Daf Ditty Beitzah 6: Yom Tov Burial

Jewish funeral in Vilnius (1824), National Museum in Warsaw

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§ Rava said: If one died on the first day of a Festival, gentiles should attend to his burial. If he
died on the second day of a Festival, Jews should attend to his burial. And even with regard
to the two Festival days of Rosh HaShana,the halakha is that the legal status of the two days is
like that of the two days of the Festivals; however, that is not so with regard to an egg that was
laid on the first day of Rosh HaShana, as it remains prohibited on the second day.

The Sages of Neharde’a say: Even with regard to an egg, Rosh HaShana is no different from
other Festivals, as an egg laid on the first day is permitted on the second. As what do you think
i.e., what is your concern; perhaps witnesses will fail to arrive, and the court will proclaim the
month of Elul full, i.e., thirty days long, and begin counting the year only from the following day?
In that case, both days are kept as sacred ab initio. Didn’t Rav Ḥinnana bar Kahana say that
Rav already said in this regard: From the days of Ezra and onward we have not found that the
month of Elul was full, as the Sages employed various methods to ensure that there would be no
need to add a thirtieth day. Consequently, Rosh HaShana would always occur on the thirtieth day
after the beginning of Elul.

Mar Zutra said: We said that Jews should attend to the dead on the second day of Rosh HaShana
only when the burial of the corpse has already been delayed and for some reason the burial was
not on the day that he died. In that case, the body might begin to decay, and the dignity of the dead
is at stake. However, if the burial has not been delayed, and there is no concern for the dignity
of the corpse, its burial may not be attended to on the Festival; rather, we delay it until the Festival
has ended.

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Rav Ashi said: Even though the burial was not delayed, but it is the day that he died, we still do
not delay the burial. What is the reason for this? With regard to the dead, the Sages equated
the legal status of the second Festival day with that of a weekday. This is true to such an extent
that on a Festival it is permitted even to cut material to fashion a cloak for the deceased. And
similarly, it is permitted to cut myrtles for the deceased, to be placed on the bier in their honor.

Ravina said: And nowadays, when there are ḥabarei, this practice must be adjusted. The
ḥabarei were Persian priests who made false accusations against Jews in Babylonia. They cited
the fact that Jews were burying their dead on the second Festival day as proof that the day was not
holy, and they forced them to work on that day. Since we are concerned about this possibility, we
do not bury the dead on the second day.

RASHI

Jastrow

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Sefer HeArukh, Letter Chet 24

Summary

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Rav Avrohom Adler writes:1

Tending to a corpse on Yom Tov

Rava says that a corpse may on the first day of Yom Tov by non-Jews, and on the second day by
Jews. This is true even on the second day of Rosh Hashana, even though it is different than other
second days, in that one may not eat on it an egg laid on the first day. Nehardai say that it is the
same even for the purposes of eating an egg from the first day.

The only reason we treated it more strictly is due to the concern that Elul was a 30 day month,
making both days Yom Tov, but that didn't happen since the days of Ezra, and we therefore treat
it like any other second day. Mar Zutra says that Jews can only tend to the corpse on the second
day if it has been waiting, and will therefore begin to rot and smell if it isn't buried. Rav Ashi says
that in any case Jews tend to it, since the Sages treated the second day like a regular day for all
needs of a corpse, including cutting shrouds or detaching myrtle branches for it.

Ravina says that nowadays that there are chavri – a nation which oppressed Jews, we are careful
not to do any work on any Yom Tov, lest they use that as a pretext to force Jews to work on
Shabbos and Yom Tov, and we therefore do not tend to a corpse at all.

1
http://dafnotes.com/wp-content/uploads/2015/10/Beitzah_6.pdf

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Second day of Rosh Hashana

Ravina was sitting in front of Rav Ashi on the days of Rosh Hashana, and he noticed that Rav Ashi
was sad. When he asked him why, Rav Ashi told him that he forgot to make an eruv tavshilin, and
he therefore couldn't prepare for Shabbos. Ravina suggested that he make a conditional eruv
tavshilin on the first day of Yom Tov, on the possibility that the second day is really Yom Tov, as
Rava rules one can do, but Rav Ashi responded that Rava didn't say so about Rosh Hashana. Ravina
asked why Rosh Hashana is different, as Nehardai say that we treat its second day like any other
second day, even for the purposes of eating the egg of the first day, but Rav Mordechai said that
he explicitly heard from Rav Ashi that he didn't accept their opinion.

Chicks hatched on Yom Tov

The Gemora cites a dispute about a chick that hatched on Yom Tov. Rav says it is prohibited,
while Shmuel (or Rabbi Yochanan) say it is permitted. Rav says it is prohibited due to muktzeh.
Shmuel (or Rabbi Yochanan) say just as its hatching permits it to be slaughtered, so does it permit
muktzeh. Rav Kahana and Rav Asi asked Rav how this chick differs from a calf that was born on
Yom Tov, and he answered that the calf was not muktzeh at the onset of Yom Tov, since one could
have eaten it by slaughtering its mother. When they asked how it was different than a calf born
from a terefa, whose slaughtering would not permit the calf, he was silent. Rabba (or Rav Yosef)
asked why Rav didn't answer that the calf was at least prepared for the dogs, along with its mother,
at the onset of Yom Tov. Abaye challenged this answer, as we see that something designated for
a person isn't considered prepared for dogs, as Rabbi Yehuda says that an animal which died on
Shabbos cannot be fed to the dogs.

Why should we similarly say that something prepared for a dog is still muktzeh for a person. Rabba
answered that something designated for a person is not prepared for animals, since a person doesn't
feed an animal something he can eat. However, something prepared for animals is still considered
prepared for a person, since a person always has in mind anything that may become fit for him
(i.e., the calf). The Gemora cites a braisa supporting Rav and one supporting Shmuel (or Rabbi
Yochanan). The braisa supporting Rav says that a calf born on Yom Tov is permitted, while a
chick hatched on Yom Tov is prohibited, with the difference being that the calf was prepared via
its mother before Yom Tov. The braisa supporting Shmuel (or Rabbi Yochanan) says that both a
calf born on Yom Tov and a chick hatched on Yom Tov are permitted. The calf is permitted
because it was prepared via its mother, while the chick is permitted since its hatching permitted it
for slaughtering.

When can one slaughter a chick?

The Gemora cites a braisa which says that a chick which hatched on Yom Tov is prohibited, and
Rabbi Eliezer ben Yaakov says that even on a regular day it is prohibited, until it opens its eyes.
The Gemora cites another braisa which explains that the verse which prohibits “all creatures that
crawl on the land” includes chicks that have not yet opened their eyes, and says that this follows
Rabbi Eliezer ben Yaakov.

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When is an egg finished?

Rav Huna quotes Rav saying that an egg is finished when it comes out of the hen. The Gemora
asks what Rav means. If he means that before then (i.e., if found inside a slaughtered chicken) one
may not eat it with milk, this is inconsistent with the braisa which says that if one found finished
eggs inside a chicken one may eat them with milk. If he means that on Yom Tov one may only eat
them if they were laid before, but not if one found them inside the chicken, that is inconsistent
with the braisa which says that if one slaughters a chicken on Yom Tov, one may eat eggs found
inside.

The Gemora suggests that the braisa may be incorrect, since its ruling doesn't appear in a Mishna,
but rejects this since the implication of the Mishna containing the dispute of Bais Shamai and Bais
Hillel about an egg laid on Yom Tov implies that they all agree that an egg found inside is
permitted. The Gemora suggests that the dispute extends to eggs found inside, but rejects this, as
the braisa permitting eggs found inside would not be Bais Shamai (since they even allow an egg
laid), and not Bais Hillel (since they would say that it is prohibited).

Rather, Rav was teaching that only once it leaves the hen is it viable for a chick to grow inside it,
which is relevant for commerce in eggs. The Gemora illustrates with the case of a man who asked
for eggs from a live hen, and someone sold him eggs found inside a slaughtered one. When he
came to Rabbi Ami, he said the sale was void. The Gemora explains that we may have thought
that he wanted the eggs to eat, and he asked for one from a live hen to ensure that they were fully
mature. In that case, he would only be entitled to the difference in value between the types of eggs.
Rabbi Ami therefore taught that we assume he wanted them to grow chicks, and therefore the sale
is void.

Burying on Yom Tov

The Gemora discusses what may be done to tend to and bury a corpse on Yom Tov. Rava says that
on the first day, it may be buried by non-Jews, and on the second day by Jews. The Rishonim differ
on the details of these statements, and their application nowadays. Mar Zutra says that the
allowance made for a corpse is only if it has waited, and is in danger of rotting. Rav Ashi says that
it can be buried by Jews in any case, since the second day is considered a regular day for the
purposes of a corpse.

The Behag understands Mar Zutra to refer to all of Rava's statement, and in fact rules that a non-
Jew may only bury the corpse on the first day if there is a danger of it rotting. The Rosh, Rambam,
and Rif do not make this qualification, and allow a non-Jew to bury the corpse on the first day in
all cases. The Rishonim differ on what a Jew may do on the first day.

The Rosh says that a Jew may carry the corpse, since carrying is permitted on Yom Tov even for
nonfood needs. The Ramban disagrees, saying that moving a corpse serves no Yom Tov purpose,
and therefore may not be done. Ravina says that nowadays we don't bury a corpse on the second
day, out of concern that the chavri will use this as a pretext to force Jews to work for them on
Shabbos and Yom Tov.

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Tosfos (6a v'ha'idna) states that this doesn't apply to our times, since the chavri do not exist
anymore. Although Rav Yosef taught (5a) that anything that was prohibited by an act of the court
remains prohibited even if the original motivation is absent, Ravina's statement is simply a ruling
that applies only when the concern exists. This is similar to uncovered water, which is prohibited
due to a concern of venom from a snake. In our society, where snakes aren't common, such water
is permitted.

Rabbenu Tam, however, strongly ruled that it is prohibited for Jews to bury a corpse on the second
day of Yom Tov, citing two reasons:

1. The Gemora in Shabbos (139b) cites the city of Bishchar, who were prohibited from burying a
corpse on the second day of Yom Tov, since they were not well versed in Halacha. Rabbenu Tam
argues that we are even less versed in Halacha. Tosfos challenges this, as we find other areas where
we are not as strict as the Gemora was with this city.

2. There are still Jews who must work for non Jews, so the concern of the chavri is still relevant.

The Rambam. Rosh, Rif, and Rabbenu Chananel all rule that Jews can bury the corpse on the
second day.

The Shulchan Aruch (526:1) rules that non-Jews may bury a corpse on the first day, even if it is
not in danger of rotting, but Jews can tend to the corpse by clothing, moving, and placing it in the
grave, as well as heating up water to clean it. The Shulchan Aruch (2) rules that Jews may bury a
corpse on the second day, but the Rama cites the custom in his regions to try to find non-Jews to
bury it, but to allow Jews if no non-Jews can be found. There is further debate in contemporary
poskim about the second day of Yom Tov.

