The Laws of Tisha Be-Av

  • Rav David Brofsky

The beraita (Ta’anit 30a) teaches that “all the restrictions that apply to the mourner apply on Tisha Be-Av; eating, drinking, bathing, anointing, the wearing of shoes and marital relations, are forbidden thereon.” We discussed each of these prohibitions, and their practical applications, in last year’s shiur.

On a broader note, we suggested that one should view Tisha Be-Av as a day with a dual nature: it is both a communal fast day and a day of mourning. A careful study of the relevant halakhot demonstrates that both of these themes are present, and at times we must determine which theme dominates and determines the halakha.

In this shiur, we will continue our study of the prohibitions of Tisha Be-Av. We will then discuss the unique practice of not wearing a tallit or tefillin at Shacharit.

Talmud Torah and She’elat Shalom (Greeting) on Tisha Be-Av

The Talmud teaches that in addition to fasting and refraining from certain physical pleasures, bathing, anointing, wearing leather shoes and marital relations, one should also refrain from studying Torah. The gemara (Ta’anit 30a) teaches:

It is also forbidden [thereon] to read the Torah, the Nevi’im and the Ketuvim, or to study the Mishna, Talmud, Midrash, halakhot, or aggadot

According to this passage, the prohibition to study Torah apparently stems from a broader proscription from engaging in activities that brings about happiness. The Talmud raises two exceptions to the prohibition to learn Torah. First, the beraita teaches:

He may also read Eicha, Iyov, and the sad parts of Yirmiyahu, and the school children are free [from school], for it is said: “The precepts of the Lord are right, rejoicing the heart” (Tehillim 19:9).

Apparently, since learning Torah, which “rejoices the heart,” is prohibited, those portions that sadden the heart, according to the gemara, may be studied.

Second, the Talmud cites a debate about whether one may learn “new” material:

He may, however, read such parts of the Scripture which he does not usually read and study such parts of the Mishna which he does not usually study… R. Yehuda said even such parts of the Scripture which he does not usually study he may not read, nor study parts of the Mishna which he does not usually study…

Seemingly, all agree that learning which brings happiness to the studier is prohibited. However, different types of learning arouse different levels of simcha. The Tannaim debate whether one may review material he has already learned, as apparently this does not generate great levels of excitement and enjoyment. We follow the opinion of R. Yehuda.  

Interestingly, elsewhere (Mo’ed Katan 15a) the Talmud derives from a different verse that a mourner may not learn Torah. God instructs Yechezkel, in anticipation of his wife’s death, to “remain quiet” (ha’anek dom). The gemara also derives that a mourner should not greet another person from this verse.

This passage implies that the halakha simply demands “silence” from the mourner. Furthermore, this gemara does not mention that a mourner may learn any Torah, even the sad and depressing passages! If so, we might distinguish between the prohibition of talmud Torah for a mourner, one experiencing aveilut chadasha, who is enjoined to completely halt his normal activities and to silently contemplate his loss, and one observing aveilut yeshana, who must spend his day in grief and pain.

            Some Rishonim, however, do conflate the two categories. Tosafot (Mo’ed Katan 21a s.v. ve-assur), for example, reports the Rabbeinu Tam, in his youth, prohibited a mourner from learning any Torah. In his older years, however, he retracted and permitted a mourner to learn those passages which may be learned on Tisha Be-Av. The Shulchan Arukh (Yoreh De’ah 484:4) rules that a mourner may learn these passages.

