בועל בעילת מצוה ופורש - קודם שיקבר המת אבל לאחר שנקבר לא כדאמרינן בסמוך דברים של צינעא נוהג ודייק לה מדקתני כל אותן הימים הוא ישן בין האנשים כו' מיהו מרישא דהכא לא ה"מ למידק דדוקא כשהמת בחדר הוא דשרי בעילת מצוה דמצי לדחויי דבועל בעילת מצוה היינו אפי' לאחר שחל עליו אבילות אבל קשה לרשב"א אמאי לא דייק מדקתני ופורש מכלל דנוהג דברים של צינעא מדלא התיר אלא בעילת מצוה דוקא ואור"י דהמ"ל פורש משום דם בתולים כדאמרינן בפ' תינוקת (נדה דף סה:) אבל מהוא ישן בין האנשים דייק שפיר דהוי משום אבילות דאי משום נדות כיון דבעיל אשתו ישנה עמו כדאמר רב יוסף בסמוך ועוד דכל אותן הימים משמע דבכולהו הוי חד טעמא דהיינו משום אבילות והשתא מקילינן טפי באנינות דאורייתא מבאבילות דרבנן מידי דהוה אנעילת סנדל ועטיפת הראש וכפיית המטה: And [the groom] cohabits [with the bride to fulfill the] mitzva, and [then he] separates [from her]. When the father of the groom or the mother of the bride suddenly passes away on the day before a wedding is scheduled, the corpse is placed in a room and the couple proceeds to the Chuppah. The Chosson then performs the mitzvoh cohabitation and immediately separates from her.
In order to understand this Tosfos properly we must be aware of some general principles about the laws of mourning. See Artscroll 3b, notes 31 – 33. When a parent or any of the seven relatives dies, one immediately becomes an onain. This is the period preceding mourning. He may wear shoes and do anything else usually forbidden during the shivah, because the shivah has not yet begun, with the exception of cohabitation. During the period of onain one is exempt and prohibited from performing all positive mitzvot of the Torah. He must involve himself with the needs of the departed.
Once the departed is laid to rest, the period of mourning begins. One may not engage in marital relations during the seven days commonly known as shivah.
If a close relative dies during one of the holidays the shivah is postponed until after the holiday. The same rule applies when a relative dies during the week following a wedding. It is a personal holiday for the bride and groom and they will postpone their mourning until after their holiday. If the relative of the groom or bride dies during the week before the wedding and the period of mourning has already started when the wedding was to take place, the wedding will be postponed until after the shivah.
The situation our Gemara is discussing is one where the mourning has not yet begun because the departed has not yet been buried. Due to the financial loss involved with postponing the wedding, the Rabonon permitted one to start the period of rejoicing for the marriage before the period of mourning. The Gemara says that the bride should be brought to the Chuppah before the burial, thus officially starting the week of rejoicing. When the relative is buried later, which usually ushers in the period of mourning, the personal holiday has already begun and the mourning is postponed until after the holiday of the bride and groom.
The Baraisa also says that prior to the funeral the Chosson cohabits with the Kallah and then separates from her. This is a special leniency because of the situation, for usually cohabitation is prohibited during the onain period. Tosfos will examine the exact meaning of these words in the context of how they are analyzed later in the Gemara.
Tosfos explains that the mitzvoh cohabitation must take place, before the deceased is buried, but not after the deceased is buried, as [the Gemara] will soon say that although the laws regarding public displays of mourning are not in effect during the week of rejoicing, the prohibition of private matters, i.e. marital relations, is in effect. Hence, if the mitzvah cohabitation was not performed before the burial, it could not be performed after the burial when the laws of mourning for private matters go into effect.
The Baraisa later says that after the burial seven days of rejoicing are followed by seven days of mourning and during all those days the Chosson sleeps among men and the Kallah sleeps among ladies. They are not allowed to cohabit after the mitzvoh cohabitation and special arrangements are made to avoid the possibility of a violation.
[The Gemara] deduces this from the Baraisa’s teaching: all of those days of rejoicing and mourning, [the Chosson] sleeps among the men etc. [and the Kallah sleeps among the ladies]. This precaution is taken in order to avoid a possible violation of the ban on cohabitation during this period. In any case we see that even during the week of rejoicing when public displays of mourning are suspended, cohabitation is forbidden.