Rav Moshe Feinstein (OH 3:76) explains that the principle allowing Jews to bury the corpse is to
preserve the honor of the corpse, which would otherwise begin to rot. However, nowadays that
corpses can be preserved longer using refrigeration, there is no reason to allow Jews to bury.

The Or Letzion (3:23:13) disagrees, explaining that burial of the corpse benefits the deceased
spiritually, and therefore may be done by Jews on the second day of Yom Tov. Rav Moshe further
writes that Jews should not bury on Yom Tov, since this leads people to be lax in prohibited areas,
including calling people to inform them, and driving to the funeral. Rav Shlomo Zalman Auerbach
similarly says that it should not be done if it will lead to further desecration of Yom Tov, and Rav
Vosner states that nowadays it is not done, due to these concerns.

Closed Eyes

Rabbi Eliezer ben Yaakov maintains that one cannot eat a chick even during the week because its
eyes have not yet opened. Perhaps this ruling can be interpreted allegorically to mean that one
should not assume that he understands how HaShem conducts the world, because essentially we
are blind in this world. It is said HaShem did not give you a heart to know, eyes to see, and ears to
hear until this day.

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The Gemara interprets this verse to mean that one cannot fathom the wisdom of his teacher until
forty years have elapsed. If this can be said regarding the teachings of a human being, how much
more so does it apply to the Creator of the world? One should contemplate this idea and feel truly
humbled in the Presence of HaShem.

Rav Mordechai Kornfeld writes:2

Neharda'i rule that an egg laid on the first day of Rosh Hashanah is permitted on the second day,
because the two days of Rosh Hashanah are considered two separate Kedushos. Even though the
two days of Rosh Hashanah would be one Kedushah in the event that the month of Elul is made
into a full month ("Me'ubar," with 30 days), which would happen when witnesses do not come
until after the 29th of Elul, this never occurred and Elul was never a full month. Therefore,
according to Neharda'i two days of Rosh Hashanah are always observed in Chutz la'Aretz because
of a doubt about which day was declared as the new month (and not because of a concern that Beis
Din in Yerushalayim might have declared two days of Rosh Hashanah with one Kedushah, in the
event that witnesses arrived late).

If Elul was never made into a full month (and thus there was never any doubt about when the first
of Tishrei occurs), then why, in Chutz la'Aretz, were two days of Rosh Hashanah observed (such
that nowadays two days are also observed in Chutz la'Aretz)? Only one day of Rosh Hashanah
should have been observed in Chutz la'Aretz, because it was known that in Yerushalayim only one
day of Rosh Hashanah would be declared (according to Neharda'i, who maintain that the two days
of Rosh Hashanah have one Kedushah)!

The PNEI YEHOSHUA and CHASAM SOFER explain that, certainly, every year the people
must be concerned that Elul might be a full month. The fact that in the past it was never declared
a full month does not determine that this year it also will not be full.

With regard to whether the two days of Rosh Hashanah have one long Kedushah or two separate
Kedushos, the fact that Elul might be declared a full month has no bearing. After Raban Yochanan
ben Zakai re-enacted that witnesses be accepted after Minchah time, the concept of observing two
days of Rosh Hashanah with one long Kedushah was annulled. The only reason to observe two
days with one long Kedushah is because our fathers observed two days as such ("Minhag Avoseinu
b'Yedeinu"). In truth, though, they never observed two days of Rosh Hashanah as one long
Kedushah, because it never happened that witnesses came after Minchah time. The original
enactment (that if witnesses come after Minchah time, then both days are Rosh Hashanah with one
long Kedushah) never manifested itself. Since it never manifested itself in practice, it may be
viewed, retroactively, as though the enactment to make two days of Rosh Hashanah with one long
Kedushah was never really enacted. Therefore, the "Minhag Avoseinu" will not apply to require
that two days be observed as one long Kedushah, because our fathers' practice in that regard was
a mistake. However, we are required to observe two days of Rosh Hashanah with two separate

2
https://dafyomi.co.il/beitzah/insites/bt-dt-006.htm

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Kedushos, because that practice was observed due to the doubt about when the new month was
declared and was not part of the enactment which never manifested itself.

HALACHAH: BURIAL ON THE FIRST DAY OF YOM TOV

The Gemara says that if the body of a Jew needs burial on the first day of Yom Tov (Yom Tov
Rishon), we may ask gentiles to take care of the burial. On the second day of Yom Tov (Yom Tov
Sheni), even a Jew is permitted to take care of the burial. Mar Zutra and Rav Ashi disagree whether
these laws refer to a Mes (corpse) that has been lying around for some time (and there is concern
for putrefaction), or even to a Mes that died on that day (and will putrefy if left until after Yom
Tov).

The Gemara concludes that, nowadays, since the Jews are under the dominion of a foreign
authority that forces them to work on the weekdays, a Jew may not take care of the Mes on Yom
Tov, lest the foreign authorities think that Jews work on Yom Tov and force the Jews to work for
them on Yom Tov. This logic, however, should prohibit only a Jew from taking care of the Mes
on Yom Tov Sheni, but not a gentile from taking care of the Mes on Yom Tov Rishon. What is the
Halachah with regard to the burial of a Mes on Yom Tov Rishon? (See following Insight for the
Halachah with regard to the burial of a Mes on Yom Tov Sheni.)

There are a number of ways to understand the dispute between Mar Zutra and Rav Ashi with regard
to whether one is permitted only to take care of a Mes that has been lying around for some time,
or even to take care of a Mes that died on that day. The Gemara concludes that even if the Mes
died on that day, a Jew is permitted to bury the Mes on Yom Tov Sheni. Does the Gemara also
mean that it is permitted to ask gentiles to take care of the burial on Yom Tov Rishon when the
Mes died on that day?

(a) The ROSH (1:5) writes that even if the Mes was not lying around, gentiles may be asked to
bury the Mes on Yom Tov Rishon, because Mar Zutra and Rav Ashi argue about both Yom Tov
Rishon and Yom Tov Sheni. The Halachah follows the opinion of Rav Ashi.

(b) RASHI in Shabbos (139b, DH v'Lo), however, writes that burial is permitted on Yom Tov
Rishon only when the Mes was lying around for some time. Rashi alludes to this here as well when
he writes (DH Amar Rava) that the Gemara refers to a case of a Mes which is "waiting to be buried
on Yom Tov Rishon" (which implies that it did not die on Yom Tov Rishon, but earlier).
Furthermore, Rashi explains that the Gemara's question about whether one is permitted to bury the
Mes only if it has been lying around a while concerns only Yom Tov Sheni (Rashi DH Lo Amran).
On Yom Tov Rishon, however, it is clear from the Gemara in Shabbos (139b) that in order to
permit asking a gentile to bury the Mes, the Mes certainly must have been lying around for some
time. This is also the opinion of the BEHAG cited by the Rosh here, and the SHE'ILTOS (#94).

HALACHAH: The SHULCHAN ARUCH (OC 526:1) follows the opinion of the Rosh, that even
when the Mes was not lying around but died on that day one is permitted to have a gentile bury
the Mes.

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 HALACHAH: BURIAL ON THE SECOND DAY OF YOM TOV
The Gemara says that if the body of a Jew needs burial on the first day of Yom Tov (Yom Tov
Rishon), we may ask gentiles to take care of the burial. On the second day of Yom Tov (Yom Tov
Sheni), even a Jew is permitted to take care of the burial. Mar Zutra and Rav Ashi disagree whether
these laws refer to a Mes (corpse) that has been lying around for some time (and there is concern
for putrefaction), or even to a Mes that died on that day (and will putrefy if left until after Yom
Tov).

The Gemara concludes that, nowadays, since the Jews are under the dominion of a foreign
authority that forces them to work on the weekdays, a Jew may not take care of the Mes on Yom
Tov, lest the foreign authorities think that Jews do work on Yom Tov and force the Jews to work
for them on Yom Tov. This logic should prohibit a Jew from taking care of the Mes on Yom Tov
Sheni. What is the Halachah with regard to the burial of a Mes on Yom Tov Sheni?

(a) According to the Gemara's conclusion, a Jew may bury a Mes on Yom Tov Sheni, even if the
Mes died on that day and there is no concern that the body will putrefy, because "the Rabanan
made Yom Tov Sheni like a normal weekday when it comes to the burial a Mes." This is how
the ROSH understands the Gemara.

(b) The OR ZARU'A (#330) and the MAHARAM MI'ROTENBURG (cited by the Mordechai,
Shabbos #426) rule that one is permitted to bury a Mes on Yom Tov Sheni only when the Mes was
lying around and may putrefy. (This ruling is based on the Gemara in Shabbos 139b.)

(c) RABEINU TAM (cited by Tosfos) apparently expresses a third opinion. When Rabeinu Tam
heard that the Jews of the town of Melun (France) buried a Mes on the second day of Yom Tov,
he sharply reprimanded them. What was incorrect about the conduct of the Jews of Melun, and
why did Rabeinu Tam object so strongly to their conduct?

Two explanations are given for why the Jews of Melun acted incorrectly, and for each explanation
there are several opinions for why Rabeinu Tam objected.

1. According to some, Rabeinu Tam objected to having Jews bury the Mes on the second day of
Yom Tov, for the one of the following reasons:

a. TOSFOS in Shabbos (139b, DH Yom Tov Sheni) explains that in the Gemara here, Ravina
concludes that even though it was initially permitted for Jews to bury a Mes on the second day of
Yom Tov, nowadays it is prohibited because the foreign authority might see the Jews doing work
for the Mes on Yom Tov and they will force the Jews to do work for them on Yom Tov. Even
though this concern does not exist in most places today due to the alleviation of oppression by the
nations, the Halachah remains the same.

b. TOSFOS here and other Rishonim write that Ravina's reasoning still applies today. Even
though the Jews in most places do not suffer as much oppression as they did in the times of the
Gemara, there is still a concern that the officials of the king or governing body will see Jews do
Melachah for a Mes on Yom Tov and they will conscript the Jews to do Melachah for them on

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Yom Tov. This is the reason why Rabeinu Tam objected when the Jews of Melun buried a Mes on
the second day of Yom Tov.

c. According to the SHE'ILTOS, Rabeinu Tam was upset that the Jews of Melun buried the
Mes themselves and did not ask gentiles to do it. Since it was possible to have gentiles do the work
for them, they should not have buried the Mes themselves.

d. Rabeinu Tam may have been of the opinion that today we are stringent not to permit Jews to
bury a Mes on the second day of Yom Tov because we are not considered Bnei Torah (HAGAHOS
MAIMONIYOS, Hilchos Yom Tov 1:70). However, we are permitted to ask gentiles to bury the
Mes. (Even though the Gemara in Shabbos (139b) relates that Rebbi Menashya did not permit the
people of Bashkar to do so, the people of Bashkar were even less of Bnei Torah than we.)

