Siman 392

It is forbidden to marry a woman for the entire thirty days, even without a feast, for the marriage itself is a joy. And there is no distinction whether he is a bachelor or a widower, or whether he marries a virgin or a widow. And regarding one who remarries his divorcee, it is possible that it is permitted, as there is no joy in this. And the proof: for behold, it is permitted to marry her during Chol HaMoed, as there is no issue of "one does not mix joy with joy" in it, as I wrote in Orach Chaim siman 547, see there. And only a feast should not be made. And after thirty days—it is permitted even for his father and mother, and even to make a feast. And even though in other laws of mourning thirty days is twelve months for his father and mother, nevertheless, regarding marriage our sages, of blessed memory, did not wish to be stringent since he needs to take a wife, and they treated them regarding this matter like other relatives. And therefore it is permitted even to make a feast. (This law that even for his father and mother it is permitted after thirty days is not explicitly in the Gemara (Moed Katan 23a). And from Rashi in the Rif it is implied slightly otherwise, see there. However, the Tosafot in Yevamot 43b, beginning with "Sha'ani," wrote so in the name of our teacher Tam, see there.)

The Rambam in chapter six, law 5, wrote that to betroth—it is permitted even on the day of death. Our teacher, the Beit Yosef, ruled accordingly, and wrote: Provided that he does not make a feast unless thirty days have passed. His reasoning is because this is the implication of the wording of the baraita in Moed Katan ibid., that only marriage is forbidden but not betrothal. Therefore, even though in Yevamot ibid. Rabbi Yehuda and Rabbi Yossi disagree, and Rabbi Yossi holds that it is forbidden to betroth in any case, since the baraita of Moed Katan follows Rabbi Yehuda who permits—we hold accordingly (Lechem Mishneh). Furthermore: just as we find that on Tisha B'Av it is permitted to betroth for the reason that "perhaps another will precede him through mercy," this applies all the more so to mourning (Kesef Mishneh). But most of our teachers disagree with him, for the halacha follows Rabbi Yossi, and one does not learn from Tisha B'Av as it is an old mourning. In several matters there is a distinction between Tisha B'Av and mourning. And from the baraita of Moed Katan there is no proof, for it cited marriage to show the novelty after thirty days (Tosafot Yevamot ibid.). Our teacher, the Rema, ruled accordingly, and this is his wording: And some say that even to betroth is forbidden all thirty days, and such is the primary view. Thus far his words. However, to make a shidduch is permitted even on the day of death, provided that they do not make a feast within thirty days.

Our rabbis taught: If one's wife died, he is forbidden to marry another woman until three festivals have passed for him. Rabbi Yehuda says: On the third, he is permitted. And the halacha is like the rabbis according to the opinion of the Rambam there, and so it is implied from the Rif. And such is the opinion of the Tosafot, and they wrote: Even though the halacha follows the one who is lenient in mourning, this law does not pertain to mourning, for mourning has passed from him after thirty days (Tosafot Moed Katan 23a s.v. ad). For this is certain, that regarding other laws of mourning it is only thirty days. And so our teachers, the authors of the Shulchan Aruch, ruled, and they did not bring another opinion at all, see there. But the Tur wrote that the Ritz Giat, and the Ramban, and the Rosh ruled like Rabbi Yehuda that two festivals are sufficient, see there. And therefore, even though we hold like the Shulchan Aruch, nevertheless in a time of pressing need one may rely on the opinion of those who are lenient with two festivals.

And why did they decree thus? Rather, it is so that there will be three festivals without joy, and he will not forget the love of his wife. Alternatively: so that when he marries another, he will not be mindful of the first, and so that he will not provoke the second with the love of the first (Tosafot ibid.). And there is no distinction whether he married her as a virgin or a widow, or between a first or second marriage, or whether she was healthy or sickly, or whether there was peace or strife between them, for the rabbis did not differentiate in their decree. And who knows how many more hidden reasons there are in this. (And there is room for doubt if they had agreed between them upon a divorce and did not manage to do so before she died, whether he must wait. And according to what I have written, he must wait, for they did not differentiate. And it requires further study.)

And a woman whose husband died does not mourn except for thirty days. And she is only forbidden to marry until three months have passed for the purpose of discernment, to know if she is pregnant or not. And afterward she is permitted to marry, and she does not need to wait for three festivals (Tur and Mordechai). And the reason: because for a woman, any amount is pleasing to her, for "it is better to sit as two," etc., and she will quickly forget the love of the first (ibid.). Therefore, the sages did not decree upon her to wait for three festivals.

The three regalim are well-known. Sometimes the time is short, such as when she died before Pesach, and sometimes the time is long, such as when she died immediately after Sukkot – one must wait an entire year. There is one who says that Shemini Atzeret is also considered a regal unto itself regarding this matter, for it is a regal unto itself. And there is one who does not agree to this (the Dagul Mervavah wrote that it is considered a regal, and the Gaon Rabbi Akiva Eiger does not agree). However, Rosh Hashanah and Yom Kippur are not like the regalim regarding this matter, for they are not called regalim. (Eruvin 40b. Therefore, even though the Agudah ruled that they are considered like regalim, it is a minority opinion and we do not rule accordingly, as the Nekudot HaKesef wrote in his critique of the Taz who cited his opinion, see there.)

