Siman 526

A corpse lying ready for burial: If it is the first day of Yom Tov, since we are experts in the fixing of the month and the first day is certainly Yom Tov—Israelites may not involve themselves with it in any manner, even if there are no non-Jews here to involve themselves with it. And even if he died on the eve of Yom Tov and they did not have sufficient time to bury him. And even if the next day is Shabbat—nevertheless, Israelites are forbidden to involve themselves with it, and even if it will putrefy, Heaven forbid, for the burial of a corpse does not override a positive commandment and a negative commandment of Yom Tov. For it has already been explained at the beginning of siman 495 that Yom Tov is a positive commandment and a negative commandment. Therefore, they should endeavor to keep it in a cool place so that it does not putrefy. And there is one who permitted purifying it and placing it in a casket when there is a concern that it will putrefy (Sha'arei Teshuva in the name of Shevut Yaakov).

But they may bury him on the first day of Yom Tov by means of a non-Jew, even if he died today and tomorrow is not Shabbat, and he will not decompose until tomorrow – nevertheless, it is a mitzvah to bury him today by means of a non-Jew. For this is his honor, that he be buried immediately, and it is forbidden to delay his burial until the second day of Yom Tov so that Jews may attend to him. And not all things are done by means of a non-Jew, but rather only the digging of the grave, the sewing of the tachrichim, and the making of the coffin. But heating the water to purify him, and the purification, and the dressing in tachrichim, and the removal from his house to the cemetery, and placing him in the grave – these are done by means of a Jew. And afterwards, the non-Jew shall cover the dirt into the grave, and not the Jew. And it is good to purify him by means of straw, upon a hide or upon a board, and not by means of sheets and cloths, things that can come to the point of squeezing.

And the reason for the matter: For certainly there is more honor for the deceased when Israelites do for him everything that is possible. And the rabbinic prohibitions were permitted regarding a deceased person on Yom Tov. Therefore, the heating of the water—this is permitted on Yom Tov, for "since it was permitted for a need, it was also permitted for a non-need." For there is certainly a slight need for the sake of the deceased. And all the more so the purification and the dressing in the tachrichim, for even though the deceased is muktzeh, they permitted it in a case of the honor of the deceased. And the carrying out to the cemetery—regarding carrying out we also say "since." But the digging of the grave is a Torah prohibition, and likewise the sewing of the tachrichim and the making of the casket—we tell non-Jews to do them. And the instruction to a non-Jew was permitted in a case of the honor of the deceased. And afterwards, to return the earth—it is a Torah prohibition, for one who fills a hole is liable on account of "building." Therefore, they should do it by means of a non-Jew. And it appears to me that the heating of the water should also be done by means of a non-Jew, for according to the method of the Rambam that we wrote in siman 495, we do not say "since" except regarding carrying out and kindling, and not regarding other labors. And if so, granted that the kindling can be done by an Israelite, but the boiling of the water is prohibited unless they use some of these waters for the washing of dishes on Yom Tov, which is for the need of Yom Tov. And see what I wrote at the end of section 12.

And if you should ask: If so, why is the deceased not buried on Shabbat and Yom Kippur by non-Jews, and the non-Jews would carry the deceased out to the cemetery, since they permitted shevutim for his honor? However, this is not so, for on Shabbat and Yom Kippur they may not occupy themselves with him at all, even by means of a non-Jew, and even to carry him out by their means and place him in a niche prepared yesterday. And the reason for the matter is: that it is not an honor for the deceased that Shabbat be desecrated through him, and it is a disgrace for him. This is not the case on Yom Tov, for the Torah permitted many labors on Yom Tov. If so, there is no disgrace for him even in the digging of the grave, and in the sewing of shrouds, and in the making of the casket, for although these were not permitted on Yom Tov, nevertheless, since cooking and kindling and carrying out were permitted entirely on Yom Tov—there is no disgrace for him in the other labors as well, for the desecration is not so recognizable. But not on Shabbat, and on Shabbat nothing was permitted except moving him from the sun to the shade by means of a loaf or a child, as I wrote in siman 311.

