מצוה להטמאות למת מצוה אפילו הוא כהן גדול ונזיר והולך לשחוט את פסחו ולמול את בנו ומצא מת מצוה הרי זה מיטמא לו:

It is a religious obligation to defile oneself for a corpse [whose burial is] a religious duty,² and cf. infra. even if one is a High priest or³ a Nazirite and he was going to slaughter his Paschal lamb or³ to circumcise his son and [on the way] he found a corpse [whose burial is] a religious duty, — [the law is that] he defiles himself for him.⁴ 47a s.v. וכן משוח according to which the Kohen may move the corpse from the sun to the shade in order that it should not spread stench — R. A. Eger. Cf. supra § 364, 3.

footnotes: ² Heb. מת מצוה Glos. s.v. Meth Miẓwah ³ Lit. ‘and.’ ³ Lit. ‘and.’ ⁴ Ber. 19b; Naz. 48b and Tosaf. ibid.

He is designated a corpse [whose burial is] a religious duty with respect to this matter [of defilement], only if he found his head and the larger portion [of his body].⁵ § 364, 3 end and cf. supra § 353, 7; infra § 375, 7. If, however, he found his head and the larger portion [of his body] save one limb, he may [later] return to defile himself for that limb [when he finds it].⁶ defiles himself only if the corpse is whole but not for limbs or when the body is defective. supra § 373, 9.

footnotes: ⁵ supra ⁶ Y.Naz. VII, 1(55d). In this respect the limb is treated with more stringency than in the case of a near-of-kin for whom the Kohen

Who is regarded as a corpse [whose burial] is a religious duty? — One whom he⁷ found on the road or in a town of heathens, and there is no one [available] to bury him, and from the spot where he⁷ found him he could not call upon an Israelite to answer him⁷ and come to attend to him⁸ and bury him, — [the law is that] he⁷ is forbidden to depart therefrom and leave the corpse, even to go to the town [in order] to fetch [people] to attend to the burial rites, but he⁷ should defile himself [for him] and bury him. But if there were Israelites [available] in proximity of the spot of the corpse, [so] that if the one who finds him⁸ would call upon them, they would answer him,⁷ and come to bury him, — such a one is not regarded as a corpse [whose burial] is a religious duty for whom the Kohen¹ should defile himself, but he⁷ calls upon them and they bury [him].⁹ s.v. אותו and Mid. Mishle § A corpse whose burial is a religious duty is applicable only in a case where there are not sufficient people present to carry the bier and to attend to the burial rites — TaZ. If there are heathens available to bury the corpse, he must not defile himself, provided he does not have to pay them for their services (v. infra Gloss) — A.H. [If] the townspeople came, [then the law is that] if his⁸ needs are adequately attended to,¹⁰ Cf. supra § 361, 1. he⁷ withdraws himself.¹¹ in T.H. and Asheri on Laws of Uncleanness — G. Gloss: Some say that if he is able to secure people to bury him only [if he hires them] for money, he is not bound to hire [them] with his own [money], but he may defile himself [for the corpse], *if he so desires.*¹² to Yeb. X on the authority of RITBA — G. [In the case of] a corpse that is found and we do not know whether he is a Gentile or an Israelite,¹³ we decide¹⁴ according to the majority of those present there,¹⁵ is not dutibound to bury him; if the majority consists of Israelites, the corpse is regarded as one whose burial is a religious duty. We do not decide on grounds of the nearer city, even if the nearness of that city shows evidence for such a decision, but we follow the majority, — for whatever comes out of a mixed multitude is presumed to have come from the majority, i.e., it has the legal status of the majority (כל דפריש מרובא פריש). Ket. 15a a.e. — ShaK. unless¹⁶ and A.H. we can apply¹⁷ [the principle] that everything which is stationary is regarded as half to half.¹⁸ on the authority of RaShBA Resp. — G. Concerning the principle ‘whatever is stationary is regarded as half to half’ (כל קבוע כמחצה על מחצה) cf. Ket. ibid. and parallel passages. The point is this. We decide according to the majority only when the minority is not stationary or fixed (קבוע). Otherwise, it is equal to the majority. Were the case in question as follows: It is known that nine heathens and one Jew were present in the locality where the slain person was found, then we would consider it ‘fixed’ and would not follow the majority of heathens, but we would apply the principle ‘whatever is fixed or stationary is regarded as half to half,’ and because of the uncertainty we would adopt a stringent view. Hence, the Kohen would not defile himself for the slain person. supra § 373, 8 — ShaK.

