Siman 374

The Rambam wrote in the third chapter, law 8: A kohen who encounters a met mitzvah on the way – behold, he must become tamei for him. Even a kohen gadol is obligated to become tamei for him and to bury him. And who is a "met mitzvah"? One of Israel who was cast on the way, and has no one to bury him. And this matter is a law from the mouth of tradition. In what case are these words said? When the kohen was alone, and there is no other with him. And even if he called out there on the way and there is no one who answers him. But if when he calls others answer him – this is not a met mitzvah, but rather he should call to others and they shall come and attend to him. Thus far his words. And that which he wrote that this matter is a law from the mouth of tradition, even though in Nazir (Nazir 47a) we learn it from verses, see there – he holds that they are a mere asmachta, like the measurements that were supported by verses at the beginning of Eruvin, see there.

The Rosh in the laws of impurity explained this further, and this is his wording: The definition of "met mitzvah" – this is one whom he found on the road or in a city of Cutheans and he has no one to bury him, and from the place where he found him he is unable to call an Israelite who will answer him and come to attend to him and bury him – he is forbidden to move from there and leave the deceased, even to go to the city to bring gravediggers. Rather, he shall defile himself and bury him, even if he is a Kohen Gadol, and a nazir, and is going to perform his Pesach sacrifice or to circumcise his son. But if there were Israelites near the location of the deceased, the one who finds the deceased calls them, and they answer him and come to bury him – this is not a met mitzvah for which the Kohen should defile himself etc. and here too it is taught in the Yerushalmi etc. Thus far his words. And it is explicitly explained that even if he is able to bury him by means of Cutheans – he is called a "met mitzvah," and he buries him himself and defiles himself for him.

But the reasoning is puzzling: for why should we permit a kohen to defile himself when he can bury him by means of Cutheans? And how is it worse than a corpse on the first day of Yom Tov, which they bury by means of gentiles? Therefore, it seems to my humble opinion that certainly in such a case we would not permit the kohen to defile himself. Rather, it is because presumably the Cutheans will not act for free but only for payment, and the kohen is not obligated to incur expenses, as our teacher, the Rema, wrote in section 3 (Shulchan Aruch Yoreh Deah 374:3). This is his wording: Some say: if he does not find those who will bury him except for payment—he is not obligated to hire from his own, but rather he defiles himself if he wishes. Thus far his words. Therefore, he does not bury him by means of Cutheans. But if he can bury him without expenses by means of them—it is forbidden for him to defile himself for him. And this fact that he is not obligated to incur expenses, even though to violate a negative commandment one is obligated to spend all his money in order not to violate it—it is different here, for behold, it is not his will to violate. And from his perspective, he would go on his way, but the Torah imposed upon him to bury him, and why should he pay from his pocket? And this is not what the Torah imposed upon him (so it seems to my humble opinion).

Our teacher, the Beit Yosef, wrote in section 3 (Shulchan Aruch Yoreh Deah 374:3): Who is a "met mitzvah" etc.? But if there were Israelites near the location of the deceased etc., he calls to them and they answer him etc., if he has all his needs, he withdraws his hands. Thus far his words. That is to say: when there are others besides him occupied with it according to the needs of the deceased – it is forbidden for him to defile himself. And how much is "according to his needs"? The Maharshal wrote in the name of the Rokeach that there should be enough for the pallbearers of the bier and its buriers (Taz subsection 1).

The words of the Tur are not understood in this matter, as he wrote: But if he read etc. – he shall not become tamei if there are six thousand men. And according to the one who teaches that there is no measure, and likewise for a Nasi one becomes tamei always, for his teacher he shall not become tamei if there is the measure. Thus far his words. And according to his words they are astonishing: for this matter of six thousand – this is regarding the obligation to escort the deceased, and not regarding a kohen making himself tamei. However, the words of the Tur are explicit in the Yerushalmi at the beginning of the seventh chapter of Nazir, see there (see Beit Yosef), that this matter of a sufficient amount of pallbearers and buriers – this is for an ordinary person, or one whose level is unknown. But if they recognize that he is a talmid chakham – everyone becomes tamei for him, just as the Tur wrote. And this is the reason that everyone becomes tamei for a Nasi, for they treated him like a met mitzvah.

