Siman 375

Whether mourning is a Torah obligation or a Rabbinic obligation, there is a dispute of the authorities regarding this, and it will be explained in siman 398. And from when does mourning begin? From when the golel is closed. This means from when they place the deceased in the grave, and the closing of the grave with earth is completed in a manner that the casket is no longer seen, even though they have not yet placed the stone upon the grave in a place where such is the custom, as it was in ancient times, and this was called "golel." Nevertheless, the mourning takes effect, for the primary "closing of the golel" is called such when they place the earth over the deceased, and the earth returns to the ground as it was. And this is called "closing of the golel" because for the most part they immediately placed a stone over the grave, but this is not an absolute requirement. And even according to the commentary of Rashi, who explained everywhere that "golel" is the cover of the casket, and so wrote the Aruch, nevertheless they also admit that what they said—that mourning takes effect from when the golel is closed—the intention is the covering of the earth, as wrote the Or Zarua HaGadol (siman 424). This is his wording: Therefore, the commentary of Rashi appears primary, that "golel" is the covering of the grave, and "from when the golel is closed" means from when it is closed with the earth of the grave, for then the mourning takes effect. Thus far his words. And his reason is that it is all one, for such is the way of the world, that immediately when they cover the casket in the grave they place the earth, and it is all one.

The Tur wrote: And from when does the mourning begin? From when the golel is closed. Rashi explained: the covering of the coffin. The Ramban wrote: And according to his words, when they place him in a coffin in the house, and close the cover with nails with the intent to place the coffin in a niche or in a grave—one counts from the time of the closing. But if one takes the deceased out on a bier or in an open coffin to the cemetery, and buries his deceased in the ground—one does not count until the grave is closed with the planks and with the earth that they place upon the deceased or upon the coffin. Our teacher Tam explained: "golel" is the stone that they place upon the grave from above. And the Geonim explained similarly, that as long as the coffin is exposed—one does not count for him until it is placed in a niche or in a grave, and its opening is closed with stones or with planks according to their custom in burial. And my master, my father, the Rosh, of blessed memory, also wrote, that after the closing of the grave is finished and completed the mourning begins, even if they delay a long time in placing the stone upon it, etc. Thus far his words.

And behold, even according to their opinion, whether according to the explanation of Rashi or according to the explanation of our teacher Tam, the mourning begins from when they covered him with earth, as I have written. However, in this they innovated according to Rashi: that when they closed the coffin with nails in a manner that they will no longer remove him from the coffin—the mourning begins then, even before burial. And conversely, the Ramban wrote in his book Torat HaAdam according to the explanation of Rashi: that even if they transport the deceased from place to place, if they did not close his coffin but rather they will take him out of this coffin—mourning does not take effect until they bury him and cover him with earth (Beit Yosef). And nevertheless, it seems to me that this is only for one who goes with the deceased, and not those remaining here, as will be explained before us. And according to this, he does not disagree on this law with all the poskim except regarding the first law, when they closed the coffin with nails. However, from the words of the Or Zarua that we cited, it does not imply so even regarding this law.

According to this, the words of our teacher, the Beit Yosef, in section 1 and in section 4 are well-settled, for ostensibly they appear to contradict one another. For in section 1 he wrote: From when does the mourning take effect? From when he is buried and the closing of the grave with earth is finished, immediately the mourning begins, etc. And in section 4 he wrote: If they placed the deceased in a coffin, and placed it in another house because the city was under siege—they count for him immediately seven and thirty, even though their intention is to bury him in the cemetery after the siege. And the closing of the coffin is like burial, and mourning takes effect upon them immediately. Thus far his words. And if so, in section 1 he ruled like Rabbeinu Tam and in section 4 like Rashi. However, according to what I wrote, it is well-settled that both are like Rashi, but in section 1 it deals with where they did not place him in a coffin or did not fix it with nails, and in section 4 it deals with when they fixed it with nails (Bach). But in truth, the law of section 4 is well-settled even according to Rabbeinu Tam, for since the city was under siege and they could not take him out to the cemetery—and this is the case of Rabbeinu Kalonymus cited in the Rosh and in the Mordechai (see Beit Yosef)—it is as if they despaired of burying him, and according to everyone mourning takes effect upon them (Shach, subsection 5). And according to this, one may say that even if they did not fix it with nails, the mourning takes effect.