footnotes: ⁷ The Kohen. ⁷ The Kohen. ⁷ The Kohen. ⁸ The corpse. ⁷ The Kohen. ⁷ The Kohen. ⁸ The corpse. ⁷ The Kohen. ¹ Glos. ⁷ The Kohen. ⁹ Ber. 19b-20a; Yeb. 89b; ‘Er. 17b; Meg. 3b; Zeb. 100a; Naz. 43b; Y.Naz. VII, 1(56a); Y.Ber. III 1(6a); Sem(H). IV, 16. also Ket. 103b, Tosaf. ⁸ The corpse. ¹⁰ Y. and Sem. ibid. ⁷ The Kohen. ¹¹ Cited from N ¹² N.Yos. ¹³ This refers to a case where the signs of circumcision are no longer recognizable — A.H. ¹⁴ Lit. ‘follow.’ ¹⁵ Y.San. V, 1(32c), ‘One who is found slain between Tiberias and Sepphoris is presumed to be a Jew.’ We decide according to the majority of the passers-by who are likely to frequent that spot or the majority of the surrounding cities. If the majority consists of heathens, the Kohen ¹⁶ Thus according to reading of ShaK ¹⁷ Lit. ‘say.’ ¹⁸ B.Yos

For all the near-of-kin for whom the Kohen¹ defiles himself, viz., his father, mother, son, daughter, [paternal] brother, paternal virgin sister and wife, — one is dutibound to observe mourning rites.¹⁹ To these they added one's maternal brother and one's maternal sister whether a virgin or married, and one's paternal married sister, — for whom one is dutibound to observe mourning rites, although a Kohen¹ does not defile himself for them.²⁰ And even as he observes mourning rites for his wife, so too, does she observe mourning rites for him.²¹ defiles himself, it follows that just as a woman defiles herself for her husband, she also observes mourning rites for him — B.Yos. Cf. Mishna Yeb. IV, 10 (41a) and infra par. 6. [This applies] only to one's lawful married wife, but for one's unlawful or betrothed [wife] one does not [observe mourning rites].²² § 373, 4 for whom a Kohen defiles himself, and v. Yeb. 29b regarding a betrothed wife with respect to mourning rites. For one's son, daughter, brother or sister, even if they are illegitimate, he observes mourning, save [in the case of] his son, daughter, brother or sister who are [the issue] of a slave or a heathen, for whom one does not observe mourning rites.²³ on the authority of MaHaRShaL. Nowadays, however, since one cannot divorce his wife against her will, but must obtain her consent, this does not apply — P.Tesh. (to E.H. § 90 n. 8) a.o. Hence, if the husband is a Kohen, he defiles himself and observes mourning rites for her. If she was divorced on a condition and subsequently the husband died, she is not dutibound to observe mourning rites for him. However, if she desires to adopt a stringency, she is permitted to weep over him and to follow his bier — E.H. § 145, 9, Gloss.

footnotes: ¹ Glos. ¹⁹ M.K. 20b. ¹ Glos. ²⁰ Ibid. ²¹ The reason being that since a mourner observes mourning rites for all near-of-kin for whom a Kohen ²² supra ²³ Mishna Yeb. II, 5 (22a). If one quarreled with his wife and decided to divorce her, and then immediately following the dispute, she died, the husband is not dutibound to mourn for her — R. A. Eger

A stranger who became a proselyte along with²⁴ his sons, or a slave who was emancipated²⁵ along with²⁴ his mother, do not observe mourning rites for one another.²⁶, ‘He who has become a proselyte is like a child newly born.’ Hence, all his previous family relationships cease to exist and mourning does not apply. Likewise, [if] a stranger became a proselyte along²⁴ with his mother, he does not observe mourning rites for them.²⁷ from Mord. Laws of Sem. from an actual case presented before RI in accord with the established principle that mourning observed on the first day is only Rabbinical — G. infra § 399 end and cf. supra § 269, 3.

