יורה דעה שע״הYoreh De'ah 375

Se’if 1א׳

מֵאֵימָתַי חָל הָאֲבֵלוּת, מִשֶּׁנִּקְבַּר וְנִגְמַר סְתִימַת הַקֶּבֶר בְּעָפָר, מִיָּד מַתְחִיל הָאֲבֵלוּת וּמְעַטֵּף רֹאשׁוֹ, אֲבָל אֵינוֹ חוֹלֵץ מִנְעָלָיו עַד שֶׁיַּגִּיעַ לְבֵיתוֹ (רַמְבַּ"ן). וְעַכְשָׁו נוֹהֲגִים לַחֲלֹץ מִנְעָל אַחַר סְתִימַת הַגּוֹלָל מִיָּד, כִּדְאִיתָא בְּסִימָן שע"ו. הַגָּה: וְע"ל סִימָן שפ"ב. הָיָה סָבוּר שֶׁנִּסְתַּם הַקֶּבֶר וְהִתְחִיל לְהִתְאַבֵּל, וְאַחַר כָּךְ נוֹדַע לוֹ שֶׁטָּעָה, חוֹזֵר וּמַתְחִיל הָאֲבֵלוּת מֵחָדָשׁ (תְּשׁוּבַת הָרֹא"שׁ כְּלָל 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.

Se’if 2ב׳

מִי שֶׁדַּרְכָּם לִשְׁלֹחַ הַמֵּת לִמְדִינָה אַחֶרֶת לְקָבְרוֹ, וְאֵינָם יוֹדְעִים מָתַי יִקָּבֵר, מֵעֵת שֶׁיַּחַזְרוּ פְּנֵיהֶם מִלְלַוּוֹת מַתְחִילִין לִמְנוֹת שִׁבְעָה וּשְׁלֹשִׁים וּמַתְחִילִין לְהִתְאַבֵּל (ל' רַמְבַּ"ם פֶּרֶק א' מה"א ד"ו) ; וְהַהוֹלְכִים עִמּוֹ, מוֹנִים מִשֶּׁיִּקָבֵר. וְאִם גָדוֹל הַמִּשְׁפָּחָה הוֹלֵךְ עִמּוֹ, אַף אֵלוּ שֶׁבְּכָאן אֵינָם מוֹנִים אֶלָא מִשֶּׁיִּקָבֵר; וּגְדוֹל מִשְׁפָּחָה הַיְנוּ דְּבֵיתָא סָמוּךְ עֲלֵהּ וּגְרִירֵי כֻּלְהוּ בַּתְרֵיהּ, לֹא שְׁנָא אָח לֹא שְׁנָא בֵּן קָטָן; וְיֵשׁ מִי שֶׁאוֹמֵר וְהוּא שֶׁיְּהֵא בֶּן 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.

Se’if 3ג׳

אִם מְפַנִּין אֶת הַמֵּת מִקֶבֶר לְקֶבֶר, אִם קְבָרוּהוּ בְּקֶבֶר רִאשׁוֹן עַל דַּעַת לִהְיוֹת קָבוּר שָׁם עוֹלָמִית, אֶלָא שֶׁאַחַר כָּךְ נִמְלְכוּ לְפַנּוֹתוֹ מִשָּׁם, אֵין מוֹנִין לוֹ אֶלָא מִשֶּׁיִּקָבֵר בְּקֶבֶר רִאשׁוֹן, אֲפִלוּ פִּנּוּהוּ תּוֹךְ ז'. אֲבָל אִם בִּתְחִלָה קְבָרוּהוּ עַל דַּעַת לְפַנּוֹתוֹ כְּשֶׁיִּזְדַּמֵּן לָהֶם, מַתְחִילִין אֲבֵלוּת מִיָּד; וְאִם פִּנּוּהוּ תּוֹךְ שִׁבְעָה, חוֹזְרִין וּמוֹנִין מִשֶּׁיִּקָבֵר שֵׁנִית; וְאִם לֹא פִּנּוּהוּ עַד לְאַחַר שִׁבְעָה, כְּבַר עָבַר אֲבֵלוּתָם וְאֵין מִתְאַבְּלִין עָלָיו פַּעַם אַחֶרֶת; וְאִם מִתְּחִלָה הָיָה דַּעְתָּם לְפַנּוֹתוֹ מִשָּׁם תּוֹךְ שִׁבְעָה, אֵין מַתְחִילִין לִמְנוֹת עַד שֶׁיִּקָבֵר בַּקֶבֶר הַשֵּׁנִי.

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.