And so the Rambam wrote in the third chapter, law 10: A Nasi who died—everyone contracts tumah for him, even kohanim. They established him as a met mitzvah for everyone because everyone is obligated in his honor. And so everyone is an onen for him. Thus far his words. And since the reason for the Nasi is because he is like a met mitzvah, if so, the Yerushalmi and the Tur spoke well regarding a met mitzvah himself who is a talmid chacham—everyone is obligated to contract tumah for him. And so for his teacher, a kohen contracts tumah until there is a sufficient amount. And that is, if he studies and teaches—he has no limit. And if he reads and studies—six thousand. (And this is the reason of our teacher, Chaim Kohen, in Tosafot Ketubot 103b who said: If he had been present at the time of the passing of our teacher, the Tam—he would have contracted tumah for him. And they wondered about him: Was our teacher, the Tam, not a Nasi? However, according to the Yerushalmi it works well, for he was his teacher, and the greatest of the generation, and he studied and taught, and he has no limit. And Rashi explained in Pesachim 70b that it is a mitzvah for all of Israel to involve themselves with a Nasi, see there. And the same law applies to a met mitzvah who is a talmid chacham, and students for their teacher. Nevertheless, all the poskim did not bring the words of the Tur.)

The Rambam wrote there (Rambam, Laws of Mourning 3): If a kohen and a nazir were walking on the way and encountered a met mitzvah—the nazir should attend to him, because his sanctity is not an eternal sanctity. And the kohen should not become tamei through him, even if he is a kohen hedyot. If they were a kohen gadol and a kohen hedyot—the hedyot should become tamei. And whoever precedes his fellow in rank—is deferred regarding tumah. And a sagan with a mashuach milchamah who encountered a met mitzvah—the mashuach milchamah should become tamei, and the sagan should not become tamei. Thus far his words. That is to say: even though for other matters a mashuach milchamah precedes a sagan in rank, as he wrote in the fourth chapter of Klei HaMikdash (Rambam, Laws of the Vessels of the Sanctuary and Those Who Serve in It 4), nevertheless, regarding the matter of tumah, a sagan is superior. And this matter is explained in the Gemara in the seventh chapter of Nazir, see there. And know that, ostensibly, one could infer from the wording of the Rambam that when two kohanim are walking on the way, one a talmid chacham and one an am ha'aretz, the am ha'aretz should become tamei because the talmid chacham precedes him in rank. However, in truth, his intention refers to the ranks of authority that existed during the time of the Temple, as he wrote there. Nevertheless, as a matter of law, this requires further deliberation.

It is not called a "met mitzvah" regarding the matter of a kohen becoming tamei for him unless he found his head and the majority [of his body], or a spine and a skull (Tur). And if he found a spine and a skull, or his head and the majority, and buried him, and forgot one limb—he returns for that limb and becomes tamei for it and buries it; even though initially he would not have become tamei for this limb alone, nevertheless, since he became tamei for the rest of the body, he returns even for one limb when he forgot to bury it. And it is possible that he returns even after some time, since the obligation was upon him previously. And in this matter, a met mitzvah is more stringent than his father, for the kohen only becomes tamei for him when he is complete, as I wrote in the previous siman. But for a met mitzvah, he becomes tamei for his head and the majority, or a spine and a skull, which is the primary structure of the body.

