אימתי מתחיל האבילות ולמי שמפנין מקבר לקבר. ובו י"א סעיפים:
מאימתי חל האבילות משנקבר ונגמר סתימת הקבר בעפר מיד מתחיל האבלות ומעטף ראשו אבל אינו חולץ מנעליו עד שיגיע לביתו (רמב"ן) ועכשיו נוהגים לחלוץ מנעל אחר סתימת הגולל מיד כדאיתא בסימן שע"ו: הגה (וע"ל סימן שע"ב) היה סבור שנסתם הקבר והתחיל להתאבל ואחר כך נודע לו שטעה חוזר ומתחיל האבלות מחדש (הרא"ש כלל כ"ז):
From what time does the mourning [-period] take effect? — As soon as [the corpse] has been buried and the closing of the grave with earth has been completed, the mourning [-period] commences forthwith.1M.K. 27a in accord with R. Joshua. The meaning of ‘closing of the tomb by the Golel’ is adopted here in accordance with the interpretation of R. Tam contra Rashi (v. supra § 373, 6 and notes). Cf. Ber. 19b, Tosaf. s.v. מדלגין; Shab. 152b, Tosaf. s.v. עד; Ket. 4b, Tosaf. s.v. עד; Suk. 23a, Tosaf. s.v. ולא; San. 47b, Tosaf. s.v. משיסתום; Sem(H). IV, 7; X, 9; Mid. Sh. Tob Ps. XVI, 3: ‘“As for the holy that are in the earth,’ (The patriarchs) were called ‘holy’ only after they died, and the top-stone (Golel) closed the grave.” Thus also Asheri and Tur on the authority of the Geonim. also Yad, Ebel I, 2 and N in T.H. He [the mourner] wraps his head [in mourning]2 M.K. 24a. but does not remove his shoes until he reaches his house.3N in T.H. — G. Y.M.K. III 5(82d); Y.Ta‘an. I, 6(64c); Y.Ber. II, 7(5b); Y.Yoma VIII, 1(44d); Ta‘an. 13a; M.K. 15b; Sem(H). V, 12. The Codifiers also refer to Tosef. as one of the sources for this ruling. W.G. states that this is not found in our edition of Tosef. however, Tosef(Z). Ta‘an. I, 6 where this ruling is found. Cf. infra § 382, 4. Now it is customary to remove one's shoes [in mourning] immediately after the closing of [the grave] by the Golel4 Glos. as stated in § 376. Gloss:5 supra § 372, 1 — G. The reason why Isserles refers to § 372 may be as follows: For it is explained (ibid.) that human dignity (in proper appearance) is very important. Hence, only on the cemetery grounds the mourner should remove his shoes, but when he returns to his home he should put them on, since it is disgraceful to walk barefooted outside — A.H. It is, however, quite possible that the reference § 372 is a misprint and should be § 373 in which par. 6 deals with the defilement of a Kohen for his near-of-kin which is permitted until the closing of the tomb by the Golel. According to Tosefeth Shabbath it should read infra § 382 which see. If one thought that the grave had been closed and commenced to observe mourning rites and later it became known to him that he was mistaken, he begins the observance of mourning rites anew.6Asheri Rule 27, s. 8 — G. Cf. supra § 340, 25. Here we deal with a case where one commenced the observance of mourning rites during the day and later he discovered that the burial had actually taken place at night. Consequently, the day cannot be counted as one of the seven days of mourning — A.H. Regarding the recital of Kaddish, v. infra § 376 difference of opinion between TaZ and ShaK.
