Shulchan Arukh Yoreh De'ah · Siman 380

Shulchan Arukh Yoreh De'ah 380 — English translation

Translation: Code of Hebrew Law by Chaim N. Denburg, Montreal, 1955. Section numbers match the Hebrew text above.

1. 1The following are the things forbidden to the mourner: 21a and Tosaf. s.v. אלו . In this chapter the question of work with respect to the mourner is explained. [He is forbidden] to engage in work, (Amos VIII, 10), whence it is inferred that just as it is forbidden to do work during a Festival, so too, is it forbidden to do work during mourning ( ibid. 15b). to bathe, § 38 to annoint himself, § 38 to put on sandals [or shoes], § 382. to have marital intercourse; § 383. he is forbidden to read the Pentateuch; § 384. he is forbidden to greet one 'with peace,' § 385. to wash [his garments], § 389. and he is dutibound to muffle his head § 386. and to invert his couch § 387. throughout the seven [days of mourning]; and he is forbidden to put on Tefillin on the first day [of mourning]; § 388. and he is forbidden to don laundried garments, § 389. to cut his hair, § 390. to rejoice § 39 and to resew a rent during the whole of the thirty days [of mourning]. § 340, 14. And all matters pertaining to mourning rites apply both during the day and during the night . s. 446 — G.
2. 2In what respect [is a mourner forbidden to engage] in work? — During the whole of the first three days he is forbidden [to engage] in work, even [if he is] a poor man who is supported from charity; the first opinion recorded in Y. ibid. , according to which only the first two days are forbidden. T.H. thereafter, if he is a poor man and he has naught to eat, s.v. מכאן ; ibid . a, Tosaf. s.v. אלו ; Sem(H). VI, 6; Yad, Ebel V, 8. Y. ibid. offers the reason for the three day period, ‘The soul hovers over the body for three days, thinking that it will return into the body, but as soon as it sees that the facial features have changed, it abandons the body and leaves.’ also Y.Yeb. XVI, 3(15c) bot.; Gen. R. C, 7; Lev. R. XVIII, 1 and cf. Shab. 152a. R. Yeruḥam citing RaBaD explains that since three days are required for weeping (M.K. 27b), engaging in work would cause the mourner to relax in his weeping rites. he does [his work] in privacy in his house; in Tosaf. ibid. 21b, s.v. מכאן ) that after three days, even one who is not a poor man may engage in work at his home. But the majority of the Codifiers rule in accordance with the ruling recorded here by Caro (v. Sem(H). beg.). and a woman plies the spindle in her house;) — ShaK. but the Sages said, 'May a curse come upon his neighbours, who, [by not providing his maintenance] were the cause of his need to thus [engage in work].' In the case of a poor man who does not receive any maintenance from the charity fund, or in a case where it is impossible for the neighbours to support him, he may do even skilled work on the first day, provided this is done in privacy — A.H. In the manner that one is permitted to write on Hol ha-Moed , so is [ the mourner ] permitted to write during his mourning, but not in any other way . on the authority of R. Meir of Rothenberg and Caro in present chapter — G. Regarding writing on Ḥol ha-Moed , v. O.H. § 545. This refers to the כתב משיטא , the ordinary handwriting of Rashi or the one we use today, not the printed square characters. In the case where a loss is involved, the כתב משיטא may be used without restrictions — Me’ore Or. Isserles’ comparison between Ḥol ha-Moed and mourning rites with respect to writing, refers only to an individual who is a professional scribe and earns his living thereby, and should be understood thus: Just as one who makes a living from writing scrolls, Tefillin or Mezuzoth is forbidden to write on Ḥol ha-Moed , unless he has naught to eat in which case he is permitted, so also, does the same law apply to a scribe who is a mourner — A.H. A professional scribe who is a mourner is permitted to be employed to write a divorce (if no other scribe is available), for there is apprehension lest the husband change his mind. Hence, in order to avoid the eventuality of the woman becoming a deserted wife ( עגונה i.e., she remains tied to her husband and cannot remarry), the scribe is permitted to write the divorce, for this falls into the category of cases ‘where the public needs him’ — Ha-Elef Leka Shelomo. On the same principle, the scribe is permitted to repair a Torah scroll — Sh.M.B.
