Siman 376

Our sages, of blessed memory, said at the end of Moed Katan (Moed Katan 28b) that those who come to comfort the mourner—they are not to speak any word until the mourner speaks first. As it is said regarding Job when his friends came to comfort him: "And no one spoke a word to him," and afterward it is written: "After this, Job opened his mouth," and afterward: "Then Eliphaz the Temanite answered and said." And it appears to me that the reason is that the matter of comforting mourners is to justify the judgment of the Holy One, Blessed be He, as Job said: "The Lord gave and the Lord has taken away; blessed be the name of the Lord," and to comfort him from his grief. Therefore, the mourner is obligated first to justify his judgment. And proof for this is from what the Tur wrote in the name of the Ramban regarding the customs of the ancients, that the mourner would begin by saying "the True Judge" (see Be'er HaGolah, letter 1).

Our sages, of blessed memory, further said there that the mourner must sit at the head, as it is said regarding Iyov: "I chose their way and sat at the head, etc." That is to say, thus said Iyov: Until I came to this suffering, I would choose their way and instruct them which path they should walk in, and I would sit at the head. And it concludes: "as one who comforts mourners," and the reading of the yod is with a chirik and the nun with a kamatz, for it refers to the mourner who is being comforted. Thus we see that a mourner sits at the head. And it appears to me that this is only relevant when they make a meal in the house of the mourner as was done previously, where they give him ten cups to drink; in this it is relevant to say that he sits at the head around the table. But in our comforting of mourners, what relevance is there to "sitting at the head"? For the mourner sits in his place. And behold, in the Gemara there it is further stated that the comforters are not permitted to sit except upon the ground, as it is written regarding Iyov: "And they sat with him on the earth." The Rif, the Rosh, and the Rambam in the thirteenth chapter brought this. However, the Tur and the Shulchan Aruch did not bring this, and it requires further study. (And perhaps because with us it is an impossibility, and it was only said in their days when most of their sitting was upon the ground.)

We further say there (Moed Katan 27b) that once the mourner has nodded his head, the comforters are no longer permitted to sit with him. And the nodding of the head is in a manner that is understood, where it appears that he is dismissing the comforters and his desire is that they should go, and therefore it is not the way of the world to sit further. For to say with a full mouth that they should go is not the way of the world, therefore there was the sign that he would nod his head. The Rambam wrote the reason: so that they do not burden him excessively. And it is simple. And in the Tur it is implied that this is like saying "go in peace," but because the mourner is forbidden from greeting with peace, he therefore nods his head, see there (and see Derisha). And among us, this sign is not known, and therefore the comforters must sense from the mourner when he desires that they go from him, and they should go on their way in peace.

It is further stated there: To everyone one says "sit," except for a mourner and a sick person. That is to say: if one comes to honor his fellow and stand before him, it is the way of the world that the one being honored says "sit." But the mourner and the sick person, when they stand for his honor, he should not say to them "sit," for it would imply "sit in your mourning and in your illness." And therefore, in truth, the custom is not for the mourner or the sick person to stand even when a great man enters, as our sages, of blessed memory, said there: Everyone is obligated to stand before the Nasi except for a mourner and a sick person. And that which they said, "To everyone one says sit," this is its explanation: that if it happened that the mourner or the sick person stood before him even though they should not do so, nevertheless, if they did so, he should not say to them "sit."

The mourner should not say: "Master of the Universe! I have sinned much before You, and You have not exacted from me one out of a thousand." – for one should not open his mouth to the Satan (Berakhot 19a) at a time when judgment rests upon him. And it is not similar to other times when one says things of this nature in prayers, for the Satan prosecutes at a time of danger. And for this reason it seems to me why we do not say Tachanun in the house of a mourner, because we say "I have sinned etc." And certainly we do not say Vidui so as not to arouse the judgments; rather he should say: "May it be Your will that You fence in our breaches etc.", and he should not say "I have sinned etc." And therefore they should also not say "Ve-hu Rachum," because there is found "do not act toward us according to our sins etc." and similar matters, and one should not mention them in the house of a mourner. And it is also explained in Bava Kamma (Bava Kamma 38a) that it is forbidden for the comforters to comfort him with words that appear as a lack of honor to Him, may He be blessed, such as if they say to him: "What is there for us to do, for it is not within our power to change His decree, may He be blessed." And this is like a blasphemy, for it implies that if it were possible for Him to change it, He would change it. Rather, they should comfort him that "all that the Merciful One does, He does for the good," and he should receive the decree of Hashem, may He be blessed, with love. And we do not know what is called "good" and what is the opposite, and He, may He be blessed, knows all, and similar to these matters (see Taz, subsection 1).

