QUARRELING FAMILY AND SHIVA

QUESTION:

The deceased had lived in his sister’s house. Before the funeral, a dispute arose between his sister, with whom he had lived, and his married daughter. Each insisted that the undertaker should announce that the minyan and the shiva would take place in her house. The sister based her claim on the fact that her brother had lived with her, and the daughter based her claim on the fact that she had paid for her father’s funeral. Which of these two has the right to have the minyan and the shiva in her house? (Asked by Rabbi M. Robert Syme, Detroit, Michigan.)

ANSWER:

NOWADAYS, IN MANY households, Reform and also Conservative, the traditional seven days of mourning, the shiva, is no longer fully observed. Instead of the family remaining home for the full seven days for minyan services and to receive the condolences of friends, most “shiva” nowadays lasts for one or two days; sometimes (in fact increasingly) the family receives visitors before the funeral at the undertaker’s parlor, and that is all. Thus it is somewhat surprising, what with shiva being observed less and less strictly, that there should be family disputes as to where it should be held. Nevertheless, 1 am informed that such family disputes occur with some frequency, and therefore the matter has to be gone into rather fully from the point of view of tradition. Is there any guidance in the traditional law or custom as to what is the proper locale for the shiva?

It is clear from the discussion in the Talmud (Shabbas 152a) that the proper place for the seven days of mourning is in the house of the deceased. The Talmud says that if a man dies and his survivor has no relatives left to comfort him, then ten men shall be appointed to go to his house to comfort him. Rashi says more specifically: “to the house where the man had died.” This Talmudic statement is repeated as law in the Shulchan Aruch (Yore Deah 376:3), which adds that they should come to the house for the seven days of the mourning and that other people also come. Evidently, then, in case a man had no relatives, these ten members of the community were assigned for this special task, thus to ensure that there should not fail to be seven days of prayer in the house of the deceased. Isserles, in his note, says that the assigning of ten worshipers applies where a man has no close relatives to mourn for him, but if he has relatives (and friends), then of course this committee of ten is unnecessary. Then Isserles cites Maharil (the chief source of our Ashkenazic customs) to the effect that it is the established custom to have prayers with a minyan of ten all the seven days at the house where the deceased had died. (See also Aruch Hashulchan, Yore Deah 376:7, and Isserles, Yore Deah 384:3.)

This clear statement of the established custom, that the shiva and the minyan take place in the house where the deceased had died, is therefore referred to by Greenwald in his well-known compendium on funeral and mourning rituals, Kol Bo (p. 261). However, in his note (# 13 ) justifying this custom, he refers to sources that give a rather mystical explanation of why the minyan and the shiva should take place in the house of the deceased. This mystical explanation has its roots on the same page of the Talmud, that records the custom of a fixed minyan in the house of the deceased. Rav Chisda comments on the following verse from Job (14:22), which speaks of a man who has died as follows: “His flesh grieveth for him and his soul mourneth over him.” Although the text of the Talmud quotes only the first half of the verse, it is clear that Rav Chisda’s comment is based upon the second half of the verse. He says: “The soul of a man mourns for him for seven days.” The idea that a man’s soul mourns for him for the seven days of shiva is elaborated by Samuel Edels (Maharsha, s.v. “Misabelles”) in his compendium to the Talmud (ad l o c) . The idea is still clearer in the legal compendium of Abraham Danzig, Chochmas Adam (sec. 165, par. 11), who says that the grieving soul hovers in his house for seven days; then Abraham Danzig adds that the only consolation that comes to the unhappy spirit of the departed is that prayers are recited in his house for seven days, three times a day. Substantially the same statement was made in the six teenth century by Joshua Boaz in his Anthology of Halacha to Alfasi (Shilte Hageborim, at the end of chap. 3 of Moed Katan, p. 18 of the Vilna edition).

Of course this mystical idea of the unhappy spirit of the departed hovering in his home for seven days has a rational, psychological basis, namely, that it is in the home where the man has lived among his familiar surroundings that we are most conscious of his hovering presence, and hence this is the appropriate place for the shiva and the minyan. Thus law and folklore both agree that the minyan should take place in the family home of the departed.