3. 3Just as he is forbidden to do work [during mourning] even so is he forbidden to engage in business or to go from one town to another with [his] wares.. V, 7; ibid. VI, 8 and v. infra par. 21.
4. 4Even business that might be lost [if postponed] the mourner is forbidden to engage in, both he as well as his male and female slaves, his sons and daughters in T.H. whose labour belongs to him.
5. 5[The mourner] is forbidden to do his work through [the agency of] others, even [ through the agency of ] a Gentile , M.K. II beg. — G. unless it is business that might be lost [if postponed], for any business that might be lost [if postponed], the mourner is permitted to engage in through [the agency of] others; even aught that is forbidden during [ Hol ] ha-Moed on account of labour involved, is permissible [during mourning], a.o. For only on Ḥol ha-Moed they forbade things which involve labour on account of honour or respect to the Festival, but in the case of a mourner who does his work through the agency of others, this does not apply ( Tur ) — ShaK. even if it is skilled work. Gloss : And some say and Maim. do not accept this viewpoint. If it is impossible to do the work privately, one who is in difficult financial circumstances, may do it even publicly, for we compare the law of the mourner to Ḥol ha-Moed , and as in the latter case it is permitted to engage publicly in work, which if postponed, involves an irretrievable loss, so too, in the case of the mourner — Heshib Moshe, Ḥatam Sofer, Tifereth Z ebi , Sh.M.B. that if he is unable to do the work through [ the agency of ] others, and it is business that might be lost [ if postponed, the mourner ] is permitted to do [ it ] himself; on the authority of T.H.; Asheri and thus also R. Yeruḥam — G. and after the first three days one may adopt the lenient practice, and even within the three days, if it involves a great loss.
6. 6[With respect to selling] his wares in [the case of] business [which if postponed] might entail a loss, [namely], if he should not sell [now] he would suffer the loss of the principal, — [the law is that] the sale may be made through [the agency of] others. However, if he should not suffer the loss of the principal, only that if he sells it now, he will make more profit than if he sells it later, it is forbidden. to M.K. 10b (v. Tosaf. ibid. s.v. ובדבר ) after an analysis of Y.M.K. II, 3(81b). ( Asheri ’s version of Y. ibid. is different from cur. edd.). If a buyer should suffer a loss on account of the seller who is in mourning, the latter is permitted to sell through the agency of others, and it is quite possible that even the mourner himself may sell directly — P.Tesh. A distinction should be made between two kinds of business deals, viz., a) In the case of a business deal in which the mourner became interested only incidentally, but his main livelihood is derived from other sources, the law is that he is permitted to transact this incidental deal through the agency of others only when he suffers a loss if it is postponed; b) In the case of one, however, whose permanent source of income depends upon such transactions, even the prospective profit may be considered on the same footing as the principal, for the individual depends upon it for his livelihood. Consequently, the prohibition applies only in the case where he would make more profit now than later. But if, at present, he would make the same profit as later, it is permissible to sell through the agency of others, since there is also the possibility that later he will not make any profit at all — A.H. Yet, if caravans or ships arrived, One who suffered a bereavement while he was out of town, and was unaware of this, the law is that his friends (or his wife and children, who normally would be forbidden to do his work, since their labour belongs to him) may carry on his work — Ḥok. Adam. If, while he was away from home, it became known to him that he had suffered a bereavement, but those at home were unaware of this, the law is that he is not required to inform them thereof in order that they close his store or business— Resp. Heshib Moshe. or desire to leave, and are selling [goods] at a low price, or are buying [goods] at a high price, it is permissible [for the mourner] to sell or to buy through [the agency of] others, derived from Y. ibid. The reason being that it is a matter of infrequent occurrence (v. O.Ḥ. § 539, 4-5) — ShaK. even if it is not required for his [personel] use, but rather to transact business [in order] to make a profit. in T.H.
