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 plot. Rav Ada bar Ahavah asks that the death and burial of the sinner should atone for his sins, and once his sins have been atoned for his relatives should be required to mourn for him!

The Gemara first answers that the sinner attains atonement only after his body 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 is closed, the sinner still has not achieved atonement. He achieves atonement only once he has been in the ground for a few minutes. Since the Aveilus does not take effect at the time that it is supposed to start, it never takes effect; once it has been deferred, it remains deferred.

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 had not yet reached the age of adulthood at the time that his relative died but he reached that age immediately afterwards, he should be exempt from observing the laws of Aveilus. On the other hand, the Gemara in Moed Katan teaches that when a person does not find out about his relative's death immediately but he finds out within thirty days of the death, he observes the laws of Aveilus as usual. This implies that Aveilus *can* start at a later date.

Moreover, as Rashi cites from Moed Katan (19a), when a relative dies during the festival, the laws of Aveilus are not observed immediately but are postponed until after the festival. 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 is the Gemara here to be reconciled with the Gemara in Moed Katan, and what is the Halachah in the case of a Katan who reached adulthood ("Katan she'Higdil") with regard to observing Aveilus?


(a) The Rishonim disagree about the Halachah in the case 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. Although 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) cites proof for the ruling of the Rosh from the Gemara here which says that once the obligation of Aveilus has been deferred, it is deferred forever.

Why does a person observe Aveilus when he hears about the death within thirty days? The Rosh explains that in such a case the Aveilus takes effect immediately at the time of the relative's death. Therefore, 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 the Gemara here, in contrast, the Aveilus did not yet take effect at the moment of death of the sinner (since he was a sinner at that time), and therefore it cannot be compensated for because of the rule that if it does not take effect initially, it cannot take effect at a later time.

What is the answer to the question from the case of a relative who dies during the festival? That case should be comparable to the case of the Gemara here 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 answers 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 the Gemara here 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, the moment of death puts into effect the laws of Aveilus which require that in a certain number of days the mourners observe seven days of mourning. It takes effect in such away that it should start only later. When the delay depends on the Avel or on the Mes, that is a reason for the Aveilus not to 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 explains 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 who 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 just as an adult observes Aveilus in a case of a Shemu'ah Kerovah and in a case in which a relative dies during the festival.

How can the Maharam's ruling be reconciled with the Gemara here 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 the Gemara here, the relative was a Rasha, in which case 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 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 that prevents 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 the TESHUVOS YAD ELIYAHU #93 and the KEHILOS YAKOV #9.)

The underlying argument between the Maharam and the Rosh seems to be how 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 may be observed later only if it could have been observed by this person originally but 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, 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 throughout the thirty days.

The BACH cited by the Taz (ibid.) points out 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 own opinion. The discussion there involves a person who is an Onen on Motza'i Shabbos and thus he does not recite Havdalah (since he is exempt from Mitzvos). Should he recite Havdalah the next day, when he is no longer an Onen? The Maharam rules that until the Tuesday after Shabbos a person may still recite Havdalah if he did not do so on Motza'i Shabbos. Therefore, an Onen should recite 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 recite 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 recite Havdalah on Motza'i Shabbos. Therefore, an Onen who was not obligated to recite Havdalah on Motza'i Shabbos does not have to make up later for what he did not do.