A corpse that is found and it is not known if he is an Israelite or not – we follow the majority of those found there, unless we can say: everything fixed is considered as half and half. That is to say: that we follow the majority of those who pass back and forth, or after the majority of the cities. And we do not follow proximity even in a case of evident proximity, but rather after its majority, for whatever separates, separates from the majority. Unless we can judge regarding this place the law of "fixed" which is explained everywhere in the Shas, for then it is as half and half and we follow the stringency (Shach). And it is brought in the Yerushalmi: One who was killed between Tiberias and Sepphoris – the presumption is that he was an Israelite. (And it must be said that it is impossible to recognize the circumcision, such as if it was consumed or rotted.)

The Rabbis taught: Everyone mentioned in the portion of the Kohanim for whom a Kohen contracts tumah—he also mourns for them. And these are they: his wife, his father and his mother, his brother and his sister, his son and his daughter. They added to them his brother and his virgin sister from his mother, and his married sister whether from his father or from his mother (Moed Katan 20b). That is to say: even though regarding the matter of tumah it is not so, as I wrote in the previous siman, for he does not contract tumah for his brother or his sister from his mother alone, nevertheless, regarding the matter of mourning, the sages added to mourn for them. And this fact, that the Gemara linked mourning to the tumah of a Kohen, is because the primary reason the Torah permitted tumah of a Kohen for relatives is because of mourning, as the Rambam wrote in the second chapter, law 6, and this is his wording: How grave is the mitzvah of mourning, for the Kohen has tumah set aside for him for his relatives so that he may occupy himself with them and mourn for them, etc. Thus far his words. And according to the opinion of the Rambam, the essence of mourning is from the Torah, as he wrote there at the beginning of the second chapter: These are those for whom a person is obligated to mourn by Torah law: his mother and his father, his son and his daughter, and his brother and his sister from his father. And from their words, that a man shall mourn for his married wife, and likewise a woman for her husband. And he mourns for his brother and his sister who are from his mother, etc. Thus far his words. And even though his wife is from the Torah, as it is written: "Except for his kin, etc.", yet this is his way in every place where it is not explicitly detailed in the verse, but rather the sages explained the scripture so—he calls this "words of the scribes." And so too here, for "his kin" the sages explained as referring to his wife (and see Lechem Mishneh).

And specifically a woman who is fit for him and married to him. But one who is disqualified or betrothed—he does not mourn for her and she does not mourn for him, as I wrote in the previous siman regarding tumah. But for his son and his daughter, and his brother and his sister—even if they are disqualified he mourns for them, except for his son and daughter, brother and sister from a maidservant or a gentile woman, for whom he does not mourn, as with tumah there. And so too a convert who converted, he and his sons, or a slave who was manumitted, he and his mother, and so too a convert and his mother—they do not mourn for one another. And this is according to the one who holds that the essence of mourning is rabbinic. But according to the Rambam, he mourns for his mother (Shach subsection 4).

Furthermore, our sages, of blessed memory, were stringent regarding mourning that for anyone for whom one mourns—one mourns with him. That is to say: for example, if his son's son died, for whom his son mourns—the father of the son also mourns, for behold, when his son dies he mourns for him. If so, when his son is a mourner for his son—he mourns with him out of respect. And so too for anything similar to this. And since this is only out of respect, therefore specifically in his presence must he practice the mourning, but not in his presence he does not need to practice mourning. And so too, one only mourns with them when they are mourning for a "blood" relative, such as his son for his son or daughter. And so too his brother when he mourns for his son or daughter. But when they are mourning for a relative by marriage, such as when his son or brother mourns for his wife, and so too his daughter when she mourns for her husband, or his sister for her husband—he does not mourn with them. And this is the opinion of the Rambam there, and he wrote similarly in the name of Rashi. And the reason appears to be because we require that the one mourning with him have some actual kinship with the deceased, but with a relative by marriage—the kinship is only to the husband alone or to the wife alone. And in the Tur he wrote further that some say they only said to mourn when the deceased is a relative to him. But his paternal brother who mourns for his maternal brother, who is not a relative to him at all—he does not practice mourning with him. Thus far his words. And this is also for the reason we explained. And our teacher, the Beit Yosef, did not bring this, not because he does not hold so, but because this is a simple matter, for behold, mourning for a maternal brother is essentially rabbinic (it appears to me).