They said in Shabbat (Shabbat 152a) that for a deceased person who has no mourners to be comforted, ten upright men come and sit there for a little while in the place where he died throughout all seven days of mourning. And automatically, the rest of the people also gather with them, for this is a gratification for the deceased. And it is brought there that Rav Yehuda did so for a certain deceased person, and after seven days the deceased came to him in a dream and said to him: "May your mind be at rest, for you have set my mind at rest." Therefore, if there were not ten permanent men there every single day – ten from the rest of the people gather and sit in his place for part of the day throughout all seven days of mourning.

Our teacher, the Rema, wrote regarding this in section 2 (Shulchan Aruch Yoreh Deah 376:2), and this is his wording: I have not seen this practiced. And the Maharil wrote: It is customary to pray with a minyan all seven days in the place where the person passed away, and this refers to a person who did not leave known relatives to mourn for him. But if he has them in any place where they are mourning for him—there is no need. And it is proper to practice in this manner. Thus far his words. And it must be said that that which is implied in the Gemara, that the primary gratification for the deceased is when they sit in the place where he died, this is regarding a deceased person who has no mourners in any place. But when he has mourners, even if they are not in the place of his death, nevertheless, since they are mourning for him—his spirit is gratified. For if it were not so, our teacher, the Rema, should not have said that it is proper to practice in this manner. (And in the books it is explained that the primary rectification for the deceased is in the place where he died. And the Rema himself in siman 384 (Shulchan Aruch Yoreh Deah 384) wrote that it is proper to pray in the place where he died, as there is gratification for the soul in this, see there. And perhaps even there his intention is when there are no mourners in another place. And in Orach Chaim siman 131 it has been explained that we do not say Tachanun in the house of a mourner, and similarly Hallel, see there.)

The Tur wrote in the name of the Ramban: The custom that was practiced in the days of our teachers was as follows: They bury the deceased and return to a place near the cemetery, which is called the place of standing for the family members. The mourner delays there and stands to one side, and the people arrange themselves before him in rows upon rows, etc., and no row is less than ten men (and the mourner is not of the count, Ketubot 8a). And they would mention there the matter of the resurrection of the dead, such as: "The great God in the abundance of His greatness, mighty and strong in the abundance of His awesomeness, Who revives the dead by His word." And they request mercy for the deceased, saying that he should merit the resurrection of the dead, and he does not conclude with a blessing. And they sanctify there (Kaddish), and say "In the world that He is destined to renew, etc." And afterwards, in a place where they were accustomed to perform "standing and sitting" – the emissary of the congregation stands and says: "Stand, dear ones, stand." And they stand and say: "Blessed is the True Judge" and similar words of justification of the Divine decree. And afterwards the emissary of the congregation says to them: "Sit, dear ones, sit." And they do so up to seven times, corresponding to seven standings and sittings for the deceased against the seven vanities, etc. (Bava Batra 100b). And at this time, when he says to them "Stand, dear ones, stand" – they stand. And all the people pass to the left of the mourner, and each one says to him: "May you be comforted from Heaven." And from there they go to another place near this, etc., and they eulogize and lament in their manner in the city square. And they bless over the cup a blessing that they conclude with: "Blessed are You, Hashem, Who comforts mourners." And if he wishes to increase the blessings corresponding to the praise of the Holy One, Blessed be He, and to conclude it with "Who revives the dead," and corresponding to the comforters "Who pays the reward," and corresponding to all of Israel "Blessed is He Who halts the plague" – the permission is in his hand, etc. And afterwards they enter with the mourner to his house, and he reclines at the head, etc., and the mourner says "Blessed is the True Judge." And the great sages comfort each and every one according to what he sees fit to expound in comfort, etc. Thus far his words.

