Siman 399

We hold (Moed Katan 20a) that a festival annuls the decree of the seven days, if one only practiced mourning for a brief moment before the festival with some matter such as the removal of a shoe or the like, before sunset prior to the festival—the mourning of the seven days is completely annulled. But if he did not practice mourning at all, or if the death occurred on the festival—he practices his mourning after the festival. And the festival does not count toward the days of mourning at all, except for the final day as will be explained. And Shabbat is the opposite, for it counts toward the seven days of mourning, and it does not annul the seven days. And thus the sages taught in the Mishnah (Moed Katan 19a): Because they said Shabbat counts and does not interrupt—festivals interrupt and do not count, see there.

And the reason for the matter must be understood. Simply, it can be said that if we were to say that Shabbat cancels the shiva, there would never be a decree of shiva for one who dies from Monday onwards, for Shabbat occurs every week. Nevertheless, this is obviously not sufficient. And behold, according to the opinion of the Rambam in the tenth chapter (the Rambam, Laws of Mourning 10), that during the festivals private matters are not practiced when one dies on the festival, see there—it follows well and simply, for it is certain that mourning must be consecutive for the entire seven days. And if so, one who practiced a portion of mourning before the festival, and the festival interrupts it completely—it is impossible to practice mourning after the festival, for if so, they would not be consecutive. This is not the case with Shabbat, where they are consecutive, for private matters are practiced on Shabbat. Therefore, when one dies on the festival—he rightly practices the consecutive mourning after the festival. (And in the Tur at the beginning of siman 400 (Tur, Yoreh Deah 400) it is explained according to the first reason.)

But according to the Rosh, the Tur, and the Shulchan Aruch, who ruled that even on a festival matters of privacy are practiced, as will be explained—this reason is not applicable. And it would seem in my humble opinion that on a festival not all matters of privacy are practiced, but only relations alone, for regarding this that halacha was stated at the beginning of Ketubot, and not for other matters. And a proof for this: for the Shita Mekubetzet brought there in the name of the students of our teacher, Yonah, and this is his wording: Specifically relations, which is not recognizable that it is on account of mourning, for behold, sometimes he separates from his wife due to niddah. But other matters etc. Thus far his words. And another proof from the Ba'al HaHalachot Gedolot, Laws of Mourning, for regarding Shabbat he wrote: And these words apply to public matters. But wearing shoes, and relations, and washing hands etc.—mourning is practiced in them. Thus far his words. And regarding a festival he wrote: But matters of privacy are practiced, such as relations. Thus far his words. And he did not write as he did regarding Shabbat. (And even though from the words of the Magen Avraham, siman 548, subsection 5, it is explained that even in Torah study it is forbidden, however, in this the Chacham Tzvi disagreed with him in siman 100, as the Sha'arei Teshuva wrote there, subsection 1. And so wrote the Pitchei Teshuva here, subsection 1, in the name of Dat Esh, see there. However, in my opinion, besides relations, no matter of mourning is practiced on a festival. And according to this, the difference between Shabbat and a festival works out well even for those who disagree with the Rambam. And another reason appears to me from the Ba'al HaHalachot Gedolot there, who wrote: And the halacha is Shabbat etc. what is the reason? "Delight" is written regarding it. Festivals interrupt, what is the reason? "Joy" is written regarding them. Thus far his words. And therefore, since joy interrupts, it is impossible to return to mourning, which is not the case with Shabbat. And from this is also a proof that all matters of privacy are not practiced on a festival except for relations, since "joy" is written regarding them. And so it is implied in the Yerushalmi, third chapter of Moed Katan, end of halacha 5, and this is its wording: There is no mourner on a festival, except that the public practices it in privacy. What is "in privacy"? That he is forbidden in relations. Thus far its words, see there. Examine it and you will find it simple.)