And how does this law apply to a husband and wife? Our sages, of blessed memory, said (Moed Katan 20b): that when she is mourning for her relatives – he does not mourn with her. Only when she is mourning for her father or for her mother – he mourns with her due to the honor of his father-in-law and mother-in-law. And likewise, she does not mourn with him except when he is mourning for his father or for his mother, due to the honor of her father-in-law and mother-in-law. But when his other relatives die – she does not mourn with him. And this is also the opinion of the Rambam. And even though the Ramban holds that she mourns with him for all his relatives, as the Tur wrote in his name, see there, nevertheless our teacher, the Beit Yosef, in section 6 (Shulchan Aruch Yoreh Deah 374:14) ruled like the Rambam, for so implies the plain meaning of the Gemara. And our sages, of blessed memory, said there: when she is mourning for her relatives – he cannot compel her to adorn herself. But she may pour the cup for him, make the bed for him, and wash his face, hands, and feet, since he is not in mourning as I have written. But when her father or mother dies – she cannot do these things for him, since he is also in mourning.

Since this mourning is only for the honor of the mourner, as I have written, therefore the Ramban and the Rosh wrote that nowadays we do not practice this mourning. For since it is only for the sake of the mourner's honor, if the mourner wished to waive his honor—his honor is waived, and one does not need to mourn with him. And nowadays, all mourners are accustomed to waive their honor, and therefore the custom is to be lenient (Tur). And it appears to me that nowadays, even if the mourner says that he does not waive it, and wants his relative to mourn with him in his presence according to the law of the Gemara—it is not within his power, since this custom has already been abolished. See section 15.

This is the wording of our teacher, the Rema: And some say that nowadays it is customary to be lenient regarding this mourning of those who mourn with him, for this is only for the honor of the mourners, and now everyone has accustomed to forgo it. And so it is customary nowadays not to mourn at all with the mourners, and anyone who is stringent in this is only among the eccentric. Thus far his words. And he is not like one who honors mourners but rather like one who mocks them (Shach subsection 5). And even though one who wishes to be stringent and mourn for someone for whom it is not necessary has the permission to do so, as our teacher, the Rema, wrote and as will be explained later—this is when he wishes to practice full mourning. But in this case, where he would mourn only in his presence, it is like mocking the mourner (ibid.). And furthermore, one must distinguish between when one does the matter merely from desire, in which case he has the permission, and when he does it from the perspective of the law; and since this has already been nullified, it is merely like mocking (see Ba'er Heitev subsection 4). And one who practices the mourning should practice it only as a stringency and not as a leniency, such as not engaging in Torah study and the like.

He further wrote that in any event, it is the custom that all relatives of the deceased who are disqualified from testifying for him display some mourning themselves throughout the first week, that is, until after the first Shabbat: they do not wash, and they do not change some of their garments as they do on other Shabbats. There are places where they were accustomed to be even more stringent in other matters, but the primary rule is as I have written. All of this applies to a "near report" or if one was present at the time of death. However, regarding a "distant report" – there is no place for this mourning at all. And one who wishes to be stringent upon himself to mourn for someone for whom it is not necessary, or to wear black for his relative – we do not prevent him. Thus far his words. There are those who are not careful in this, and there are those who wrote other customs regarding this (see Shach subsection 7 and Ba'er Heitev). Where they have the custom – they have the custom, and where they do not have the custom – they do not have the custom, for according to the law there is no basis here. Ordinarily, they should follow the custom of our teacher, the Rema, whom we follow.