2. The RAMBAN (in Teshuvos ha'Ramban, cited in ORCHOS CHAIM, Hilchos Yom Tov 25)
and TOSFOS RABEINU PERETZ here explain that Rabeinu Tam was not upset that Jews
buried the Mes on the second day of Yom Tov. Rather, he objected because a large crowd of
people were involved in the funeral, and he ruled that only the exact number of people necessary
for burying the Mes may go out to the burial. The reasoning for this is as follows:

The involvement of a large crowd is not permitted because it would make the event public and
well-known. If the event would become public, there would be a concern that people will become
lax in their observance of Yom Tov Sheni (since people today are not considered Bnei Torah).
(TOSFOS)

The RAMBAN (in Toras ha'Adam, end of Inyan ha'Hotza'ah) explains that the Rabanan permitted
only the bare minimum of Melachah necessary to bury a Mes on Yom Tov Sheni. A large crowd
may not go out with the Mes since the burial does not need a large crowd. (The Ramban points out
that a precedent for this type of enactment exists with regard to desecrating the Shabbos in order
to come to Beis Din to give testimony about the sighting of the new moon; see Rosh Hashanah
21b.)

HALACHAH: The SHULCHAN ARUCH (OC 526:4) follows the last opinion (2:b) and rules
that when a Mes is buried on Yom Tov Sheni, only Melachah for the bare necessities may be
done. The REMA (OC 526:4), however, rules that Jews are not permitted to bury a Mes on Yom
Tov Sheni if it is possible to ask gentiles to handle the burial (like 1:c above).

"AN EGG IS FINISHED WHEN IT EXITS"

Rav Huna makes a cryptic statement and says that "an egg is finished when it exits [the hen]." The
Gemara suggests that he refers to the laws of an egg on Yom Tov and he means that an egg is
permitted only when it exits the hen before Yom Tov, because at that moment it is completed. If
it does not exist before Yom Tov (for example, when it is laid on Yom Tov, or when the hen is
slaughtered on Yom Tov and the egg is extracted), it is prohibited.

The Gemara rejects this explanation. This could not be Rav Huna's intention because a Beraisa
states explicitly that eggs found inside a hen slaughtered on Yom Tov are permitted.

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RASHI (DH b'Yom Tov) explains the Gemara's initial assumption for Rav Huna's intent. He
writes that the Gemara understands that Rav Huna means that the fact that the egg did not emerge
before Yom Tov shows that it was not completed during the weekday, and therefore it is prohibited
because of Hachanah (it was prepared on Yom Tov and not before Yom Tov).

Rashi apparently maintains that an egg laid on Yom Tov was completed on Yom Tov, and
therefore it is prohibited. However, the Gemara earlier (2b) teaches that an egg is completed the
day before it is laid! An egg laid on Yom Tov was completed the day before, on a weekday, and
not on Yom Tov. Why, then, should the egg be prohibited because of Hachanah?

Moreover, even if the egg was completed on Yom Tov (the day on which it was laid), why should
it be prohibited? The problem of Hachanah exists only when something is prepared on Shabbos
for Yom Tov (or on Yom Tov for Shabbos). In contrast, when the Hachanah is done on Yom Tov
itself for the sake of that day, there is no problem of Hachanah because "Yom Tov Mechin
l'Atzmo" (it is permitted to prepare an item on Yom Tov to be used on that Yom Tov). In fact, the
rule of "Yom Tov Mechin l'Atzmo" is the reason why the Gemara earlier (2b) concludes that an
egg laid on Yom Tov is prohibited only when Yom Tov occurs after Shabbos, because the egg is
finished the day before it is laid. This implies that if an egg is completed the day it is laid, an egg
laid on Yom Tov would be permitted. (MAHARSHAL)

(a) The MAHARSHAL explains that Rashi does not mean that the reason why the egg will be
prohibited if it is laid on Yom Tov is because it is completed on the day it is laid. Rather, Rashi
means that an egg laid on Yom Tov is completed the day before, but the Rabanan made a
Gezeirah and prohibited an egg laid on an ordinary Yom Tov due to an egg laid on a Yom Tov
which immediately follows Shabbos (as the Gemara says on 2b). When Rashi says that it is
"prohibited because of Hachanah d'Rabah," he refers to the Gezeirah on an ordinary Yom
Tov because of Hachanah in a case of Yom Tov which follows Shabbos.
This explanation, however, is not consistent with the words of Rashi. Rashi writes clearly, "she'Lo
Nigmerah b'Chol" -- the egg was not completed on a weekday. These words clearly imply that it
was completed on Yom Tov itself.

(b) The PNEI YEHOSHUA explains that Rashi is consistent with his opinion elsewhere (2b),
where he says that Hachanah d'Rabah is prohibited because it is a form of Muktzah, and not merely
because the item was prepared on Shabbos for Yom Tov. Accordingly, Hachanah on Yom Tov for
the same day is also prohibited because the item is Muktzah (see Insights to Beitzah 2:4).
This explains why Rashi says that the egg laid on Yom Tov is prohibited on Yom Tov because of
Hachanah, even if the egg was completed on the same day it was laid. (With regard to the apparent
contradiction between this view and the Gemara in Eruvin 38b, see CHIDUSHEI HA'ME'IRI to
Beitzah 2b.)

When Rashi writes that an egg laid on Yom Tov was presumably also completed on Yom Tov, he
means that the Gemara thinks at this point that this is Rav Huna's position. Rav Huna -- who,
according to the Gemara's assumption, prohibits even eggs found inside the hen on Yom Tov --
argues with the Gemara earlier (2b) and maintains that the egg is completed on the same day that
it is laid and not the day before. (This is implicit in Rav Huna's words, "Im Yetzi'asah Nigmerah.")

14
The TZELACH suggests that when Rashi writes that an egg that does not exit the hen before Yom
Tov is not considered to have been completed during the weekday, he does not refer to an egg laid
on Yom Tov, because such an egg indeed was completed the day before. Rather, Rashi refers only
to eggs found inside the hen when it is slaughtered. There is a concern that those eggs were
completed on Yom Tov, and Hachanah on Yom Tov for Yom Tov is prohibited, as the Pnei
Yehoshua states. (Eggs laid on Yom Tov are prohibited for another reason -- because of the
Gezeirah of Yom Tov that follows Shabbos.)

A MISTAKEN BERAISA
The Gemara suggests that Rav Huna maintains that eggs found inside a slaughtered hen on Yom
Tov are prohibited on that Yom Tov. Even though the Beraisa contradicts Rav Huna and states
that such eggs are permitted, the Gemara says that the Beraisa might be mistaken, as there is no
Mishnah that supports it.

The Gemara then says that the Mishnah (2a) seems to support the Beraisa. The argument between
Beis Shamai and Beis Hillel in the Mishnah applies only when the egg was laid on Yom Tov; when
it was extracted from a slaughtered chicken, everyone agrees that the egg is permitted. The Beraisa,
therefore, is not mistaken, and it thus poses a contradiction to the opinion of Rav Huna. Rav Huna's
statement cannot refer to a case of an egg laid on Yom Tov.

The Gemara suggests an answer for Rav Huna and says that perhaps the Mishnah means that Beis
Shamai and Beis Hillel also argue about a case of an egg found inside the hen. The Mishnah
mentions their argument only in a case of an egg that was laid in order to show the extent of Beis
Shamai's leniency. The Gemara counters that this cannot be the intent of the Mishnah. If the
Mishnah means that Beis Shamai and Beis Hillel argue both about a case of an egg found inside
the hen and an egg laid on Yom Tov, then the Beraisa is not in accordance with any Tana. (The
Beraisa, which says that eggs found inside a hen are permitted, cannot be expressing the view of
Beis Hillel, because Beis Hillel prohibits such eggs. It also cannot be expressing the view of Beis
Shamai, because Beis Shamai permits even eggs that are laid on Yom Tov, while the Beraisa
implies that only eggs found inside a hen are permitted but not eggs that were laid.)

Why does the Gemara continue to challenge Rav Huna from the Beraisa if the Gemara already
said that the Beraisa is in error? (TOSFOS DH v'Chi Teima)

(a) The SHITAH MEKUBETZES cites the RITVA who answers that a Beraisa is deemed to be
in error only when there is no possible way to infer the Halachah that it teaches from a Mishnah.
At this stage, the Gemara has shown that the Mishnah can be understood to imply the Halachah of
the Beraisa. Although the Mishnah can also be understood not like the Beraisa, it does not
necessarily contradict the Beraisa and therefore the Beraisa cannot be deemed to be in error.

(b) TOSFOS disagrees with Rashi's explanation because of this question. He explains that the
Gemara never suggests (in defense of Rav Huna) that the Beraisa is incorrect. Rather, the Gemara
suggests that the Beraisa does not contradict Rav Huna because the Beraisa expresses the opinion
of Beis Shamai while Rav Huna expresses the opinion of Beis Hillel. The Beraisa also adds a detail
which the Mishnah omits -- that Beis Shamai permits eggs even when they are found inside the

15
hen on Yom Tov. At this stage, the Gemara assumes that there is reason to say that eggs found
inside the hen should be treated more stringently than eggs that were laid, and thus it is necessary
for the Beraisa to teach that even eggs found inside the hen are permitted according to Beis Shamai.
The Gemara rejects this suggestion and says that there is more reason to permit eggs found inside
the hen than eggs that were laid.

Hence, there is no reason for the Beraisa to teach that eggs inside the hen are permitted according
to Beis Shamai: once the Mishnah teaches that Beis Shamai permits eggs that were laid on Yom
Tov, we know that they certainly permit eggs that are found inside the hen on Yom Tov. It must
be that the Beraisa is teaching the opinion of Beis Hillel with regard to eggs found inside the hen,
and it is saying that Beis Hillel permits such eggs even though Beis Hillel prohibits eggs that were
laid on Yom Tov. Accordingly, the Beraisa stands as a contradiction to Rav Huna.

Steinzaltz (OBM) writes:

Rava teaches that if someone dies on Yom Tov and needs to be buried, non-Jews are brought to
make the preparations and do the burial if it is the first day of Yom Tov; on the second day of Yom
Tov, we allow Jews to do whatever is necessary. This is true not only
on Pesach, Shavu’ot and Sukkot, but also on Rosh ha-Shana, when, as we learned yesterday, the
second day is considered an extension of the first.

The leniency connected with funerals stems from the Jewish attitude towards burial as an issue
of kavod ha-beri’ot – basic human dignity, both for the deceased and for the family of the
deceased. The Sages of the Talmud state unequivocally that kavod ha-beri’ot pushes aside
Rabbinic laws of lo tasur (see Devarim 17:11); that is to say, many prohibitions established by
Sages can be dispensed with since the mitzvah of burying the dead takes precedence.

Based on this, Rava teaches that on the first day of the holiday – when all melakhot are biblically
forbidden for a Jew to perform, and asking a non-Jew to perform those activities is forbidden by
the Sages – we permit a non-Jew to do whatever is necessary for the burial. On the second day of
the holiday, which is, in its entirety, of Rabbinic origin, we dispense with all prohibitions
connected with the funeral, as having Jews take care of the burial is considered to be an honor to
the deceased.

Given the importance given to these ceremonies, the Me’iri asks why we do not permit funerals to
take place on Shabbat or Yom Kippur, on the condition that all forbidden activities be performed
by non-Jews. He answers that the high level of holiness connected with those holidays led the
Sages to establish their ordinances on those days as being on level with biblical prohibitions that
cannot be pushed aside.