7. 7[With respect] to lending money to a heathen on interest, [namely], to those who are accustomed to borrow from him, — [the law is that] he is permitted to lend money through [the agency of] others, for this is considered business which [if postponed] entails a loss. on the authority of Asheri , derived from R. Tam contra N in T.H. , on the same principle as stated in par. 6 supra. For in this case, if he does not lend them the money, they will go to others and thus become accustomed to return to the latter in the future for further business. Consequently, if the mourner were not permitted to lend the money through the agency of others, he would suffer a loss ( Tur ) — ShaK. The same principle applies also to other wares which they are accustomed to buy from him — A.H.
8. 8One who has a monetary claim against others, and now [during the seven days of mourning] he is able to find them, but afterwards he is not able to find them, is permitted to send [other people] to them [in order to recover his debt]. on the authority of N in T.H. For in this case too, it is considered an irretrievable loss should he have to wait until the seven day mourning period is over. But if it is possible to recover his money after the seven days of mourning, he is forbidden to do so during the first week of mourning.
9. 9If he has a legal claim against another person, he should not summon [the latter to judgment] during the whole of the seven [days of mourning]. But if it is a matter which, [if postponed], entails a loss, e.g., if [the defendant] wishes to go to a foreign country, or his witnesses are ill, he may appoint a mandatory who litigates with him. and N in T.H.; Yad, Ebel V, 14 on the authority of the Geoni m. If it is obligatory for the mourner himself to appear in court, he is permitted to do so under the circumstances — A.H.
10. 10All matters which they permitted on [ Hol ] ha-Moed on account of the Festival needs, only with respect to business which involves a loss, if postponed. Regarding the law of a poor mourner who has not what to eat, cf. supra par. 2 and notes. are forbidden in [the case of] a mourner, even [if done] through [the agency of] others. and N in T.H.
11. 11A mourner whose field was in the possession of others on terms of metayage, or on a fixed rental lease, or on a labour contract, — [the law is that] such persons may work in their usual way during the [seven] days of mourning of the owner of the field.’s explanation cited by Asheri , since they work for their own benefit, despite the fact that the mourner also profits thereby, for the field is considered to be in their possession — A.H. And even if the time of their tenure expired before [the owner commenced mourning rites], and they remained in the field as they were [prior to the expiry date]. on the authority of RaBaD , who offers the following explanation: For the field remains for the same purpose, and since the very same people were farm-keepers, or tenant-farmers, or contractors before the expiry date, it is well to assume that the owner does not intend to dismiss them and the agreement is considered renewed automatically.
12. 12If the mourner is a metayer par. 11, nn. 48-50. [or a tenant farmer par. 11, nn. 48-50. or a contractor of labour] par. 11, nn. 48-50. in a field that belongs to others, he himself must not do the work, but through [the agency of] others it is permissible. and Ḥok Adam.
13. 13If there is a daily worker who cultivates the mourner's field, even [if he is] in another town, — [the law is that] he may not work. Since he is not employed on a tenancy or on a fixed rental lease or on a labour contract — ShaK. Cf. supra par. 11 and notes. Under such conditions the field belongs to the owner contra par. 11. Moreover, since a daily worker may retract according to the law during any part of the day, there is no substantial loss involved — Rashi (M.K. ibid. s.v. לא יעשה ).
14. 14If the mourner has an ass or a ship rented or hired out to another person, the latter should not engage in work during the [seven] days of mourning of the owner of the ass or the ship, unless he hired it before he [the mourner] began the observance of mourning and the period [of rental] had not yet expired; par. 11). but if the period of [rental] had expired, it is forbidden [to do work].) where the contract is considered renewed automatically — A.H. M.K. ibid. in accord with RaBaD ’s interpretation.
