Responsa in a Moment: Vol. 10, Issue No. 8, July 2016
Question: Is it permissible to renovate or build a new building during “the nine days” which begin on Rosh Hodesh Av? Does is matter if the building is a Jewish school, a Bet Midrash or a synagogue?
Responsum: At the outset, I would like to stress the importance of the laws of Tisha B’av. On the one hand, I believe that it is very important to fast on Tisha B’av and to remember the Destruction in our day, even after the rebirth of the State of Israel and the reunification of Jerusalem. I have explained my reasoning in two other responsa and therefore shall not repeat those reasons here.(1) On the hand, there are many stringencies connected to “the three weeks” between the 17th of Tammuz and the 9th of Av, which were added in the Middle Ages by Aveilei Tziyon [= Mourners of Zion] and Ashkenazic rabbis, which have no Talmudic basis and which, in my opinion, there is no reason to observe.(2) Your question falls somewhere in the middle – there is a certain Talmudic basis not to build or renovate during the nine days, but the sources are inconclusive and some of the major Poskim [Decisors] ignored them.
In order to answer your question about Tisha B’av, we must first examine another topic. According to the Mishnah (Ta’anit 1:4-6), if rain did not fall until the 17th of Marheshvan, individuals would observe three fast days. If it did not rain until Rosh Hodesh Kislev, the Bet Din [Court of Jewish Law] would decree up to three sets of public fast days: 3, 3 and 7. The Mishnah continues (Ta’anit 1:7 = Bavli Ta’anit 12b):
If these [13 public fast days] passed and [the prayers of the people were] not answered, one decreases commerce, building and planting, betrothal, marriage, and greetings between one person and another, like people who are rebuked by God…
The Babylonian Talmud explains (Ta’anit 14b = Megillah 5b):
We have learned in a [brief] Beraita: “building” – building of joy, “planting” – planting of joy. What is building of joy? This is one who builds a wedding house for his son…
Pseudo-Rashi to Ta’anit explains: “a wedding house – to make his huppah [wedding canopy]”, but this, apparently, is not accurate. The expression “a wedding house for his son” also appears in Mishnah Bava Batra 6:4 (= Bavli Bava Batra 98b), and the Rashbam explains there: “who took a wife, and it is the custom of the father to make for his son a small yatzia next to his house [for the son and his wife]”. Yatzia is a small building next to a house (Mishnah Bava Batra 4:1). Thus, according to our Beraita, one decreases building a building of joy, i.e., a father does not build a small building next to his house for a newlywed son and his wife.
The Jerusalem Talmud also emphasized that the Mishnah is discussing a building of joy (Yerushalmi Ta’aniyot 1:8; Ms. Leiden, the Academy edition, col. 710; ed. Venice 64b; ed. Vilna 7a-b):
Rabbi Joshua ben Levi said: that is to say, a building of joy, but if his wall is goheh [= leaning over (3)], he tears it down and rebuilds it. Samuel said: כותלא דגנאי ביה kotla dignai beih [literally: a wall that he sleeps in].
The phrase in bold is difficult to fathom. Pnai Moshe (ad loc.) explained that Samuel meant “the wall of the house that he sleeps and lives in… this comes to exclude if he has [another] house to live in, and wants to renovate another house of his”. This is a problematic explanation for three reasons: First of all, most Jews in the Talmudic period were relatively poor; it’s hard to believe that Samuel is discussing a person who owns two homes. Second, it’s hard to believe that Samuel who lived in Babylon in the first generation of Amoraim intended to interpret the words of Rabbi Joshua ben Levi who lived in Israel at the same period of time. Indeed, the Talmud considers them Sages of equal standing (see Eruvin 82a at the top). Finally, Samuel did not say “the wall [of the house] that he sleeps in”, but “the wall that he sleeps in”, and people do not usually sleep inside a wall! One might suggest that that he was indeed referring to “a wall that he sleeps in” such as the casement walls found at Masada in which people actually lived, but this suggestion still does not solve the other two problems.
Therefore, it seems that there is a scribal error in the Talmud Yerushalmi, as usual in thousands of places in the Yerushalmi. In three places in the Yerushalmi the word gnun means huppah, wedding canopy. Prof. Saul Lieberman – who knew the Talmud Yerushalmi by heart – emended our text without comment: “כותלא דגנוניה kotla dignuneih, the wall of his huppah“. Indeed, this reading is hinted at in three different places.(4) According to this reading, Samuel the Babylonian did not come to interpret the words of Rabbi Joshua ben Levi, who was his contemporary in Israel, but they said similar things in different words: Rabbi Joshua ben Levi – a building of joy; Samuel – a wall of his huppah.