16
Rava clarifies the halachah of a body which must be buried on Yom Tov. If the need arises on the
first day of Yom Tov, the burial must be done by non-Jews.3

The reference here is to ‫ מלאכות‬which are ‫ דאורייתא‬such as building a coffin and sewing the
shrouds., which should only be done by non-Jews. ‫ מלאכות‬which are only rabbinic (such as heating
water to wash the body, carrying the body in the street and placing the body into the ground) are
allowed to be done even by Jews. If the need arises for a burial on the second day of Yom Tov,
Jews may perform even those ‫ מלאכות‬which are Torah prohibitions. Mar Zutra qualifies this
halachah and he says that it applies only when the body cannot wait for burial, i.e., the death took
place before Yom Tov and the body will deteriorate, or if the weather is very hot, and the burial
must take place immediately. If however, the body can be held a day, the funeral must be delayed.
There is a ‫ מחלוקת‬among the Rishonim regarding the words of Mar Zutra. Some understand that
he is referring only to the second case, where Jews are allowed to do ‫ מלאכה‬on the second day of
Yom Tov.

This must be avoided if possible. Accordingly, Mar Zutra allows non-Jews to do ‫ מלאכה‬on the first
day of Yom Tov and there is no need to delay in such a case.

Others (‫ ג”בה‬,‫ )זרוע אור‬understand that Mar Zutra is speaking about even the first case of Rava, and
the dispensation to allow non-Jews must be delayed if at all possible. The halachah is according to
the first view. Ramban (Toras HaAdam), Rambam (Hilchos Yom Tov 1:23), and Rosh (here, ‘ ‫ה‬
‫ ) סימן‬rule that in a case of a body which is ready for burial for the first day of Yom Tov, and non-
Jews are directed to perform ‫ מלאכות‬which are even ‫ דאורייתא‬.

Rosh adds that human dignity (‫ ) הבריות כבוד‬allows us to instruct the non-Jews and tell them to do
the necessary ‫ מלאכות‬.We recognize that the relatives are in distress if we would wait, and even if
the body is not in danger of deteriorating in the meantime, it is most appropriate to hasten the
burial. This is also the ruling of Shulchan Aruch (526:1).

3
https://www.dafdigest.org/masechtos/Beitza%20006.pdf

17
There is a dispute amongst the Rishonim regarding which burial preparations should be performed
by non-Jews. All opinions agree that those activities that involve Biblical prohibitions, such as
digging the grave and filling the grave after burial must be performed by non-Jews. The
disagreement revolves around those activities that involve only Rabbinic transgressions, such as
heating water to clean the body or carrying the body to the cemetery.

According to Rabbeinu Asher ben Yechiel (1), the Rosh, activities that involve only Rabbinic
restrictions may be performed by Jews. Others (2) disagree and maintain that the language of the
Gemara, “non-Jews should be involved,” indicates that all the activities are performed by non-
Jews.

Shulchan Aruch (3) rules in accordance with Rosh and permits Jews to perform all activities that
do not involve Biblical prohibitions. The reason for this lenient ruling, explains Mishnah Berurah4
, is that these activities are seen as a mitzvah because having them performed by a non-Jew is a
disgrace ‫ מילתא בה זילא‬and are therefore categorized as a Yom Tov need which may be performed
by a Jew.

Mishnah Berurah (5) proceeds to cite authorities who dispute the ruling of Shulchan Aruch and
maintain the strict opinion of the other Rishonim should be followed. Mishnah Berurah concludes
that it is not necessary to protest against one who wants to follow the lenient opinion of Shulchan
Aruch, since many authorities follow this ruling.

Rav Moshe Feinstein (6) adds that nowadays burials should not be performed even on the second
day of Yom Tov. His concern was that if a burial was to take place on Yom Tov it would invariably
lead to a desecration of Yom Tov, e.g. people calling one another with information about the
funeral or perhaps even driving to the funeral, and therefore, it is more kavod for the deceased to
wait until after Yom Tov.

18
Our daf discusses the use of an eiruv tavshilin to allow preparation from Yom Tov for Shabbos.
Similarly, only the person who prepares in this world with Torah and mitzvos, will have what to
eat on Shabbos itself—will have something to sustain him in the World-to-Come (Avodah Zarah
3a). Without making the extra effort, in our case symbolized by an eiruv tavshilin, one cannot
prepare for Shabbos.

If a person’s whole life is like a Yom Tov, if it passes easily and without challenges, it will hardly
help the person build ‫ הבא עולם‬for himself! It is well known that it is virtually impossible to achieve
significant material comfort without real hard work even nowadays.

During the time of the Ba’al Hafla’ah, zt”l, however, just making a simple living could consume
all of a person’s time and energy. Jews often worked in petty trade, and people would exert
themselves for days on end riding through rain and snow to purchase merchandise in one place
just so they could cart it somewhere else where they hoped to make a profit. Sometimes the
merchandise would be stolen or destroyed, or would lose whatever value it had even before it got
to market. Such a misfortune could bring on swift ruin.

Once, a traveling merchant who had been riding the whole night and was in dire need of
refreshment found himself at the doorstep of the famous Ba’al Hafla’ah. The man was literally
freezing and was desperately in need of shelter from the blizzard that raged outside. He was
graciously admitted to the house, and after some hot tea and cake warmed him up a bit, he posed
a question to the gadol. “The Rav can see for himself what my ‫ הזה עולם‬is like,” he began. “My
question is, what will my ‫ הבא עולם‬look like?”

The Ba’al Hafla’ah gently answered, “My son, this is what your ‫ הזה עולם‬looks like after putting in
so much effort. What makes you think that you’ll merit a big portion in the next world without any
toil at all?”

Sara Ronis writes:4

Outside the Land of Israel, Jews are commanded to observe an extra day for every festival. The
idea was that certain communities couldn’t know exactly which day the holiday fell, so they would
celebrate it for two days to ensure they celebrated on the right day. You might suppose, therefore,
that both days would need to have the same level of sanctity, since we don’t know which is the
“real” festival day. But it turns out that the rabbis didn’t see it that way.

Rava said: If one died on the first day of a festival, non-Jews should attend to his burial. If he
died on the second day of a festival, Jews should attend to his burial.

4
Myjewishlearning.com

19
Rava argues that there is a difference between the first and second days of the holiday in terms of
whether or not Jews can bury the dead— the sanctity of the first day prohibits Jews from attending
to the burial, but the second day has an apparently lesser degree of sanctity which permits Jews to
bury their dead.

The Gemara then records a dispute over which circumstances would actually allow Jews to bury
the dead on the second day of the holiday:

Mar Zutra said: We said that Jews should attend to the dead on the second day of the holiday
only when the burial of the body has already been delayed. However, if the burial has not been
delayed, we delay it.

For Mar Zutra, the second day of a holiday is similar enough that — ideally — the same
prohibitions that apply on the first day would apply on the second. Mar Zutra seems to think that
only the concern of immediate decomposition overrides the sanctity of the second day of a holiday.
In a world without refrigeration, waiting multiple days to bury someone could lead to serious
decay, which degraded the deceased person’s dignity (and as we know today, could also spread
disease). But where decay isn’t a concern, Mar Zutra takes a more stringent stand than Rava: Both
days are sacred enough to prohibit burial by Jews.

Rav Ashi then contradicts Mar Zutra:

Even though the burial was not delayed, we still do not delay the burial. What is the reason for
this? With regard to the dead, the sages equated the legal status of the second festival day with
that of a weekday — even to cut material to fashion a cloak for the deceased and to cut myrtles
for the deceased.

Rav Ashi thinks that regardless of whether decomposition is a risk, the deceased is buried — by
Jews — on the second day of a holiday, upholding Rava’s statement. Rav Ashi explicitly argues
that there is a profound difference between the first and second day of the holiday, one which
actually turns the second day into an ordinary work day, at least when it comes to issues of burial.

So what do we actually do on the second day of the holiday? Ravina concludes the discussion by
conceding that Rav Ashi is technically halakhically correct, but mandates that Jews do not bury
their dead on the second day anymore because:

Nowadays, there are Zoroastrian priests and we are concerned.

Ravina is concerned that foreign officials will not understand the nuances and distinctions in the
observance of Jewish law, and will form judgements about Jews and Jewish practice as a result of
their misunderstanding. If the Zoroastrian priests think that Jews don’t follow their own laws
stringently, they will judge Jews negatively. They might also think that Jewish tradition is
negotiable, and so require Jews to transgress it! To prevent this, he mandates that on both days
Jews may not bury their dead.

20
On the face of it, Ravina’s statement seems to paint a really hostile portrait of interfaith relations
in Babylonia, with nosy and judgmental non-Jews constantly on the lookout for alleged Jewish
hypocrisy. But a closer look at this passage complicates this picture. After all, going back to the
original statement from Rava which kicked off this discussion, if Jews are prohibited from burying
their dead on the second day of the holiday, but we know that decomposition is a real threat, who
is supposed to do the burying? Non-Jews! Who is it that is in charge of upholding the dignity of
Jews who have passed away on holidays? Non-Jews! Today’s daf depicts a complicated web of
relationships between Jews and the other people of Babylonia, some fraught and others supportive
and collaborative.

Rabbi Johnny Solomon writes:5

Towards the end of our daf (Beitzah 6b) we encounter the halachic position of Rabbi Eliezer ben
Yaakov that, even once hatched, a chick is not considered fully alive until it opens its eyes, and
since we are about to celebrate Rosh Hashanah, I thought I’d dwell on the message of sight - both
in terms of what God sees of our life, and what we choose to see in ours.

In terms of God, a central message of the Rosh Hashanah Machzor is that God ‘sees’ all that we
do and that none of our actions are hidden from God. •‫– ֵאין ִשְׁכָחה ִלְפֵני ִכֵסּא ְכבוֹ ֶֽד• ְוֵאין ִנְסָתּר ִמ ֶֽנּ ֶגד ֵﬠי ֶֽני‬
‘there is no forgetfulness before the throne of Your Glory, and there is nothing hidden from Your
eyes’. Similarly, we beseech God •‫‘ – ָא ִֽבינוּ ַמְל ֵ ֽכּנוּ ְמֵחה ְוַהֲﬠֵבר ְפָּשׁ ֵ ֽﬠינוּ ְוַחטּ ֹא ֵ ֽתינוּ ִמ ֶֽנּ ֶגד ֵﬠי ֶֽני‬Our Father, our
King! Blot out and remove our transgressions and sins from before Your eyes.’

Yet in contrast to God whose ‘eyes’ are always open, the prayers and teachings concerning Rosh
Hashanah refer to humanity as those who have yet to wake up or open their eyes. We are like
Yonah whose eyes are closed and is asleep to the storms of the world and who is then challenged
with the words, later echoed in our selichot, of ‫‘ – ַמה ְלּ• ִנ ְרָדּם‬why are you slumbering’? In fact, as
the Rambam explains, a purpose of the shofar is to wake us, up as if to say: ‫עוּרוּ ְיֵשׁ ִנים ִמְשַּׁנְתֶכם‬
‫‘ – ְו ִנ ְרָדִּמים ָהִקיצוּ ִמַתּ ְרֵדַּמְתֶכם ְוַחְפּשׂוּ ְבַּמֲﬠֵשׂיֶכם ְוִחְזרוּ ִבְּתשׁוָּבה ְוִזְכרוּ בּוַֹרֲאֶכם‬Wake up you sleepy ones from
your sleep and you who slumber, arise. Inspect your deeds, repent, remember your Creator.’

