A Child Who Reaches Majority in the Middle of Mourning

The following responsum is reprinted from Tomeikh KaHalakhah volume 3.  Tomeikh KaHalakhah is UTJ’s series of volumes of responsa (teshuvot) promulgated by the Union For Traditional Judaism’s Panel of Halakhic Inquiry.

The fundamental question behind this inquiry was disputed by the great halakhic authorities Rabbi Asher ben Yehi’el, known as the Rosh, and his illustrious teacher, Rabbi Meir of Rothenberg (Rosh, Moed Katan ch. 3, par. 96). Rabbenu Asher explains, “Rabbi Meir wrote…if a child is a minor during the thirty days following of the death of his parent, but after the thirty days [and within twelve months], becomes an adult, this is equivalent to someone being informed during a festival [of the death of a relative for whom one must mourn] within thirty days of the death (shemu’ah kerovah) but after the festival it is after thirty days (shemu’ah rehokah). In such a case, the person mourns for only one hour and the shiva (seven days of mourning) and shloshim (thirty days of mourning) are canceled. However, the child must complete the twelve months of mourning for his father or mother from the day of the burial, not from the day he became an adult…and if one would say that since from the time of death [of the parent], he was not suitable to mourn, he is permanently exempt, this is not accurate based on the principle, ‘there is no permanent exemption regarding commandments’ (ein dehu’ei etsel mitzvot)” [i.e., a commandment that, for some reason, need not be performed is not permanently rendered defunct; rather, once the barrier to performing the commandment is no longer present, the commandment once again becomes obligatory]. This principle derives from Hullin 87a. The Mishnah (6:4) teaches, “If he covered it [the blood of a slaughtered animal], and it became uncovered, he is exempt from covering it. [But] if the wind covered it [and it became uncovered], he is required to cover it.” In the Talmud, “Rabbah bar Bar Hanah said in the name of Rabbi Yohanan, ‘This is the rule [regarding the wind]: only if it had become uncovered, but if it had not become uncovered, he need not cover it up.’ But what should it matter even if it had become uncovered? Has not the commandment become defunct [by having already been fulfilled]? Rav Papa answered, ‘This proves that there is no permanent exemption regarding commandments.’” According to Rabbi Meir of Rothenberg, this principle that “there is no permanent exemption regarding commandments” is an unrestricted principle in Jewish law and is applied in all cases. Once the obstacle to performing the commandment is removed (cf. once the child becomes an adult), a person is no longer exempt from performing it.

Rabbenu Asher, however, holds that this principle does not apply in this case. He writes, “Even though one should not question a lion after his death [i.e., argue with Rabbi Meir], this is Torah and I need to learn (see Berakhot 62a) and I dispute his logic. There is a difference between a case in which there was an obligation [and it disappeared only later to return] and the case of a minor who in his minority was not obligated to mourn. Because no obligation to mourn existed from the start, the minor is permanently absolved of this obligation. This is seen in Pesahim 93a, which discusses the second Passover (Pesah Sheni). The second Passover is an opportunity for those who were unable to participate in the Passover sacrifice (due either to their contamination through a human corpse or their geographical distance from the Temple in Jerusalem) to bring the required offering, one month later (see Numbers 9:6-14). The Talmud says, ‘It was taught…a minor who attains his majority between the two Passovers…Rabbi Natan said…whoever is not subject to the first is not subject to the second…Rabbi Natan holds: the second [Passover] is a compensation for the first [and only he who was subject to the law at the first Passover can observe the second Passover].’” Rabbenu Asher therefore holds that a minor who because of his age was exempt from a commandment and then reaches majority does not become obligated in that commandment (see Nedarim 2b and Rabbenu Nissim ibid.). While Rabbi Meir and Rabbenu Asher argue over the applicability of the principle ein dehu’ei etsel mitzvot, later authorities argue over which of their opinions we should follow.

Rabbi Yosef Karo (Bet Yosef on Arba’ah Turim Yoreh De’ah, ch. 396) favors the opinion of Rabbenu Asher. He writes, “Hagahot Maimoniyot quotes the opinion of Rabbi Meir of Rothenberg….But Rabbenu Yeruham writes…the opinion of Rabbi Meir is a received tradition (divrei kabbalah) and is strict, but it seems to me that since we have a principle of ‘the Halakhah follows the later authority’ and ‘the Halakhah is lenient in matters of mourning,’ therefore the Halakhah follows Rabbenu Asher.” Rabbi Karo also rules according to Rabbenu Asher in the Shulhan Arukh (Yoreh De’ah 396:3). It seems that Rabbi Karo is of the opinion that the principle of “the Halakhah follows the later authority” applies only to disputes among (rabbis of the Talmudic period), and not to disputes among later halakhic authorities (see Entsiklopedia Talmudit vol. 9, pp. 341-345).