Therefore, one who buries his dead before the festival in a manner that mourning takes effect upon him, and he observed it even one hour before the festival—and not specifically an hour, as I have written, if he only observed some type of mourning—the festival interrupts the mourning and cancels from him the decree of seven. And regarding the decree of thirty, the calculation is also thus: namely, that seven days are considered as if they have already passed, and the first day of the festival is considered the eighth day, and he counts all the days of the festival toward the count of thirty, and completes the count after the festival.

And such is the law regarding a "near report": that if one heard on the eve of the festival that a relative died, and he observed mourning for a brief period on the eve of the festival—the festival terminates the mourning. And not only that, but if the eve of the festival was on Shabbat, and he heard a "near report" on this Shabbat and on Shabbat he cannot observe mourning, if he observed mourning for a brief period in matters of privacy—the festival also terminates it. For example, if he abstains from Torah study for a brief period for the sake of the mourning, or from washing or from other matters of privacy, and he did so for the sake of the mourning—the decree of seven days is nullified for him.

And all this is when he practiced mourning for a brief period before the festival. But if he did not practice mourning at all, whether inadvertently or willfully, or if it was close to darkness and it was not possible to practice any kind of mourning—the festival does not nullify the mourning, and he must practice mourning after the festival. And all the more so if he did not know at all before the festival that the person died—it is as if he died on the festival, for the festival does not nullify the mourning but rather he counts seven after the festival, and on the festival he practices matters of privacy. And we have already explained in section 3 that this is only regarding marital relations, see there.

And even though he practices all the mourning after the festival, nevertheless there is a distinction in this between this mourning and other mourning regarding the matter of labor and consolation. Because these details were fulfilled during the festival itself, meaning that labor is forbidden during the festival, and since he has already desisted from labor during the seven days of the festival—even though he did not desist due to the mourning but rather due to the festival—nevertheless, ultimately he conducted himself according to the law of mourning regarding the matter of labor. And similarly, comforters can console him during the days of the festival. Therefore, one should not be stringent regarding him in the matter of labor as with other mourning, and although he himself is forbidden from doing it since he is sitting in mourning, nevertheless others may perform his labor even in his house regarding a matter of loss (Tosafot 19b (Moed Katan 19b) s.v. "u-melakhto", see there). Our teacher, the Beit Yosef, wrote in section 2 (Shulchan Aruch Yoreh Deah 399:2): specifically in their houses and not in his house, see there. And it seems to me that they do not disagree, for he is dealing with a matter that is not a loss. And there is one who says that they disagree (the Gra, subsection 7), and his male and female servants perform all types of labor privately inside his house even if it is not a matter of loss. And regarding the matter of consolation, all the days of the festival they occupy themselves with him to console him, for even on Shabbat and Yom Tov one consoles mourners. Therefore, after the festival they do not occupy themselves with him to console him. And the Rambam omitted this law, and his reason is not known.

And the festival is included in the count of the thirty, as I wrote in section 4. And the reason: for behold the law of thirty—namely, pressing and haircutting—is practiced during the festival. And even if there were one law regarding pressing and haircutting during Chol HaMoed and during mourning, nevertheless, in the end they count for him, as I wrote in the previous section regarding the matter of labor. And furthermore, there is a stringency in this matter regarding mourning more than regarding the festival: for whereas by the law of the festival it would be permitted to wear pressed garments that are new and white, by the law of mourning it is forbidden; and also during the festival it is permitted to trim one's nails with scissors, and one may rejoice with the joy of companionship, but during mourning it is forbidden. And similarly, one who arrives from overseas, or from captivity, and the other things that the sages enumerated at the beginning of the third chapter of Moed Katan are permitted to cut hair and to launder, yet by the law of mourning all of them are forbidden just as during a weekday, unless his periods of mourning followed in close succession, as I wrote in siman 390. However, regarding nails we are stringent during the festival as well, as I wrote in Orach Chaim siman 532, see there. (And in the Shulchan Aruch at the end of section 1, he was not concerned with elaborating on this, because there is no practical legal difference in this detail.)