מי שדרכן לשלוח המת למדינה אחרת לקברו ואינם יודעים מתי יקבר מעת שיחזרו פניהם מללוות מתחילין למנות שבעה ושלשים ומתחילין להתאבל (ל' רמב"ם פ"א מה"א ד"ו) וההולכים עמו מונים משיקבר ואם גדול המשפחה הולך עמו אף אלו שבכאן אינם מונים אלא משיקבר וגדול המשפחה דהיינו דביתא סמוך עליה וגרירי כולהו בתריה לא שנא אח לא שנא בן קטן ויש מי שאומר והוא שיהא בן י"ג:
Those who are wont to send the corpse to another large town for burial and they know not when he [the corpse] will be buried, — [the law is that] as soon as they [the mourners] turn their faces [to come back] from escorting [the corpse], they begin to count the seven and thirty [days of mourning] and commence [forthwith] the observance of mourning rites,7Yad, Ebel I, 5 — G. Derived from M.K. 22a in accord with Raba. This ruling applies only where they sent the corpse for burial in another city, but if the burial takes place on the outskirts of the same city, the law is that those who return from the city gates, commence their mourning rites only after they are informed that the corpse had already been buried. Thus N in T.H. and B.Yos. — ShaK. However, if after returning from the city gates where the corpse was buried on the outskirts of the city, they removed their shoes and commenced the observance of mourning rites, and later, after nightfall, those who accompanied the corpse to the graveyard, returned and reported that the corpse was interred when it was still day, the law is that although the mourners commenced their mourning whilst being unaware of the time of burial, the day is regarded as part of the mourning period. This follows from Isserles ruling supra par. 1, where one is required to begin the observance of mourning anew, only when he discovered later that he was mistaken, from which it follows, that if subsequently, as in the present case, it was found that mourning rites began at the proper time, the mourning already observed counts as part of the required period — P.Tesh. and those who accompany8Lit. ‘go.’ him [the corpse], count [the days of mourning] from [the time] that he is buried. However, if the chief of the family accompanies him [the corpse — the law is that] even those who remain here, count only from [the time] he is buried.9Y.M.K. III, 5(82c) cited by Tosaf. M.K. 22a s.v. (מהדריתן) and Asheri ibid., although both had different readings in Y. There are three interpretations on this ruling, viz., a) Asheri followed by Tur: If the chief of the family remains here, then even all those who accompany the corpse to the burial place, count the period of mourning from the time that the corpse leaves. If, however, the family chief accompanies the corpse, then even those who remain at home count from the time that the corpse is interred. b) Tosaf. adopts a stringent view, viz., that if the family chief accompanies the corpse, everyone counts from the time of burial (similar to Asheri), but if he remains here, then those who remain with him commence the observance of mourning forthwith, and those who accompany the corpse are required to begin the observance of formal mourning from the time of burial. However, those who accompany the corpse should observe some mourning rites forthwith out of respect to the family chief, although the seven day period of formal mourning begins for them after burial. c) Caro: If the chief of the family accompanies the corpse, then even those who remain here count from the time of burial, from which it follows that if the family chief remains here, we revert to the first ruling recorded at the outset of this par. viz., that those who remain here begin to count the seven days of mourning forthwith, and those who accompany the corpse from the time of burial. Hence, Caro’s interpretation is in accord neither with a) nor b). For according to b) even if the family chief remains here, those who accompany the corpse, it is true, commence the observance of formal mourning from burial, but they are also required to observe some mourning rites forthwith out of respect to the family chief, and according to a) if the family chief remains here, then all, — even those who accompany the corpse, begin the counting of the seven days of mourning from the time the corpse leaves. Caro’s interpretation may be the result of a) a different reading in Y. ibid., or b) he follows Maim. in Yad ibid. and makes no distinction regarding the family chief and consequently does not take into consideration the stringency of Tosaf. — ShaK. A.H. Caro’s ruling, viz., that when the family chief accompanied the corpse, even those who remain here count from the time of burial, applies only if the family chief will reach the burial place within three days, otherwise they begin counting forthwith and the family chief from burial (v. M.K. 22a) — ShaK. infra § 399, 14 where Caro rules that ‘one who suffered a bereavement on the eve of a Festival day and he was afraid lest he have not sufficient time to bury the corpse prior to the advent of the Festival whilst it is still day and gave the corpse over to Gentiles to attend to the burial, the law is that as soon as they carry the corpse out of the city and he can no longer be seen by the near-of-kin, mourning takes effect upon him, and if it is one hour prior to the Festival and he observed mourning rites therein, the restrictions of the seven days become annulled although he was buried on the Festival proper.’ This means that even if the corpse was buried on the Festival, in which case mourning is usually postponed until after the Holiday period is over, yet, since the corpse was transferred to the Gentiles prior to the advent of the Festival, it is considered as if the burial had taken place before the Festival and the seven days of mourning become annulled. This presents a difficulty. For in the present ruling it is implied (v. supra n. 7) that if the burial takes place on the outskirts of the city, the mourning period begins from the time of burial. How is it possible for Caro (infra § 399) to rule that the entire period of mourning becomes annulled even if the burial attended to by the Gentiles took place after the advent of the Festival? This apparent contradiction is removed only if we assume that Caro holds that in the case of a Festival the law is different, since from the moment the Jew transfers the corpse to the Gentiles for burial we regard the corpse as having been already interred which is similar to the case of one who is taken out for burial to another city where mourning rites begin from the moment they turn away their faces — D.Merb. The chief of the family10M.K. 22a. means the one upon whom [the people of] the household depend and who are guided by him, irrespective whether he is a brother or a young son.11Thus Asheri, Tur a.o. If one’s wife dies, the husband is regarded as the chief of the family — ShaK. However, there is one authority who says that he must be [at least] thirteen years old.12B.Yos on the authority of Hag. Maim. and SeMaK.