Understood this way, Rosh Hashanah is about opening our eyes in order to help us fully live our
lives; it is about knowing that our deeds are ‘seen’, and that for us to fulfil our mission on earth,
we must look both within us and around us and identify how we can improve ourselves and our
world.

And how does Rosh Hashanah and the new year begin? With hadlakat neirot – the candles that we
light and that we look at - which remind us that through our open-eyed endeavours in the coming
year, we can be a force of good in bringing warmth, light and comfort into our home, and in sharing
that warmth, light and comfort with others as well.

5
www.rabbijohnnyslomon.com

21
 The Proud Mother Hen and Chicks by John Frederick Herring Snr

A chick

Mark Kerzner writes:6

Having discussed an egg laid on a Holiday (Yom Tov), the Talmud turns to a chick that hatched
on a Holiday. What is its status, can it be eaten? We have two opinions. One is that it is muktzeh
(set aside) since before it hatched, it was not fit for any use. The other opinion is that it is permitted:
if one were to slaughter it, it would become permitted as food, and this permission removes the
prohibition of muktzeh.

But why would it be muktzeh? We know that a calf born on a Yom Tov can definitely be eaten,
so what is the difference between it and an egg? The answer would be that the calf was permitted

6
https://talmudilluminated.com/beitzah/beitzah6.html

22
even while inside of its mother, if one slaughtered the mother. This logic obviously does not apply
to the chick.

There is also the opinion of Rabbi Eliezer ben Yakov, who says that the chick is prohibited even
on a weekday all the time that it has not opened its eyes. This is because before this time it is not
properly a bird but a creepy-crawly, and is prohibited together with other “things that creep upon
the earth”.

De treurdagen ("The mourning days") by Jan Voerman, ca 1884

Interment and Eternity: The Mitzvah of Kevuras

Hameis (Burial)
Rabbi Mayer Twersky writes:7

Parshas Chayey Sara opens with a detailed description of Avraham Avinu procuring a burial
plot and interring Sara Imeinu. The Rav zt"l commented that this account
has halachic import. It highlights the halachah of kever Yisroel - viz, that Jews must be
buried apart from gentiles in an exclusively Jewish cemetery. In a broader sense,
7
http://torahweb.org/torah/2006/parsha/rtwe_chayey.html

23
the halachah of kever Yisroel epitomizes that the Torah delineates for us our unique approach
not only to living but to death and burial as well.

Baruch Hashem, in general our community faithfully upholds the uniquely Jewish approach
to death and burial. I would, however, like to focus attention on one element of our conduct.
All too often we approach the mitzvah of kevura (burial) without any sense of urgency. Our
attitude towards kevura does not place a premium on promptness. This slow motion approach
stands in marked contrast to the alacrity mandated by the Torah.

The Torah in parshas Ki Teitzei stipulates "lo talin nivlaso all ha'etz"; it is forbidden to leave
a meis (dead person) overnight. He must be buried promptly. This alacrity is also mandated
by a mitzvas aseh (positive commandment) - "ki kavor tikbireno bayom hahu". When kavod
hameis (respect for the deceased) warrants it is permissible to postpone the kevura. Examples
of kavod hameis include procuring a coffin and shrouds, as well as notifying the community
and allowing relatives to attend the funeral. In all other instances, when kavod hameis is not
a compelling factor, prompt kevura is absolutely required. (And, of course, even kavod
hameis concerns must be addressed as expeditiously as possible.)[1]

Two unique halachos attest to the singular importance of prompt burial. First of all,
the halachah of aninus exempts - indeed, prohibits - the seven immediate relatives (parents,
spouse, sibling, children) from fulfilling all other mitzvos aseh (positive commandments)
from the time of death until burial. This remarkable stricture is intended to ensure their single-
minded devotion to and preoccupation with burying the deceased relative.[2] Second of
all, Chazal (our rabbis) allow amira l'akum (instructing a gentile to perform prohibited labor
on our part) in the event of a death on the first day of yom tov (holiday). In the event of a death
on the second day of yom tov, Chazal suspended the sanctity of the day with regard to kevura.
Both of these rabbinic prohibitions (i.e. amira l'akum and yom tov sheini) do not apply in the
case of a meis in order to facilitate prompt burial. [3]

The mitzvah of immediate kevura encapsulates basic teachings of Yahadus (Judaism). First of
all burial is not a means of disposing of human remains. Instead it is a source
of kaparra (atonement), of indescribable benefit to the deceased.[4] This process
of kaparra ought to be initiated as expeditiously as possible. Hence the alacrity associated
with kevura.

Moreover, in Yahadus, the body, due to its partnership with the soul, is holy. Even in death
that partnership has not been permanently sundered because of the promise and prospect
of techiyas hameisim (resurrection), the re-unification of body and soul. Accordingly, even in
death the body is deemed holy and to be treated accordingly.[5]

The word for holiness in lashon hakodesh (Hebrew) is kedusha. Kedusha etymologically
denotes separateness and, thus, consecration for a particular (usually hallowed) purpose.
Hence, the definition of kedusha offered by my father zt"l as "purposiveness".[6]

To allow the body, holy even in death, to gratuitously lie idly unburied is thus degrading. The
holiness of the body demands prompt kevura.

24
 May we merit fulfilling this mitzvah properly until such time as we merit the fulfillment of
the prophecy, "bilah hamoveis lonetzach u'macha Hashem Elokim dimmah mei'al kol panim"
(G-d will eliminate death for all eternity and erase tears from all faces).[7]

[1] Re. the above halachos see Yoreh Deah 357 and Gesher HaChaim vol. I ch. 7

[2] Berachos 17b-18a and Tosafos ad loc.

[3] Beitzah 6a (C.F., however, responsum of Rav Moshe Feinstein zt"l for a novel different rationale)

[4] Sanhedrin 47b

[5] Malbim to Breishis 23:20

[6] Torah U-Madda Journal vol. VIII, p. 33

[7] Yeshayahu 25:8

Rav Asher Meir writes:8

8
https://etzion.org.il/en/halakha/studies-halakha/philosophy-halakha/burial-yom-tov

25
 The melakhot (creative acts/"labors") forbidden on Yom Tov are basically almost identical

to those forbidden on Shabbat. In general, the only exception is food preparation for the honor of

Yom Tov. Indeed, the Mishna states explicitly "There is no difference between Shabbat and Yom

Tov except for preparing food" (Mishna Beitza 5:2.) Likewise, there is practically no difference

between the first and second day of Yom Tov outside of the Land of Israel, for "Everything that

the Sages decreed, they decreed in the same manner as the Torah" (Pesachim 30b.)

Yet in the laws of burial there is a vast difference. We learned that on Shabbat, even to

move the body is permitted only in case of great need, and only via a subterfuge (chapter 88). Yet

on Yom Tov it is only permissible to perform a burial if every part of the burial is performed by

non-Jews. And on the second day of Yom Tov burial is even permissible to be performed by Jews,

to the extent that the Talmud our daf, states that "Regarding care of a dead body, the Sages made

the second day of Yom Tov like a weekday" (Beitza 6a.)

Different communities take advantage of these leniencies to different degrees, but this is

the underlying law. We will present one way of understanding this surprising distinction.

In the introduction to the laws of Shabbat we explained that the week is divided into two

parts: the weekdays when we radiate holiness, and Shabbat when we absorb it. On weekdays we

are limited in our ability to absorb holiness, to perceive sanctity in worldly pleasures; therefore,

we enjoy these pleasures in moderation, so that they shouldn't debase us. But on Shabbat we have

an extra soul, which enables us to appreciate all earthly pleasures as delights of the soul.

Yom Tov is an intermediary between these two aspects. The days of "Yom Tov", which

commemorate the miracles of our history when the natural world was subjected to God's will in a

supernatural way, are days when we also have the ability to subdue our material nature and enable

26
it to acknowledge God's goodness. We don't have an extra soul on Yom Tov, but our ordinary

spirit is especially amenable to conquering its baser nature and appreciating material enjoyments

without becoming coarse.

So on these days we are allowed to perform melakhot which are direct preparation for

material enjoyments. The Torah refers to food preparation on Yom Tov as "okhel nefesh,"

nourishment for the spirit/soul (Shemot 12:16.) Other labors are forbidden, because they are in

the category of preparation for the body, which is permissible only on weekdays. And on Shabbat

no preparation is necessary, because we experience the world as complete and perfected (Likutei

Halakhot Breslav, laws of Yom Tov.)

The burial of the dead is something done to assuage the soul, the spirit of the departed will

only attain a degree of rest when the body is buried. So to some extent we could consider the

burial an "enjoyment of the soul" for which labor is permitted on Yom Tov. However, preparations

for burial, unlike the relatively light labors which are necessary for preparing food, would actually

prevent us from enjoying the Yom Tov; therefore, they are permissible only when performed by a

non-Jew.

As for the second day of Yom Tov, this day is observed outside of the land of Israel because

of the doubt that existed as to when Rosh Chodesh (the first of the new month) was. We are unsure

if the previous month had 29 or 30 days, so we observe two days of Yom Tov. But for the dead

person, the second day of Yom Tov is like a weekday; the spirit of the departed is in the World of

Truth, and there is no more uncertainty.

DEATH BY SUICIDE OR OF A WICKED PERSON

27
 The fact that a person is not completely righteous certainly doesn't keep us from mourning

him. "There is no man who doesn't sin" (Melakhim I 8:46). Indeed, one purpose of the customs

of mourning is to provide atonement for the departed.

However, there are two categories of people whose transgressions are of a special

character, whose passing we don't mourn. One is a person who brazenly commits suicide; the

other is someone who demonstratively severs his ties to the Jewish people.

SUICIDE

Repentance is the great hope of mankind and the greatest gift of the Creator. Our tradition

tells us that repentance was created even before the world (Pesachim 54a); this teaches us that the

possibility of repentance is a prerequisite for our existence. Since everyone occasionally falters,

without the possibility of repentance we could never attain righteousness.

There is no sin which is so severe that repentance is not accepted, and we learned in chapter

194 that any person who repents and confesses his sins on his deathbed attains atonement for his

sins through his death.

One sin alone leaves no possibility of repentance - suicide. The unique horror of suicide

is not the extreme gravity of the crime – which is after all an instance of murder, the most serious

crime of all – but its finality. The crime itself closes the door to any possible repentance.

This in itself betrays a complete lack of faith in the Creator. Another sinner may say to

himself that ultimately he is a believer, though a weak one, and someday he will repent and

reconcile himself to God. But suicide cuts one off from any such possibility.

