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Sanhedrin, 47


QUESTION: The Mishnah (46a-b) states that when a person is executed by Beis Din, his relatives are not to mourn for him. He is buried in a special section of the cemetery, and after the body has decomposed the bones are removed and buried in his family's burial to his family's burial plot. Rav Ada bar Ahavah asks why do we not say that the death and burial of the sinner atone for his sins? Since his death and burial atone for him, his relatives should be required to mourn for him after the burial, as they mourn for any deceased relative who is not a sinner!

The Gemara first answers that the sinner attains atonement only after the body of the sinner decomposes.

Rav Ashi then answers that it is true that a sinner achieves atonement shortly after burial; nevertheless, the relatives do not mourn for him because the laws of mourning normally take effect at the moment that the grave is closed. When their relative's grave was closed, the sinner has still not achieved atonement. He only achieves atonement once he has been in the ground for a few minutes. Since the Aveilus did not take effect at the time that it was supposed to start, it never takes effect; once it has been deferred, it remains deferred forever.

The Gemara implies that whenever Aveilus does not start at the time that the relative died, it is not observed at all. Accordingly, if a child was not yet a Gadol at the time that his relative died and he became a Gadol immediately afterwards, he should be exempt from observing Aveilus. On the other hand, the Gemara in Moed Katan teaches that if a person does not find out about his relative's death immediately, but finds out about it within thirty days of the death, then he observes the laws of Aveilus as he normally would. This implies that Aveilus *can* start at a later date!

In addition, as Rashi cites from Moed Katan (19a), if a relative dies during the festival, then the laws of Aveilus are not observed immediately, but rather the Aveilus starts after the festival passes. This implies that if the relative of a Katan dies and the Katan becomes a Gadol immediately after the burial, he *should* observe Aveilus for seven days. How do we reconcile our Gemara with the Gemara in Moed Katan, and what is the Halachah regarding a Katan who reached adulthood ("Katan she'Higdil") with regard to observing Aveilus?


(a) The Rishonim argue with regard to the Halachah of a Katan she'Higdil. The ROSH (Moed Katan 3:96) rules that a Katan she'Higdil does *not* observe Aveilus, since the Aveilus did not take effect at the time of the death of his relative. Even though the Katan has now become a Gadol, since the Aveilus did not take effect at the time of death, it cannot be compensated for at a later time. The TAZ (YD 396:2) brings a proof for the ruling of the Rosh from our Gemara which says that once the obligation of Aveilus has been deferred, it is deferred pushed off, it is pushed off forever.

Why does a person observe Aveilus when he hears about it within thirty days of his relative's death? The Rosh explains that in such a case, the Aveilus takes effect immediately at the time of the relative's death. Because of this, even the survivor who did not know about the death is given a chance to make up for the Aveilus as long as it is still within thirty days. In the case of our Gemara, in contrast, the Aveilus did not yet take effect at the moment of death of the sinner, since he was a sinner, and therefore it cannot be compensated for because of the rule that once it could not take effect originally, it cannot take effect at a later time.

How are we to answer the question from the case of a relative who dies during the festival? That case should be comparable to the case of our Gemara in which the Aveilus does not take effect at all at the time of the death! RASHI here explains that the Aveilus *does* take effect during the festival with regard to how the public interacts with the mourner.

The Rosh in Moed Katan proposes a different distinction which will answer this question as well. The Rosh explains that when the mourner (such as a Katan) or the deceased (such as a Rasha) are not fit for the obligation of Aveilus to take effect, the Aveilus is not observed even at a later time, as our Gemara says. However, when the Aveilus cannot be observed because of an external factor -- such as the time of the death (during the festival) -- the obligation to observe Aveilus is not suspended. Rather, we say that the moment of death puts into effect the laws of Aveilus which require that in a certain number of days the mourners will be obligated to observe seven days of mourning. It takes effect in such away that it should only start later. When the delay depends on the Avel or on the Mes, it is a reason that the Aveilus should not take effect at all. The Rosh rules, therefore, that a Katan she'Higdil is exempt from Aveilus.