And know that there are those who hold that that which they said in the Gemara (6a), if one died on the first day of Yom Tov – non-Jews should attend to him, is only in a case where it was delayed, such as if he died yesterday or the next day is Shabbat, and there is a concern that it will emit a foul odor. But if he died on the first day of Yom Tov, and the next day is not Shabbat – they should wait until the next day. And they interpret the sugya in the Gemara accordingly (see Beit Yosef). And this is also the opinion of Rashi, of blessed memory, in Shabbat (139a). Therefore, there is one who wrote in this wording: In a place where there is no custom – it is proper not to bury him on the first day of Yom Tov by means of a non-Jew, unless it was delayed, or if he would need to be delayed, or if he is bloated. And so wrote some of the authorities. And a small child, even after thirty days – they can leave him in a cellar, and it is not applicable to say of him that he is disgraced among the living like an adult corpse. And if so, it is better not to bury him on the first day of Yom Tov. Thus far his words (Magen Avraham subsection 4 in the name of Yam Shel Shlomo). But the custom is not so, since the Rif, and the Rambam, and our teachers the Tosafists, and the Rosh, and the Tur, and the Shulchan Aruch, and the rest of the majority of our teachers – agreed that even without being delayed, we bury him on the first day of Yom Tov by means of a non-Jew. And such is the simple custom, and it is not to be changed. And a nefel is forbidden even on the second day of Yom Tov, as will be explained in section 17.

If one died on the second day of Yom Tov—Israelites may occupy themselves with him, for the sages established the second day of Yom Tov as a weekday regarding a corpse. This applies even to the two days of Rosh Hashanah (Gemara ibid.), for since we are experts in the fixing of the month, it is only an enactment of the sages to observe two days of Yom Tov. Therefore, regarding a corpse, they established it according to the Torah law, even if he would not decompose. And even things that are not essential, such as cutting a myrtle for him from that which is attached to the ground, in a place where they are accustomed to do so for the dead. And all the more so to hew a grave for him, and to make for him a casket and tachrichin, and to heat water for him to purify him, and to cut his hair if such is the custom. For the sages established it entirely as a weekday. And if there is no burial place for Israelites in that city—they may transport him to another city, even outside the techum of twelve mil and by means of an animal. And so too if it is necessary to cross a river—they may hire a boat for him to transport him from place to place, and they travel there, for it is entirely as a weekday. Therefore, even if it is possible to do so by means of non-Jews—Israelites should do it, except for the vaulted chamber built over the grave, for they do not make it on Yom Tov, as it can be made after Yom Tov. However, it appears to me that they should not desecrate Yom Tov more than necessary, for why should many desecrate Yom Tov when there is no necessity for them? And also if the burial is outside the techum, or travel by boat—only those needed for the burial should go, and no more. And even his relatives should not desecrate Yom Tov when they are not needed for the corpse. And see in section 15.

And all this is when they wish to bury him on that same day. But if they do not wish to bury him until the next day, for whatever reason—Yom Tov was not permitted to be set aside for him at all. And even on the second day of Yom Tov, and even telling a non-Jew—it was not permitted for him, except for moving him alone, for moving was permitted for him, as this is a necessity for every deceased person. But to heat warm water—it is forbidden, for we do not consider this even a slight need when he is not buried on that same day. And there are those who hesitate even regarding moving him, and it is good to move him by means of a loaf of bread or a child, as on Shabbat. And to take him out to a karmelit—it is certainly forbidden. (See Magen Avraham subsection 11, that cutting his hair is permitted, because this is not considered cutting at all. But it is good to be stringent.)