            What are the sections and topics which one may learn on Tisha Be-Av? The gemara cited above permits learning the books of Eicha and Iyov, and well as the parts of Yirmiyahu that deal with the tragedy and punishment of the Jewish People. In addition, the Shulchan Arukh (554:2) permits learning the commentaries on Eicha and Iyov, the Midrash Eicha, as well as the third chapter of the tractate Mo’ed Katan, which deals with the laws of mourning. The Acharonim (see Mishna Berura 3) also permit learning the Talmudic passages relating to the destruction of Jerusalem and the Temple in Gittin 55b–58a (known as the “Kamtza bar Kamtza” section) and Sanhedrin 104, as well as the Talmud Yerushalmi at the end of tractate Ta’anit (Kitzur Shulchan Arukh 124:5). Some also mention reading Yossipon, a popular chronicle of Jewish history compiled in the early tenth century, which was at times falsely attributed to the Roman historian Josephus. One may also read historical accounts of the destruction of Jerusalem, as well as of other Jewish tragedies, including the Holocaust. Finally, the halakhot of Tisha Be-Av and aveilut may also be studied.

            The Ramban (Torat Ha-Adam, Inyan Aveilut Yeshana), and subsequently the Shulchan Arukh (554:4), permit the recitation of korbanot (parashat ha-tamid), as well as the beraita de-Rabbi Yishma’el, which precedes Pesukei De-Zimra. Apparently, when these passages are said as prayers and not within the framework of talmud Torah, they do not arouse joy and are therefore permitted.

In addition to the five prohibitions of Tisha Be-Av, eating and drinking, washing and anointing, wearing leather shoes and engaging in marital relations, and the prohibition of talmud Torah, the Tosefta (Ta’anit 3:12) teaches that “there should be no greetings between friends on Tisha Be-Av, and to those who don’t know (hedyotot), one should [respond] quietly.” The Rishonim (Rosh, Ta’anit 4:37; Ramban, Torat Ha-Adam; Rambam, Hilkhot Ta’aniyot 5:11), and Shulchan Arukh (554:20) rule accordingly. The Mishna Berura (41) writes that one should even refrain from saying “good morning.”  However, one may wish another “mazal tov,” and one may also shake another’s hand (Har Tzvi, Yoreh De’ah 290).

All of the above prohibitions apply the entire day, until the conclusion of the fast. There are some halakhot and customs that are observed only until midday, however.

Laws and Customs Observed until Midday

            The Hagahot Maymoniyot (Hilkhot Ta’aniyot 5) records the custom in France not to sit on benches until Mincha, similar to a mourner who sits on the ground during the seven days of mourning. The Shulchan Arukh (559:3) cites this custom as well. The Rama adds that nowadays it is customary to sit on benches immediately after leaving the synagogue after Shacharit, although generally kinot are recited until a bit before midday.  The Magen Avraham (2) writes that one may sit on a pillow, as it is only a custom not to sit on benches. In practice, many are accustomed to sitting on low benches or chairs, preferably lower than three tefachim (about twelve inches).

            The Shulchan Arukh (550:2) also records that some sleep on the ground with a rock under their heads on Tisha Be-Av. The Rama comments that one should decrease his comfort in sleeping on Tisha Be-Av night. For example, one who is accustomed to sleep with two pillows should sleep with one. There are even some who place a stone under their head at night, in remembrance of Ya’akov (Bereishit 28:11), as it says, "And he took from the stones of the place.” After putting a rock under his head, he prophetically foresaw the destruction of the Temple, according to the midrash. Pregnant women, as well as those who would suffer extreme discomfort, need not do so (Mishna Berura 7). In general, the Rama advises that one should decrease one’s comforts on Tisha Be-Av. Some suggest, based upon this Rema, that one should refrain from smoking on Tisha Be-Av for this reason (and in general, for others.)     

In addition to not sitting on benches, the Talmud (Ta’anit 30b) teaches:

Where it is the custom to do work on the Ninth of Av, we may do work, but where it is not the custom we may not; and everywhere the scholars refrain from work. It has been taught likewise: R. Shimon ben Gamliel says: [In this respect] let a man always consider himself a scholar that he may feel more strongly the fast.