The major Poskim – Rif, Maimonides, Rosh, Tur, and Shulhan Arukh(5) – ruled according to both Talmuds that it is forbidden to build a building of joy in a year of drought after 13 fast days when no rain has fallen, but it is permissible to tear down and rebuild the wall of a house that is about to collapse. Rav Hai Gaon (died 1038), on the other hand, made a differentiation between optional building and building for the sake of a mitzvah, which is allowed even though it entails joy (Otzar Hage’onim to Ta’anit, Responsa, paragraph 40 = the Ran on the Rif, end of first chapter of Ta’anit, fol. 5b).
It should be stressed that all of these sources are not discussing the nine days at all; we have quoted them in order to understand the words of the Ramban and others which we shall quote below.
The source which seems to prohibit building during the nine days is a Beraita in Yevamot 43a (and 43b):
As we have learned in a Mishnah (Ta’anit 4:7): during the week in which Tisha B’av falls, it is forbidden to cut the hair and launder clothing, and on Thursday it is permissible because of the honor of Shabbat;
And we have learned in a Beraita: before this time, the people decrease their commerce, to build and to plant, and they betroth but they do not marry, and they don’t do a betrothal feast.
In other words, according to this Beraita, the people were accustomed not to build and plant before “the week in which Tisha B’av falls”. The Talmud does not define “before this time”, but Ramban (Nahmanides) explained (Torat Ha’adam, ed. Chavel, p. 244; and from there in Tur OH, beginning of paragraph 551): “in other words, from Rosh Hodesh [Av] until The Fast [=Tisha B’av]. This appears to be correct, according to the well-known Mishnah in Ta’anit (4:6 = Bavli Ta’anit 26b; and cf. fol. 29a at bottom): “When Av enters, one decreases joy”.
However, even though this is an explicit Beraita in Yevamot, many have emphasized that the Rif, Maimonides and the Rosh – the three most important Poskim according to Rabbi Joseph Karo in the introduction to his Bet Yosef – ignored this source and did not codify it (see Bet Yosef to Tur OH 551, s.v. v’nireh; and Arukh Hashulhan to OH 551:2). It could be that they did not codify this source because it is presented in the Beraita as a custom of the people and not as a ruling by one of the Sages of the Mishnah (see more about this below).
Ramban (Nahmanides) – who tended to be strict regarding the laws of Tisha B’av(6) – was apparently the first to rule strictly regarding building during the nine days (Torat Ha’adam, p. 244). After quoting the Beraita from Yevamot, he writes:
Yerushalmi… Rabbi Joshua ben Levi said: that is to say, a building of joy, but if his wall is goheh [= leaning over], he tears it down and rebuilds it.
At first glance it appears that Ramban is quoting Yerushalmi Ta’aniyot Chapter One which we quoted above in paragraph I, which discusses the customs of mourning after the 13 fast days, but this is not logical because the Ramban here is discussing the customs of mourning before Tisha B’av. Indeed, Rabbi Joseph Karo already emphasized (Bet Yosef to OH 551, s.v. v’ka’amar bayerushalmi) that the Ramban is actually quoting an identical passage which appears in Yerushalmi Ta’aniyot Chapter Four (Ms. Leiden, the Academy edition, col. 736 = ed. Venice 4:9, 69b; ed. Vilna 4:6, 25b). The Mishnah there says “when Av enters, one decreases joy” and the Talmud then quotes Rabbi Joshua ben Levi as quoted by the Ramban. In other words, the Ramban connected three sources: the custom of the people from Yevamot to decrease building before Tisha B’av, the mishnaic expression “when Av enters, one decreases joy”, and words of the Yerushalmi on that Mishnah that it is forbidden to build a building of joy, but it is permissible to tear down a wall that is about to collapse and rebuild it.
From the Ramban, this law entered the Tur – and most of the laws in the Tur related to mourning are based on Torat Ha’adam of the Ramban(7) – and the Tur then pulled into the discussion the sources from Bavli Ta’anit and Megillah quoted above in paragraph I. From there, the halakhah passed to Rabbi Joseph Karo, who ruled in Shulhan Arukh OH 551:2:
From Rosh Hodesh until The Fast one decreases commerce and building of joy, such as a wedding house for his son… and if his wall was about to collapse, even though it is a building of joy, it is permissible to build.