אם מפנין את המת מקבר לקבר אם קברוהו בקבר ראשון על דעת להיות קבור שם עולמית אלא שאח"כ נמלכו לפנותו משם אין מונין לו אלא משיקבר בקבר ראשון אפי' פינוהו תוך ז' אבל אם בתחלה קברוהו על דעת לפנותו כשיזדמן להם מתחילין אבלות מיד ואם פינוהו תוך שבעה חוזרין ומונין משיקבר שנית ואם לא פינוהו עד לאחר שבעה כבר עבר אבילותם ואין מתאבלים עליו פעם אחרת ואם מתחלה היה דעתם לפנותו משם תוך שבעה אין מתחילין למנות עד שיקבר בקבר השני:
If they remove the corpse from one grave to another grave, — [the law is that] if they buried him in the first grave with the intention that he remain buried therein forever, only that subsequently they decided to remove him therefrom, they count [the days of mourning] only from the [time] that he was buried in the first grave, even if they removed him within the seven [days of mourning]. But if at the outset they buried him with the intention to remove him [therefrom] whenever the matter will come to hand, they commence the mourning [-period] forthwith; if, however, [in this case] they removed him within the seven [days of mourning], they [begin to] count again [the seven days of mourning] from [the moment] that he is buried a second time. If they did not remove him until after the seven [days of mourning, then] their mourning [-period] has passed, and they do not observe mourning for him a second time;13Y.M.K III, 5(82c) quoted by Asheri M.K. III and N in T.H. and if at the outset their intention was to remove him therefrom within the seven [days of mourning], they do not begin to count until he is buried in the second grave.14Asheri ibid. regarding the death of R. Kolonymos, the Elder, of Speyers. Cf. also Sem(H). X, 8 and references.
אם נתנו המת בארון ונתנוהו בבית אחר לפי שהיתה העיר במצור מונים לו מיד שבעה ושלשים אע"פ שדעתם לקברו בבית הקברות אחר המצור וסתימת ארון הוי כקבורה וחל עליהם אבילות מיד:
If they placed the corpse in a coffin and put it15The coffin. into another house because the city was under siege, they [should begin to] count for him forthwith the seven and the thirty [days of mourning], although their intention is to bury him in the cemetery after the siege [is over] and the closing of the coffin [in this case] is regarded as burial16Cf. Sem. and Asheri ibid. Although the law is that mourning takes effect only after burial (v. supra par. 1), in the case of a besieged city it is different. Hence, as soon as the closed coffin is placed in another house, this is considered its burial and is comparable to the ruling (v. infra par. 5) where hope was abandoned to bury the corpse, despite the fact that the mourners still entertain the hope of burying the corpse in the cemetery after the siege is lifted, for there is the possibility that the city might be conquered, and consequently, the corpse will have to remain in this condition — ShaK. This applies even if the siege was over within the seven days of mourning, at which time interment was made in the cemetery grounds — A.H. and mourning rites become effective upon them forthwith.