Furthermore, various early authorities (Rishonim) also hold that the principle of “the Halakhah is lenient in matters of mourning” applies only to disputes among Tana’im (rabbis of the Mishnaic period) and Amora’im, but not to disputes among later authorities (see Responsa Ha-Radvaz vol. 3, #636). Based on these opinions, Rabbi Yoel Sirkis (Bah on Arba’ah Turim Yoreh De’ah, ch. 396) disagrees with Rabbi Karo and argues for Rabbi Meir’s opinion. He writes that “according to my humble opinion, there is reason to dispute the opinion of the Bet Yosef because even though ‘the Halakhah is lenient in matters of mourning’…this is not when a student disagrees with his teacher…the Halakhah never follows a student when he disagrees with his teacher even when they disagree regarding logic, and this is all the more so when the teacher reports that his ruling was received from his teachers. When the student disagrees [with his teacher’s] logic and proofs, we disregard the student’s opinion” (see Niddah 14b and Tosafot ibid. s.v. ha’eikh; Terumat Hadeshen vol. 2, #238; Baba Batra 142b; Y. Ma’aser Sheni ch.3, Halakhah 3 [end]; Entsiklopedia Talmudit vol. 1, pp. 288-289).

Rabbi Sirkis also posits another reason for following the opinion of Rabbi Meir. He explains that one could say that the principle of “there is no permanent exemption regarding commandments” applies solely to a Biblical obligation, but in the case of a rabbinic obligation (such as our case), once a commandment becomes disqualified, it is permanently disqualified. However, he argues, that it is possible that when the rabbis established their obligation, they decreed that it would not be permanently disqualified. Rabbi Sirkis cites Hagahot Maimoniyot on the Maimonides, Laws of Mourning, end of ch. 4 and the Sefer Mitzvot Katan, end of ch. 57, which share this opinion. He concludes, “[I]f this is so regarding a rabbinic obligation, it is logical to say that in all cases we apply the principle of ‘there is no permanent exemption regarding commandments,’ since it is illogical to say that there is exemption regarding Rabbinic obligations.” It seems that according to Hagahot Maimoniyot and those who hold like him, when it comes to the decrees of our Talmudic sages, we apply the principle “Our rabbis did not make exceptions” (lo pelug rabban) (see Baba Metzia 53b and parallels).

Although this dispute focuses more on the disputants than on the halakhic basis for their rulings, in the end, we are nevertheless bound to the authority of the Shulhan Arukh (which favors Rabbenu Asher’s opinion). Thus, Rabbi David Halevi (Taz on Shulhan Arukh Yoreh De’ah 396:2) disagrees with his father- in-law, Rabbi Yoel Sirkis, and concludes his lengthy discussion by writing, “I am in shock and wonderment regarding this ruling in which the ‘fathers of the world’—Rabbi Meir and Rabbenu Asher—argue. I am afraid to place my weak head between these great mountains, illuminators of Israel. In any event, I can not halt my comments since this is an important discussion…the rulings of the Shulhan Arukh are the ‘words of the Living God’” (others who hold like Rabbenu Asher include Hokhmat Adam 168:6; Arukh Ha-Shulhan Yoreh De’ah 396:5; Kitzur Shulhan Arukh 216:2).

Yet this is not the end of the discussion. Rabbi Yehi’el Mikhel Epstein (Arukh Ha-Shulhan Yoreh De’ah 396:5) writes, “And this is the ruling of the Shulhan Arukh [in accordance with Rabbenu Asher] and thus is the law. In any event, when one’s father or mother dies, one must observe the mourning customs of the twelve months out of their honor and this matter is unrelated to when the grave is closed, but is an obligation in and of itself because of their honor.” Similarly, the Talmud (Kiddushin 31b) says, “Our Rabbis teach…he must honor him [his father] during his life and after his death…How does one honor him after his death? When one mentions a teaching in his name, one should not say, ‘My father, my teacher said,’ but one should say, ‘My father, my teacher, I am atonement for his resting place (hareini kaparat mishkavo), said.’ But this is only during the first twelve months; after this time, one substitutes, ‘…of blessed memory for the life of the world to come (zikhrono li-vrakhah le-hayei ha-olam ha-bah).’” However, from this gemara, it is not clear if one is obligated in this honor toward one’s father (or one’s mother) when one’s parent dies while the child is still a minor and not yet commanded to honor his father and mother.