footnotes: ²⁴ Lit. ‘and.’ ²⁵ This refers to a Canaanite slave who was sold to a Jew and enjoyed a semi-Jewish status. He had to observe all religious duties that were binding on women. He was permitted to marry only a woman slave but not a Jewess. If he was set free by his owner, who then gave him a writ of emancipation to that effect, he then became entirely Jewish. ²⁴ Lit. ‘and.’ ²⁶ Derived from Mishna Yeb. XI, 2 (97b). also Gemara ibid. ²⁴ Lit. ‘and.’ ²⁷ e., for his sons or his mother. Deduced by Caro

Whomever he mourns for he [also] mourns with²⁸ if he suffers a breavement.²⁹ [This applies] only whilst he is in his presence,³⁰ but when not in his presence, he is not bound to observe mourning rites save [in the case of] his wife, although he mourns for her, — [the law is that] he mourns with her only for her father or her mother [in the case of their death] out of respect to his father-in-law and his mother-in-law; but for her brother and her sister or her son and her daughter [who are the issue] of another man, he does not mourn with her.³¹ Nevertheless, he may not compel his [mourning] wife to adorn herself, but she may mix his wine for him and make his bed and wash his face, hands and feet.³² So too, she mourns with him only when her father-in-law or her mother-in-law died, but [for] all his other near-of-kin who died, she does not mourn with him.³³. where only her father-in-law and mother-in-law are mentioned. Cf. Tosaf. ibid. s.v. אלא. Thus also Yad, Ebel II, 4-5. However, according to Y.M.K. III, 5(83a) and Sem(H). XI, 8, she mourns with him for his other relatives too. N in T.H. and Asheri adopt the latter view. W.G. Gloss: Some say that nowadays we adopt a lenient view regarding this [type] of mourning with respect to those who mourn with him, for this is only out of respect to those who observe mourning rites, but now it is the common practice to forego [this honour], and thus is the accepted practice nowadays, [viz.,] not to mourn at all with those who observe mourning rites.³⁴ on the authority of Asheri to M.K. III; N in T.H. and Hag. Maim. Yad ibid. — G. He who adopts a stringent view in this [matter] is one of those who make people wonder [at their strange conduct].³⁵ — G. Although one who wishes to adopt a stringent view to observe mourning for one for whom he is not bound to mourn, may do so (v. Gloss a.l. end), this is applicable only to formal mourning, but if, as in the present case, it is done only in the mourner’s presence, it is regarded as a mockery — ShaK. Nevertheless, it is the accepted practice that all the near-of-kin of the dead person who are disqualified to offer testimony in his³⁶ behalf,³⁷ exhibit some [signs] of mourning [by placing] themselves [under this stringency] the first entire week, i.e., until after the first Sabbath [in] that they do not wash [themselves] nor change some of their clothes³⁸ has, ‘For all those who are disqualified to offer testimony on behalf of the corpse must change their places (in the Synagogue) and not change their clothes — D.Merb. We follow, however, the accepted custom — ShaK. *as on other Sabbaths.*³⁹ There are, however, localities where the accepted usage is to adopt additional stringencies in other matters [pertaining to this type of mourning], but⁴⁰ the fundamental principle is as I have written [above].⁴¹ All this [pertains] to near tidings⁴² or to one who was present at the [time of] death, but in [the case of] distant tidings⁴³ § 402. *this type of mourning is entirely out of place.*⁴⁴ s. 251 — G. One who desires to place himself under a stringency, [viz.,] to observe mourning rites for one for whom he is not dutibound [to mourn],⁴⁵ or to put on dark clothes [in mourning]⁴⁶ for his near-of-kin, is not reproved [for doing so].⁴⁷ 20 — G. However, if one should neglect the study of the Torah on account of this stringency, he may be reproved — R. A. Eger.