And know that regarding all things permitted to be done by an Israelite—there is no distinction between relatives and strangers, between members of the burial society and other people, for when it was permitted—it was permitted to all of Israel. And there is one who wrote that it is also permitted to do them by means of many people, even though it is possible to do them by means of few people (the HaGra"z subsection 11). But I do not know why we should increase the number of people for no reason. This is also not the honor of the deceased, and why should people who are not compelled to do so desecrate Yom Tov? And it is true that the second day of Yom Tov—the sages treated it like a weekday, but this is according to the necessities of the deceased, and not what is unnecessary. And the laws of the recitation of Shema and prayer on the first and second day of Yom Tov—were explained above in siman 71. And the rest of the laws of aninut and mourning—will be explained below in siman 548 and in Yoreh Deah siman 341 and siman 399. See there, and see at the end of section 11.

And know that it is stated in Shabbat (139b) that in a place where they are not bnei Torah—one may not bury a corpse on the second day of Yom Tov by means of an Israelite, so that they should not treat the second day of Yom Tov with contempt. And it is further stated in Beitzah ibid. that nowadays where there are Chavrei there, a nation that would coerce the Israelites to do their labor, and on Yom Tov they would excuse themselves by saying it is forbidden for us to do labor; therefore, when they see that they bury their dead on the second day of Yom Tov—they will decree upon them to do their labor. Therefore, one may not bury the corpse there on the second day of Yom Tov by means of an Israelite. And based on these matters, our teacher Tam rebuked a certain city that buried on the second day of Yom Tov by means of an Israelite, because they were not bnei Torah. And Ri, the author of the Tosafot, said that in several matters we find that they were concerned for those who are not bnei Torah, such as a thing that is eaten as it is raw regarding the matter of bishuleihen. And we are not concerned for this and the like, and we consider ourselves bnei Torah. However, our teacher Tam was further concerned lest the ministers impose some labor upon the Israelites under their hand, for now there are those who are subjugated, as is explained in Tosafot and the Rosh there. Nevertheless, the Rif and the Rambam ruled this law without qualification, that on the second day of Yom Tov it is permitted by means of an Israelite. And so did most of our teachers.

Nevertheless, there are those who were concerned for the opinion of our teacher Tam. This is what our teacher, the Rema, wrote in section 4, and this is his wording: But in Ashkenaz and these countries – they do not practice thus. Rather, wherever it is possible with a non-Jew – they do so: the grave, the casket, and the shrouds – by means of a non-Jew. And the other matters the Israelites do, as on the first day of Yom Tov. But if it is not possible with a non-Jew – they do everything by means of Israelites. Thus far his words. And they also wrote that it is permitted to purify him on the second day of Yom Tov with a sheet and with towels, and he does not require straw as on the first day of Yom Tov; since all labors are permitted – we are not concerned lest they squeeze, for even if they squeeze – there is no prohibition here. Only they should be careful not to perform actual squeezing with intent (Magen Avraham subsection 9 in the name of Yam Shel Shlomo). And so it is proper to do. And also now we dig the grave by means of a non-Jew when it is possible to obtain one. However, the sewing of shrouds – it is difficult by means of non-Jews, as they do not know how to sew. Indeed, on the first day of Yom Tov – it is necessary to show them and to do it by means of them. But on the second day of Yom Tov – it is not worthwhile to exert oneself excessively, and the women sew by themselves.