It is possible, however, to learn that the obligation to honor one’s father and mother is incumbent upon one who is not commanded to do so. This notion is based on a verse relating to the beautiful captive woman. The Torah says, “and she [the captive] shall weep for her father and her mother for a full month…” (Deut. 21:13). Ibn Ezra explains, “There are those who say that this weeping is over her father and mother who did not convert to Judaism. In my view, any person with reasoned judgment (shikul hada’at) is obligated to honor his father and mother both during and after their death.” In this explanation Ibn Ezra follows in the path of Rav Sa’adia Ga’on (see, for example, Emunot Ve-Dei’ot vol. 3, ch. 2; vol. 5, ch. 6). This means that honoring one’s father and mother is a rational commandment that is observed among all people out of reason (see Kiddushin 32a), as in the case of the captive woman before her conversion (see Sifrei Devarim, piska 213). Therefore, even though a minor is not commanded to honor his father and mother, based on his intellect and reason, there is a self-understanding that he is obligated to do so. Certainly the command to honor father and mother is grounded in the natural bond between parents and their children, which exists even before the child becomes obligated in the commandments. (Similar ideas are found in rulings regarding the relationship between a convert and his biological parents. A convert is considered like a newborn child and thus is not related to his biological parents [Yevamot 48b]. Nonetheless, Rabbi Moshe Feinstein, Responsa Iggerot Moshe, Yoreh De’ah vol. 1 #130, rules that converts must honor their non-Jewish biological parents, and Rabbi Ovadiah Yosef, Responsa Yehaveh Da’at 6:60, encourages a convert to say Kaddish for them. See also Rabbi David Novak, Law and Theology in Judaism [New York, 1974], “Mourning for a Non-Jewish Parent,” ch. 8, pp. 72-79.)

In the previous generation, Rabbi Yekutiel Yehudah Greenwald added another aspect to the opinion of Rabbi Meir (Kol Bo Al Aveilut, pp. 146-7). He writes, “Further, wouldn’t it be a wonder in our eyes that a person who reaches majority and is obligated to observe all of the commandments, and all of his brothers and sisters are mourners and mourning over their deceased and he is exempt from it all. And while it is not proper to place my head between great mountains, I say that there is only a dispute over the obligation to begin shiva in the middle and to count seven days, but to complete the shiva with his relatives, it is obvious that there is no question in the world that the obligation devolves on him at the moment he becomes obligated in the commandments.” It seems that Rabbi Greenwald rules this way because in his eyes there is a psychological need for each individual to mourn for his father and mother and if mourning at this time is permanently exempted, it is possible that later on he will be distressed (see similarly Rabbi Moshe Isserles to Shulhan Arukh Orah Hayyim 288, par. 2; Arukh Ha-Shulhan Orah Hayyim 288:5-6). For other guidebooks of the laws of mourning or bar mitzvah that discuss this topic, see Binyamin Adler, Halakhot Ve-Halikhot Bar Mitzvah (Jerusalem, 1974), ch. 8, pars. 76-87 (pp.131-135); Hayyim Binyamin Goldberg, Sefer Pnei Barukh—Avelut Ba-Halakhah (Jerusalem, 1986), ch. 25, par. 5 and the copious notes there, as well as the English version Mourning in Halachah (New York, 1991), ch. 30, par. 5 with notes 9-13, pp. 283-284; Maurice Lamm, The Jewish Way in Death and Mourning, p. 91; Aaron Felder, Yesodei Smochos, p. 74; Y.M. Tukachinsky, Gesher Ha-Hayyim, ch. 19, section 3, par. 3.

This question has been disputed amongst our greatest sages for many generations. Because there are many important authorities on both sides of this issue, it is possible to follow either position. Furthermore, a judge should decide only on what he sees (Sanhedrin 6b and parallels). Therefore, the rabbi in this case must decide based on what will be most beneficial to the young man who is bereft of his mother, whether it is better for him to mourn now or not. Radvaz (vol. 1, siman 123; see also siman 429) wrote in another context, “The general concept is that everything is dependent on what the Bet Din sees and which position will be more of a remedy for the child.”