One who buries his dead on the first day of Yom Tov by means of gentiles, or during Chol HaMoed – he observes the law of aninut as long as the deceased has not been buried. After the burial, he observes matters that are private, as I wrote in section 3. Nevertheless, it is permitted to be in seclusion with his wife. We are not concerned that he will have relations with her, for only regarding a groom do we act stringently in siman 342. But for one who is not a groom – his law is like a niddah, who is permitted in seclusion. And the festival counts toward the count of thirty, meaning that the days of the festival are included in the count of thirty. And even though we do not say that he observes seven after the festival, how can we count thirty before the seven, for it is nothing. After the festival, he counts seven including the last day of the festival in the Diaspora where they observe two days. He counts six after the festival, and this day counts toward the number because it is rabbinic. Similarly, the second day of Rosh Hashanah is included in the count of the seven.

Regarding the matter of labor and consolation after the festival, the law is as has been explained regarding one who did not observe his mourning before the festival, except that there the entire festival is considered like the seven days of mourning for this matter. However, here, if he died in the middle of the festival—one must count seven days from the death of the deceased; even though the days of mourning after the festival have not yet concluded, nevertheless, his labor may then be performed by others in their homes, and according to the opinion of the Tosafot, even by himself in a case of financial loss. (And according to the opinion of our teacher, the Rema, in siman 380, in all mourning it is permitted by himself in a case of financial loss.) And his male and female servants may work for him privately inside his house. And the public does not occupy themselves with him to console him after the festival for the number of days they consoled him during the festival, but nevertheless they show him their faces by visiting him all the days of his mourning. Thus it is stated in the Yerushalmi, and its explanation is: even though it is not within the consolation of mourners since they consoled him during the festival, nevertheless they visit him. And it appears that this is also the case for one who did not observe his mourning before the festival. (And know that what was written in the Shulchan Aruch, section 2, after "they show him their faces," this is his wording: for example, if they buried him during the last three days of the festival, his labor is performed by others during the last three days of mourning. Thus far his words—it is merely a repetition of language, and there is no need for this as it has already been explained. See there.)

And regarding labor on Chol HaMoed – it is forbidden, both because of Chol HaMoed and because of the mourning. Nevertheless, any labor that is permitted for him to do on the Moed because of a financial loss – he may do himself. And even though regarding other mourners we do not permit it by himself according to several poskim, nevertheless, since he does not practice the mourning on Chol HaMoed – we do not treat him more stringently than any other Chol HaMoed, for on Chol HaMoed there is no difference between doing it himself or through others. And if it is not a financial loss – it is done by gentiles in their homes. And his male and female servants work privately inside his house. (This is the intention of the Rema in section 2, see there. However, according to what he himself wrote in siman 380, that regarding every mourner we permit a financial loss by himself – this was not necessary. Examine it and you will find it simple.)

And know that even though Shemini Atzeret is a festival in its own right, nevertheless regarding the matter of mourning it is not considered a festival at all to cancel mourning if they buried him during Chol HaMoed Sukkot. And not only that, but even that it should be considered regarding the thirty as a count of seven days, as has been explained later that if they buried him before the festival of Sukkot, Shemini Atzeret is considered as seven days regarding the thirty, nevertheless if they buried him during the festival of Sukkot or when he did not observe his mourning before the festival, for then he must observe mourning after the festival, and in such a case Shemini Atzeret is not considered as seven days regarding the thirty. But there are some of the great authorities who ruled that even if they buried him during the festival—we count Shemini Atzeret as seven days regarding the thirty, just as if they buried him before the festival. (Maharshal in Responsa siman 5, and Maharal MiPrague siman 71, and so it appears is the opinion of the Derishah. And see Shach subsection 7, and see Taz subsection 4 and Nekudot HaKesef.)