This is the message of the prohibition to mourn a suicide. However, practically speaking

the Torah's ways are ways of pleasantness, and all its paths are peace. If there is even a slight

28
possibility that the person regretted his acts at the last moment, or if he was temporarily deranged,

then we do not treat the case as a suicide. Even a person who hangs himself could possibly have

repented in the few moments before his death; and most people who commit suicide are profoundly

disturbed at the time of their act. So in practice a proper funeral is very rarely denied to a suicide,

even if there is an explicit suicide note.

ONE WHO SEPARATES HIMSELF FROM THE COMMUNITY

"Will I not hate those who make You hated, God?" (Tehillim 139:21.) The verse does not

refer to one who is merely wicked, or even to one who hates God (God forbid), but specifically to

one who makes God and His Torah hated among others. Any person may have times of weakness

in his or her faith, but only a brazen person whose faith is completely shattered will try and weaken

the faith of others.

A person who is a welcome member of the Torah community yet converts to another

religion belongs to this category. Such an act can even weaken the morale of others in the

community who hold fast to the Torah with all their strength.

Here once again the Torah and the Halakha are "ways of pleasantness." In some cases

mourning may even take place for an apostate. One of the greatest early authorities, Rabbenu

Gershom, mourned over his son who turned his back on his religion; he mourned to express his

grief over the very fact that his son did not have the chance to repent before his death (Beit Yosef

YD 345.)

"AND THE LOSS OF THE WICKED IS JOY"

29
 We learn that the passing of the particularly wicked is not marked by sorrow from the verse

"in the loss of the wicked is rejoicing" (Mishlei 11:10.) While this sentiment is understandable, it

may strike us as a bit rash and vindictive. Our tradition is adamant that we never seek the death

of the wicked, but on the contrary their rectification. "By My life, says the Lord God, I do not

seek the death of the wicked, but rather that the wicked should turn from his ways and

live!" (Yechezkel 33:11.) Another verse states, "Sins shall disappear from the earth, and sinners

are no more" (Tehillim 104:35); if the sins disappear, then the sinners are no more, since they have

become righteous! (Berakhot 10a.)

We can escape the element of vindictiveness with the help of one important insight - the

ultimate striving of everything in the world, including wickedness itself, is towards good. This

means that wickedness itself aspires to its own destruction.

"The death of the wicked is a benefit for themselves and a benefit for the world; (the

death) of the righteous - bad for them and bad for the world" (Sanhedrin 71b.)

Viewed this way, rejoicing over the death of the wicked is a communion with the soul of the

departed just as much as mourning over the righteous. Every soul is ashamed and mortified at the

sins it commits; when death occurs it may feel a sense of relief that its terrible acts have come to

an end.

"Complete and utter evil, which has no spark of good, rejoices in its own elimination,

and its disappearance and reduction to nothingness is its greatest perfection and

development. We have to elevate ourselves to such encompassing heights of loving

kindness, that we should aspire to do good to all; and that we even desire to do good to

evil itself by eliminating it" (Rav Kook, Olat Raya II p. 314, on the Rosh Hashana Amida.)

30
 Tending to a Corpse9

If a person died on Shabbat or Yom Kippur, we do not deal with the burial on that day, nor may
one move the body, as it is muktzeh. If there is a concern that the body will be degraded, we cover
it with an item of clothing or another non-muktzeh item and thus move it to a place where it can
be preserved with dignity (SA 311:1-4). A non-Jew may not be asked to deal with the burial, as it
is rabbinically prohibited to ask a non-Jew to do something that would be prohibited by Torah law
if a Jew did it. Desecrating Shabbat or Yom Kippur on behalf of the corpse is not respectful toward
the deceased (SA 526:3).

On Yom Tov, in contrast, the Sages permitted asking a non-Jew to deal with the burial. The Sages
here are following the lead of the Torah. Since the Torah is lenient in allowing one to
do melakhot in order to prepare necessary food items on Yom Tov, the Sages too are lenient in

9
https://ph.yhb.org.il/en/12-07-05/

31
allowing one to ask a non-Jew to do whatever melakhot might be necessary for the burial,
including sewing the shrouds, making the coffin, and digging the grave. Furthermore, Jews may
do rabbinically prohibited melakhot to facilitate the burial. These include washing the body,
transporting it, escorting it (within the teḥum), and placing it in the grave. Non-Jews may then fill
the grave with dirt (Beitza 6a; SA 526:1).

On Yom Tov Sheni and the second day of Rosh Ha-shana, the Sages allowed Jews to deal with
the burial of the dead, for the Sages rendered Yom Tov Sheni as a weekday for everything needed
to take care of the dead. Since the Sages are the ones who enacted the second day of Yom Tov in
the Diaspora (as explained below, 9:2-3), they had the authority to permit melakha then, in order
to prevent the degradation of the dead. Therefore, a Jew may sew the shrouds, dig the grave, and
even cut myrtle branches to be placed on the coffin in those places where this is a standard way of
paying respect to the dead (Beitza 6a; SA 526:4). Some say that when possible, a non-Jew should
be asked to do the biblically prohibited melakhot (Rema, ibid.)

Anything that may not be done on Ḥol Ha-mo’ed for the deceased may not be done on Yom Tov
Sheni either. Therefore, one may not do melakha publicly if onlookers will be unaware that it is
for the sake of the dead. This includes engraving the tombstone and cutting down trees to make
the coffin (SA 547:10; MB 526:24).

Even if the cemetery is beyond one’s teḥum Shabbat, he may still accompany the body there on
Yom Tov Sheni. However, if it is necessary to drive in order to get to the cemetery, then the only
people who may do so are those whose presence is required for the burial. The rest of the escorts,
including mourners, may not go (SA 526:7; Oraḥ Mishpat §130; as for coming back afterward,
see SA 526:6; MB ad loc. 35; BHL s.v. “ve-ḥozrin”).

If someone passed away on the first day of Yom Tov, the burial should not be delayed until the
second day in order to allow Jews to take care of it. Be-di’avad, if they transgressed by waiting,
Jews may perform the burial (SA 526:2; BHL s.v. “asur”). Some follow the practice of delaying
burials le-khatḥila from the first day of Yom Tov to the second (Raavad). Nowadays in particular,
when relegating the burial to non-Jews is considered very disrespectful toward the deceased, some
are lenient and permit waiting. Those who wish to rely on this leniency may do so (see Piskei
Teshuvot 526:3).

When there is a concern that if the burial takes place on Yom Tov, people will desecrate Yom Tov
(such as by making phone calls to notify people of the time of the funeral, or by driving in order
to participate), it is proper to delay the burial until after Yom Tov. This is especially true nowadays,
when bodies can be kept refrigerated, thus minimizing the degradation. Anywhere that Jews are
likely to desecrate Yom Tov because of the funeral, it should not be held on Yom Tov Sheni (Igrot
Moshe OḤ 3:76).

Since a body can now be refrigerated so that it will not be degraded, it would seem that even when
we are not concerned about Yom Tov desecration, the relatives of the deceased may choose to
delay the funeral until after Yom Tov in order to allow more people to attend. True, there is a
mitzva to bury the dead as soon as possible and not to leave the body unburied. Nevertheless, when

32
delaying the funeral will result in a better-attended funeral, thus increasing the respect paid to the
deceased, it is not prohibited (SA YD 357:1).

The Prague hevrah kadisha attends to a man at death. Unknown painter, ca.
1772. Image from the Jewish Museum of Prague

Jewish Burials

The body was laid in a shallow pit or on a shelf for the first year, during which the flesh decayed,
while the soul underwent the purifying process. The relatives laid tree branches on the corpse, and
it was also customary to leave perfume tools in the tomb or pour perfume directly on the corpse.
A year after the burial, the relatives returned to the tomb, collected the bones and put them in
stone boxes: ossuaries. It was a celebration: the relatives were assured that the deceased finally
arrived at his proper place, under the Seat of Honor and eternal, pure life. Now they collected the
bones to the ossuary, and put the ossuary in a niche, carved into the tomb wall.

Eldad Keynan writes:10

Private vs. Public burials: differences and time span

10
https://bibleinterp.arizona.edu/articles/burial357907

33
Private burials were common among Judean Jews during the Second Temple Era (STE). 1 A pre-
condition for a private burial was land ownership. Thus, only the well-to-do could afford for
private burials, while the others were buried in public cemeteries, in regular trench graves. Land
ownership was just one facet of the financial problem: carving a proper space into a rock or
building a Mausoleum, were expensive. Researchers usually find tombs since nature and time take
their toll on trench graves. Thus, when we discover a tomb, we assume that its interments were
mid-upper class or simply rich. The number of rock-cut tombs we find is larger than stone-built
tombs; the reasons may be that 1.) Time and nature affect rock-cut tombs less than stone-built
tombs and 2.) People preferred rock-cut tombs over stone-built tombs since the latter were
expensive compared to the former and harder to control.2 Tombs are scattered throughout other
areas in the former, larger province of Judea. Rabbinic Literature (RL) testifies for tombs as a
burial practice in the second half of the 3rd century CE in Galilee.3
Structure: "lobby," standing pit, niches, shallow pits, shelves
Tombs' structures basically resemble each other. A narrow, usually square opening leads to a
"lobby," mainly square as well. Niches (RL: [plural] Kukhim [single] Kukh) were carved into three
of the tomb walls; those were the final place of the ossuaries and their contents. This is the basic
structure; however, tombs differ in detail. The number of niches in each wall was not a common
feature; some tombs have three niches in each wall, while some others have three niches in two
walls, and two in the third, or the opposite. Since the height of the tombs was limited, we find
standing pits around the lobby, to allow the relatives or workers better activity conditions inside
the tombs. Standing pits seem to be important, yet actually not all the tombs present them.
Shallow pits (RL: mahamorot 4, biqa'5 ) were the place for corpses during the first year. In some
tombs, we find four shallow pits for adults and one smaller, for children or babies.

Hillel the Elder's tomb, Upper Galilee

34
The number of shallow pits prevented problems that could arise when a family member died during
the first year of a previous death in the family. Another first-year place was a rock-cut shelf, on
which the body spent the first year.