(b) The MAHARAM MI'ROTENBURG, the teacher of the Rosh, rules differently. The Maharam says that when a Katan becomes a Gadol during the first thirty days after the death of his relative, he must observe Aveilus just like an adult relative who was unaware of the death but heard about it within thirty days ("Shemu'ah Kerovah"). The Maharam cites proof from the Gemara in Yevamos (33a) which says that when a Katan becomes a Gadol in the middle of Shabbos, all of the laws of Shabbos take effect immediately. Similarly, if a Katan becomes a Gadol during the time that Aveilus should take effect, he observes Aveilus as in a case of a "Shemu'ah Kerovah" and as in a case when a relative dies during the festival.

How can the Maharam's ruling be reconciled with our Gemara which says that once the Aveilus has been postponed, it is postponed indefinitely? The NEKUDAS HA'KESEF explains that the only time that Aveilus is postponed indefinitely is when there is something about the death which prevents the obligation of Aveilus from taking effect. For example, in the case of our Gemara, in which the relative was a Rasha, there is no obligation of Aveilus at all at the time of the death, since the death of a Rasha does not warrant Aveilus. In such a case, even if the dead man later achieves atonement posthumously, the fact that a righteous man is now missing from the world cannot obligate Aveilus, since that righteous man did not leave and pass from the world. In contrast, in the case of a person who dies during the festival, there is an external factor (i.e. the festival) that prevents the Aveilus, and thus the Aveilus is observed later when it can take effect. Similarly, when the relative of the deceased is a Katan, his age is an external factor preventing the Aveilus from being practiced; the death itself was one which should have caused Aveilus to take effect, and thus it takes effect later when it is able to be observed. A similar answer is given by TESHUVOS YAD ELIYAHU (#93) and KEHILOS YAKOV (#9).

The underlying argument between the Maharam and the Rosh seems to be how we are to view the obligation of Aveilus in the case of a Shemu'ah Kerovah.

The ROSH maintains that the Aveilus observed in the case of a Shemu'ah Kerovah is only a compensatory Aveilus, and thus it can only be observed later if it could have been observed by this person originally and for some reason he did not observe it (for example, he was a Katan).

The Maharam, in contrast, compares Aveilus in the case of a Shemu'ah Kerovah to the case of a Katan who becomes a Gadol on Shabbos. Just as every moment of Shabbos obligates a person to observe the laws of Shabbos, so, too, the knowledge of the death of a relative obligates a person to observe Aveilus throughout the first thirty days after the death, at any moment that he might learn of it. The Aveilus that is observed later is not observed to make up for what was missed, but rather the same obligation applies through the thirty days.

The BACH cited by the Taz (ibid.) points out that we find that the Rosh and Maharam have a similar argument elsewhere, as cited by the Rosh in Berachos (3:2), in which each one is consistent with his opinion. The discussion there involves a person who is an Onen on Motza'i Shabbos and thus he does not make Havdalah (since he is exempt from Mitzvos). Should he make Havdalah the next day, when he is no longer an Onen? The Maharam rules that until the Tuesday after Shabbos a person may still make Havdalah if he did not made Havdalah on Motza'i Shabbos. Therefore, an Onen should make Havdalah if his deceased relative is buried before Tuesday night. The Rosh, on the other hand, rules that when the Torah gives extra time to make Havdalah, it is not because the obligation of Havdalah applies throughout that time, from Motza'i Shabbos until Tuesday night. Rather, the obligation of Havdalah comes at a particular time -- the night after Shabbos. Until Tuesday, a person is granted the right to make up for what he missed if he did not make Havdalah on Motza'i Shabbos. Therefore, an Onen who was not obligated to make Havdalah on Motza'i Shabbos does not have to make up later for what he did not do.

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