a stricter approach. The Sheivet HaLevi (5:175), in discussing whether a parent during shiv’ah may attend his child’s wedding, notes that the Rama’s ruling of permitting the aveil to go out at night “if necessary” only applies where it is a real necessity, such as severe monetary loss. Accordingly, the sefer Kitzur Hilchos Aveilus (Rav Nachum Yavrov, p. 513) suggests that the Sheivet HaLevi disagrees with the Igros Moshe and holds that an aveil may not return home to sleep at night simply because he has a hard time sleeping in someone else’s house.
The Nishmas Yisrael (16:4) interprets the T’rumas HaDeshen differently. The T’rumas HaDeshen allows the aveil to leave the beis aveil for any specific reason as long as he doesn’t meet up with people as normal. The T’rumas HaDeshen only required “necessity” if the aveil is leaving the beis aveil for a “tiyul” or will encounter many people. Thus, the Nishmas Yisrael permits an aveil to leave the beis aveil each night, get into his private car, and drive (or be driven) directly to his house. Since the aveil will not encounter anyone this way, the aveil is permitted to go home even if there is no real “need” to do so.
IV. Coming to Shul
What about where there is no minyan in a beis aveil. May the aveil come to daven in shul during the week of shiv’ah, or must he remain in the beis aveil?
As an initial matter, the Shulchan Aruch and Rama (ibid) allow an aveil to come to shul on days where there is k’rias haTorah. But, as the sefer Divrei Sofrim (p. 618) explains, the Shulchan Aruch and Rama are only discussing a case where there are regular minyanim at the beis aveil and the aveil is able to say Kaddish, but just that there is no sefer Torah in the beis aveil. They are not discussing our case, where the issue is whether the aveil may leave the beis aveil in order to say Kaddish and daven with a minyan even on days where there is no k’rias haTorah.
The Divrei Sofrim (p. 615) cites the Magen Avraham (Orach Chayim 696:8 and 10) who forbids him from attending shul where he will mingle with others and forget aveilus, but cites the Shaar Ephraim and Elyah Rabbah who allow him to attend shul to say Kaddish, as he is allowed to leave his house to recite Kiddush L’vanah if he will otherwise miss it that month. Additionally, while Rabbi Akiva Eiger (on Yoreh Dei’ah ibid) does not allow him to attend, the Chochmas Adam permits.
Practically, the T’shuvos V’Hanhagos (1:697) permits the aveil to attend shul, and notes that if a community can only support one minyan, it is preferable that the ten men and aveil daven in shul (and not cancel the daily minyan). Mourning in Halachah (ArtScroll, p. 259) does not rule definitively, but instead writes “some permit” the aveil to attend shul.
Interestingly, the Igros Moshe (3:158:1) allows the aveil to attend shul on the yahrzeit of his second parent should it fall out during the week of aveilus for the first parent (or another relative). But, he appears to be sensitive for the strict opinion on the other days and would possibly not allow the aveil to attend on those other days.
Next Week’s Topic: When an aveil during the week of shiv’ah attends shul (because there is no minyan in the beis aveil), does the minyan recite Tachanun?]
Rabbi Ephraim Glatt, Esq. is Assistant to the Rabbi at the Young Israel of Kew Gardens Hills and a practicing litigation attorney. Questions? Comments? Email: This email address is being protected from spambots. You need JavaScript enabled to view it. .