15. 15If the ass or the ship were [rented out] to others on shares of one-half, one-third or one-fourth [of the earnings], some permit [them to work during the seven days of the owner's mourning], on the authority of N in T.H. The principle is similar to the terms of metayage with respect to land ( supra par. 11). and others prohibit [this]. in T.H. , the law being that metayage applies only to land with respect to work done during the owner’s period of mourning. A.Z. 21b. (Movable objects under such conditions are still called by the owner’s name, unless the agreement is on a strict rental basis, in which case the movable objects belong to the others as long as the agreement is in force (v. supra par. 14). Should, however, an irretrievable loss result on account of the postponement, even in the case of movable objects on a metayage basis, work would be permitted — A.H.
16. 16If the mourner is in the hire of another person [and the period of his employment had not expired], he must not engage in work during his mourning, s.v. ואם . but through [ the agency of ] others, he is permitted . — G. It follows from this that even if no loss is involved if the work is postponed, it is still permitted. Thus Lebush. ShaK , however, rejects this and maintains that even through the agency of others, it is forbidden, unless the matter entails an irretrievable loss, if postponed.
17. 17[If] others' work was in his hand, even in the case of loose matter, e.g., [material] for weaving, whether it is a contract job or not a contract job, — [the law is that] he may not do [work on] it. Gloss : And if it is a matter which entails an irretrievable loss [ if postponed ], he may do [ work on ] it through [ the agency of ] others .’) own opinion — G. Cf. supra pars. 5 and 12. Lebush holds that even if it does not involve an irretrievable loss, it may be executed through the agency of others, since it is not his material, on the same principle as supra par. 16. ShaK contra Lebush maintains that Isserles’ ruling applies in par. 16, but not here. ShaK himself rules as in par. 16 notes. One is permitted to receive work during the [ seven ] days of his mourning to be executed later, only that he should not weigh or measure [ the material ] after the manner in which he [ usually ] does this on other occasions . — G. Derived from M.K. 12a with respect to Ḥol ha-Moed.
18. 18[If] his work was in the hand of others on a labour contract, [viz.,] in [the case of] loose material, — they may not do [work on it] in his own house, but in the others' house they may do [work on it], writes on the authority of the commentators that from this we may derive the ruling that if a mourner engaged a teacher, a scribe or a labourer, they may not execute the work in the mourner’s house (cited by B.Yos. ) — ShaK. provided they received the work before he became a mourner . M.K. III end and R. Yeruḥam — G. Cf. also supra par. 14.
19. 19[If] one had a building [under construction] by others on contract, — ShaK. — [the law is that] on a weekday, or on Hol ha-Moed , they must not work, even if it is outside the city limits;, even if the contractors are non-Jews — ShaK, A.H. and if these contractors are non-Jews, they are permitted to built it on a Sabbath or Festival, which fell during the days of [his] mourning, if it is outside the city limits, and [provided] there is no other city in which there are Jews within the limits of that house. derived from M.K. 12a in accord with Samuel’s dictum and the provision of R. Papa and R. Mesharshaya. Cf. Rashi and Tosaf. ibid. s.v. אמר . also Asheri a.l.
20. 20If others undertook [on contract] to plough and sow his field, some say that they are permitted to plough and sow during the [seven] days of mourning of the owner of the field. on the authority of RaBaD. Cf. supra par. 11 and 4 and T.H. For in such a case the owner of the field will not be suspected later that the one who ploughed his field was not a metayer. However, there is [an authority] who prohibits [such work]. On account of the same suspicion that applies to the construction of a building. Cf. supra par. 19; O.Ḥ. § 244, 1.
