Template:Tefillin for a Mourner

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  1. On the first day of Shiva, if the burial is on the same day as the passing, an Avel may not wear Tefillin, as the first day is most bitter.[1]
  2. If the burial is not on the day of passing, as is very common nowadays, many Poskim hold that the mourner is, in fact, obligated to put on Tefillin, while others firmly believe that he is still forbidden from doing so. According to those who hold one should wear them, one should do so in a closed room without a Beracha.[2] Among Sephardim the dispute is unresolved,[3] while among Ashkenazim most assume that the mourner is exempt the first day of mourning even in this case.[4]
  3. The Minhag is to wear Rabbenu Tam Tefillin during Avelut.[5]
  4. On the second day of Avelut a person should not to put on tefillin until after Netz Hachama.[6]
    1. The Basics
      The Gemara (Berachot 11a and 16b, Succah 25a, Moed Kattan 15a, and Ketubot 6b) learns from the fact that Hashem told Yechezkel to put on his Tefillin while mourning for his wife that a regular Avel may not do so.
      Elsewhere (Moed Kattan 21a), the Gemara presents two Machalokot between R' Eliezer and R' Yehoshua. In the first, R' Eliezer holds an Avel is prohibited from wearing Tefillin (Hanacha) until the third day, and R' Yehoshua holds until the second day. Additionally, R' Yehoshua holds that, if the Avel put on Tefillin on the days he's permitted to, if Panim Chadashot (people who have not yet been Menachem him) come to visit, he must take them off (Choletz). R' Eliezer, on the hand, holds that he does not need to (Eino Choletz). The Amoraim debate the final Halacha and conclude that the Halacha follows R' Yehoshua regarding Hanacha and R' Eliezer with respect to Chalitzah, once the Avel puts them on on the second day.
      Miktzat HaYom KeKulo and the Rishonim
      Seemingly, the Gemara is employing the Halachic mechanism of Miktzat HaYom KeKulo in allowing him to put on Tefillin only from some point on the second day. See the exact text of the Gemara and Rashi for a clearer picture.
      In codifying this Halacha, the Rif and Rambam (Hilchot Avel 4:9) only write that an Avel may not wear Tefillin on the first day and seem to make no mention of the second day. In fact, the Rambam's use of the words "ביום הראשון בלבד" seem to clearly indicate that he understood the Gemara in its most minimal sense.
      The Rosh (Moed Kattan 3:23) begins unsure if the Rif implies the Miktzat HaYom is implemented from Netz or from after davening. He concludes that the Miktzat HaYom is fulfilled from Netz.
      The Ramban (Torat HaAdam, Shaar HaAvel, Inyan HaAvelut 67) quotes the Raavad who holds that the Miktzat HaYom is only completed from after Shacharit. He also picks up on the lack of a second day in the Rif and explains that it must be the Rif held the Mikzat HaYom was fulfilled with the preceding night, making the entire second day appropriate for putting on Tefillin. He also quotes the Yerushalmi, which makes no indication that there should be a Miktzat HaYom in the first place. See also Rosh ibid 3:3.
      Regarding the need for a Miktzat HaYom in the first place, Tosafot (ibid) says it's a din MiDeRabbanan, and the Ramban (ibid) quotes the Raavad that it's lehashlim the Aveilut.
      The Tur (OC 38:5) quotes just the language of the Rif. The Beit Yosef extrapolates from the Rosh that, even though Laylah is Zeman Tefillin, since it's Assur to wear them at night, one needs a Miktzat HaYom during the day itself to be able to wear them. The Ran (Succah, on the Rif 11b), who quotes the Ramban above, on the other hand, must hold that even though Laylah is not Zeman Tefillin, it still counts for Miktzat HaYom, since the Avel is still prohibited from wearing them. See Rambam Hilchot Tefillin 4:10.
      In Yoreh Deah (388), the Tur paskens the Gemara as explained above and then says how Yesh Omrim the Miktzat HaYom is from after davening, and the Rif and Rosh paskened from Netz (see Bach). Here, the Beit Yosef is very terse and seems to even equate the Rosh with the Rambam (see Ohr Letzion vol. 1 OC Siman 6, as this could be an additional proof to his thesis).
      The Shulchan Aruch in Yoreh Deah paskens like the Rosh that the Miktzat HaYom is from Netz, as does the Ben Ish Chai (Shana Aleph, Chayeh Sarah 12).
    2. The Maharitatz (Chiddushim on Eizehu Neshech), quoted by Be'er Heitev (OC 38:5) and Pitchei Teshuvah (YD 388:2) holds that the reason why the Avel is not allowed to wear Tefillin on the first day is because it's Biblical, which is only when the burial and passing are on the same day. Therefore, when the burial takes place the next day and Avelut is subsequently rabbinic, the Avel is in fact obligated in Tefillin. The Taz (OC 38:3), Dagul Mervava, Birkei Yosef, and Mishnah Brurah disagree and hold that the mourner is exempt from Tefillin the first day.
      • The Acharonim have have a field day taking sides for or against the Maharitatz in this Machloket, the true scope of which is most suited for a Teshuva in Yabia Omer (vol. 2 YD Siman 27).
      • Among recent Achronim, the Ben Ish Chai (Shana Aleph, Chayeh Sarah 12; Od Yosef Chai, Vayera 11, 12, 45), Kaf HaChaim (OC 38:16), and Ohr Letzion (vol. 1, OC Siman 6) pasken against the Maharitatz. At the same time, due to the great number of Acharonim who do pasken like the Maharitatz (including R' Yitzchak Elchanan and the Chazon Ish, see Yabia Omer ibid for the full list), Rav Shlomo Zalman Auerbach (Halichot Shlomo: Tefillah, Perek 18, 5), Rav Ovadia Yosef (Yabia Omer ibid), and the Piskei Teshuvot (38, Seif Kattan 6) pasken that one should wear them privately without a Beracha. See Magen Avot (Lebhar, Yoreh Deah volume, Siman 388) where he brings the Moroccan Minhag not like the Maharitatz and claims the rest of the world holds that way, as well.
    3. See above note. Ben Ish Chai (Shana Aleph, Chayeh Sarah 12; Od Yosef Chai, Vayera 11, 12, 45), Kaf HaChaim (OC 38:16), and Ohr Letzion (vol. 1, OC Siman 6) hold that the mourner is exempt the first day either way, while Rav Ovadia Yosef (Yabia Omer YD 2:27 and Chazon Ovadia v. 2 p. 260) holds that they are obligated if the day of the death wasn't the same as the day of the burial.
    4. See above note. Mishna Brurah 38:16. Rav Schachter (Piskei Corona #23) writes that Ashkenazim follow the opinion that Avelut is derabbanan therefore, they are exempt on the first day either way.
    5. The Chida (Birkei Yosef) paskened that one shouldn't wear Rabbeinu Tam Tefillin, as it's a Machaloket HaMekubalim and Shev ve'al Ta'aseh Adif. The Ben Ish Chai (ibid and Od Yosef Chai Vayera 11, 12, 45) claims that the Minhag in Yerushalayim and Baghdad was like the Rashash to wear Rabbeinu Tam Tefillin. He concludes unlike the Chidah. This is also the opinion of the Kaf HaChaim (OC 38:21), who says that, among other considerations, based on the Siddur HaChidah and the fact that we wear them beTorat Chiyuv, the Avel should wear them. Rav Ovadia Yosef (Chazon Ovadia Avelut v. 2 p. 277) and HaRav David Yosef (Halacha Brurah 38:5:13) also pasken this way.
    6. Rav Schachter (Piskei Corona #23)