Siman 347

We learned in the first chapter of Moed Katan (Moed Katan 8a): A person may not arouse over his deceased, nor eulogize him, thirty days before the festival. And it is stated in the Yerushalmi: What is "arousing"? Mentioning him among the dead; and he may not eulogize him with a eulogy on its own. This which you say applies to an "old" deceased, but for a "new" one – it is permitted. What is a "new" one? Within thirty days. An "old" one? After thirty days. And they wrote the reason is because when one's deceased died within the thirty days before the festival, there is already in his heart the bitterness of the deceased, and no additional sorrow is added to him because of the eulogy. But when he died before the thirty days – he was already forgotten after thirty days upon the arrival of the festival. And now when he eulogizes him – additional sorrow will be added to him upon the arrival of the festival. Therefore, it is forbidden to eulogize him. And even if he has a deceased person within thirty days and he eulogizes him, nevertheless, that one from before thirty days should not be eulogized.

And in our Gemara, Rava and Shmuel disagree regarding the reasoning of the Mishnah. For Rava said the reason is: so that he does not spend the money he prepared for the festival on the eulogy. And according to this, for free—it is permitted. And Shmuel said: because the deceased is not forgotten from the heart until thirty days. That is to say: that even when they rouse a eulogy, the grief continues until thirty days. And according to this, even for free it is forbidden. And consequently, when one dies within thirty days—it is permitted, for even without this the grief will continue during the festival. And the Yerushalmi holds like Shmuel. And therefore the Rambam and the Ra'avad ruled like Shmuel, even though the halakha follows Rava in matters of prohibitions. And so ruled the Rosh, and the Tur and the Shulchan Aruch here and in Orach Chaim siman 547, see there. (And that which is written in the Tur "and specifically for a fee etc."—it is a printing error, see there.)

But the Ramban and the Rashba, as well as the Tosafot and the Semag, ruled according to Rav. For since the halakha follows Rav in matters of prohibition—we do not pay heed to the Yerushalmi. And it appears to me that against this there is a stringency according to Rav, that for payment it is forbidden even when a person close to him died within thirty days, for follow the reasoning. And for free it is permitted in all manners. And this is the intent of Rashi on the Mishnah, who wrote: "And he shall not eulogize him"—that if a person close to him died within thirty days he shall not hire a eulogizer, etc. Thus far his words. And so wrote the Bartenura, see there. And ostensibly this is against the Yerushalmi. However, they too ruled according to Rav, and according to Rav there is no practical difference as I have written. (The reason the Shas did not state this practical difference is because it wishes to state a practical difference even regarding one who died before thirty days, that for free it is permitted, see there. And according to this, it requires investigation regarding the Shulchan Aruch who omitted their opinion entirely. And they are many against those who rule like Shmuel. And examine closely and you will find it easy.)

And according to the opinion of those who permit when he died within thirty days, even if he died before thirty days but the report reached him within thirty days—it is also permitted to eulogize him, for his grief continues from the day of the report, and grief will not be added to him. And know that our teachers, the authors of the Tosafot, wrote there, that even according to Shmuel there is no prohibition except by means of a professional eulogizer. However, he himself is permitted to eulogize him, for he restrains himself more from his grief by means of crying out, and will rejoice after a time. Thus far their words. And I am wondered that they did not bring this in the Shulchan Aruch. And it appears because the wording of the Rambam does not indicate so, see there in the Laws of Mourning chapter eleven and in the Laws of Yom Tov chapter seven. And for the halacha, it requires further study.

Our teacher, the Beit Yosef, wrote in Orach Chaim there, and this is his wording: It seems to me that these things were only said according to their custom, for they used to go to eulogize their dead in the middle of the year to arouse weeping and wailing, as that pain is not forgotten for thirty days. But what is practiced in this time, that at the completion of the year they eulogize and mention his soul—even according to the words of Shmuel it is permitted, etc., for on the contrary, their intention is to conclude their mourning through this, etc. Thus far his words. And according to this, the matter is simple that our mentionings, where the sheliach tzibbur says "El Malei Rachamim"—there is no concern in this at all, for behold, even on the last festival they mention souls. And so too on all the Sabbaths of the year, except when they bless the New Moon, for this is a prayer and they vow charity for them. And so too they do not mention souls when there is a brit milah or a groom. And only on the Sabbath before Shavuot and before Tisha B'Av, even though they bless the month and there is also a milah and a groom—they mention souls because then was the intensity of the decrees in ancient times. And they also say "Av HaRachamim" for this reason. And all this depends on custom (see Ba'er Heitev).