Ruling like the lenient opinion by Aveilus

Ruling like the lenient opinion by Aveilus:[1]

A known Talmudic[2] 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.[3] Some Poskim[4] 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[5], or Keriah[6], 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.[7] 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.[8] Furthermore, some Poskim[9] 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.[10] 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.[11]


The spiritual reasons for being lenient in Aveilus


The Sitra Achra has weakened:[12]

The reason we find, as the generations progress, a gradual tendency amongst Poskim to be lenient in different customs of mourning, is because the power of the Sitra Achra has been weakening. The laws of mourning help insure that the Sitra Achra does not receive a full nurturing from the death and hence since its power has gradually diminished, so too have the severity of the customs.

Assist the soul of the deceased and sweetens his judgment:[13]

The Rebbe stated that the directive of being lenient in the laws of mourning benefits not only the mourners but also the soul of the deceased, that in heaven they too be lenient in his judgment. This can be understood from the fact that the Torah itself instructs us to be lenient, and hence if the leniency receives the mandate of the Torah, certainly it is of benefit for the soul of the deceased. [From this it is also understood that leniencies which are not based on the Poskim do not benefit the deceased, and on the contrary.] Siding like the lenient opinions is of even greater importance today in the end of exile, as when Moshiach comes all the matters of mourning will be nullified.



[1] 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

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

[3] 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]

[4] 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]

[5] 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]

[6] 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]

[7] See Beis Yosef 396

[8] 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] 

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

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

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

[12] Shem Mishmuel Parshas Nasso

[13] 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”

Was this article helpful?

Related Articles

Leave A Comment?

You must be logged in to post a comment.