Tosfos will now scrutinize the sentence we are presently discussing “and he performs the mitzvoh cohabitation and separates” and see why a ban on cohabitation cannot be deduced from this sentence, which appears earlier in the Baraisa. However, from this first sentence of the Baraisa that says we place the deceased in a chamber and the Chosson performs the mitzvoh cohabitation, [the Gemara] could not have deduced that it is exclusively when the deceased is in a chamber, and not yet buried, that mitzvoh cohabitation is permitted but not after the burial. For [the Gemara] could have deflected this deduction by saying that the intent of the Baraisa is that [the Chosson] may perform the mitzvoh cohabitation even after the mourning period is in effect.1See Tosfos HoRosh who explains that our Baraisa does not clearly say when the burial takes place. One can say that the intent of the Baraisa is that the decease is buried and then the Chosson performs the Mitzvah cohabitation even though the period of mourning has already begun.
This deflection is valid when we are analyzing the first part of the sentence, which says that the Chosson performs the mitzvoh cohabitation. However when considering the last ruling in this sentence: “and he separates”, it seems evident that it is forbidden for him to have relations with his wife after the mitzvah cohabitation.
However, Rashbo finds this point difficult! Why doesn't [the Gemara] deduce that cohabitation is forbidden for the new couple from the statement of the Baraisa “and he separates”? Since the Baraisa only permitted the mitzvah cohabitation, it is inferring that the ban on private matters, i.e. cohabitation, is in effect. If so, why doesn't the Gemara deduce from this ruling that private matter such as cohabitation are usually forbidden even during a holiday? Why is the Gemara quoting the next sentence of the Baraisa as proof that private matters are forbidden when this can be deduced from the earlier sentence of the Baraisa?
Tosfos will now inform us that there may be another reason why the Chosson must separate from the Kallah after the mitzvah cohabitation which is unrelated to mourning. This reason would explain the separation in the earlier sentence but not the extensive precautions required by the next sentence.
The Gemara in Masechet Niddah 65b discusses whether one is permitted to remain with his wife when she bleeds as a result of their first relations. The virginity blood is inherently unrelated to menstrual blood, but there is a possibility that perhaps there is menstrual blood mixed with the blood of the ruptured hymen. The Mishna in Niddah 64b unequivocally rules that one may continue to have relations with his newlywed wife throughout the entire first night. However, the Gemara there introduces a Baraisa that teaches that after the mitzvah cohabitation one must separate from his wife because of the remote possibility that she might be bleeding menstrual blood in addition to the blood of the hymen.
R’I says: That [the Gemara] could have said that the reason the Chosson must separate from his new wife is because of virginity blood that may be covering menstrual blood, as [the Gemara] says in Perek HaTinokes (Niddah 65b). Thus there is no indication that there is a prohibition on cohabitation during the week of rejoicing or on any other holiday.
But perhaps the ban that the Baraisa speaks of in the next sentence for “all those days” is also because of the virginity blood? However, from the ruling that [the Chosson] must sleep among the men, [the Gemara] correctly deduces that the ban on cohabitation is because of mourning, for if the separation is required because of menstruation, as soon as he cohabits with her, the rule is that his wife may sleep secluded with him and there is no concern that one may violate the ban on cohabitation with a Niddah as R’ Yosef will soon say. Ordinarily, after mitzvoh cohabitation one may seclude himself with his wife and there is no concern that they might violate the ban on cohabitation. It is only forbidden to seclude oneself with one’s wife when no mitzvah cohabitation has been performed. If we find in this Baraisa, that the ban on seclusion is in effect even after mitzvah cohabitation, it must be because of mourning. 2Tosfos is saying that when dealing with a possibility of menstrual blood mixed in with the blood of the ruptured hymen, the prohibition is treated severely and there is no concern that the newly married couple might violate the Rabbinic prohibition of cohabiting at this time. However, if the prohibition is because of mourning, precautions must be taken to avoid a possible infraction of the law. The Rabonon require that the new couple not be secluded together and that he sleep among the men and she sleep among the ladies. Maharsho raises a very strong question. According to Tosfos explanation that the first sentence requiring separation might be because of the virginity blood, in which case the couple may be secluded, why is the next sentence requiring separate sleeping quarters? We have just learned that when there is a possibility of menstruation, the Chosson and Kallah can be secluded together. Even though they might be suspected of violating the laws of mourning, at this time she has just had first relations and there is the possibility of her having menstruated. They are not suspected of violating the menstrual blood prohibition and there is no need to separate the couple. Maharsho suggest two approaches, the first of these he rejects:
A) The second sentence that requires separation is true only when the bride was a widow or did not bleed for whatever reason. Thus the sole prohibition would be because of mourning and there is concern that they might violate that transgression and separate sleeping arrangements are in order. Maharsho finds this solution difficult because it involves saying tat he two sentences of the Baraisa are not speaking about the same circumstances.