Furthermore, the gemara (ibid.) warns:

R. Akiva says: Anyone who does work on the Ninth of Av will never see in his work a sign of blessing. And the Sages say: Anyone who does work on the Ninth of Av and does not mourn for Jerusalem, will not share in his joy, as it is said: “Rejoice with Jerusalem, and be glad with her, all you that love her; rejoice for joy with her, all you that mourn for her.”

            This passage implies, the Acharonim (see Mishna Berura 42, for example) explain, that one should avoid activities that divert one’s mind from mourning.

The Shulchan Arukh (554:22–24) cites these passages and adds that even in a place in which one does not work on Tisha Be-Av, a non-Jew may work for him, even in his house. In addition, he writes that a “davar ha-aved,” work which if not done may incur a financial loss, is permitted, although preferably after midday.

The Rama (554:22) reports that it is customary to refrain from any work that requires time to accomplish (yesh ba shihuy ketzat) until after midday.

The Arukh Ha-Shulchan (554:21) emphasizes that whether or not to work is dependent upon custom; in his time, because of the hardships of earning a living, it was customary to begin working after the morning prayers. However, he recommends that the “God-fearing Jews” should open their shops only after midday.

Tallit and Tefillin on Tisha Be-Av

One of the fascinating aspects of the Tisha Be-Av prayers is the common custom not to wear tefillin in the morning at Shacharit.

The gemara (Mo’ed Katan 15a; see also 21a) teaches that a mourner does not wear tefillin on the first day of his mourning. When God commanded Yechezkel not to mourn for his wife (Yechezkel 24:17), He told him, “Don your glory.” The Rabbis interpret this to refer to his tefillin; God instructed Yechezkel to wear tefillin, which he ordinarily would not have done on the first day of mourning. The Rishonim differ as to whether the mourner’s disheveled state is an inappropriate vehicle for the tefillin (Rashi, Berakhot 11a s.v. alma), or whether wearing tefillin inherently contradicts the intended appearance of a mourner (Rashi, Sukka 25b s.v mi-de-amar). Despite the apparent similarities between the practices of a mourner and the laws of Tisha Be-Av, the Talmud makes no mention of not wearing tefillin on Tisha Be-Av!

            The Rishonim differ as to whether one should wear tefillin on Tisha Be-Av. On the one hand, the Abudraham cites the Ra’avad, who rules that one should not wear tefillin on Tisha Be-Av, but rather “it is better to place burnt ashes on one’s head.” Similarly, the Rokeach (310) and R. Avraham Ha-Rofe (cited by the Shibolei Ha-Leket (ibid.)) also write that one should not wear tefillin on Tisha Be-Av. We should not overlook the significance of this opinion. According to these Rishonim, we set aside the Biblical commandment of tefillin for the proper observance of Tisha Be-Av! The Rosh (Ta’anit 4:7) cites his teacher, the Maharam Mi-Rottenburg:

Rabbeinu Meir wrote: it seems that on Tisha Be-Av one should not wear tefillin, similar to the first day of mourning, as there is no day more bitter than the day established for eternal mourning.

While we may explain that wearing tefillin is simply inconsistent with one’s mourning on Tisha Be-Av, we may also understand that tefillin may not be worn by one in such a state of bereavement; therefore, just as a mourner may not wear tefillin, we may not do so on Tisha Be-Av.

Some controversy has surrounded the position of the Rambam. The Rambam (Hilkhot Ta’aniyot 5:11) writes: “Some scholars are accustomed not to wear the tefillin shel rosh (the tefillin worn on the head) on Tisha Be-Av.” While Rabbeinu Yerucham (cited by the Beit Yosef 555) argues that according to the Rambam one should NOT wear tefillin on Tisha Be-Av, the Rambam implies that fundamentally wearing tefillin on Tisha Be-Av is superfluous, but permitted. This is the understanding of the Maggid Mishna, as well as the Meiri (Ta’anit 30a).

