Shabbat Parashat Terumah | 5768

Autopsies – part II

Moreshet Shaul

Autopsies – part II

(condensed from Amud Hay’mimi, siman 34)

[Last time we raised the question if one’s permission to delay burial is valid (to not bury is not).]

The Radvaz (I, 313) says that the mitzva to bury on the same day applies only to those who were executed; others must be buried but not necessarily on the same day. The logic is that one might die near nightfall, making it impossible to bury him in time, whereas beit din can plan things so that the burial of one who is executed can take place the same day. While this position fits the Rambam’s wording in Mishneh Torah, in the Sefer Hamitzvot he says that bal talin (delaying burial) applies to all. The Radvaz apparently believed that the Rambam changed his mind and that his two positions correspond to two opinions in the gemara on whether or not we learn from “you shall certainly bury him” that all deceased people should be buried right away.

The Radvaz’s thesis is difficult within the Rambam [for reasons beyond our scope]. However, what is noteworthy in the Radvaz’s approach is that he holds that bal talin applies to every night that he is not buried. Thus, there is a positive mitzva to bury, specifically on that day, and a negative commandment for every night the deceased remains not buried. Since it is forbidden to listen to the deceased’s instructions not to bury even if he was not buried that day, it follows that it is due to bal talin and thus that the deceased cannot push off bal talin.

Why should this be, though, as we saw that bal talin stems only from the honor of the deceased? The Rambam holds that disgrace of the deceased is the parameter of the aveira but that we do not accept it as the reason in a manner that the prohibition falls off when the reason is obviated. Therefore, one cannot disgrace the dead by delaying the burial even with his permission.

However, we have seen Tosafot’s approach that if burial stemmed from the deceased’s disgrace, he could have pushed it off, and we would not have applied the prohibition across-the-board. One cannot prove this from the gemara (Bava Kama 91b) that one may disgrace himself, as one can prove that the disgrace of non-burial is a greater than others and it is possible that the Torah did not allow the greater disgrace to be done even with permission. Rather, Tosafot learned the matter as follows. Since the gemara treats bal talin as disgrace and yet allows it for the deceased’s sake, the gemara should have concluded clearly that the same is true of burial. Therefore, Tosafot concluded that bal talin involves disgrace only to the deceased, which he can waive, whereas burial might affect the whole family, in which case the deceased would be unable to waive it.

The Rambam learns differently. Disgrace is not a necessary component of bal talin. Therefore, it could be that the only disgrace discussed is the deceased’s and still there could be a difference of halacha between bal talin and the mitzva to bury. Tosafot understands that the disgrace is the reason for the prohibition, and it applies only when one is unable to waive it. Tosafot can distinguish between burial and bal talin because they hold like the Sh’iltot that the mitzva to bury exists even after the first day and so it need not be derived at that point from bal talin and might apply even if the deceased waived it. Bal talin though does depend on the deceased, according to Tosafot, so that he can waive it.

In summary, the Rambam holds that one cannot give instructions to delay his burial so that his body can be used by science (when it does not save lives), as what is true for burial is true for bal talin. We suggested that according to Tosafot, there is a distinction between the matters and one can to decide to delay. On a question of a potential Torah prohibition where the Rambam is stringent and Tosafot’s opinion can be debated we cannot allow delay of the burial in a manner that is not for the deceased honor even if he gave permission.

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