However, before we continue, it should be stressed that the words of Rabbi Joshua ben Levi and Samuel in Yerushalmi Ta’aniyot Chapter Four were merely copied from Chapter One as frequently occurs in the Yerushalmi,(8), and they are meaningless in their secondary context. We have learned in the Mishnah Ta’anit (4:6-7): “When Av enters, one decreases joy. During the week in which Tisha B’av falls, it is forbidden to cut the hair and launder clothing…”. On this, it is said in Yerushalmi Ta’aniyot Chapter Four: “Rabbi Joshua ben Levi said: that is to say a building of joy… Samuel said: the wall of his huppah [corrected as above]”. But “building of joy” is not mentioned in this Mishnah at all! Thus, it is clear that Rabbi Joshua ben Levi and Samuel are explaining the phrase “building of joy” which is mentioned in Chapter One, and not “joy” alone which is mentioned in Chapter Four. Indeed, the two classic commentaries on the Yerushalmi – Pnai Moshe and Korban Ha’edah – understood in Chapter Four that this passage was copied from Chapter One and both of them refer the reader to Yersuhalmi Ta’aniyot Chapter One.
In other words, the custom of not building during the nine days is based on the custom of the people in Bavli Yevamot and on the passage in Yerushalmi Ta’aniyot Chapter Four which was copied from Chapter One. Thus, it is not surprising that the Rif, Maimonides and the Rosh totally ignored this custom. Therefore, it is possible to rule that a person who wants to follow this custom may do so, but there is absolutely no halakhic obligation to do so.
On the other hand, a person who wants to be stringent according to the Ramban, the Tur and Rabbi Joseph Karo may forbid building a wedding house for his son, but it is permissible to build a house which is not a house of joy and to renovate a wall that is about to collapse.
The Aharonim [later Poskim] in Ashkenaz accepted the basic prohibition of Rabbi Joseph Karo as above but looked for additional leniencies. The Rema, Rabbi Moshe Isserles, adds in the laws of Tisha B’av (OH 551:2): “and for the sake of a mitzvah, everything is permissible” and the printer added in parentheses: “(Ran end of first chapter of Ta’anit)”. In other words, the Rema ruled thus in the footsteps of the Ran and Rav Hai Gaon quoted above, even though they ruled thus in connection with the 13 fast days and without any connection to Tisha B’av.
Rabbi Avraham Gumbiner quoted the stringency of the Ran “that any building that he doesn’t need, just for general comfort, is forbidden” (Magen Avraham ibid., subparagraph 7) but then added: “and it appears to me that a synagogue is a mitzvah of the public and is permitted”. Rabbi Yisrael Meir Hacohen also added a leniency, regarding a wall that is about to collapse, on the basis of the Taz: “and even if it is not dangerous… but one can worry about monetary loss… even so he may build even though it is a building of joy, since he is not doing it for joy but because of [monetary] loss” (Mishnah Berurah ibid., subparagraph 13).
Finally, we have the lenient approach of Rabbi Yehiel Mikhl Epstein in the Arukh Hashulhan (OH 551:2). As we have seen above, he asks why Maimonides. Rif and Rosh ignored the Beraita in Yevamot. He replies that it is possible to say that since we learned there
“the people decrease their commerce” and we did not learn “it is forbidden to engage in commerce, [to build and to plant]”, as we learned in that [Mishnah]: “during the week in which Tisha B’av falls, it is forbidden to cut the hair and launder clothing”… — learn from this that this is not the law but they observed this custom of their own volition, and where it is customary it is customary, and where it is not customary, it is not. And, according to this, it is alright that in our time they do not know about this prohibition at all, and they engage in commerce and they build and they plant and important poskim were already surprised about this… and according to our explanation, all is well.
It seems, therefore, that there are at least three approaches to building and renovations during the nine days:
Personally, I think that approach number I is correct and that it is permissible to build and to renovate without any restrictions during the nine days, but a person who wants to be strict has on whom to rely.
May it be God’s will that just as we have merited the beginning of the Redemption — the founding of the State of Israel, the Ingathering of the Exiles, and the Reunification of Jerusalem — so may we merit the complete redemption, as described by the Prophet Zekhariah (8:19):
Thus said the Lord of Hosts: The fast of the fourth [month] and the fifth and the seventh and the tenth shall become occasions for joy and gladness, happy festivals for the House of Judah; but you must love truth and peace!
16 Tammuz 5776
All four volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.
David Golinkin is President of The Schechter Institutes, Inc. and President Emeritus of the Schechter Institute of Jewish Studies. For twenty years he served as Chair of the Va’ad Halakhah (Law Committee) of the Rabbinical Assembly which gives halakhic guidance to the Masorti Movement in Israel. He is the founder and director of the Institute of Applied Halakhah at Schechter and also directs the Center for Women in Jewish Law. Rabbi Professor Golinkin made aliyah in 1972, earning a BA in Jewish History and two teaching certificates from The Hebrew University in Jerusalem. He received an MA in Rabbinics and a PhD in Talmud from the Jewish Theological Seminary of America where he was also ordained as Rabbi. For a complete bio click here.