And know: that even though it is permitted according to the law of the Gemara on the second day of Yom Tov to do everything by means of an Israelite, nevertheless there are those who are stringent regarding the returning of the earth into the grave, and filling it, and making a sort of small mound above in the manner of graves. For this is forbidden even on the second day of Yom Tov according to the law of the Gemara by means of an Israelite, because this is not a necessity of the deceased. And it is sufficient to fill the grave with earth, and not to raise it above. And this is what our teacher, the Rema, wrote there, and this is his wording: But it is permitted to cover it with earth in its usual manner as on a weekday. And not like those who are stringent. Thus far his words, meaning: that our teacher, the Rema, disagrees with those who forbid, and he holds that it is also permitted to make upon it like a small mound exactly as on a weekday (Taz subsection 2), because it is the completion of the burial (Magen Avraham subsection 10 in the name of the Beit Yosef). And on the first day of Yom Tov it is obvious that it is forbidden (Taz ibid.), only by means of a non-Jew. And even on the second day of Yom Tov, according to our custom that the digging of the grave is by means of a non-Jew – it is also forbidden by means of an Israelite (Magen Avraham ibid.). And the Levush wrote that on the second day of Yom Tov there are those who forbid and there are those who permit, and one should be lenient. Thus far his words. And perhaps he holds that there is no Torah prohibition in this (see there in the Magen Avraham and it requires further study). Furthermore they wrote: that in a place where they are accustomed to bury by means of an Israelite – other men shall not dig, except for the members of the chevra who are accustomed to dig. And all the more so that others should not throw earth to close the grave, for whenever it is possible to diminish the desecration – we diminish it. And there are those who permit, for the rabbis rendered it like a weekday (ibid.). And in my humble opinion the primary view is like the first opinion, for anything that is not a necessity for the deceased – they did not render it like a weekday, and as I wrote in section 8.

Our teacher, the Beit Yosef, wrote in section 5: One who digs a grave for a deceased person on the second day of Yom Tov—it is permitted for him to take payment. Thus far his words, and his reasoning is: since the sages treated it like a weekday—it is consequently permitted as on a weekday. But they wondered about him: for it is true that regarding the deceased they treated it like a weekday, but not for any other matter. Therefore, there is one who forbids even if he cannot obtain it for free—one should deceive him in this as in chalitzah (Magen Avraham, subsection 12 in the name of Yam Shel Shlomo). That is to say: to promise him payment, and not to give it to him, because it is forbidden for him to take payment for Yom Tov. And in my humble opinion, the words of our teacher, the Beit Yosef, appear correct, for if so, when a death occurs on another Yom Tov—one will not find anyone who will do it. And behold, this is the primary reason for the permission, in order to find someone who wants to profit, and he will take payment. For without payment, each one will say: "Why should I dig on Yom Tov? You dig!" And certainly in a place where there are known gravediggers—our teacher, the Beit Yosef, did not permit it, for it is incumbent upon them, and we compel them. Rather, in a place where there are no gravediggers—our teacher, the Beit Yosef, rightly permitted it. And also Yom Tov payment is not applicable here, for behold, it is permitted to take payment for a mitzvah even on Shabbat, as I wrote in siman 585 (Magen Avraham ibid.). And even the permanent gravediggers—it is the practice to pay them after Yom Tov, so as not to close the door in such a matter. However, with us, in any case, the grave is dug by a non-Jew, as has been explained. And it is simple that to buy tachrichin, if from a Jewish shopkeeper—one should take without measurement and without a total price. But if he is forced to take from a non-Jewish shopkeeper, and he will not agree in such a manner, that it is permitted and an obligation to buy from him with measurement, and a price, and payment of money, if it is impossible in another way, for the sages treated it like a weekday. And even on the first day of Yom Tov—it appears to me that it is permitted if the necessity is such, for shevutim were permitted even on the first day of Yom Tov for the sake of the deceased, as I wrote in section 3. And nevertheless, I am uncertain about this: for granted that they permitted the moving of a deceased person which is muktzeh, as I wrote there, nevertheless perhaps the shevut of buying and selling was not permitted. And it requires further study for the law. Therefore, it is better to give him a pledge, and after Yom Tov he shall pay him whatever he says. (And see Taz subsection 3, and it requires further study.)

It is permitted to escort the deceased on the first day of Yom Tov within the techum, and on the second day of Yom Tov even outside the techum, and they return to their place on that same day. And they do not have the status of those who go out beyond the techum, who have only four amot, for since one acts with the permission that the sages granted to escort him—consequently his law is like all those who go out with permission who return to their place, as I have written in siman 407. And even though there they have only two thousand amot from their place in every direction, here even if they are many techumin away—it is necessary to permit them to enter the city, for if not so, they will not want to escort him, and it would be a disgrace to the deceased. And even if they go today to escort him, and they did not know that we would forbid them to return to the city, and there we tell them that they are forbidden to return to their home if they are further than two techumin, nevertheless you cause them to stumble in the future when a death occurs (and this is the intention of the Magen Avraham, subsection 13). And it is a simple matter that if there are two paths before them, one permitted and one outside the techum, such as a "string and a bow" as has been explained in the laws of techumin—that they should go by the permitted path (ibid.).