B) Maharsho writes that he understood from Rabbeinu Meir Halevi that our Baraisa follows the opinion of the Mishna in Niddah 64b which holds that one need not separate from his wife after the mitzvoh cohabitation and may remain with her the entire first night. If so, in the case of our Baraisa there is only the prohibition of cohabitation because of mourning and there is concern that the newlywed couple might violate it. You may ask: But Tosfos just said that the reason for the separation in the first sentence may be because of the virginity blood that might be covering menstrual blood. According to Tosfos this Baraisa is following the opinion that one may ordinarily not cohabit with his wife after the mitzvah cohabitation. How can we turn around and say that the Baraisa in the next sentence does not hold of this prohibition? After a close analysis you will see that Tosfos is saying that the first sentence could be understood as holding that there is a prohibition due to virginity blood. Thus there is no proof from the first sentence which requires separation that the reason for the prohibition is that private matters, i.e. cohabitation are prohibited during holidays. However, the next sentence which tells us of the requirement of separate sleeping quarters is proof that the reason for the prohibition in this Baraisa is because of mourning and it does not hold that ordinarily after mitzvah cohabitation one must separate from his newly married wife. Thus, the proof that private matters are prohibited during holidays is evident only from the second sentence but not from the first.
Furthermore, by using the words “all those days” to describe the period of rejoicing followed by mourning, it is to be understood that the reason for the ban on cohabitation during both periods is the same, which is because of mourning and not because of menstruation. She could be free from the menstruation by immersing in a mikvah after one week. During the second week cohabitation would be forbidden only because of mourning. So too, Tosfos holds the ban of the first week of rejoicing is due to mourning because this is a private matter and not because of menstruation.
According to Tosfos understanding we will reach an extraordinary conclusion. During the onain period which is to some degree one of Torah law,3See Zevachim 101a where the period of Onain is discussed in reference to eating the flesh of sacrifices and performing the service in the Holy Temple. These prohibition are derived from a verse in Vevorim 26, 14, where in reference to מעשר שני the torah says: לא אכלתי באוני ממנו I did not eat of [the מעשר שני] while I was an onain. it is permitted to perform the mitzvah cohabitation, but during the period of mourning, which is Rabbinic,4It is Tosfos opinion that there are no Torah laws for mourning. Even though the Torah does tell us of how Yosef mourned for his father, Yacov, for seven days, the Torah never specifically commands us to have a period of mourning. The Gemara in Moed Koton 20a does quote a verse in Amos 8, 10, that is used as a source for a period of mourning for seven days, this is not the equivalent of a derivation from the Torah and does not have the status of Torah law. performing the mitzvah cohabitation is prohibited. And now according to Tosfos explanation we are more lenient during the onain period which is prescribed by Torah law than in the mourning period which is fundamentally Rabbinic law.
There is however a precedent for being more lenient during the onain period than in the mourning period. As is the case with wearing shoes, covering the head and overturning the beds.5The practice of overturning beds and sleeping on the floor during shivah, while common during the era of the Mishna and Gemara, is no longer in practice. See the various Halachic authorities for the reason. All these demonstrations of mourning are permitted while an onain, but prohibited during mourning.
בעילת מצוה - קרי לה בעילת מצוה משום דכתיב כי בועליך עושיך ואמרי' (סנהדרין דף כב:) אין אשה כורתת ברית אלא למי שעושה אותה כלי וע"י כך מידבק בה ובאין לידי פריה ורביה ולהכי קרי לה לבעילה ראשונה בעילת מצוה: Mitzvah cohabitation. The first cohabitation of the Chosson and Kallah is called – mitzvah cohabitation. Why? [The Baraisa] refers to [first relations] as mitzvah cohabitation, because it is written in Yeshaya 54, 5, for he who cohabits with you fashions1Literally – makes you. The verse is speaking of the relationship of Hashem with the Jewish people when Moshiach comes. It is describing the intimacy of Hashem with his people. By using this simile of a husband cohabiting with his newlywed wife, we see that this intimacy results in a very special relationship. you.2Immediately prior to this explanation, the Gemara there compares a virgin to an unfinished utensil. By cohabitation her husband makes her a finished utensil. [The Gemara] says as an explanation of this verse in (Sanhedrin 22b): a woman makes a covenant only with he who fashions1Literally – makes you. The verse is speaking of the relationship of Hashem with the Jewish people when Moshiach comes. It is describing the intimacy of Hashem with his people. By using this simile of a husband cohabiting with his newlywed wife, we see that this intimacy results in a very special relationship. her into a utensil. As a result of [this covenant with her husband], he cleaves to her and they come to the fulfillment of the commandment of being fruitful and multiplying. For this reason [the Baraisa] refers to first cohabitation as mitzvah cohabitation.