In the Gemara there, they said that if he does not have children—he is permitted to marry immediately, meaning after thirty days, because of the neglect of procreation. And likewise, if she left him small children—he is permitted to marry immediately for the sake of their sustenance, so that there will be someone to raise them. And in the Yerushalmi they added further that if he has no one to serve him, with the service necessary for his needs and the needs of his house—it is also permitted. And there is one who wishes to interpret the term "shimush" to mean: if he does not have another wife it is permitted, because among them they would marry two wives. And according to this, for us, this law is completely nullified. And his words have already been rejected, as was written in the Teshuvot Maimoni belonging to Mourning, siman 100, see there. And all the Rishonim interpreted this term according to its plain meaning, a term of "service" and not a term of "relations."

Our teacher, the Rema, wrote that some say even one who is wealthy and has the ability to hire for himself male and female servants, nevertheless, if his daughter or daughter-in-law is not with him in his house to serve him in washing his head or other matters for which he is embarrassed before others—it is called "he has no one to serve him," and anything similar to this. Therefore, the custom has spread that many are lenient in the matter and marry women within the three festivals. And a person of soul should be concerned for himself. Thus far his words. However, in this it seems to me that if he is a businessman, such as a shopkeeper or other business where it is impossible to rely on strangers—this certainly is like one who has no one to serve him. And there are those who sought further reasons for why this law is weak in our hands. And there is one who says that they rely on the opinion of the Rambam that betrothal is permitted, and for us the betrothal is at the time of the marriage, and he must necessarily marry her lest another precede him (Dagul Mervavah). And it is a weak reason. And there is one who wrote that this is only in a place where they marry two wives and one of them died (G.M.), and we have already explained in section 7 that it is not so. And there is one who says since the reason is because of love, if so, if we knew that he hated her—we have no concern with it, or when she was sickly. And we have already written that the sages did not make distinctions. And one who fears the word of Hashem will fulfill the words of the sages as established, and will wait three festivals if there is not one of the three permissions stated in the Gemara and Yerushalmi. (See Pitchei Teshuva subsection 1 in the name of Chatam Sofer, and this was only a temporary ruling. And be precise and you will find it easy.)

Our teacher, the Rema, wrote: One who was seized by the ruler, and he does not want to release him from his seizure until he marries a woman within three festivals after the death of his wife – there are those who permit it due to his distress, and so it appears to me to be the primary view. Thus far his words. And there is no novelty in this, for behold, he is under duress; rather, it is because there is one who forbade this, as he wrote in the Mordechai at the end of Moed Katan. And our teacher, the Beit Yosef, already wondered in his great book about the one who forbids, and wrote that even in a case of doubt whether the ruler will fulfill his word – one should also permit it, for you have no greater distress than a captive. Therefore, he did not bring this law.

And that which we wrote in section 7, that if he has no children he is permitted to marry immediately, and that this "immediately" is after thirty days—this is the opinion of the Ramban, for in contrast to three festivals, this is called "immediately." However, the opinion of Rabbeinu Tam is that after seven days he may take her in marriage. And in a case where he has no children—he may also have relations after seven days. But in these two cases where he has small children, or has no one to serve him—he marries her after seven days, and it is forbidden to have relations with her until after thirty days. And according to the opinion of the Rambam, he may betroth her even within the seven days, and marry her after seven days, and he shall not come upon her until after thirty days even if he has no children. Most of the poskim agreed with Rabbeinu Tam, and so ruled our teachers, the authors of the Shulchan Aruch. And there is no distinction in this between mourning for his father and his mother and other types of mourning, for in all of them the law is as has been explained.

Our teachers, the authors of the Shulchan Aruch, wrote in section 3: One who has not fulfilled the mitzvah of procreation and betrothed a woman, and after he prepared the needs for the chuppah the brother of the betrothed died—it is permitted to marry her and have relations with her. And likewise, if he has small children and agreed to marry his wife's sister—it is permitted to marry her, for she has more mercy on her sister's children than another woman. Thus far their words. The explanation of the matters: For even though in the Gemara we do not find permission to marry and have relations within thirty days for one who does not have children except when he is a mourner and has no other choice, but if he is not a mourner and wishes to marry a woman who is a mourner within thirty days—we certainly would not permit him. For who forces him to marry this one, let him marry another? But when she was his betrothed from before—our teacher Tam permitted it just as if he were a mourner, for it is impossible for him to marry another, as the Tur wrote, see there. And the Rosh agreed with his words, but only if there would also be a loss for this one, such as if her relative died after he prepared the needs for the chuppah. But without this, he did not permit it. And it implies that the opinion of the Shulchan Aruch inclines thus. And in the Tur, Even HaEzer siman 14, it is explained according to the reasoning of our teacher Tam. And perhaps even here they did not write this specifically, but rather because in the source of the law the incident was so. And it appears in my humble opinion that in a time of pressing need one may rely on and permit it regarding his betrothed even without loss, according to the opinion of our teacher Tam.

Regarding the second law, where he left behind small children and he desired her sister because she has more compassion for them than another woman, they did not clarify their words as to whether they permitted this only after seven days or even within seven days. Certainly, they permitted it even within seven days, for if not so, even without her sister it is permitted for the sake of small children, as has been explained. And one cannot say that in this case there is a greater novelty because she is also a mourner, for it does not appear so. And so it is explicitly implied in the Gemara (Moed Katan 23a) in the incident of Yosef the Kohen. I am astonished: why did they leave their words unexplained? Regarding having relations with her, the law is certainly like with any other woman: if he has fulfilled the commandment of procreation, he may have relations after thirty days. And if he has not fulfilled it, he is permitted after seven days (and so wrote the Shach in small subsection 7). For regarding having relations with her, it is not relevant to the small children, and her law is like any other woman. (And in Tosafot ibid. starting with the words "And he said," it is explained that within seven days it is forbidden; see there.)