Why did these scholars refrain specifically from the tefillin shel rosh? The midrash (Pesikta Zutrata Shemot 13:9) points to the uniqueness of the tefillin shel rosh, the phylactery worn on the head.

“All of the nations of the world will see that the name of God is on you” (Devarim 28:10) – R. Eliezer the Great says that this refers to tefillin on the head – since they are called glory (pe’er).

This passage explicitly links the “pe’er,” which the Talmud teaches that the mourner is NOT to don, with the tefillin shel rosh. If so, this source may support the custom, cited by the Rambam, to refrain from wearing specifically the head phylactery on Tisha Be-Av.

On the other hand, the Ge’onim (Sha’arei Teshuva 155, 266) record that it was customary in the “Two Yeshivot,” Sura and Pumbedita, to wear tefillin on Tisha Be-Av. Similarly, the Rashba (Teshuvot 5:214) records that R. Hai Gaon concurred. The Ramban (Ta’anit 30a and in his Torat Ha-Adam, Inyan Aveilut Yeshana) argues that the first day of mourning has a special and unique status, not to be compared with the mourning of Tisha Be-Av. The Rashba (ibid.), Ritva (Ta’anit 30a), Shibolei Ha-Leket (270), Or Zarua (2:439), Manhig (Hilkhot Tsiha Be-av), and others agree.

             The later Rishonim suggest an interesting compromise. The Mordechai (Ta’anit 637) writes:

On the Ninth of Av one is permitted to wear tefillin, as it is a form of “aveilut yeshana” (“old” mourning). However, R. Meir would not don tefillin, nor wrap himself with the tallit in the morning, because it says, “He has cast down from heaven unto the earth the beauty of Israel” (Eicha 2:1) – this is a reference to [one’s] tallit and tefillin. However, in the afternoon, he dons his tefillin and wraps himself in tzitzit.

Indeed, R. Meir ben R. Yekutiel Ha-Kohen of Rotenburg (1260 – 1298), a student of the Maharam of Rutenburg and author of the Hagahot Maimoniyot, reports that his teacher would wear tefillin in the afternoon.

The Shulchan Arukh (550:1) records that this is the prevalent custom.

            What is the basis for such a practice?  R. Chaim Yosef David Azulai (1724 – 1807), commonly known by the acronym of his name, Chida, explains that in the morning of Tisha Be-Av, we observe the practices of the first day of mourning, while in the afternoon we act like on the rest of the days of the mourning period (Birkei Yosef). In other words, the intensity of the mourning diminishes as the day progresses. Based upon our discussion in the shiur cited above, I believe we can suggest a slightly different approach.

            We noted that Tisha Be-Av is comprised of two distinct themes: It is both a ta’anit tzibbur and a day of aveilut. While these two aspects of Tisha Be-Av coexist, the theme of aveilut appears to dominate the morning experience; after midday, the intense aveilut wanes, and the ta’anit tzibbur emerges. For example, the keriat ha-Torah of Mincha is identical to that of a communal fast day.

            Ashkenazic communities follow the above custom regarding tefillin. In a previous lecture, we discussed the problem of reciting keriat shema and shemoneh esrei without wearing tefillin. Thus, the Be’er Heitev cites those who would pray at home on Tisha Be-Av, while wearing their tallit and tefillin, and then come to synagogue to recite kinot. Furthermore, many report that the custom of the Kabbalists of Jerusalem, as established by the R. Sar Shalom Sharabi (1720 – 1777), the Rashash, Rosh Yeshiva of the [Kabbalist] Beit El Yeshiva, is to wear tallit and tefillin for Shacharit, even publically (see Yechave Da’at 2:64).

            It is also customary to wear and recite the blessing upon the tallit at Mincha. Some question whether one who removed his tallit katan (“tzitzit”) the previous night should wear them until Mincha without a blessing or recite the blessing on them in the morning (Mishna Berura 555:2). Some suggest sleeping in one’s tzitzit in order to avoid this dilemma.