footnotes: ²⁸ One must share in the mourning rites of a relation at whose death he would have to observe mourning. ²⁹ E.g., if his father’s father dies, he mourns with his father. Similarly, if his son’s son dies. ³⁰ Since the reason for this type of mourning is out of respect to the mourning relative, it must therefore be observed only in the latter’s presence. ³¹ M.K. 20b. ³² Ibid. ³³ ibid ³⁴ Tur ³⁵ Hag. Maim. ibid. ³⁶ The corpse’s. ³⁷ Ḥ.M. § 33 regarding those who are considered disqualified to offer testimony. ³⁸ The reading seems to be faulty here. D.M. ³⁹ The distinguished scholars of Austria adopted this practice — G. ⁴⁰ Lit. ‘and.’ ⁴¹ To adopt the lenient view. ⁴² Received within the thirty days. ⁴³ Received after thirty days. On ‘near’ and ‘distant’ tidings, v. infra ⁴⁴ This is fully explained in T. ha-Deshen ⁴⁵ e., even in the case of a good friend who dies. An example is the case of King David who ate the mourner’s meal in mourning for Abner (II Sam. III, 35) — D.M. ⁴⁶ For a period of twelve months — D.M. ⁴⁷ Asheri Rule

One mourns with [his] near-of-kin who mourn for them⁴⁸ only when they mourn for a [blood] and flesh relationship, e.g., [in the case of] one's son and brother who mourn for a son and daughter of theirs; but for a relationship [only] through [their] marriage, e.g., if the wife of one's son died or the wife of one's brother or the husband of one's daughter or the husband of one's sister, — one does not observe mourning rites.⁴⁹ par. 6 and Yad, Ebel II, 5.

footnotes: ⁴⁸ Their near-of-kin. ⁴⁹ For just as one’s near-of-kin do not observe mourning rites for such relations, so do we not mourn with them. supra

For an infant throughout the entire thirty days [after birth]⁵⁰ (Num. XVIII, 16). This shows that since he is redeemed only after the thirty days are completely over, it follows that only then is the infant regarded as a viable birth, but not before. including the thirtieth day⁵¹ [who died], one does not observe mourning rites, even if its hair and nails were fully developed;⁵² and BaḤ who maintain that this ruling is applicable only in the case of an infant whose hair and nails were not fully developed — ShaK. and thenceforth one mourns for it unless it was known that it was [born after] eight months [of pregnancy].⁵³ I, 7-8; ibid. Yibbum Wa-Ḥalizah I, 5 and Maggid Mish. a.l. also W.G. to O.Ḥ. § 331, 3. But if one knows for certain that its months [of pregnancy] were complete,⁵⁴ § 340, 30 regarding the rending of garments in such a case. e.g., [in the case] where [the husband] performed sexual intercourse and then separated himself [from her],⁵⁵ I, 7 on the authority of Rashi. and [the infant] was born alive after nine complete months [of pregnancy],⁵⁶ even if it died on the day it was born, one observes mourning rites for it. If it is not known whether it [was born after] nine months [of pregnancy] by the former [husband]⁵⁷ or seven months [of pregnancy] by the latter [husband],⁵⁸ both [husbands] observe mourning rites⁵⁹Z. But if the question of disrespect does not enter, e.g., where one of the husbands died, in which case, it would be said that he was the real father, we adopt a lenient view and the other husband observes no mourning rites for the infant, for mourning is only Rabbinical — P.Tesh. In the event that both fathers died, the son must mourn for both — Ibid. for it.⁶⁰ Yad, Ebel I and B.Yos on the authority of Tosaf. — G.