And likewise, it is permitted to return the burial implements that they brought outside the techum with them, for if we do not permit them to return them—they will not want to take them with them, and according to the previous reason (and so wrote the Gr"z in section 15, see there) that they will fear lest they be stolen. However, according to this reason—it would suffice that they leave them in a house adjacent to the city, if they are protected there from thieves. But the Ramban, of blessed memory, wrote that they are not muktzeh, because perhaps they will be needed further for another deceased person on that same day (see Beit Yosef). And if so, since from outside the techum one is compelled to bring them for the previous reason, for if not so they would not take them with them, it follows that it is also permitted to return them to their home, since they are not muktzeh. (And the wording of the Magen Avraham in subsection 14 is very garbled, see there and in the Machatzit HaShekel. And the Gr"z did not bring it at all, see there.)

Those who escort the deceased are forbidden to ride on an animal even on the second day of Yom Tov, and likewise to travel by ship (Magen Avraham, subsection 15). And even though these are rabbinic prohibitions, nevertheless there is in this a degradation of Yom Tov, and this is not an honor for the deceased, and it is better not to escort him than to escort him with the disgrace of Yom Tov. But the buriers who must bury him, if it is impossible for them without riding or a ship, we permit it for them on the second day of Yom Tov and not on the first day of Yom Tov. For the second day of Yom Tov is like a weekday regarding all its matters, which is not the case on the first day of Yom Tov. And even if it is possible that other rabbinic prohibitions were permitted on the first day of Yom Tov, nevertheless a rabbinic prohibition such as this which is a public matter—they did not permit, and he shall not be buried today. And even on the second day of Yom Tov they shall not ride in the city where they can go there on their feet. Furthermore: for it is a desecration of Yom Tov in the presence of the non-Jews. And sitting in a carriage is similar to riding. (And as for what the Taz questioned in subsection 4 regarding what the Shulchan Aruch wrote that specifically when it is impossible we permit riding—behold even when it is possible, since it is a rabbinic prohibition, see there; it is not a difficulty at all, for riding is different because the degradation of Yom Tov is recognizable, as I have written and as the Magen Avraham wrote in subsection 15, see there.)

If it became known to the residents of a city that a Jew lies dead at a distance of four or five days away, and he has not been brought to burial, even though they will not be able to reach him until after the festival—nevertheless, it is permitted to set out on the way on the second day of Yom Tov in order to hasten his burial. And even though it has been explained that any deceased who is not buried on that same day, the sages did not treat it like a weekday—this is when he is not lying in disgrace. For if so, that which they wish to do for him today—they can do tomorrow. But when he is lying in disgrace—they treated it like a weekday regarding the matter of hastening his burial. And all the more so since there is a concern that dogs might eat him. And there are those who disagree and forbid it, since they are not burying him on that same day. But the primary view is to be lenient like the first opinion (Magen Avraham, subsection 17).

It is forbidden to bury a nefel on Yom Tov, for its burial does not override Yom Tov, even the second day of Yom Tov. Rather, one leaves it until the next day, for there is no mitzvah to bury a nefel, and Yom Tov is not overridden for the needs of its burial. Our teacher, the Rema, wrote thus in section 10. And they questioned him: for certainly we must bury nefalim, as we say in Niddah (57a) that the Kutim would not bury their nefalim, see there—by implication, Israelites do bury them (Magen Avraham, subsection 20). And it appears to me, on the contrary: that from here there is proof that there is no mitzvah from the Torah to bury it, and therefore the Kutim were not concerned with this. But by rabbinic law there is certainly an obligation, and Kutim were not careful regarding rabbinic law, and therefore it does not override the rabbinic Yom Tov, since the burial is also rabbinic—one rabbinic matter does not come and override another rabbinic matter (and the sugya in Niddah there requires resolution).