And behold, until now everything has been explained regarding one who died on the festival or before the festival and did not observe mourning before the festival, or who observed partial mourning. And now it will be explained regarding one who observed the entirety of the mourning before the festival, meaning that he sat shiva before the festival and the festival reached him after the shiva—the festival cancels the decree of thirty for him entirely. For just as the festival cancels the decree of seven when he observed partial mourning before the festival, so too the festival cancels the decree of thirty for him when he observed partial laws of thirty before the festival. And since the days of his mourning concluded before the festival, it follows that he observed partial laws of thirty before the festival. And this applies to other deceased relatives. But for his father and mother, for whom it is forbidden to cut his hair until his companions rebuke him, even if the festival reached him after thirty—it does not cancel. And the reason is simple: for this is only due to the honor of his father and mother, and this is not dependent on a number of days but rather on rebuke; if so, how does cancellation apply to this? Therefore, regarding the other laws of thirty, such as bathing, laundering and pressing, and cutting nails—he is equal to other mourners, and the festival cancels the decree of thirty for him as well.

Therefore, if one buried his dead seven days before the festival, and observed mourning during them—the festival nullifies for him the decree of thirty. And even if his seventh day falls on the eve of the festival, for a portion of the day is like the whole of it and it counts for here and for there. And it is permitted to launder and to wash and to cut hair on the eve of the festival. Our teacher, the Rema, wrote in section 3 (Shulchan Aruch Yoreh Deah 399:3): Close to darkness; and on the eve of Pesach—it is permitted after midday, that is, from the time of the slaughtering of the Pesach offering and onward. And it is preferable that he shave before midday, since others are forbidden to shave after midday. Thus far his words. And the reason why he required specifically close to darkness is not understood. For since the festival nullifies for him the decree of thirty, and therefore they permitted him to shave and to launder on the eve of the festival, if so, what does it matter to me if it is close to darkness or before it? And indeed, from the words of our teacher, the Beit Yosef, there, it is explicitly explained that the entire day is permitted, see there.

And I saw one who wrote that his reason is: so that it will be recognizable that he does so for the sake of the festival (Shach, subsection 10). And it is true that the Hagahot Ashri wrote so in the name of the Raviah, that even if the eighth day and the ninth day fall on the eve of the festival—he should not shave until close to darkness so that it will be recognizable, see there. However, our teacher, the Rema, certainly did not intend this, for it appears from his words that he only wrote this regarding if the seventh day falls on the eve of the festival. And if it were for this reason, the law would be the same on the eighth and ninth as well, as I have written. And it appears to me that he derived this law from the Tur, who wrote, and this is his wording: Even if the seventh day falls on the eve of the festival, for part of the day is like the whole of it, and its beginning counts toward the end of the seven, and its end counts toward the thirty days. Thus far his words. He was precise to say that "its end counts toward the thirty," and therefore he ruled specifically close to darkness. But on the eighth or ninth, it is permitted the entire day. And he was not concerned for the reason of the Raviah, for we should not innovate decrees of our own. (And according to this, that which was noted in the Shulchan Aruch that the source of this law is from the Tur fits well. And the Shach there wrote that it is an error, see there. But according to what I have written, it is not an error. And therefore on the eve of Pesach he permitted it after midday, for since it is the time of the slaughtering of the Pesach offering—that hour is like a Yom Tov and nullifies the thirty, and not the end of the day. And the Shach, subsection 11, wondered about him regarding this, but according to our words it fits well, and he is stating his own opinion. And this is not from Mahari Mintz, but rather according to what he inferred from the Tur, see there. Examine it and you will find it simple.)