This guideline was quite sufficient in the past, when it was generally in their own home that people died. But today it is no longer a helpful guideline since it is rather exceptional for a person to die in his home, although of course that does occur. Generally a person who dies, dies in a hospital or in a nursing home or in an old folks’ home. What, then, could it mean today that the sense of his presence hovers in the house where he died? Of course if there is still a family home and if the family is still living in it, one may say that the spirit of the tradition would indicate that even though the deceased did not actually die there, the sense of his presence is still there, and it is there that the shiva and the minyan should take place.

However, there are other elements in the traditional law on this matter that must still be considered. The Talmud (Moed Katan 21b-22a) discusses the counting of the seven days of mourning. This count may vary, depending upon the question of when the be reaved relatives had heard of the death. It often occurred, when close relatives lived in different cities, that the report of the death might come five or six days after the burial. When the relative hears of the death, even though it is, let us say, five or six days late, he observes the shiva in his place, beginning from the day that he heard the news. But suppose he travels to the city where his relative had died, and there shiva is already advanced three or four days before the shiva which he had already begun at home, does he follow his own counting of the seven days, or theirs? This, the Talmud says, depends upon where the “head of the household” (godol ha-bayis) is, or in the Shulchan Aruch {Yore Deah 375:2), “the head of the family” (godol ha-mishpocho). The “head of the household” generally (there are complicating exceptions) determines the count of the shiva. Therefore, besides the house where the deceased died, the presence of the godol ha-bayis is an element to be considered in the determining questions of the shiva (see also Eliezer Deutsch, Dudoye Ha-Sodeh # 31 and # 3 2, par. 3) .

The question, then, is exactly what is meant by “head of the household”? This question is discussed frequently and fully in the legal literature. One of the latest Halachic compendia, Mishmeres Shalom by Shalom Schachne Cherniak, has at least twenty-five separate paragraphs defining the identity of the “head of the household.” All the discussions ultimately rely upon the defintion given by the twelfth-century Spanish scholar Isaac Ibn Gayyat in his Sha’are Simcha (Avel # 2 6 8 ) . He says that the head of the household is the one upon whom the household depends and whom everybody follows. It may be a man or a woman. It may even be a young man, as long as he is over thirteen. Whoever is the effective leader of the household, he or she is the head of the household. The Spanish scholar Solomon ben Aderet, in his responsum #532, follows Ibn Gayyat and comes to the same conclusion. Therefore, there can be no question where the shiva must take place if both these criteria coincide, as they often do—namely, the house in which the deceased has died (or has lived), and the presence there of the ef-fective head of the household. (See also the full discussion of the determinatory presence of the “head of the household” in Aruch Hashulchan, Yore Deah 375:9 and 10.)

However, in the specific problem mentioned in the question here asked of us, there is a special difficulty: The house in which the deceased had lived is the house of his sister, but the daughter, having paid for the funeral, must feel that, practically speaking, she could be considered the “head of the household” and therefore the shiva should take place in her house. Unfortunately, these conflicting claims cannot be adjudicated easily. We do not know to what extent the sister, with whom the deceased had lived, was actually the head of the household, or whether the deceased had maintained the household. Nor do we know to what extent, if any, the daughter had helped maintain her father during his lifetime. Therefore, as to this specific problem, with all the vagueness involved in it, we can only come to the following conclusion: It often happens when a family is scattered (generally in separate cities) that shiva is observed in a number of places simultaneously. Therefore there is no harm if our modern partial shiva is observed here, too, in both places. Let the undertaker not announce any specific place for the shiva. The close friends of the sister will call on her, and the close friends of the daughter will call on her.

While this specific case, because of the various unknown factors involved, cannot be given a definite answer, our study of the question provides an answer for more average situations. The shiva should take place in the deceased person’s home, if there is still such a home and the family is still living in it. Otherwise (or in addition), where the effective “head of the household” is, there the minyan should take place.