Not To Eat Ma’aser Sheni While an Onen

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by R. Gidon Rothstein

Our mitzvah might seem ho-hum, because we have not eaten ma’aser sheni in many centuries.  Still, the aspect of aninut sheds light on two realms, mourning and the experience of sanctity.

Ma’aser Sheni and Aninut: Getting Our Terms Straight

Rambam’s Prohibition 151 starts with the basics, Jews may not eat ma’aser sheni while in aninut. Pause to define terms, the easy then the hard. Ma’aser sheni is a second tenth of one’s harvest (after terumah is given to a kohen and a first ma’aser to a Levi), to be taken to Jerusalem and eaten there, in years one, two, four, and five of the shemittah cycle (in years three and six,  this ma’aser is given to the poor instead, ma’aser oni).

Now the harder word, which Rambam does not define here, but Sefer HaChinukh 608 does, aninut. In Rambam’s view, the beginning of Emor taught us a Jew has a Biblical obligation to mourn seven relatives—parent, sibling, child, spouse—shown by the Torah’s commanding a kohen to incur tum’a while involved in burying them. The day any such relative passes away and is buried (Minchat Chinukh is sure “buried” is an error, that Torah-level aninut happens the day the relative passes away, regardless of burial), the relative is an onen.

(This definition includes in aninut a time we usually call avelut, mourning; in our usage, aninut is before burial, and Sefer HaChinukh mentions that time period as rabbinic aninut, along with the night after the person’s burial).

The Verses

We know the onen cannot eat ma’aser sheni because when the Torah gives the formula for a Jew to declare his having fulfilled the laws properly, it has him say, 26;14, I did not eat of them while an onen.  Nor is the rule limited to bikkurim and/or ma’aser, Zevachim 101a applies it to all kodashim, all items eaten as part of the connection to Temple service. For other kodashim, too, we have Vayikra 10; 19, where Aharon defends not eating sacrificial meat with the fact that he has just lost his sons.

Sefer HaChinukh says this last verse also teaches aninut only applies if the person passed away during the day. While a person who passed away at night and is buried the following day has passed and been buried on the same day, the relatives will not be Biblical onenim.

The Punishment

Rambam, followed by Sefer HaChinukh, treats this as an ordinary lav, one a determined sinner could maneuver a court into giving lashes over. Ramban, in his glosses to Rambam’s Shoresh 8, Rule 8 for how to determine the identity and nature of Biblical mitzvot, thinks this should be a lav ha-ba mikhlal aseh, a prohibition inferred from a positive requirement, the requirement to assert we had not eaten it in this state. Such inferred rules never receive lashes, Ramban argues.

Minchat Chinukh offers support for the extension of lashes to sacrifices, based on the logical extension (kal va-chomer ) from ma’aser; if something as relatively lenient as ma’aser earns lashes, sacrifices certainly should.  Usually we do not infer punishments based on a kal va-chomerein onshin min ha-din, but Semag thought Bamidbar 18;8 already established an aseh to eat sacrifices when not a mourner (the key word is le-moshchah, being used here in the sense of being anointed or exalted for higher office, implying not while downtrodden or depressed by loss).

Once we already have an asehMaggid Mishneh had argued that a kal va-chomer could bump it up to a lashes lav.


Minchat Chinukh offers a surprising distinction between the two views. In most lavin, prohibitions, the item is also considered assur be-hana’ah, proscribed from benefit. For Ramban (and Semag), the owner of the ma’aser sheni or sacrifice could benefit from them while in Biblical mourning.

Rambam and Sefer HaChinukh would disagree, he suggests, although he is not certain. The idea starts with a principle of R. Avahu in Pesachim 21b, who held any eating prohibition in the Torah generally includes a prohibition against benefit, unless stated otherwise. Here, of course, the Torah didn’t say not to eat it, it retrospectively revealed the person would have been wrong to eat it, yet Minchat Chinukh thinks Rambam and Sefer HaChinukh would still have applied the idea.

Ok, But Why?

Sefer HaChinukh offers two reasons it would be improper for a mourner to eat sacrificial meat. Although both focus on his/her frame of mind, the problem with the mourning state rests in different places.

First, all eating of sanctified food partakes of God’s table, as it were (although this includes ma’aser sheni, which looks much more like regular eating; we come to Jerusalem with produce or the money by which we redeemed the produce, and eat it anywhere we want). To come to God’s table while burdened and suffering (he writes do’eg ve-ko’ev, more literally translated as “worrying and in pain”) does not fit with the royalty of the Table, similar (the example is his) to how Ester reminds Mordechai no one was allowed in the king’s court wearing sackcloth.

The second version also sees a problem with the person’s state of mind, only in this version because the eating brings kapparah, atonement or restoration of one’s relationship with God. A joyful event, it should occupy the entirety of the person’s focus and intent, an impossibility for a person who has suffered a new loss (here, he speaks of tza’ur, distressed, do’eg, worried, ve-chared, and afraid; he does not explain why these are the likely emotions, so I will leave it for another venue).

A mitzvah on two tracks, then, most directly about ma’aser sheni and kodashim, putting this second tithe into the framework of sanctified eating, and therefore not properly eaten in a time of sadness and sorrow. In setting up this rule, though, the mitzvah gives us a glimpse into the Torah’s idea of mourning, a reminder that the Torah, too, expected people to mark the passing of close loved ones, and the elements of that attention necessitated staying away from kodashim.

[An aside of my own: if aninut only happens with the burial of the relative, the onen should already be unable to eat the ma’aser because s/he is tamei, has had contact with the deceased. Our discussion seems to accept Rambam’s view, Evel 2;6, the obligation to have physical contact with the deceased, become tamei, only applies to kohanim, because they are generally not allowed to have such contact.]

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