And so, if the eighth day falls on Shabbat which is the eve of the festival – he is permitted to wash clothes, bathe, and cut hair on the eve of Shabbat, even though it is not the eve of the festival. For behold, tomorrow is Shabbat and he will not be able to do all these, and therefore it is permitted on the preceding eve of Shabbat. And if he did not even shave on the eve of the festival or on the eve of Shabbat as has been explained – he is permitted to shave immediately after the festival, for behold, the decree of thirty days has already been annulled for him. However, during Chol HaMoed he shall not shave. And even though the sages permitted several things to be shaved during Chol HaMoed, as we learned: And these may shave etc. – this refers to one who was unable to shave before the festival. But this one, who was able to shave on the eve of the festival or on the eve of Shabbat – they did not permit him during the festival, neither shaving nor anything that is forbidden to others during the festival. Therefore, if his seventh day falls on Shabbat, the eve of the festival, such that he was unable to shave on the eve of Shabbat because it was the middle of the seven days – he is permitted to shave during Chol HaMoed since he was unable to shave beforehand, and certainly after the festival. It turns out that regarding the matter of Chol HaMoed, it is more lenient for one who was on the sixth day of his mourning on the eve of Shabbat than when he was on the seventh day of his mourning. (When the seventh day falls on Shabbat, the eve of the festival, the Beit Yosef permitted wearing Shabbat clothes on that Shabbat, and returning to his place in the synagogue. And the Shach disagreed with him, and one who is lenient like the Beit Yosef has not lost out. And so they wrote in the name of the Bach in a responsa.)

Our teacher, the Beit Yosef, wrote in section 5 (Shulchan Aruch Yoreh Deah 399:5): If one of the days of mourning, other than the seventh, falls on the eve of a festival—it is permitted to launder, but he shall not wear it until night. And it is good to be careful not to launder them until after midday, so that it is recognizable that he launders because of the festival. But to wash—it is forbidden until night. And there are those who permit washing after the Mincha prayer close to darkness, and such is the custom. Thus far his words. The explanation of the matters: For as long as the seven days of his mourning have not concluded before the festival, but rather the festival cancels the decree of the seven from him, if so, until the festival enters he is still within the seven, and it is forbidden to him by the law to launder his garments and wash his body. Nevertheless, because of the honor of the festival they permitted him to launder, because laundering he cannot launder tomorrow on Yom Tov. But washing they did not permit him until night, for behold, even on Yom Tov he can wash. And there are those who permit even regarding washing after Mincha, because washing in hot water is impossible on Yom Tov. And this approach explains that which they said in the Gemara (Moed Katan 19a) that he is forbidden in washing until evening: this means until the time of Mincha and not the entire day (as the Tosafot wrote there in the heading starting "She'asur" in the name of the Ri"t). And even according to our custom that we forbid washing all thirty days, nevertheless because of the honor of Yom Tov they permitted it, since by the law of the Gemara it is permitted. And after the festival he is forbidden in washing until the completion of thirty, for the thirty were not canceled since he was in the middle of the seven. (And see Shach subsection 16, and Taz subsection 5. And even though in Orach Chaim siman 548 our teacher, the Rema, did not write so, see there—he relied on what he wrote here, for here are the primary laws of mourning. And he may wash close to evening.)

Rosh Hashanah and Yom Kippur are considered like festivals regarding the cancellation of mourning. For even though they are not called "festival," nevertheless it is written: "These are the appointed seasons of the Lord" – they were all compared to one another (Beit Yosef). And after all the laws in this matter have been clarified, therefore, if one observed mourning for one hour before Pesach – that hour is considered as seven, and the eight days of Pesach, behold fifteen, and he completes another fifteen after them for the thirty. And if he observed one hour before Shavuot – that hour is like seven, and Shavuot itself is considered like seven. And one should not ask: since Shavuot is only one day in the Land of Israel, and in the diaspora two days, how can we consider it as seven? However, since Shavuot has a period of completion for its sacrifices for all seven days, therefore even in this time it is considered like seven, behold fourteen, and he completes another sixteen after them. And the second day of Shavuot counts toward the tally of the sixteen, since it is only by the words of the sages.