21. 21Two [individuals who were] partners in a shop, and mourning befell one of them, close their shop so that the [other] partner should not do work publicly, but he may do work privately in his house, even work pertinent to the partnership. But if the mourner is a prominent person and the partnership is called by his name, so that even if [the other partner] will do work in his own house it is known that the mourner has a share in it, — [the law is that] the other partner is forbidden to do work even in his house. as follows: In Y. we deal with work done publicly (cf. the term חנות -shop used ibid. ), whereas in B. it refers to work carried on privately. Hence, Caro’s ruling here. There are many authorities who adopt a lenient view with respect to partnership. Moreover, the leniency is extended even to cases where the shop belongs to the mourner alone, on the principle that it is impossible to keep one’s shop closed for the entire week which would entail great losses. The question, however, may be raised, — on what basis is such a leniency adopted? For even drawing up a bill of sale between the mourner and his partner or any other person, would not be helpful since the reason for the prohibition is on account of ‘appearance sake’ ( מראית עין ) and consequently, people will still know that the shop belongs to the mourner. RaShaL ( Resp. 66) is lenient in this matter after three days (and part of the third day is considered a full day). Yet Maim. in Yad, Ebel V, 9 states that the prohibition remains in force for seven days. A.H. advances the following argument in favour of the lenient practice: With respect to a matter which entails an irretrievable loss if postponed, we find that mourning and Ḥol ha-Moed are on an equal footing (v. O.Ḥ. § 539 where it is stated that if the market day falls on Ḥol ha-Moed the individual may sit in his shop). Hence, we see that if a loss is involved, the question of conducting business publicly does not enter. Similarly, in the case of mourning. In Prague it was customary to dissolve the partnership or to transfer one’s business by means of קנין סודר , i.e., a legal form of acquisition by handing over an article (e.g., a scarf) from one party to the other as a symbol that the object itself has been transferred. Some would transfer the business while still in the observance of Aninuth; others, whilst the person was in his dying condition. also P.Tesh. and Later Authorities.
22. 22Sweeping the house, washing cups and making the beds, are not considered as work [forbidden] to the mourner. M.K. Likewise, is it permissible for a woman to bake and cook during the days of her mourning Rt. 55. all that she requires, but whatever she does not require is forbidden. So too, a woman who is a servant in another person's home and mourning befell her, is permitted to bake, cook and do other household needs, whether she serves gratuitously or for remuneration. There is no contradiction between this ruling and that of par. 16 supra . The latter case deals with real work for a profitable purpose, whereas here it refers to attending to the household needs, which work is permitted for the mistress proper. Consequently, a woman servant (or any attendant) whom mourning befell, is permitted to do only such work which pertains to the household needs. The servant, however, must not leave the house during mourning — Ta Z. A Synagogue attendant ( שמש ) who is in mourning, is permitted to attend to the Synagogue needs on the eve of the Sabbath — P.Tesh.
23. 23One who goes from place to place for business and received near tidings § 402. [while on the way], — [the law is that] if he can reduce [his work] not to conduct any business affairs in that city, it is well; if not, [i.e.,] if he will not buy in that city, he will not find [the same opportunity] elsewhere], he may [only] buy [what he requires] for the needs on the way [those] things which are considered the necessaries of life. to M.K. 26b-27a; Yad, Ebel VI, 10; T.H. on the authority of R. Ḥananel.
24. 24For all [other] dead, if he desires to reduce his business affairs which are permissible for him [to engage in], e.g., any business which entails an irretrievable loss [if postponed], he may reduce; if he desires, he may not reduce; [but] for his father or mother he should reduce [his business]. Cf. Tosaf. ibid. , 27a s.v. אם and Kes. Mish. Ebel. VI, 9; Ta‘an. 12b. Bedek ha-Bayith a.l.
25. 25For all [other] dead, he is forbidden up to thirty days to go [out] for business on a distant [journey], for this involves great publicity and is similar to rejoicing, since one [ordinarily] travels in a caravan group and they rejoice much [while] on the road; in [the case of] his father or mother [he is forbidden] until his friends rebuke him § 390. and say, 'Go with us' and Asheri. Today this ruling no longer applies — A.H. .

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