הרוגי מלכות שאין מניחים אותו ליקבר מאימתי מתחילין להתאבל עליהם ולמנות ז' ושלשים משנתיאשו לשאול למלך לקברן אע"פ שלא נתיאשו מלגנוב אותם:
Those executed by the government17Yad, Ebel I, 3; Sem(H). II, 9. who are not permitted [by the ruler] to be buried, — when does one begin to observe mourning rites for them and to count the seven and thirty [days of mourning]? — From [the moment] that they have given up hope to [continue] to request the ruler's [permission] to bury them,18And it matters not whether they had abandoned hope of recovering the body within or after the thirty days of mourning — ShaK. although they have not given up hope of carrying them off stealthily.19Thus accrding to the reading of W.G. in Sem. ibid. contra Mord. B.Yos. supra § 345, 2 and D.M. ibid. For it is very unlikely to succeed in stealing the corpse. Furthermore, one endangers his life thereby and may be led to profane the Sabbath on account of this. Cf. supra § 341, 4 regarding Aninuth rites in such a case.
מי שהודיעוהו שצלבו עובדי כוכבים קרובו בעיר אחרת ונהג אבילות מיד ואח"כ נודע לו שעדיין עומד בצליבה אותו אבילות לא עלה לו וחוזר ומונה משיקבר או משנתיאשו מלקברו: (דעת ר"י ורמב"ן):
One who was informed that heathens have impaled his near-of-kin in another town and [as a result of which] commenced the observance of mourning rites forthwith, but subsequently it became known to him that he20His near-of-kin. is still awaiting impalement, — [the law is that] the mourning rites [already observed] do not count for him [as valid] and he must count again from [the time] that [the corpse] is buried or from [the time] they have given up hope of burying him.21Opinion of RI and N in T.H. — G. Cf. supra § 341, 4 and notes.
מי שטבע במים שיש להם סוף או שיצא קול שהרגוהו לסטים או שגררתו חיה מאימתי מונים משנתיאשו לבקש מצאוהו אברים אברים ומכירין אותו בסימני גופו אין מונין לו עד שימצא ראשו ורובו או שנתיאשו מלבקש (ברייתא מביאה רמב"ן) ואם נמצא אחר שנתייאשו ממנו אין הקרובים צריכים לחזור ולהתאבל אלא הבנים אם הם שם בשעה שנמצא מתאבלים אותו היום דלא גרע מליקוט עצמות אביו אבל אם אינם שם ושמעו אחר שעבר היום אין צריכין להתאבל: הגה אם שלחו מתיהם לעיר אחרת שדינם להתחיל האבלות משיחזרו פניהם והתחילו למנות האבלות ואחר כך נתפס המת ולא ניתן לקבורה זמן ארוך אין צריכין להפסיק אבלותן ואין צריכין לחזור ולהתאבל אחר כך דמאחר שדינם להתחיל מיד אין צריכין להפסיק (מרדכי סוף מ"ק):
For one who drowned in waters22Sem(H). II, 10; Y.M.K. III, 5(82a); M.K. 17b, Tosaf. s.v. כשחל; Asheri ibid. that have an end,23The shores of which one can see from all sides. Thus on the authority of Alfasi. For if the person drowns in waters that have no end, we do not permit his wife to remarry, since the presumption is that he is still living. Hence, no mourning would be observed in such a case. Cf. E.H. § 17, 5 Gloss. also ShaK and TaZ. Others maintain that in the case of ‘waters that have no end,’ mourning should be observed, and it goes without saying that the Kaddish should be recited, despite the fact that in the case of a woman who desires to remarry on these grounds, it would not be permitted — P.Tesh. In the case of one who drowned and hope was abandoned to recover the corpse, as a result of which mourning rites were observed, and after the mourning period was over, the body was found (and according to A.H. even if the corpse was found during the mourning period) and buried, one is not required to observe mourning again, unless it was his father, in which case he must rend garments only — TaZ. Cf. Y.M.K. III, 5(82c) ‘There is rending without mourning.’ or for one regarding whom a rumour circulated that robbers have murdered him, or for one whom a beast dragged away,— from what time does one count [the days of mourning]? — From [the time] they have given up the search [for him].24Y. and Sem. ibid. [If] they found him in limbs and they recognize him through his body marks, one does not count [the days of mourning] for him until he finds his head and the larger portion of his [body], or if they have given up their search [for him].25Baraitha cited by N in T.H. — G. This opinion accords with the first opinion in Y. and Sem. ibid. cited by Asheri M.K. If he was found after they had given up hope of [recovering] him, the near-of-kin are not required to observe mourning rites again,26Tur on the authority of N in T.H. Thus also Asheri ibid. on the authority of R. Meir of Rothenberg. but the children [of the dead person], if they were present there at the time he was found, observe mourning rites for him on that day [only],27Even if the children were not present there when the corpse was discovered but they were informed about it on the same day that the corpse was found, they must observe mourning rites the entire day (v. infra § 403, 5). This applies also to other near-of-kin, contra Caro — ShaK. however, A.H. for this is not less important than [the case of] a collection [that is made] of his father's bones.28At which time mourning is observed by the near-of-kin. However, if they [the children] are not present there, and they heard [about it] after the day was over, they are not required to observe mourning rites. Gloss: If they sent their dead to another city [for burial, regarding which] the law is that they should begin [to observe] mourning rites from [the time] that they turn their faces [to return from the funeral escort],29This applies only if the chief of the family did not accompany the corpse to the other city (v. supra par. 2). Thus also D.M. and B.Yos. Therefore, Isserles writes here, ‘if they sent their dead to another city etc.’ For if burial is in the same city, even those who return, mourn only from the time that they are informed that the corpse was interred — ShaK. and they commenced to count the days of mourning, but subsequently the corpse was seized, and it was not released for burial for a long time, — [the law is that] they are not required to interrupt their observance of mourning rites, nor are they required subsequently30When the body is released. to observe mourning rites again, for since the law [permits] them to begin [the observance of mourning rites] forthwith, they are not required to interrupt [the mourning].31Mord. M.K. III end — G.
מי שמת לו קרוב ולא ידע עד שבא למקום שמת שם המת או למקום קבורה אם היה במקום קרוב שהוא מהלך י' פרסאות שאפשר שיבא ביום אחד אפי' בא ביום הז' אם מצא מנחמים אצל גדול הבית אפי' שננערו לעמוד הואיל ומצא מנחמים (דהיינו שנוהגים עדיין קצת אבלות) (טור ורשב"א בתשובה) עולה לו ומונה עמהם תשלום שלשים יום ואם לא מצא מנחמים מונה לעצמו וכן אם היה במקום רחוק אפילו בא ביום שני מונה לעצמו שבעה ושלשים מיום שבא: הגה וי"א דאפילו אם בא אחד ואין הגדול בבית רק שהלך לצורך המת אם חזר תוך ג' ימים הוי כאילו הוא בבית והבא תוך ג' מונה עמהם (וכן הוא בטור) ויש להקל כסברא זו וכל שדינו למנות עמהם אפילו אם חזר אחר כך לביתו מונה עמהם (הרשב"א סימן תע"ז):
One whose near-of-kin died32M.K. 21b. and he did not know [about it] until he arrived at the place where the person died or at the place of burial,33Asheri M.K. This has reference only to a case where he arrived at the place of death or burial. Otherwise, he counts on his own (Hag. Asheri ibid. quoted by B.Yos. and D.M.) — ShaK. — [the law is that] if he was [at the time the death occurred] in a near place, viz., a distance of ten parasangs [away],34Asheri ibid. on the authority of the Geonim; Yad, Ebel VII, 4; M.K. 21b, Tosaf. s.v. מקום on the authority of BeHaG. so that it was possible for him to arrive in one day,35The distance is eight thousand cubits — P.Tesh. It must be a distance that one can cover in a day in order to reach the locality of the corpse or the place of burial. Otherwise, he counts, on his own. Nowadays that one is able to cover much larger distances in a day via train or auto, it falls into the category of a near place. And this is the law — A.H. However, this does not apply to transportation by plane — Kol Bo(G), Sh.M.B. even if he arrived on the seventh day,36M.K. 22a in accord with R. Simeon. This has reference to his arrival on the night preceding the seventh day or in the morning — A.H.—[the law is that] if [upon arrival] he found comforters in the presence of37Lit ‘beside.’ the chief of the household, even if they were [already] preparing [themselves] to get up38Lit. ‘bestirred themselves.’ [and leave, nevertheless], since he found comforters, i.e., they were still observing mourning rites,39Tur and RaShBA Resp. 478 — G. he is credited [with the mourning already observed],40This is an undecided question in M.K. ibid., and we adopt the lenient view. If the mourners, however, observe mourning rites in another place, which is not the place of death or burial, the one who arrives counts on his own — ShaK. and he counts with them the completion of the thirty day [mourning period]. But if he did not find comforters [upon his arrival], he counts on his own. So too, if he was in a distant place, even if he arrived on the second day, he counts on his own the seven and thirty [days of mourning] from the day he arrives. Gloss: And some say that even if one arrived and the chief [of the household] is not home, but had left [to attend] to the needs of the corpse,— [the law is that] if he returned within three days, he is regarded as if he were at home, and the one who arrives within the three days counts with them,41Thus in Tur — G. So too, if the chief of the family returned from attending to the corpse’s needs, even on the seventh day, in a case where the burial was nearby and the chief of the family had already begun the observance of mourning rites along with the other members of the family, — then the one who arrives from a ‘near place’ and was unaware of the death prior to his arrival, counts with them — ShaK, A.H. If the chief of the family arrived from a ‘near place’ and was unaware of the death prior to his arrival, he counts on his own — ShaK. Likewise, in the case where there is no family chief, the one who arrives counts on his own — A.H. and the lenient view should be adopted in accord with this opinion. And one who in accordance with the law counts with them, — [the law is that] even if he later returned to his home, he [still continues to] count with them.42RaShBA s. 477 — G.