One hour before Rosh Hashanah, the decree of seven is cancelled for him because of Rosh Hashanah. And Yom Kippur cancels for him the decree of thirty, and he shaves on the eve of Yom Kippur. And the same law applies to one who buries his dead on the third of Tishrei, that he shaves on the eve of Yom Kippur. And it seems to me that he may shave even in the morning. And even according to our teacher, the Rema, that on every eve of a festival it is only permitted close to dark, as I wrote in section 14, on the eve of Yom Kippur he would concede, as it is considered somewhat of a Yom Tov in itself. And one hour before Yom Kippur, the decree of seven is cancelled for him because of Yom Kippur, and the festival cancels the decree of thirty for him. And he shaves on the eve of the festival and one hour before the festival, and the festival—behold, fourteen. And Shemini Atzeret is seven—behold, twenty-one. And the second day of Shemini Atzeret, which is Simchat Torah—behold, twenty-two. And he completes eight others after them. And it has already been explained that Shemini Atzeret only counts for seven days for one who buries his dead before the festival, and not for one who buries during the festival. And there are those who say that even for one who buries during the festival, Shemini Atzeret counts for seven days regarding the matter of thirty, as I wrote in section 12. (And consequently we have learned that for one who buries his dead one hour before the festival, that hour and the festival are considered as fourteen days. And immediately after the festival he has the law of the third week, regarding the matter of sitting in his place and not speaking, as I wrote in siman 393. And see there that our custom is not so.)

The Geonim said that in the Diaspora, where they observe two days of the festival of the exiles, certainly when one dies in the middle of the festival—the last day is counted in the tally of the seven, and one does not practice mourning on it. However, when one dies on the last day of Pesach, or on the second day of Shavuot, or on the last day of the festival [Sukkot], and they buried him on that day, since the second day of the festival is of rabbinic origin, and mourning on the first day when it was the day of death and burial is from the Torah—the rabbinic positive commandment is set aside before the Torah positive commandment. But if he died on the festival of Rosh Hashanah and they buried him on that day—he does not practice mourning on it, for the two days are as one long day. To what do these words apply? To the deceased explicitly mentioned in the Torah portion. But those that were added to them, as I wrote in siman 374, whose mourning is only rabbinic—therefore one does not practice mourning for them on any second day of a festival. And even for those of whom we said one practices mourning on the second day of the festival—one does not perform keriah on the festival, but rather performs keriah at night, for one does not perform keriah on a festival, as I wrote in siman 340. And all of this is according to the system of the Geonim, that mourning on the first day is from the Torah. But according to the system of our teachers the Tosafists and the Rosh, that no mourning is from the Torah, as I wrote in siman 398—no mourning at all is practiced on the last day of the festival. And such is the simple custom in all the dispersions of Israel.

There is one who says that one who buries his dead on the first day of Rosh Hashanah—the second day does not count toward the number of days of mourning, as it is like one long day. And only when he buried him on the second day of Rosh Hashanah, then it counts toward the number of seven, as the second day is rabbinic (Taz, subsection 7). But there are those who say that there is no difference between Rosh Hashanah and other festivals, and even if he buried him on the first day, the second counts for him (Bach). And to this several great authorities agreed, and such is the custom. (So wrote the Ba'er Heitev, subsection 6, in the name of Ginat Veradim and Teshuvot Ha-Rashba, see there. And it is a wonder regarding the Taz that he did not mention the words of the Bach at all, see there.)

Our teacher, the Beit Yosef, wrote in section 14 (Shulchan Aruch Yoreh Deah 399:14): If a relative died for someone 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 to be buried, once they have taken him out of the city and he is hidden from the eyes of the relatives—avelut takes effect upon him. And if it is one hour before the festival, and he observed avelut during it—the decree of seven is annulled, even though he is buried on Yom Tov. Thus far his words. And even according to what we explained in siman 341, that handing over to carriers only applies in another city, it is different here, for they intentionally desire to remove themselves from this. Therefore, for them, it is like after burial.