In the Gemara (Moed Katan 27a) it is explained that the onset of avelut is regarding the overturning of the bed. Our teacher, the Beit Yosef, wrote that he wraps his head, see there. And it may be said that this is because they do not practice the overturning of the bed now, as I wrote in siman 387, see there. However, wrapping the head was practiced among them. Our teacher, the Beit Yosef, wrote: But he does not remove his shoes until he reaches his house. And now they have the custom to remove the shoe immediately after the closing of the grave, as it is stated in siman 376. Thus far his words. And it may be said the reason for the custom is because we also do not practice the wrapping of the head, as our teacher, the Rema, wrote in siman 386, see there. And if so, there is no recognizable sign of avelut, and therefore they practiced removing the shoes immediately after the closing of the grave. (And know that the Rema noted to see siman 372, and I do not know his intention. And perhaps because it was explained there that the honor of people is great. And according to this, it is possible that only in the cemetery does he remove his shoes, but when he returns to his house he wears them because it is a disgrace to walk barefoot outside. And it seems to me that such is the custom.)

Our teacher, the Rema, wrote: If one thought that the grave was closed and began to mourn, and afterward it became known to him that he had erred – he returns and begins the mourning anew. Thus far his words. And I do not know what is required in this, and what practical difference there is in the fact that he also practiced mourning previously, for what was, was. And it appears to me that this is the explanation: for example, if this occurred while it was still day at the time he began to mourn, and it became known to him that he had erred and the closing of the grave was at night – the past day is not part of the count of the seven days of mourning. And so it is explained in the responsa of the Rosh (klal 27, siman 8), which is the source of this law.

It is stated in the Gemara (Moed Katan 22a): Rava said to the people of Mechuza: You who do not go after the bier, from the time you turn your faces back from the city gate – begin to count. See there. That is to say: specifically those who go with the deceased to the cemetery begin the mourning after the sealing of the tomb. But those who do not go to the cemetery, but rather return from the city gate – begin the mourning immediately. And seemingly it implies that even when they bury him within the borders of this city, the law is so. And this is indeed the opinion of the Ba'ag, as the Tur wrote in his name, see there. But Rashi, of blessed memory, wrote that this deals with those who transport the deceased from Babylonia to the Land of Israel, see there. And also the opinion of the Rambam in the first chapter is so, and this is his wording: One whose practice is to send the deceased to another province to bury him, and they do not know when he will be buried, immediately upon turning their faces back they begin to count the mourning. Thus far his words. And so is the wording of our teacher, the Beit Yosef, in section 2 (Shulchan Aruch Yoreh Deah 375:2), and this is his wording: One whose practice is to send the deceased to another province (city) to bury him, and they do not know when he will be buried, from the time they turn their faces back from escorting – they begin to count seven and thirty, and begin to mourn. And those who go with him count from when he is buried, etc. Thus far his words.

And behold, from this language it is implied that specifically when they do not know when he will be buried, they count immediately. And so one of the great authorities wrote explicitly, that since they do not know when the closing of the grave will be, the turning away of their faces is for them like the closing of the grave (Bach). But from the words of the Tur it is not implied so, for he wrote, and this is his wording: In what case are these things said? Regarding those who go with the deceased to the cemetery. But etc. immediately when they turn their faces etc. However, the Ramban wrote specifically when they lead the deceased from city to city etc. and so wrote the Rambam. But the Ba'al HaHalachot Gedolot etc. Thus far his words. And behold, the Tur and the Ramban did not mention this, that they do not know when he will be buried, and regarding this he wrote that so wrote the Rambam. And if so, he did not grasp in his words that his intention is specifically when they do not know the time of burial. And so it is explained from the words of the Rosh (siman 86), and even more so from the words of the Nimukei Yosef who wrote the reason: that those who turn their faces have already despaired of him, and despair is like the closing of the grave. But etc. Thus far his words. Behold, he did not hang the reason on the absence of knowledge of the burial time, and it appears there that this is from the language of the Ramban, see there. And also from the language of our teacher, the Beit Yosef, it is implied that this is not an essential requirement, for if it were not so, why should he distinguish between one buried here and one buried in another city? Let him distinguish within the case of another city itself between when they know the time of burial and when they do not know. Rather, certainly they did not speak specifically, and they spoke of the common way of the matter, that when he is buried not in his place, the time of burial is hidden from them, but it is not an essential requirement. Therefore, it appears in my humble opinion that such is the law as I have written. (And perhaps also the Bach did not say it as an essential requirement, and it requires further study.)

