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Shabbat Parashat Nitzavim Vayeilech| 5770

Ask the Rabbi: burying on Yom Tov



Question: Why does the Shulchan Aruch say that a non-Jew can bury a Jew on the first day of Yom Tov (Orach Chayim 526:1) but that a non-Jew may not bury a Jew on Shabbat (ibid.:3)? Also does anyone bury on Yom Tov anymore?

 

Answer: The gemara (Beitza 6a) says that if one dies on the first day of Yom Tov, when melacha (forbidden work) is a Torah level prohibition, he is to be buried by non-Jews on that day. If he dies on the second day (or there was not an opportunity to do it on the first day), Jews do the burial on the second day of Yom Tov. The Shulchan Aruch’s claim that on Shabbat (and Yom Kippur) Jewish burials are not performed is easier to prove than to explain. The gemara (Rosh Hashana 20a) says that one reason to avoid certain calendar arrangements is to avoid Yom Kippur falling right before or right after Shabbat, in which case there would be two days without burial, with the prospect of decay and disgrace to the deceased.

While the laws of Shabbat are significantly stricter than those of Yom Tov, when it comes to having the melacha done by non-Jews, there does not need to be a difference. Asking a non-Jew to do the work is only a rabbinic prohibition and there are several scenarios, including for the needs of someone who is sick but not dangerously so, that one may ask a non-Jew to do even a Torah level melacha (Shulchan Aruch, OC 328:17). Burial is one of the needs that is taken with utmost urgency by halacha (see Berachot 19b). So halachically there could have been room to allow non-Jew’s doing the burial even on Shabbat. An early source who gives an explanation is the Ramban (Torat Ha’adam, pg. 80 in Mossad Harav Kook edition). He says that we do not want there to be a disgrace for the deceased in that Shabbat was desecrated for his burial. While one could make the same claim about Yom Tov, the Aruch Hashulchan (OC 526:4) explains that on Yom Tov there are anyway melachot that are permitted, so to permit this type of burial would not “raise eyebrows” in the same way.

On the second day of Yom Tov, as mentioned, Jews may do the burial themselves. However, Ashkenazic practice (Rama, OC 526:4) is that non-Jews, if available, do the full-fledged violations of Yom Tov. (The details of who does what are beyond our present scope.)

Regarding practice nowadays, there is not unanimity. One of the leading chevrot kaddisha in Israel told us they still follow the classic halacha with one caveat. They will perform a first day burial only if they are confident no one will violate Yom Tov in order to take part in the funeral. This brings us to the next point.

There are major authorities who oppose doing funerals on either day of Yom Tov. Of prominent note, Rav Moshe Feinstein (Igrot Moshe, OC III, 76) says that two things have changed from Talmudic times. One is that there is now refrigeration, which prevents serious decomposition and odors. He claims that had that been the case then, Chazal would not have allowed the burials and would have said that it would be disrespectful to the deceased to bury on Yom Tov. He admits that once they permitted the matter, it might not make a difference that times have changed. However, he points to another halachic phenomenon that was classically applied sparingly but now may apply more broadly. People from a certain town were forbidden to bury on Yom Tov because they were not careful in their Torah observance and thus the permission might be abused (Shabbat 139a). While this approach was not applied broadly in the past (see Tosafot 6a), Rav Feinstein felt that it should be applied in America of his time. As he acknowledged, not all agreed.

One can also point out that nowadays when people come from significant distances to take part in funerals and when, again, refrigeration makes waiting feasible, few people want to do a funeral on Yom Tov. Therefore, even if the gemara’s and Shulchan Aruch’s rules apply theoretically, you are correct that their implementation is uncommon.

 

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This week’s Hemdat Yamim is dedicated in loving memory of
R' Meir ben
Yechezkel Shraga Brachfeld

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