A tomb in Meron, East Upper Galilee

It seems that rock shelves represent an earlier type of tomb, but it has no effect on the practice and
concept: shallow pits and stone shelves served the same purpose.
Preliminary burial, secondary burial – connection to the after life
STE Judaism developed a new perception of afterlife. Earlier, the afterlife concept stressed that
the deceased is moving to an underground world, both with body and soul.6 However, the new
concept stressed that at death the soul departs from the body; while the body goes back to earth,
the soul goes to Gehinom (freely translated: hell). During the first year after the burial, the soul
has a trial and is purified in the heavenly court, and when it is over, it moves to heaven and is to
stay there until the Messiah brings all the dead back to life. The RL states that two processes start
with the burial: while the soul is purified of its sins, the bones are purified of the flesh;7 reasonably
it also stated that bones are not as defiled as the flesh.8
Changes in burial practices and the afterlife concept were best implemented in tombs. The body is
not laid and covered with dust for eternity, like the trench graves practices. Instead, it was laid in
a shallow pit or on a shelf for the first year, during which the flesh decayed, while the soul
underwent the purifying process. The relatives laid tree branches on the corpse, and it was also
customary to leave perfume tools in the tomb or pour perfume directly on the corpse.9 A year after
the burial, the relatives returned to the tomb, collected the bones and put them in stone boxes:
ossuaries (RL: Gluskema). It was a celebration: the relatives were assured that the deceased finally
arrived at his proper place, under the Seat of Honor and eternal, pure life. Now they moved the
bones to the ossuary, and put the ossuary in a niche, carved into the tomb wall.10

35
Interments: who's allowed in?
This question looks redundant: obviously, family members. However, it's not that simple. Suppose
a Jew has just started a new family. He had to be rich enough to buy land and clever enough to
order a tomb immediately. This act was probably the first thing Jews did when they bought land –
you can never know when this need will surprise you. Now our Jew knows that he's got a burial
place for him and his wife. He also knows that his sons will be buried here, and so will their sons
and a long offspring's line after them. After all – a single niche contains many ossuaries, and a
tomb has some niches. Thus many familial generations can dwell in a single-family tomb.
Still, our Jew's daughters were not supposed to be buried in their original family tomb since they
were supposed to be buried in their husbands' families' tombs. This makes clear that our Jew's
daughters-in-law had a complete right to be buried with their husbands, our Jew's sons. Of course,
if this Jew lost a daughter while she was still unmarried, she would be buried in her father's tomb.
In sum: Jewish tombs were strictly familial, no doubts.
Inherited burial rights: mothers, grandchildren
As said above, the sons' right to be buried with their father in his tomb was explicit, and so was
the wives’ right. But wives had an additional right, one that solved problems stemming from
reality. What if a woman died, and her husband and her father are fighting over her burial? Her
father wants her in his tomb, just like her husband. This problem is solved as follows: if she has
sons from her husband, she is to be buried in her husband's, but if she doesn't have them, she is to
be buried in her father's.11
Suppose our Jew's son is now an adult, and he moved to another town, where he bought land and
built a new family. Naturally, if he bought land, he ordered a tomb. Where should his mother be
buried when her time comes? In her husband's\his father's tomb, or in her son's tomb? The RL puts
it this way: she may order to be buried in her son's tomb – unconditionally; only her demand
determines the location.12
But a Jewess has another right: if she inherited a tomb, then she can order that every offspring she
had, that she saw when she was alive, is allowed to be buried with her.13
Now the interment "span" is wider: not only the original family members, their mother, wives and
male offspring are allowed. The last law allows a Jewess who inherited a tomb to have, in fact,
every offspring she had and met while she was alive, with her in her tomb! That includes females
and grandchildren. The RL is somewhat obscured here regarding gender issues. It doesn't state
clearly that the female offspring are allowed, but it doesn't prohibit it clearly either. Perhaps the
male grandchildren she met while alive are undoubtedly allowed.
The RL debates the inheritance rights of women: may a Jewess inherit her son, as she may her
father and husband? The debates on the issue suggest that Jewesses may inherit and
bequeath.14 This source is somewhat obscure indeed, yet we can have no doubts that when it
comes to burials, Jewish women could order to be buried in their sons' tombs, and that any
offspring they saw while they were alive will be buried with them. Formally, this law has nothing
to do with inheritance; practically, it is clear that Jewish women could bequeath their burial rights
to their relatives of second, even third degree.

36
Regular dead practice, executed felons practice, moving bodies prohibition
So far, it seems that we have discussed the rich burials exclusively. One might ask: what about the
spiritual rights of the poor, the dwellers of the trench graves? What about their afterlife and the
earthly burial practices connected thereto? The RL gives no answer, but we can suggest a simple
one: the poor did not lose anything. Jewish burial custom assumed naturally that while the bodies
in trench graves were decaying, their former owners, the poor souls, underwent the same process
the rich souls did: trial and purification in heavenly court. The relatives would visit the trench
grave of the deceased a year after the burial and celebrate his eternal freedom. The technical gap
compared to the rich burials meant nothing regarding the spiritual rights.
All these were applied to every Jew in the STE, and actually ever since. Jews are buried, until
today, according to burial practices and concepts created in the STE. Still one small group had to
be treated differently: Jewish felons, sentenced to death by Jewish courts. The "manual" of Jewish
courts practice did not neglect the spiritual rights every such felon was entitled to. Since the court
issued a death penalty, and was responsible for the execution, it was also responsible for the felon's
burial and spiritual rights. For that duty, the Jewish court had two tombs under its authority. In
those tombs, burial practices were strictly implemented, but only for preliminary burial. That is,
executed felons' bodies were kept in the court tombs for a year, and then the felons' relatives came
to the court and collected the bones, to rebury them (quote) "in their proper place,"15 The only
meaning of "their proper place" is – the felons' ancestral burial site. By definition, court tombs did
not have niches for ossuaries since those were meant for secondary, eternal burials. Jewish courts
had a sort of local authority: if a Jew committed a crime in a place other than his own town\village,
those courts now have the authority to bring him to trial. This could cause a severe problem in
terms of Jewish laws: the proper place for the felon's bones is another place, geographically. The
problem is that Jewish law strictly prohibits moving bodies and\or remains from one place to
another in the Land of Israel. For most – bodies and bones might be "on the road" from sunrise to
sunset, and then they must be buried for good. The problem seems unsolved, in cases when a
felon's family lived in a place more than one day's distance from the court. Actually, although the
Mishna testifies for the court tombs in Jerusalem, we know that Jews were not allowed to execute
condemned felons under Roman rule, and the Romans conquered the Land in 63
BCE.16 Practically – Jewish courts could issue death sentences, but they could not and did not
execute anyone, unless the judges had a death wish. We may suggest that the problem was solved
by the non-existence of the practice. It should be stated here that there no evidence of actual
execution by a Jewish court in RL.
Only a short note here: archaeologists noted that the tomb beneath the Holy Sepulcher has no
niches but only a shelf, and it is smaller compared to regular family tombs. I believe that the tomb
beneath the Holy Sepulcher was the Jerusalem court tomb, as described by the Mishna, thus meant
only for preliminary burial, which had no niches and only a shelf.17

Burials as land ownership designators; tombs for sale and rent; not
recommended but existing practice
The Hebrew Bible testifies clearly that burials designated land ownership; it does so by the
expressions: Nakhalat Avot (ancestors' property); Vayishkav i'm Avotav (he is laid with his
ancestors). The RL went further; not only that it stressed the importance of familial burials, it also

37
stressed that a Jew who carved a tomb for his father, and then buried his father elsewhere, will lose
his right to be buried in the tomb he carved.18 This rule's meaning is much more than merely
religious; it exemplifies the concept of announcing family estate ownership through burials. No
private object lasts longer than a tomb; keeping a family property under its control was extremely
important in ancient Judaism. Reliance upon well-saved documents required reliance upon the
quality of materials. On the other hand, when the relatives of a deceased inscribed on his ossuary
X son of Y, they could well be sure that in the visible future, none will question his (nor theirs)
identity and ownership of the tomb and the land it is on. As we have seen above, tombs were
familial assets explicitly; a piece of family real estate that proves the family ownership and
designates it. Accordingly, we would not expect to find any ancient law that deals with tombs
ownership transfer. One might even claim, logically, that there is no such law since the sheer
possibility did not exist. As much as this sounds logical and practical, the RL testifies, again, for
living reality against pure theory. It discusses the practical (yet negative) implications of a tomb
sale!19
Obviously, this legal treatment meant to warn Jews: keep your tombs’ ownership strictly and
tightly. The natural conclusion is that Jewish burial customs did not recommend the practice of
selling niches in tombs or the entire tombs. But no Jewish law ever prohibited, directly or
indirectly, explicitly or obscurely, the transfer of tomb ownership.
Notes
1 J. Magness, "What Did Jesus’ Tomb Look Like?" The Burial of Jesus, Eds. K. E. Miller et al. http://jesustomb.bib-arch.org.
(2007) 1-8, p. 4. A. Kloner, "Did a Rolling Stone Close Jesus’ Tomb?" The Burial of Jesus. Eds. K. E. Miller et
al. http://jesustomb.bib-arch.org (2007): 9-13, generally discusses the gaps between simple burials and the wealthy Jews' tombs;
Magness "Tomb", p. 2;
J. Magness, "The Burial of Jesus in Light of Archaeology and the Gospels," ErIsr, Vol. 28 (2007): 1-7, p. 1, agrees with Kloner.
2 Henceforth the term "tomb" will designate rock-cut tombs.
3 Gen. Raba, (Eds. Theodor-Albeck, p. 1087), Mikets 89. J. Talmud, Av. Zar. 1:9, 40a, testifies for tomb burials even as late as
mid-4th century CE (see below).
4 J. Talmud, Mo. Kat. 1; 5, 80c, J. Talmud, Sanh. 6:10, 23d.
5 Mas. Qet. Semakhot, 12:9.
6 Sheol: Ezekiel 32:27, Hoshea' 13:14, Psalms 30:4: Shakhat: Ezekiel 28:8, Psalms 55:24, Dumah: Psalms 115:17.
7 B. Talmud, Shabat, 152a. See also Kloner, "Stone" p. 9; Magness, Tomb, p. 2 - the familial nature of tombs in STE. For the
decaying flesh process: Kloner, "Stone," p. 10.
8 Mishna Eduyot, 6:3.
9 Mas. Qet. Semakhot, 12:9.
10 J. Talmud, Mo. Kat. 1:5, 80d; J. Talmud, Sanh. 6:10, 23d.
11 Mas. Qet. Semakhot, 14:6.
12 Mas. Qet. Semakhot, 14:6.
13 Mas. Qet, Semakhot, 3:16.
14 B. Talmud, Ba. Bat. 114b.
15 m. sanh. 6; 5-6; parallels: y. sanh. 6; 9, 23b. b. sanh. 46a.

38
16 I. L. Levine, "The Face of the Era: Erets Israel as a Part of the Roman Empire and the Great Revolt,” the History of Erets
Israel. (Hebrew) Vol. 4. Ed. M. Stern. Jerusalem (1990): 11-280, p. 95. See also John 18:3; when Pilate told the Jews to judge
Jesus by the Torah, they replied: "we have no authority to execute any person".
17 Kloner, "Stone", p. 12.
18 Mas. Qet, Semakhot, 5:14.
19 J. Talmud, B. Bat. 3; 4,13d; in J. Talmud, Av. Zar. 1:9, 40a, a mid 4th century sage, R. Yosey son of R. Bon, instructs not even
to rent a tomb to gentiles. This prohibition testifies for actual practice and excludes tomb rent to Jews. It is a part of a discussion of
the ways to keep the Land of Israel under Jewish ownership and control. It does stress the role tombs played as land ownership
designators.

The Bleak Future of Jewish Burial: A Look Inside Jerusalem's

Underground 'Cemetery City

Naama Riba writes:11

In recent years, burial in Israel has become no small challenge. Graves take up a lot of space and
in Israel, where cremation is virtually unheard of, higher-density burial solutions must be found.