במה דברים אמורים בשלא שמע שמת עד שבא אבל אם נודע לו ביום השני והתחיל להתאבל לא יקצר אבלותו בשביל שבא אצלם:
This43Supra par. 8. applies only [to a case] where he did not hear that he [his near-of-kin] had died until he arrived [at the place of death or burial], but if it became known to him [in his place] on the second day and he commenced to observe mourning rites, he should not shorten his [period of] mourning on grounds that he [now] has arrived in their midst.44Tur on the authority of Asheri. In the Talmud (M.K. ibid.) no distinction is made between his knowledge of the death before or after he arrives. In fact N holds that there should be no difference. Asheri disputes this and makes a distinction. Caro follows Asheri and this is also the view of Maim. Yad, Ebel VII, 4 and is adopted as the final law — A.H.
מי שהוא אבל ובתוך ז' מת לו מת אחר מונה ז' למת אחרון ועולים לו לתשלום שבעה ימי אבילות הראשון:
One who was in mourning and within the seven [days] suffered another bereavement, counts seven days of mourning from [the time] of the latter bereavement, and [the days thus observed] are accounted for him also as the completion of the seven days of mourning after the first bereavement.45Mord. M.K. III end on the authority of R. Shlomo of Troyes. also Hag. Maim. Yad, Ebel VIII, 3.
מי שהתפלל ערבית ועדיין הוא יום ושמע שמת לו מת יש מי שאומר שמונה מיום המחרת ואותו יום אינו עולה:
One who recited the evening Tefillah and it is still day,46According to R. Judah in Mishna Ber. IV, 1, the afternoon Tefillah (Minḥah), may be recited until the ‘middle of the afternoon’ (פלג המנחה) i.e., until one hour and a quarter before sunset, after which the evening Tefillah (Ma‘arib) may be recited. Accordingly, the individual in the present case recited the evening Tefillah while it was still day. and [then heard that he had suffered a bereavement, there is an authoriity who says that he counts [the days of mourning] from the following day and that day [the previous day] does not enter [into the counting].47Mord. ibid. Were we to permit him to count the previous day as part of the mourning period, it would result in adopting two contradictory leniencies. For on one hand, by reciting the evening Tefillah (Ma‘arib) after the ‘middle of the afternoon,’ he considers it already night, and on the other hand, if we permit him to count the day as part of the mourning period, it would mean that he considers it still day. However, if he had not yet recited the evening Tefillah, the day is counted in his mourning period (MaHaRShaL and BaḤ), although the Congregation had already recited it — ShaK. One who received ‘near tidings’ (i.e., news of a death received within thirty days after death) at twilight, may count the preceding day as part of his mourning period — P.Tesh. Caro’s ruling has reference only to the observance of mourning rites, but as far as Yahrzeit (anniversary of death) is concerned, that day is counted as the day on which Yahrzeit is fixed — P.Tesh. Although in Caro’s ruling mourning begins on the following day, the Tefillin (phylacteries), however, should be donned (v. infra § 388) — A.H.