4. The laws of mourning:

A. Learning the laws of Aveilus:[1]

It is a widespread custom for one whose parents are alive to avoid studying the laws of mourning.[2] It is thus only studied by the community Rabbi [or potential Posek], for him to answer questions to those who ask him on this subject.[3] On the other hand, some Poskim[4] encourage the study of the laws of mourning, calling it a “Meis Mitzvah” of which it is a great Mitzvah to break the custom of abstinence and study it. Likewise, some Poskim[5] learn that the entire avoidance of studying the subject of mourning is only in public, such as in the Yeshiva, however, to study it in private is not to be avoided. Practically, one who desires to learn the subject but fears from the danger, is to Daven to Hashem prior to commencing the study that no damage occur to them. Likewise, it is to be studied discreetly without publication.[6] Certainly, Rabbanim who must rule on the laws of Aveilus are to ignore the above custom and study the laws in order to be able to give accurate rulings to those who ask them questions.[7] The Rebbe encouraged Rabbanim to write and publicize Halachos on this subject for the sake of preventing people from transgressing.[8] Some[9] write that a most opportune time to study the laws of Aveilus is in the month of Marcheshvan which lacks any Holidays, and is the month in which Sarah Imeinu died.

Studying Tractate Moed Katan: Some avoid studying the Tractate of Moed Katan due to it containing the laws of Aveilus.[10] Practically, the above widespread custom to avoid learning the subject of mourning only applies to the study of the practical Halachos of mourning. However, there is no widespread custom to abstain from studying the Tractate of Moed Katan, and on the contrary many communities study the entire Shas in order, without skipping any Misechta, including Moed Katan.[11]

B. The source of the laws and customs:

As with many subjects in Jewish law, the laws of mourning are composed of Biblical, Rabbinical, and customary commands, restrictions and prohibitions. The uniqueness of the subject of mourning, however, lies with its abundance of customs that have become part of the standard laws and traditions. The Biblical obligations and regulations of mourning are very limited[12], with most of its restrictions being of either Rabbinical/Talmudic status, or tradition and custom that developed throughout the ages. Some of the death and mourning related customs are not even recorded in the classical codifiers [i.e. Shulchan Aruch and commentaries] and were rather established within particular communities by their Chevra Kadisha and the Rabbanim who stood at their head. Particularly regarding burial, and preparation for burial issues, we find a variety of traditions and customs amongst different communities, and each community is to abide by their custom. There are a number of classical and fundamental Sefarim that have been written on the subject, such as Mishmeres Shalom of Rav Shalom Shachna [late 1800’s]; Darkei Hachaim [1937]; Gesher Hachaim of Rav Y.M. Tukichinsky [1947]; Darkei Chesed of Rav Yitzchak Dovber [1975]; Pnei Baruch of Rav Chaim Binyamin Goldberg [1986]; Nitei Gavriel of Rav Gavriel Tzinner [2000]. However, the most vintage, classic and fundamental Sefer which is the source of many of today’s customs, is no doubt the 17th century classic called Mavor Yabok authored by Rav Aaron Berachya from Medina, Italy. The author was the prime student of the Rameh Mipuno and Reb Yisrael Sruk, who were amongst the known students of the Arizal. The book was printed in the year 1625. The 400 plus page book contains deep thought-provoking treatises on the purpose of life, and the afterlife, as well as various Kabalistic customs and traditions, and prayers to be said throughout the period of death and mourning.[13] The teachings of this Sefer have been accepted amongst all Jewry and its influence will be felt throughout the Halachos written in this Sefer.

C. Ruling like the lenient opinion by Aveilus:[14]

A known Talmudic[15] ruling which has greatly affected and penetrated the final rulings in the Shulchan Aruch is that whenever there is a dispute amongst Poskim within the laws of mourning, we follow the lenient opinion. This applies even initially, Lechatchila.[16] Some Poskim[17] rule that this applies even if the majority of Poskim are stringent, and only one opinion is lenient. While this rule is unanimously accepted for the most part, it does contain some qualifications, some of which are debated amongst the Poskim as to whether this rule should apply. For example, the above rule is limited to the specific laws of mourning, however, in the laws of Aninus[18], or Keriah[19], which precedes the start of Shiva, we do not apply this rule of following the lenient opinion. Likewise, if a certain stringent position has already become the widespread custom, then we do not allow one to follow the lenient opinion.[20] Likewise, if the Talmud or Shulchan Aruch has already arbitrated on the matter, then we do not say that one can be lenient against the Talmud or Shulchan Aruch to follow a lenient opinion.[21] Furthermore, some Poskim[22] rule that the entire Talmudic ruling is limited to debates in the Talmud [and/or Rishonim], while debates of later authorities do not necessarily receive the above rule of following the lenient opinion. Practically, the accepted position is that the above rule applies even by a dispute amongst the later authorities.[23] According to all, one may only be lenient based on opinions that have been voiced in the Poskim and cannot create leniencies based on reasons that he has come up with on his own.[24]

D. Miseches Semachos and Dinei Semachos:

It is customary to euphemistically refer to the laws of mourning as “laws of joy,” such as to say Dinei Semachos, or Miseches Semachos. This is done in order to give a positive perspective and coinage to this most negative and somber subject. Thus, we find that the Tractate of Avel Rabasi, which is one of the Misechtos Haketanos published in the end of the section of Nezikin in the Talmud, is referred to as Misecehs Semachos.