And he wrote further that in our generations these customs have been abolished, for they were not an obligation. And all these blessings are optional (so it must be said). Rather, this is the current practice: they place the deceased in the grave, and close the stone cover of the grave, and remove shoe and sandal, and distance themselves a little from the cemetery, and sanctify "May His great Name be magnified and sanctified etc. in the world that He is destined to renew etc." Thus far his words. And so he wrote in the Shulchan Aruch, section 4 (Shulchan Aruch Yoreh Deah 376, 4). And Tzidduk HaDin we say before the burial. And at night we do not say Tzidduk HaDin nor Kaddish. And so on days when we do not say Tachanun – we do not say Tzidduk HaDin. (And not Kaddish. And so on days when we do not say Tachanun – we do not say Tzidduk HaDin.) However, Kaddish we do say, and we say Psalm 49 "Hear this, all [peoples] etc.", and afterwards he says Kaddish.

And he wrote further that afterward they pluck earth and pluck grass, and cast them behind their backs, and wash their hands with water. Our teacher, the Rema, wrote: And some say that they sit seven times, because the spirits accompany him, and every time they sit—they flee from him. In these provinces, the custom is only to sit three times after they have washed their hands, and they say each time "May the pleasantness etc. He who dwells in the secret place etc." And when the deceased is buried on Yom Tov, they may sit thus three times just as on a weekday, and the same law applies if he was buried close to Shabbat, they do so on Shabbat. And they are accustomed to be meticulous if a person enters another house before he washes and sits three times. And the custom of our fathers is Torah. Thus far his words. And the meticulousness is only regarding one who went to the cemetery and returned after the burial of the deceased. And likewise, the sittings of seven times or three times are only in this matter, and not when they go to accompany his bier and return before the burial. And the throwing of the earth is on account of grief, as it is written in Iyov: "And they threw earth upon their heads toward heaven." And it is also a hint to remember that we are earth, and to the resurrection of the dead, as it is written: "And they shall blossom out of the city like the grass of the earth." (And it is written in the Levush that one should sit seven times, and say "You are mighty etc.", and the verse "For His angels," and the first time "May the pleasantness" until "For." And "For" is included in the second time until "His angels." And each time he should add a word, see Turei Zahav subsection 3.)

There are customs not to erect a matzevah within twelve months, and not to measure the graves within seven. And that which remains from the wood of the coffin – one should not take for his own use. And the custom of the Sefardim who are practitioners of hospitality is that the table upon which they fed the poor – they make from it a coffin, in the manner of "and your righteousness shall go before you." And in Jerusalem they do not dry the hands after this washing. And they are careful not to take a shovel or a pickaxe from the hand of one's fellow when digging a grave, but rather he throws it to the ground and the second takes it from the ground. And so too at the time of washing, not to take the vessel from the hand of the washer but rather from the ground. And some say during the washing "Atone for Your people Israel etc." And some are accustomed to wash the face as well, as it is written: "And the Lord God will wipe away tears from all faces." And afterward they say: "He will swallow up death," "He who dwells in the secret place," "And let the pleasantness." And one should not take any object from the house of the mourner all seven days. And that which they were accustomed to place water in a vessel – it should be nullified, for this is from the statutes of etc., but the candle he is permitted to place, for "the soul of man is the candle of the Lord." And there are further customs, and every river follows its own course.

The kaddish is a great matter, and through it one brings merit to the deceased, both to save them from Gehinnom and to elevate them in levels. However, the primary kaddishes are those within the prayer. But the kaddishes after "Aleinu" and the song of the day – they are only for the sake of the minors. But one who is able to pray before the amud should say the kaddishes within the prayer which are the primary ones, and those after the prayer he should leave for the minors and not rob them. And many of the common people err in saying that the primary kaddish is that which is after the prayer, and it is called "Kaddish Yatom." And they do not know between their right and their left.

Our teacher, the Rema, wrote that it is found in the Midrashim to say kaddish for a father and mother; therefore, the custom is to say the final kaddish for them for twelve months. And so they practiced to be the maftir, and to pray Arvit on Motzaei Shabbat before the amud, which is the time when the souls return to Gehenna. And when the son prays and sanctifies in public—he redeems them from Gehenna. And the custom is to say kaddish for one's mother even if his father is alive, and he cannot protest against him so that he should not say kaddish for his mother. And it is a mitzvah to fast on the day on which a father or mother died. Thus far his words. And one for whom the fast is difficult—he should redeem it with money and distribute it to the poor. And the custom is to learn Mishnayot both throughout the twelve months and on the day of the Yahrtzeit, for their souls. And it is a great rectification for the soul, for "Mishnah" has the same letters as "Neshamah."