Nevertheless, a child who died within thirty days, if his hair and nails were fully formed—he is presumed to be viable and his law is like that of an adult who died, even though we do not know if his months of pregnancy were completed. For the majority of women give birth to a viable offspring, as we circumcise him on Shabbat under the presumption of viability; that is to say, from this there is proof that the Torah established every offspring with a presumption of viability, since it commanded to circumcise on Shabbat. And even though we circumcise him regardless: for if he is not viable, it is merely cutting flesh, as we say in Shabbat (135a), nevertheless, since the Torah decreed to circumcise him even on Shabbat, were he not presumed to be viable, the decree of the Torah would not have been to circumcise him specifically on Shabbat. Therefore, even when he dies, he is like an adult who died. (So it appears to my humble opinion to explain and resolve the difficult question raised by the Magen Avraham in subsection 19, see there.) And there is one who forbids. And in my humble opinion, the primary view is like the first opinion, since at any rate, according to rabbinic law, it is certainly a mitzvah to bury him, as I have written.

Our teacher, the Beit Yosef, wrote in section 10: Stillborns whose foreskins they were accustomed to remove with a stone flint or a reed—it is forbidden even on the second day of the festivals of the diaspora. Thus far his words, meaning: that which was explained that a baby who died within thirty days is not presumed to be a stillborn, and we bury him on the second day of the festival by an Israelite, or on the first day of the festival by a non-Jew—this is when he died after the milah. But before the milah—it is necessary to leave him until the next day, for one must circumcise him so that he will not be shamed there. And to circumcise him on the festival—it is forbidden, for this is not according to the law, but merely a custom based on the Midrash, and this does not override the festival. And even though he is merely cutting flesh, nevertheless it does not override the festival. And therefore also regarding a definite stillborn, whose hair and nails were not finished, it is forbidden to bury him as I have written. But by a non-Jew—certainly it is permitted. However, regarding a male who requires milah—it is necessary to leave him until the next day because of the milah, and one should not circumcise him by a non-Jew for it is a disgrace to him. (So it appears in my humble opinion, and see Magen Avraham subsection 20).

Our teacher, the Rema, wrote in section 8 that it is permitted to bring a corpse on the second day of Yom Tov from outside the techum into the city to bury him in a Jewish cemetery, even though it was possible to bury him in his place. Thus far his words. That is to say: since there is no cemetery there, even though it is possible to bury him there in the field by himself—this is not for the honor of the deceased. And it is even permitted to transport him from city to city if there is no cemetery in the city where he died. But if there is a cemetery there, but he left a will to be buried in his ancestral graves in another place, even though one must fulfill his will as I have written in Yoreh Deah siman 363, nevertheless, Yom Tov was not given to be set aside for him, and they should delay him until after Yom Tov. And if there is a concern that he will decompose—they bury him here, and after Yom Tov they remove him from his grave and transport him to his ancestral graves (Magen Avraham subsection 18 in the name of Yam Shel Shlomo).

One does not perform keriah for the deceased even on the second day of Yom Tov, even relatives who are obligated in keriah and mourning. Rather, they shall perform keriah after Yom Tov. And when one dies on the night of the second day of Yom Tov – they bury him in the morning before the prayer, so that the onanim will be able to pray. And when one dies during the day – they bury him after the meal. And in our places, it is impossible to hasten the burial so much as to bury before the prayer, but rather after the prayer, even when he dies at night. And also when he dies during the day – they bury before eating. And according to the custom – so shall they do. And the law of "Tzidduk HaDin" on Yom Tov was explained in Yoreh Deah siman 401. And the law of mourning will be explained in siman 548 (see Magen Avraham subsection 21).