And that which has been explained, that when one is buried in another city those who are here count immediately and those who go with the deceased from when the cover is closed, it is stated in the Yerushalmi there that this is when there is no gadol habayit in the family. And this means that he is the primary leader in the house, and all matters of the house depend on him and everyone is drawn after him, no matter if he is the brother of the deceased or a young son, provided that he is thirteen years old. And if his wife died, the husband is called the "gadol habayit." And if the woman is the gadol habayit, such as if she is a widow living with her sons and one of the household died, if she is the mistress of the house who manages the needs of the house – she is called the "gadol habayit." And in a place where there is a man and his wife and their offspring, the man is called the "gadol habayit" when one of the members of the household dies. And when the man dies, one must see who will be the leader in his place, whether the woman or one of his sons, and whoever remains as leader is called the "gadol habayit." (So it is implied from the responsa of the Rashba, siman 532, cited by the Beit Yosef in Bedek HaBayit later in this siman, see there.)

And how do we follow the head of the household in this law? The Tur wrote that if there is among them the head of the family—everything follows him. For if he remained here—everyone counts from when the deceased departed, even those who went with the deceased. And if the head went with the deceased, even those who are here count from the closing of the grave. See there, and this is the opinion of the Rosh there. But the opinion of the Tosafot there is not so, but rather everything is toward the stringency: for if the head went with him—everyone counts from the closing of the grave. But if the head remained here, those who are here count immediately, and those who went with the deceased count from the closing of the grave. Nevertheless, out of respect for the head, they also practice mourning immediately, see there. And so wrote the Hagahot Maimoniyot in the name of Maharam of Rothenburg (Beit Yosef). But our teacher, the Beit Yosef, in section 2 wrote that if the head of the family goes with him—even those who are here do not count except from when he is buried. Thus far his words. And it is explicitly explained that if the head remains here—the law remains as before: that those who are here count immediately, and those who went with the deceased count from the closing of the grave (see Shach subsection 2). And this is neither like the Tur nor like the Tosafot, for according to the Tosafot, in any event, out of respect for the head, those who go must also practice mourning immediately. And he was not concerned for this according to his version of the Yerushalmi in his great work. And it also appears because the Rambam in the first chapter (Rambam Laws of Mourning 1) did not write the law of the Yerushalmi at all, see there. Therefore he was not concerned for the stringency of the Tosafot (it appears to me). And know that there are those who say that all this is when they return to their home within three days. But when he returns after three days—those who are here are not drawn after the head of the household. And even if the head went with the deceased—those who are here count immediately (Shach subsection 3 in the name of the Ra'avan, see there). And since the Rambam did not mention this law at all, therefore one should rule accordingly.

And know that one must raise a difficulty against our teacher, the Beit Yosef, regarding what he wrote later at the end of siman 399, and this is his wording: If a person's relative died on the eve of a Yom Tov, and he feared that he would not have enough time to bury him while it was still day, and he handed him over to gentiles to take him for burial, once they have taken him out of the city and he is hidden from the eyes of the relatives—mourning takes effect upon them. And if it is one hour before the festival, and they observed mourning during it—the decree of seven days is annulled even though he is buried on Yom Tov. Thus far his words. And it is difficult: for in this siman it was explained that when the burial is in this city—one only counts from the closing of the grave. If so, how is the decree of seven days annulled, for was he not buried on Yom Tov? And it must be said that he holds that Yom Tov is different, for since the Jew cannot bury him himself on Yom Tov, he is therefore removed from this matter, and it is for the Jew as if he were buried beforehand. And his law is like one buried in another city, where those who are here count from the turning away of their faces (Dagul Mervavah). And according to this, if this occurred on the eve of Shabbat close to darkness—the eve of Shabbat is considered the first day of the seven. However, the matter is simple that one should not do this lechatchila, except in a case of pressing need where it is impossible otherwise, as it appears to the beit din that it is necessary to bury him now. For if not so—they should leave the burial until after Shabbat.

If they move the deceased from grave to grave, if they buried him in the first grave with the intent to be buried there eternally but afterwards decided to move him from there – they only count for him from the time of the first grave, even if they moved him within the seven days. But if initially they buried him with the intent to move him – they begin mourning immediately. And if they moved him within the seven days – they return and count seven days from when he is buried a second time. And if they did not move him until after the seven days – the mourning has already passed, and they do not mourn for him another time. And if initially their intent was to move him from there within the seven days – they shall not begin the mourning now at all, but rather from when they move him to another grave. And if initially their intent was to move him after this – they practice mourning immediately. However, in an unspecified case where they did not know the time of the moving, the law is as has been explained. And if the city was under siege, such that it is not possible at all to take the deceased out to the cemetery – they place him in a casket, and count seven and thirty immediately, for the closing of the casket is like burial. And after the siege they shall bury him, as I wrote in section 4. And it seems to me even if the siege was lifted within the seven days and they buried him in the cemetery, nevertheless they do not begin the mourning anew; since they did not know then that there would be a lifting of the siege within the seven days – it is like they despaired, as I wrote there.