He further wrote that they say kaddish even on Shabbat and Yom Tov. However, they did not practice to pray on Shabbat and Yom Tov even though there is no prohibition in the matter. But on weekdays, one who knows how to pray—should pray, and it is more beneficial than the mourner's kaddish, which was only instituted for children. And one who does not know how to pray the entire prayer—should pray all of "Lamnatzeach" and "Uva LeTziyon Goel." Thus far his words. For the kaddish after "Uva LeTziyon" is superior to the kaddish after the prayer, which is not of the essence of the prayer. And regarding that which he wrote, that he should not pray on Shabbat and Yom Tov, there are some of the great authorities who commanded that they should pray before the amud even on Shabbat and Yom Tov (Darkei Moshe in the name of the Rokeach, and Rabbenu Yitzchak of Corbeil). However, since our teacher, the Rema, in the Shulchan Aruch omitted this, it follows that a mourner should not pray on Shabbat and Yom Tov unless he is the permanent sheliach tzibbur. And since he only mentioned Shabbat and Yom Tov, one may infer from it that on Rosh Chodesh and other days when Tachanun is not said, there is no concern, and the mourner may pray before the amud. However, in Darkei Moshe he brought in the name of the Maharil that also on Rosh Chodesh during Shacharit because Hallel is said therein, see there. And in the Shulchan Aruch he omitted this. Nevertheless, in any event on Rosh Chodesh and Chol HaMoed during Arvit and Mincha, and certainly on other days when Tachanun is not said—the mourner may pray before the amud as a matter of course. And I have seen those who are fastidious in this, and it does not seem correct to me.

He further wrote that it is the custom that one says kaddish and the prayer for only eleven months, so that they do not make their father and mother out to be wicked, for the judgment of the wicked is twelve months. Thus far his words. And for more than eleven months one should not say kaddish, even in a leap year. And he further wrote that if there were mourners here, and other mourners arrived later – the second ones have the rights to the kaddishim and the prayers for the entire thirty days from the day of burial even though they were not present, meaning at the time of death and burial; nevertheless, they have the same law as the mourners who are here. And he further wrote that there are those who say that regarding a transgressor who was killed, his sons say kaddish for him, because since he was killed, he has atonement.

Regarding the laws of dividing kaddishim and who takes precedence, there are customs, but this has no primary basis in the law. Regarding praying before the amud—whoever is more desired shall pray. Now everyone recites kaddish, for it is impossible to divide between them. Nevertheless, our teacher, the Rema, wrote regarding this, and this is his wording: Three brothers and another man—the three brothers take three kaddishim, and the other takes one kaddish. (That is to say: we do not follow the deceased, but rather the living.) And they practiced that if a day arrives on which a person's father or mother died, they always recite kaddish yatom for them. And one who knows how to pray the entire prayer—he prays. And if there are other mourners, they practiced that within seven days of their mourning they take precedence, and he has no kaddish at all. Within thirty days—he has one kaddish. (And there are those who disagree, and they hold that a yahrtzeit takes precedence over a son within thirty days, see Taz.) After thirty days, all the kaddishim of that day are his. And we count seven and thirty from the day of burial, even if the mourner did not hear immediately. And if he is a guest, whether he is like one of the city residents regarding kaddish—we follow the custom. Thus far his words. And according to this, a son within seven days takes precedence over everyone, and between a son within thirty days and a yahrtzeit, there is a dispute as to who takes precedence. And they wrote that on the day he ceases from reciting kaddish—all the kaddishim of that day are his, and we only give the yahrtzeit one kaddish. And it appears that we also give one kaddish to a son within thirty days.

He further wrote that there is no place for this kaddish except for a father and mother alone, but not for other relatives. And if there is no mourner for his father or his mother in the beit din—one who does not have a father or mother says that kaddish (yatom) on behalf of all the dead of Israel. And there are places where the custom is that other relatives say kaddish for their relatives when there are no mourners for their father or mother. And there are places where even when there are mourners for their father or mother—other relatives say it, but they make a compromise between them, that they do not say as many kaddishim as the mourners for a father and mother. And one follows the custom in all of this, provided that it is an established custom in the city. Thus far his words, and one should not elaborate further on this.