Why does Rashi say that "she must bury herself?" Rashi should have said that
her heirs must bury her, as the Mishnah says! What does Rashi mean to tell
(a) The HAFLA'AH explains that in the SHULCHAN ARUCH (Choshen Mishpat 107:2,
an Even ha'Ezer 118:18) we find that someone to whom the deceased person owes
money may hold up the burial until his loan is repaid from the estate. The
Shulchan Aruch continues and says that if the creditor's collection of his
debt depletes the entire estate of the deceased person, then the deceased is
buried with funds of Tzedakah (this is based on the Tosefta in Kesuvos 9:4).
The Hafla'ah suggests that this applies only when the deceased person himself
owed money and his creditor wants to collect before he is buried. However, if
the *heirs* owe money and their creditor tries to hold up the burial and
prevent them from spending their inheritance on the burial instead of giving
it to him, we do not allow him to hold up the burial, because the money for
the burial was designated for that purpose even before the money reached the
hands of the heirs. It is as if the deceased is burying himself with his own
funds. This is what Rashi is implying when he says "she must bury herself."
(b) His disciple, the CHASAM SOFER, suggests that Rashi writes that "she must
bury herself" because it is not necessarily her heir's obligation to bury
her. An heir is only obligated to bury his relative by setting aside money
that he receives from the deceased relative's inheritance for the burial. If
the deceased did not leave enough money for the burial, then the heir has no
obligation to pay from his own funds for the burial. When Rashi writes that
the woman "must bury herself," he means that whatever money she leaves is
used for her burial by whoever inherits it. If she leaves no money, then the
heirs are not obligated to use their own money for the burial.
(Rashi might have learned this from the extra words in the Mishnah, "Yorshei
Kesuvasah" -- "the heirs of her Kesuvah," which the Mishnah used instead of
simply saying, "Yorshehah" -- her heirs (the Gemara itself makes such an
inference earlier, Daf 81a). Rashi understands that the Mishnah did not want
to say "Yorshehah," because that implies that her heirs -- whether or not
they actually inherit anything from her -- are obligated to bury her. Rather,
the Mishnah says that "Yorshei Kesuvasah" are obligated to bury her, implying
that only if they actually inherit her Kesuvah are they obligated to bury
This question -- who is obligated to bury a dead person -- is a broad
question which is discussed by a number of early Poskim.
RASHI (89b, DH Metamei Lah, and elsewhere) writes that the obligation to bury
a deceased person rests upon his or her seven close relatives ("Kerovim").
This is also the ruling of the RA'AVAD (Hilchos Avel 2:6) and most Rishonim
(in contrast to the RAMBAM (see Sotah 3a) who says that it is only obligatory
for *a male Kohen* to bury his seven close relatives).
However, that obligation does not necessarily entail spending one's own money
to bury the relative. Perhaps it means only that the relatives are obligated
to physically exert themselves to see to it that the relative is buried. The
NIMUKEI YOSEF (Yevamos) writes that even for a Mes Mitzvah one is not
obligated to spend one's own money for the burial, even though one is
certainly obligated to involve himself in the burial. In fact, even for one's
own parent, we know that during the parent's lifetime one is not obligated to
spend his own money in order to fulfill the Mitzvah of Kibud Av va'Em
(Kidushin 31b), so certainly after one's parent's death he should not be
obligated to spend money for his parent's burial.
What do the Poskim write on this matter?
The SHULCHAN ARUCH (YD 348:2) cites the TESHUVOS HA'ROSH (13:18) who writes
that if a man says that he does not want his entire estate to be spent on his
burial, his words are not binding, for he has no right to prevent his money
from being used for his burial. His heirs are forced to pay for all the
necessities of the burial in a manner consistent with the standard to which
the family is accustomed. However, he says, this applies only when the heirs
inherited something from their father. If they inherited nothing, it seems,
then they do not have to spend their own money on the burial.
The same can be implied from the Halachah in Choshen Mishpat and Even ha'Ezer
(cited in (a) above) that states that if the inheritance is used to pay back
a debt of the deceased person, then the deceased person is buried with funds
from Tzedakah. This implies that his heirs are not obligated to spend their
own money for the burial.
The MAHARAM MINTZ (#53, 55) cites the RA'AVAN who asks that if the relatives
have to spend their own money on the burial, then why did the Chachamim have
to institute that the husband is obligated to bury his wife (in return for
the Nichsei Tzon Barzel), as Rashi mentions here? The husband is one of the
seven close relatives and should already be obligated to spend his own money
on her burial! If there is no obligation for a person to spend his own money
on the burial of his close relative, it is clear what was gained by the
Rabbinic institution. The Rabanan enacted that the husband must bury his wife
from his own funds, regardless of what he inherits from her.
The HAFLA'AH, in his Kuntrus Acharon (EH 118:12) seems to come to a
conclusion similar to that of the Chasam Sofer, pointing out that RASHI in
Eruvin (17b, DH d'Is) seems to hold that the heirs are not obligated to spend
their own money to bury their relative. Rashi, in turn, is simply
paraphrasing the Gemara in Yevamos, end of 89b, which carries the same
implication. On the other hand, the CHAVAS YAIR (#139), who also raises the
possibility that the relatives do not have to pay for the burial if they do
not inherit anything, remains in doubt and issues no affirmative ruling.
However, the Maharam Mintz (loc. cit.), as cited by the BEIS LECHEM YEHUDAH
(YD 348:2 and in a Teshuvah) rules that there is a Mitzvah for the relative
to spend his own money for the burial. The Maharam Mintz cites proof for this
from the Gemara earlier (8b) that says that the relatives of the deceased
used to find the burial more difficult than their relative's death because
they had to spend so much money to buy fancy shrouds (Tachrichin), until
Raban Gamliel instituted that inexpensive shrouds be used. This implies that
it was the relatives' obligation to spend their own money on the burial. The
Hafla'ah (ibid.) points out that this indeed is the way the PISKEI TOSFOS
here rules (#344 -- the RASHBA here also rules this way); the obligation to
bury one's relative is not related to whether or not that relative left an
inheritance that can be spent on the burial.
The Poskim (see Hafla'ah and Hagahos Rav Shlomo Eiger in YD 348) suggest that
even if there is an obligation to bury a deceased relative from one's own
funds, the Torah might only obligate the relatives to give a very basic
burial to the deceased person. The Rabanan instituted that if the relatives
receive an inheritance, then they are obligated to bury the deceased person
according to the honor to which his family is accustomed. It was necessary
for the Rabanan to institute that the husband bury his wife for the same
reason -- so that she receive a proper, respectful burial and not just a
basic one, regardless of whether she left an inheritance or not.