An infant throughout thirty days, and the thirtieth day is included – is a doubtful nefel. Therefore, when he dies – one does not mourn for him. For even though it is a doubt, nevertheless, a doubt regarding mourning is ruled leniently. And even according to the Rambam who holds that mourning on the first day is from the Torah, nevertheless, throughout thirty days he is under the presumption of a nefel, as the Rambam wrote in the first chapter, law 6: Any [infant] who did not survive thirty days – is under the presumption of a nefel. Even if he died on the thirtieth day – one does not mourn for him. Thus far his words. And even if his hair and nails were fully formed; and from thirty days and onward – one mourns for him unless it became known that he is an eight-month-old [fetus], for then one does not mourn for him. And so too the opposite: if it is known to him that his months were complete, such as if he had relations and separated and [the infant] was born alive at nine complete months, even if he died on the day he was born – one mourns for him. And behold, even though it is a clear matter that it is only by rabbinic decree that we presume a child until thirty days to be under the presumption of a nefel, as the Rambam himself wrote at the end of the second chapter of Yibbum, and we explained this above in siman 15, section 11, nevertheless, since it is necessary to be stringent in several laws because of this, therefore it is impossible to separate mourning from all the laws. However, according to most of the poskim that the essence of mourning is by rabbinic decree – it follows well with simplicity.

A woman who married after divorce within three months to a husband, and gave birth to an offspring of uncertain status—whether a nine-month child of the first or a seven-month child of the last—both of them mourn for him. And the reason we are stringent in this uncertainty is because it is a disgrace for him if they do not mourn for him. Therefore, it is necessary that both of them mourn (Taz subsection 3). Our teacher, the Beit Yosef, wrote in section 9 (Shulchan Aruch Yoreh Deah 374:9): There is one who says that regarding twins, if one of them died within thirty days, and the second lived and died after thirty days—one does not mourn for him. Thus far his words. And there are those who explained that one does not mourn for the second, but there is no reason for this, rather there is an error here. And so it must be said: and the second lived—one does not mourn for him. Meaning: for the first. For you should not say: since the second lived, presumably the months of the first were also completed? For this is no proof, as one can say that she conceived with the living one before she conceived with the dead one (Shach subsection 9 and Taz subsection 4). And such is the primary ruling. And know that when he dies on the thirty-first day, even though if we calculate from time-to-time thirty full days have not yet concluded, such as if he was born at the end of the day and died at the beginning of the thirty-first, nevertheless one is obligated to mourn. And we do not require for this from time-to-time (Chatam Sofer Yoreh Deah 343). And know that regarding the first law, in the uncertainty where both mourn for him, there is one who says that this is specifically when both are alive. But if one of them died—the second is not obligated to mourn (the Gaon Rabbi Akiva Eiger in the name of the Pri Megadim).

For his teacher who taught him Torah, one conducts the laws of aninut, and does not eat meat and does not drink wine until after the burial. And he rends his garments for him, as I have written in siman 340. Nevertheless, this is for stringency, but for leniency to exempt him from birkat hamazon there is no logic; rather, he recites the blessing and joins a zimun. And he mourns for him by removing the sandal for one day, and some have written for part of the day (Taz subsection 8). And he must change his place in the beit knesset, however, part of the day is sufficient. And for a Nasi who died, even though everyone may contract tumah for him—they do not mourn for him. Only regarding the matter of tumah did they treat him like a met mitzvah (and see Beit Yosef). Our teacher, the Rema, wrote in section 11: Some say that one does not mourn for the first son or the firstborn son who died to a person. And it is a mistaken custom. Rather, they are obligated to mourn for him. Nevertheless, the custom has spread in our city that a father and mother do not follow after their first children to the cemetery. And some say that during a time of plague one does not mourn, because of the terror. And I have heard that some have conducted themselves so. Thus far his words. And certainly if there is a concern of fear in this, it is like pikuach nefesh. And so it appears to me that any sick person, even if there is no danger, if the mourning will cause an increase in illness—he is not to mourn.