Those executed by the government in ancient times, whom they would not permit to be buried, from when does the mourning begin? From the time they despaired of the efforts to secure burial from the officials, and then they begin to count the seven and the thirty. But as long as they have not despaired of burying him with the permission of the government – they shall not practice mourning. And also aninut does not apply to them, as I wrote in siman 341, see there. And one who was informed that his relative was crucified in another city, and practiced mourning immediately, and afterward it became known to him that he was still hanging on the cross – that mourning does not count for him, and he returns and counts from when he is buried or from when they despaired of burying him. And there is no difference whether they despaired within thirty or after thirty (Shach, subsection 6). And when they despaired of burying him and practiced the seven and the thirty, even if afterward it occurred that he was found in a river or they gave permission to bury him, nevertheless they do not need to practice mourning anew. (See Taz, subsection 2. And regarding what he wrote that he was found after the days of mourning, it seems to me that even if he was found within the days of mourning the law is so, and it was only that the incident happened to be thus. For whenever they have despaired – mourning begins immediately. And so it is explained from the law that will be explained in section 15).

In Even HaEzer siman 17 it was explained that one who drowned in water that has no end—we do not allow mourning to be practiced, so that there should not be a mishap regarding the marriage of his wife until the Torah law is clarified, see there. But one who drowned in water that has an end, and similarly when a rumor went out that bandits killed him or a wild beast dragged him away, and the rumor was clarified to be true, for if it was not clarified it is like water that has no end as is understood, from when do they count shiva and sheloshim? From when they despaired of searching for him. And even if they found him limb by limb, and they recognize him by the signs of his body—they do not count for him until they find his head and the majority of his body, or they despair of seeking him further. And if he was found after they despaired of him—the relatives do not need to return and mourn. Rather the sons, if they are there at the time he was found—they mourn that day, for it is no worse than the gathering of his father's bones. But if they are not there, and they heard when the day had passed, they do not need to mourn. And this is not actual gathering of bones but rather a burial like all the dead, for if it were actual gathering of bones, all the relatives would be obligated to mourn that day, as I wrote in siman 403. Rather, regarding his sons, because of the honor of a father—we consider it like gathering of bones. (And the difficulty of the Shach subsection 8 is answered, see there. And be precise and you will find it easy.) And that which we wrote "if the sons are there"—it is not exactly so, for the same law applies if they heard even when they are not there (ibid. subsection 9). And according to what I wrote that this is not exactly like gathering of bones, one could say that specifically when they are there—it is his honor that his sons should mourn for him. But when they are not there—they do not need to mourn even when they heard. However, from the wording of the Tur and Shulchan Aruch section 7 (Shulchan Aruch Yoreh Deah 375, 7) who wrote: "But if they are not there, and they heard after the day passed—they do not need to mourn"—it implies that when they heard before the day passed they must mourn. And so it should be ruled. And regarding keriah, if they did not rend previously—they are obligated now to rend when they found him.

Our teacher, the Rema, wrote in section 7 (Shulchan Aruch Yoreh Deah 375:7): If they sent their deceased to another city, where their law is to begin the mourning from when they turn their faces away, and they began to count the mourning and afterwards the deceased was seized and was not given for burial for a long time—they do not need to interrupt their mourning and they do not need to return and mourn afterwards. For since their law was to begin immediately, they do not need to interrupt. Thus far his words. And from this is a clear proof for what I wrote at the end of section 13, that there is no difference between if he was found after the days of mourning or within the days of mourning. For here it deals with within the days of mourning, since he wrote: "they do not need to interrupt etc."

It is stated in the Gemara (Moed Katan 21b) that if one of the mourners was not here at the place of the death of the deceased and his burial, and he came to the mourners who are here even on the seventh day, as long as they have not yet risen from their mourning—such as if he came during the night belonging to the seventh day, or in the morning before they have risen—he practices the mourning with them, and rises from his mourning with them equally. And this is specifically when the gadol habayit is there. It is not mentioned in the Gemara a distinction between whether this one who arrived knew of the death of the deceased before he arrived, or did not know. And the opinion of the Ramban, of blessed memory, is that in truth there is no difference, as the Tur wrote in his name. But the Rosh disagrees, and he holds that it is specifically when he did not know until he arrived here. But if he knew in his place where he was there, even if it became known to him on the second day—he does not shorten his mourning because of them. And so it is clarified from the wording of the Rambam and the Shulchan Aruch, as will be explained. And so is the primary ruling for the din.

