Siman 397

The Ramban wrote that based on hearsay testimony, or a Cuthean speaking in innocence—one observes mourning based on his word, for regarding a matter that is destined to be revealed, people do not lie. This is the rule: Testimony by which a woman is permitted to marry when they testified that a certain person died—the relatives observe mourning based on his word. And this is what our teacher, the Beit Yosef, wrote: One observes mourning based on the word of one witness, or hearsay testimony, or a Cuthean speaking in innocence. Thus far his words. And even though regarding a woman there is an additional reason, because she investigates and then marries, nevertheless there is one who holds that the primary permission is because of the matter being destined to be revealed, etc., as we explained in Even HaEzer siman 17. Furthermore: even if for a woman the reason of "destined to be revealed" alone would not suffice, that is because of the prohibition of a married woman which is very stringent. But regarding mourning which is lenient—this reason alone is sufficient (it seems to me).

And there is reason to doubt: since we learned this from the law of a woman, if so, if there is a concern of "imagining" [bedidmei], where we do not permit a woman in such a case due to the concern that it appeared to him that he died but in truth he did not die, such as in war and the like, if also regarding mourning in such a case one does not need to mourn? Or perhaps they only concerned themselves with this regarding the prohibition of a married woman, and not regarding mourning which is more lenient. And in my humble opinion, it appears that whenever there is a concern of "imagining" – one does not need to mourn until the matter is clarified. And specifically a Kuti speaking in innocence is believed, but if he intends to testify – he is not believed (Mordechai). And the matter is simple that if one witness says he died and one witness says he did not die, or two say he died and two say he did not die – he does not mourn. But one against two – he is not believed (see Beit Yosef). And there are those who hesitate regarding a Kuti speaking in innocence, that he is not believed (see Taz subsection 1). And if they know that the Kuti is not a liar – certainly he should be believed (it appears to me).

One to whom it was written that a relative of his died—he must mourn, for even regarding a married woman they permit [remarriage] based on a letter, as is explained there in siman 17. And if he heard that a relative of his died or they wrote to him, and he does not know if it is still within thirty days or after thirty days, dispute has increased among the great authorities. For there are those who say that he is obligated to mourn on the grounds that we establish him in his status of being alive, and certainly he was alive before thirty days just as he was alive previously, and it is only now that he died. And there are those who say that he is exempt, for on the contrary, all things are judged at the time of their discovery, and we say: since now he is dead—originally he was also dead. And we do not establish a status of being alive unless we can say that even now he is alive. But when now he is certainly dead—the original status is nullified. (See Taz and Nekudot HaKesef. And in several other responsa they elaborated on this.) And behold, in truth we find several legal statuses in the Shas where we establish the original status, even though now it is certainly not so. However, in every place where we find this, there are other statuses against it that assist this. But in a place where we are only judging based on this status alone, it can be said like the opinion of the one who exempts. However, that which we hold is that this matter is not similar to all other matters, for here even if we say he died before thirty days—nevertheless there was an obligation upon him to mourn except that he did not know, and since the obligation of mourning was certain—a doubt does not remove a certainty, unless we say that mourning is very lenient and one should not be stringent in a case of doubt. But from the perspective of the matter of legal status, I do not see grounds to exempt him. And since there is a dispute—the halakha is according to the words of the one who is lenient in mourning. And all the more so if a sage wrote to him that he died and did not clarify—certainly it is after thirty days, for if not so, he would have clarified that this is within thirty days (Shach). And so too if they instructed him that he should not mourn, and afterwards it became known that then it was within thirty days, nevertheless he is exempt now since now it is after thirty days. (Taz and Shach, and according to his version in Nekudot HaKesef and not as it was printed in the Shach, see there. Examine carefully and you will find it easy.)