11
https://www.haaretz.com/israel-news/.premium.MAGAZINE-jerusalem-set-to-open-world-s-first-underground-cemetery-this-
fall-1.7686534

39
Over the past two decades, more and more multi-level cemeteries have been built: At Har
Hamenuchot in Jerusalem, Tel Regev in the krayot suburbs of Haifa and the Yarkon Cemetery
next to Petah Tikva, one can see burial structures with numerous floors. These cemeteries, despite
the best efforts of the architects who design them, are usually an eyesore, particularly for the nearby
cities. With almost 45,000 people dying in Israel annually, the need for more burial space is always
on the rise.

Construction of a new underground section of the Har Hamenuchot Cemetery

near Jerusalem’s Givat Shaul neighborhood is currently nearing completion. The first part – which
will contain 8,000 burial spaces (out of a total of 23,000) – is due to open after the High Holidays
this fall. On a tour of the project, Hananya Shahor, executive director of the Kehillat Yerushalayim
Hevra Kadisha (burial society), proudly shows off the new site.

The underground cemetery under construction in Jerusalem. Credit: Olivier Fitoussi

40
The government did not provide any financial support for the 300-million-shekel project. It was
built in cooperation with a private company called Rolzur, and the Hevra Kadisha spread the
payments out over a decade. “If we hadn’t done this,” says Shahor, “burial would have become
privatized. That’s what the government would have preferred.”

At the start of the tour, before we descended into the burial tunnels, Shahor takes us to a lookout
point over the cemetery, where we see different types of burial options: field burial (referred to as
“villas”) and saturation burial, which includes burial in niches and multilevel burial. Saturation
burial is 10 times denser than traditional burial. Some of the structures have seven floors for
burials.

41
 A view of Har Hamenuchot Cemetery in Jerusalem. Running out of space
above ground.

“There is no other structure like this in the world,” says Shahor, referring to the subterranean
section. And he seems to be right. There is no other modern underground cemetery, but
construction of this type was not unusual in the distant and not-so-distant past. Underground burial
structures have been built throughout history, starting from the time of the Pyramids. The new
underground cemetery has a simple design and is 25,000 square meters in size.

“We put thought into maintenance for many years. The materials are simple. We made sturdy
buildings with future generations in mind.” Shahor says, noting that they experimented during the
construction process, while the tunnels were being excavated.

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The internal space of Stage 1 of the cemetery is comprised of three levels, each one with three
layers of burial niches. Graves were also planned for the spaces between the walls, for burial that
is similar to field burial – but not under the open sky. The intersections in the cemetery are marked
by large red and orange glass balls designed by a German artist.

Throughout the cemetery there are small lamps that have two surfaces to produce different kinds
of light – an intimate light for reading and a stronger light to illuminate the central spaces. Towards
the end of the tour with Shahor, we come to the shaft of the cemetery that will be part of the next
stage. The central shaft is 50 meters high and will be used for giant elevators and for ventilation.
It could also be extended to create additional burial levels. The plan is for 14 burial levels, each

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with three layers of burial niches. Shahor says the elevators make the entire structure wheelchair
accessible, and there will also be motorized carts available for people to use. A small museum
about burial is also planned.

Architect Zafrir Ganani of Peleg Architects, the firm that designed the project, likens the cemetery
to “a grid of streets like Manhattan. It’s really an underground city. The central shaft that was
designed for the sake of ventilation is almost like a burial tower.”

How can a structure like this be maintained long-term?

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 Construction workers at work on the underground cemetery being built at
Jerusalem's Har Mamenuchot.

“The mechanical systems, like elevators, are maintained like any mechanical system. The structure
is sealed and is supposed to be impervious to water. We didn’t think about what would happen a
hundred years from now – The Hevra Kadisha’s calculations were for the next two generations.
That’s as much as anyone cared about. We were mostly thinking about burial over the coming
decade.”

How is it possible to build this way? It’s quite an expensive solution.

“It is an expensive solution. But it can cover itself. It’s not possible to do this kind of thing
anywhere, only in places where there is a mountain, like Haifa, for example. What’s good about
this method is that the surface of the land can remain unchanged. Here we are right under the
cemetery.”

Government neglect

Shahor says at first it was hard to convince people to be buried in niches, but this type of burial is
now widely accepted. He says his own parents are buried this way. “The new construction
solutions enable me to free up space for future generations. If we had to keep on building ‘villas,’
the forest over there would be gone already.”

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How does the Hevra Kadisha generate income? Through the sale of graves to the living (About a
third of Israelis purchase a burial plot for themselves), the sale of burial plots in preferred sections,
such as for field burial, and the sale of graves to people – both Israelis and foreigners – who are
not Jerusalem residents, since the state only finances burial for Israeli citizens in their place of
residence.

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A shaft that will lead down to the new underground cemetery in Jerusalem, to
be equipped with elevators.

For years, the state neglected the matter of cemetery construction, as it has neglected many other
things. The construction of hospitals and academic buildings is also based on donations, so it’s not
surprising that burial also depends on nonprofit organizations. Also, responsibility for different
burial-related aspects is spread around many different offices: The Ministry of Religious Affairs
is responsible for the religious aspects of Jewish burial; the Interior Ministry is responsible for
burial of non-Jews; the planning administration in the Finance Ministry is responsible for the
planning of cemeteries; the Israel Lands Administration is responsible for allocating the land. The
local authorities issue the construction permits, the National Insurance Institute funds a portion of
the burial costs and the Health Ministry is in the picture too.

In principle, the state’s aim is for saturation burial to hold a thousand graves per dunam. Architect
Eytan Ronel, who has been designing cemeteries for 20 years together with his partner architect
Drorit Levy, describes how the method of saturation burial got started. “Twenty or 30 years ago,
cemeteries were about landscape architecture only. No one thought about being economical with
the land. About 30 years ago, the realization dawned that the land would run out. The first attempts
at saturation construction were in cemeteries in Haifa and Kfar Samir [also in Haifa].”

The most significant project of this type that he designed is the Tel Regev Cemetery at the krayot
suburbs outside Haifa. Based on his experience, he says that saturation construction that is overly
dense is not good, and he is concerned this may be the case in Jerusalem.

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“How will we maintain these huge burial structures a hundred years from now? Cement only lasts
100-150 years,” Ronel notes. “The question is also how much land area you’ve really saved and
how much it cost.” He says he includes arches as part of his cemetery designs. “This is a form that
can survive many years.”

One interesting cemetery he designed is in Herzliya. It has only the saturation burial method, so
that all the burial spaces are equal. This was at the instruction of former Mayor Yael German. The
graves are in niches arranged around pleasant and shady inner courtyards.

Secular burial

Another aspect of burial that needs to be discussed is secular-civil burial, which was ostensibly
regulated by law in 1996. According to the law, 10 percent of a cemetery’s area is to be set aside
for civil burial and anyone is entitled to be buried for free in this way. Ronel designed the Menucha
Nekhona Cemetery in Petah Tikva, as part of the Yarkon Cemetery, and it is slated to have 7,000
graves (construction has not yet begun). He says the issues related to density in civil burial are the
same as in Jewish religious burial. “A coffin is a small and simple thing,” he says, citing one aspect
of civil burial. “That’s not the story. I just slightly reduce the space between niches and a coffin
fits.”

There are a few existing options for free civil burial (such as in Be’er Sheva), but in the central
part of the country it is very hard to come by, so many nonreligious people look to private
cemeteries that will provide full service that includes burial and a burial ceremony. At the civil
cemetery in Netanya, burial can cost tens of thousands of shekels, and much area is wasted in the
process too. Most of the secular cemeteries use the wasteful field burial method, as in the ordinary
Jewish cemeteries. Such cemeteries are generally used by wealthier people who prefer not to be
buried in a wall or in a multi-level manner, and thus differences between burial for the rich and
burial for the poor are created.

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A simulation of a family burial area designed by architect Elisha Mor, based
on ossuaries.

Ayelet Cohen, chairwoman of the Menucha Nekhona Petah Tikva foundation, says she fought for
20 years to get a civil cemetery built. “It made sense for the government to build it, but the
government is privatizing all over the place. We can see the light at the end of the tunnel now but
we still need more funding. Most of the burial in the cemetery that we are planning will be
saturation burial. We wanted it to be green and the matter of visibility was very important to us.
We want the cemetery to look different and be aesthetic. Here people will be able to be buried for
free and it will be a regional cemetery.”

Cremation or bone-gathering

Various people in Israel, both secular and religious, believe that the traditional burial methods,
whether field burial or multi-level burial, are not sustainable in the long-term. Saturation burial
methods provide solutions for a few decades at best. But what happens after that?

Most people we spoke with who are involved in burial work or cemetery design had no answer to
that question. For the last few years, Dr. Yair Furstenberg, a professor of Talmud at the Hebrew
University, along with Rabbi Rafi Ostroff and Yaakov Kreuzer, have been promoting another
alternative – burial by the bone-gathering method. “This is a method that was accepted by our
ancestors, and it was much more economical and green. We are taking this initiative to the
public through interviews, articles and conferences. Some of the Hevra Kadisha people are
aware of it and have shown interest. Our forefathers would be buried temporarily for a year,
then after a year the bones would be gathered into a family grave. By this method, it is possible
to reach get as many as 3,500 graves in one dunam.”

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They also propose using this method without necessarily burying people together with relatives
(though family graves could also be created). “We propose that the bones of each person be
gathered into an ossuary, and then have the ossuaries concentrated in one place. We even have
an architectural plan. The cost of burial in this method is a few hundred shekels per grave, and
the temporary graves can be recycled.”

Architect Elisha Mor proposes designing a series of plots. Next to each plot designated for
temporary field burial would be a structure to hold the ossuaries.

What about existing graves? Could they also be gathered into a common grave at some point?
Various data indicates that most graves are no longer visited after 20 or 25 years. “Our idea, in
order to obtain public legitimacy for this, is to start with burial in which the person knows that his
bones will be collected from the grave after a year. Even the most devout Haredim do not have a
strong argument against this custom,” says Furstenberg, referring to ultra-Orthodox Jews. Though
he does not completely rule out the notion of older graves being removed at some point, he says,
“Our aim is not to evacuate existing cemeteries but rather to plan the future ones in a different
way.”

Another method that would cut down on the space needed for burial is cremation. Alon Nativ,
CEO of Aley Shalechet, the main company in Israel offering cremation services, says he is partially
motivated by environmental concerns. He also believes that the saturation construction is not really
all that dense. “When you calculate the net density per dunam, it comes out high, but with
saturation burial there are passageways and paths and different areas that aren’t always considered
in the density calculation. When you do take all of those into account, you find out that this type
of construction is not as dense as we’ve being told.”

The Ministry of Religious Affairs says it is aware of the space crunch, especially in the center of
the country and in Jerusalem, but says solutions are available for the coming decade. The ministry
had no comment on the subject of bone-gathering or other proposed methods. It did say that,
according to a report authored by former Finance Ministry director-general Shmuel Slavin,
saturation burial is expensive and field burial is preferable. “It is not written anywhere that one
must be buried in their place of residence,” says one ministry official. “In talks with various
relevant parties, we’ve been proposing the construction of a large cemetery in the Negev, where
their land is not limited. In the long term, people don’t come to visit cemeteries forever.”

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