And the measure of a "nearby" place: the poskim wrote that it is a measure of ten parsaot, which are forty mil. And the reason: for we require that it be within his ability to arrive at the place of the deceased in one day, as the measure of an average person's travel is ten parsaot per day. But if he was further than this measure in any case – he counts for himself. And it appears that now that railroads have multiplied, and they travel with great speed, it is called a "nearby place" as long as it is within the ability to arrive in one day via the railroad, for go after the reason. And it seems to me that they now rule thus in practice.

This is the wording of our teacher, the Beit Yosef, in section 8 (Shulchan Aruch Yoreh Deah 375:8): One whose relative died, and he did not know until he arrived at the place where the deceased died or at the place of burial, if he was in a nearby place which is a journey of ten parsaot such that it is possible to arrive in one day, even if he arrived on the seventh day, if he found comforters with the head of the household, even if they had shaken themselves to stand up, since he found comforters—meaning that they are still practicing some mourning—it counts for him, and he counts with them the completion of thirty days. And if he did not find comforters, he counts for himself. And so too if he was in a distant place, even if he arrived on the second day, he counts for himself seven and thirty from the day he arrived. In what case are these matters stated? When he did not hear that he died until he arrived. But if it became known to him on the second day and he began to mourn, he does not shorten his mourning because he arrived to be with them. Thus far his words. And our teacher, the Rema, wrote on this: And some say that even if one arrived, and the head of the household is not in the house but rather went for the needs of the deceased, if he returned within three days, it is as if he is in the house. And one who arrives within three days counts with them. And one should be lenient like this opinion. And anyone whose law is to count with them, even if he returned afterwards to his own home, he counts with them. Thus far his words. And all this is when the mourners are sitting in the place where the deceased died, or in the place of his burial. But if they are sitting in another place, this one who arrives does not count with them in any case, but rather counts alone (Shach, subsection 13). And there is one who says that a head of the household who went for the needs of the deceased and returned here even on the seventh day and counts with the mourners who are here (for example, if he also began with them when the place of burial was not very distant, and look closely and you will find it easy)—also that one who arrived from a nearby place and did not know counts with them (ibid.). And it is simple that a head of the household who arrived from a nearby place and did not know, that he counts for himself (ibid.). And so too in a place where there is no head of the household at all, the one who arrives also counts for himself. And who is called the "head of the household" has been explained in section 9. (The Shach elaborated at great length, and we have explained the main points.)

One who is a mourner, and during the seven days another relative died—he counts seven for the latter deceased, and they count for him toward the completion of the mourning for the first. And one who prayed Arvit while it was still day, such as from plag ha-mincha and onwards, and heard that a relative of his died, there is one who says that he counts from the following day, and that day does not count for him since he himself made it night. But if he did not pray, even though the congregation prayed—we have no concern with it, and he counts even this day toward the count of seven (ibid. subsection 14). And there is one who wishes to be lenient even when he himself prayed, but it is not the primary view (ibid. subsection 15). And there is room for doubt if he should don tefillin on the following day. For a mourner on the first day is forbidden to don tefillin, and since he begins from the following day—he should be forbidden in tefillin. Or perhaps we say to count from the following day as a stringency, and not as a leniency regarding exempting from tefillin. And so it appears primary in the law. (See Pitchei Teshuva in siman 388, and I have written what appears correct in my humble opinion.) And one who was buried close to Shabbat, and immediately after the burial the mourners turned their faces and went to the synagogue, nevertheless Friday counts toward the mourning even though they did not practice any mourning, for the turning of their faces constitutes the beginning of mourning (Ba'er Heitev from Rabbi Y. Taktin in the name of the Ra'anach). And even though regarding a festival it will be explained at the beginning of siman 399 that we require him to practice actual mourning for a brief moment before the festival, this is because the festival cancels the mourning entirely, and it is impossible that he should not practice mourning at all. But on the eve of Shabbat, where it is only regarding that the day should count toward the tally—we are not concerned for it. (And there is proof from what will be explained in siman 396, see there. Examine it and you will find it easy.)