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[1] See in length Nitei Gavriel Aveilus Hakdama

[2] Sefer Chassidim 261 calls it a Meis Mitzvah; Letter of Rav Zalman Shimon Dworkin, printed in Koveitz Zalman Shimon p. 64 “It is a widespread custom amongst all Jewry for one who has parents to avoid studying the laws of mourning. It is thus only studied by the community Rabbi [or potential Posek], for him to answer questions to those who ask him on this subject.”

The reason: As they fear it can cause danger, as the verse in Mishlei 3:11 states that one should not despise rebuke, and one may hurry through the study the Tractate [and bring on this danger]. Furthermore, whatever people consider to be of danger, in truth can cause danger simply due to the bad eye they give to it. [See Sefer Chassidim ibid]

[3] Rav Zalman Shimon ibid

[4] Sefer Chassidim 261 regarding Moed Katan “Love the Mitzvah which is similar to a Meis Mitzvah being that no one occupies themselves with it…such as if you see that people in your city avoid studying Moed Katan, you shall learn it and receive much reward corresponding to them all, as it is like a Meis Mitzvah. Love the Tractates and laws that people avoid. Tractate Moed Katan is similar to a lone daughter who is left unmarried due to her occupation as a seamstress for burial garments. Moed Katan approached Hashem and asked Him as to why people do not study the tractate and Hashem replied that it is good to study it.”; Yosef Ometz p. 270 writes against skipping the laws of Aveilus; Kaf Hachaim Y.D. 116:189

[5] Kneses Hagedola Y.D. 245:3

[6] Sefer Chassidim ibid

[7] Nitei Gavriel Hakdama

[8] Maaneh of Rebbe to Rav Gavriel Tzinner regarding his book on Aveilus

[9] Kemach Soles p. 154

[10] Sefer Chassidim ibid

[11] Letter of Rav Zalman Shimon Dworkin, printed in Koveitz Zalman Shimon p. 64

[12] List of Biblical matters: 1) To bury the deceased; 2) To mourn on the first day [according to some Poskim];

[13] See Nitei Gavriel 113 footnote 28

[14] See Birkeiy Yosef 393; Dvar Moshe 76; Mishmeres Shalom Hei; Sdei Chemed Mareches Hei 10; 118; Chaf Klal 108; Zekan Aaron 24; Gesher Hachaim 19:8; Nitei Gavriel 113:16; Introduction of Volume 2 page 12 and onwards

[15] Shmuel Moed Katan 18a; 19b; 22a; 26b; Tosfos Eiruvin 46a

[16] Nitei Gavriel 113 footnote 28 as otherwise there would be no novelty in the Talmudic ruling, as in any event we rule leniently by a Rabbinical dispute. Thus, one must say that the novelty is that even initially one may be lenient, unlike the ruling by other Rabbinical matters in which initially one must be stringent. [See Taz O.C. 71:3; Shach Y.D. 110]

[17] Eiruvin 46a; Beis Yosef end of 396 [however see Beis Yosef 389]; Ginas Veradim Klal 5; Chaim Sheol 2; Zera Emes 2:161; Sdei Chemed ibid; See Chida in Machazik Bracha O.C. 548; Gesher Hachaim 19:8 regarding a Talmudic debate, as opposed to Poskim

Other opinions: Some Poskim rule that we do not follow the lenient opinion by Aveilus if the majority of Poskim are stringent. [Darkei Moshe 390:5; Gesher Hachaim ibid regarding dispute in Poskim as opposed to Talmud; Tosfos and Rosh Kesubos 4a that by Amoraim and onwards we do not say this]

[18] Rosh Moed Katan 3:53; Beis Yosef 341 [in contrast to in O.C. 71]; Nitei Gavriel 113:16; See Gesher Hachaim ibid

Other opinions: Some Poskim rule that we follow the lenient opinion even by Aninus. [Mishmeres Shalom 1:24 in name of Rabbeinu Yona; See Tosfos Eiruvin 86; Sdei Chemed Mareches Hei 41 brings that Beis Yosef in O.C. 71 is lenient and contradicts himself]

[19] The rule of following the lenient opinion in Aveilus does not apply towards the laws of Keriah. [Moed Katan 26b; Gilyon Maharsha 340:1; Gesher Hachaim ibid]

[20] See Beis Yosef 396

[21] Chida in Machazik Bracha O.C. 548:2; Beis David O.C. 497; Gesher Hachaim Hakdama and 19:8; Nitei Gavriel ibid

Other opinions: Some Poskim rule that we follow the lenient opinion even against the rulings in Shulchan Aruch. [Shulchan Gavoa 401:17] 

[22] Poskim brought in Kneses Hagedola 387 and Birkeiy Yosef 387

[23] Birkeiy Yosef 399:3; Toras Chaim 3:50; Divrei Emes 2; Ginas Veradim Y.D. Klal 5

[24] See in length Nitei Gavriel volume 2 p. 12

[25] Shem Mishmuel Parshas Nasso

[26] Words of Rebbe to his brother in law the Rashag [Brought in Toras Menachem 20:202; Toras Menachem Tziyon 2:371; Shulchan Menachem 5:266; Nitei Gavriel volume 2 p. 13] The Rashag asked the Rebbe as to the source of this saying and the Rebbe replied that he does not have a source and it’s from “Sevara”