footnotes: ⁵⁰ Shab. 135b in accord with R. Simeon b. Gamaliel who derives this from the verse, ‘And those that are to be redeemed of them from a month old shalt thou redeem’ ⁵¹ Bek. 29a in accord with R. Ashi. An infant who died on the thirty-first day after birth prior to the twenty-four hours from the hour of birth, is mourned for — P.Tesh. ⁵² The case in question is where we are not certain whether the months of pregnancy were complete, although the infant’s hair and nails were fully developed contra Hag. Asheri ⁵³ In which case one does not mourn for it, for it is doubtful whether the infant will live. Cf. Yad, Ebel ⁵⁴ Shab. 136a; Nid. 42b. supra ⁵⁵ Hag. Maim., Ebel ⁵⁶ Even if some of the months of the nine months’ period consist of twenty-nine days, we mourn for the infant — P.Tesh. ⁵⁷ From whom she was divorced and did not wait the required three months before her remarriage. Three months were required in order to determine whether she was with child from her first husband. ⁵⁸ Yeb. 36b, Tosaf. s.v. הא end. This ruling is applicable only if during the first three months after her marriage to the second husband she was in our presence, but we did not notice whether she was with child or not. Hence, we cannot apply the principle of following the majority of births which take place after nine months of pregnancy. Consequently, the majority is impaired and therefore both the first and the second husband are required to mourn for the child. But in a case where she was in our presence only after the three months’ period of her remarriage elapsed, we presume that she became pregnant by the first husband who alone is then required to mourn for the infant, since this birth belongs to the majority of births that take place after nine months of pregnancy. However, in the case of inheritance, we say that this child does not inherit the first husband after the latter’s death, for ‘in monetary matters we do not follow the status of the majority’ (אין הולכין בממון אחר הרוב) — P.Tesh. ⁵⁹ Although mourning is only Rabbinical, nevertheless in a doubtful case such as this, we adopt a stringent view, for it would be disrespectful not to mourn for the infant at all — Ta ⁶⁰ Mord. Laws of Mourning; Hag. Maim.

There is an authority who says that twins of whom one died within thirty days [after birth] and the other [continued to] live after thirty days, one does not observe mourning rites for [the one who died].⁶¹Z and ShaK who show that the source of this ruling (*O.*Z.) substantiates their emendation of Caro’s text. Cur. edd. are faulty and imply that the words, ‘one does not observe mourning for him’ refer to the second one, even if he dies after thirty days, on the principle that since the first was a non-viable birth, the second one should also be considered thus. This explanation is rejected by TaZ and ShaK according to whom, if the second one dies after thirty days we are dutibound to mourn for him alone and we do not say that since the second one is a viable birth then the first should also be considered viable. Hag. Asheri M.K. III end s.v. תאומים on the authority of O. Z. and Naz. 13a, Tosaf. s.v. והפילה.

footnotes: ⁶¹ Thus according to the corrected version of Ta

For his teacher who taught him wisdom, he observes the laws of Aninuth,⁶² § 242, 27; 341, 1 Gloss. only that he may recite the benediction [before] and say grace [after meals],⁶³ § 341, 1. and he mourns for him by removing his sandals [or shoes], and [he observes] all the laws of mourning for one day [only].⁶⁴ § 242, 25 where it is stated that part of the first day is sufficient. M.K. 20b. Caro writes on the authority of R. Simḥa that he is required to change his [customary] place in the Synagogue.⁶⁵ § 344, 18. However, [if one does this only] during part of the day [it] suffices.

footnotes: ⁶² Glos. Derived from Y.Ber. III, 1(6a) where mention is made of different customs adopted by certain scholars with respect to eating meat and drinking wine after the death of their teacher. Some accepted the observance of mourning rites, yet ate meat and drank wine. One scholar, it is recorded, ate only lentils. Cf. supra ⁶³ supra ⁶⁴ Cf. supra ⁶⁵ M.K. 22b and cf. supra

[With respect to] a Nasi,⁶⁶ despite the fact that all people may defile themselves for him, — [the law is that] one does not mourn for him.⁶⁷ in T.H.; RaBaD. As far as defilement is concerned, he is regarded as a corpse whose burial is a religious duty, but mourning is not mentioned regarding him. however, supra § 340, 7 and cf. W.G. ibid. n. 39. Gloss: Some say that one does not mourn for his first son⁶⁸ or [even] his firstborn son, who died.⁶⁹ and B.Yos. cite the authority for this custom, but they write that the ruling is erroneous — G. However, this custom is erroneous, but one is dutibound to mourn for them. Nevertheless, the custom has spread in our city that a father and mother do not follow [the funeral procession of] their first son [on its way] to the cemetery. Some say that during the time a plague [rages] one does not observe mourning rites out of fear,⁷⁰ s. 3 — G. On account of the spreading epidemic. and I have heard that some have adopted this practice.

footnotes: ⁶⁶ Glos. ⁶⁷ Y.Naz. VII, 1(56a); Y.Ber. III, 1(6a); N ⁶⁸ Who is not a firstborn. ⁶⁹ Kol Bo, RIBaSh ⁷⁰ MaHaRIL Resp.