Monday, September 17, 2007

halanas hameis

On Erev Rosh haShana I received a surprise gift of a copy of the Kisvei Maharatz Chiyu”s, which is a sefer (as the person who sent it has been telling me for months) I should have had on my bookshelf a long time ago (and thank you again to the sender). Those learning daf yomi will be interested in his defense (in his essay Darkei Hora’ah) of the Chavos Ya’ir who writes that the issur of halanas hameis (delaying burial) is only derabbanan. The gemara (Kesubos 4) writes that if the father of the chasson or mother of the kallah dies on the wedding day, the meis is moved to a side room and the wedding is allowed to take place, after which the meis is buried. The seven days of sheva brachos take place first, followed by seven days of mourning. The motivation to allow the wedding to take place in this case is to avoid the loss of all the food and preparation already done.

The Rishonim ask how the d’oraysa laws of aninus can be suspended by the Chachamim b’kum v’aseh by telling the bride and groom to get married, to which the Rashba answers that when burial is postponed until the day after death, aninus on the day of death is derabbanan, not d’oraysa. But, asks the Maharatz Chiyus, doesn’t the delay in burial itself necessitate pushing off an issur d’oraysa of halanas hameis? How can the Chachamim allow a violation of the issur of delaying burial just to avoid the loss and forfeit of the wedding meal and preparations? It must be, concludes the Maharatz Chiyus, that the Chavos Yair is right – the issur of halanas hameis is only derabbanan.

(For the record, the Chavos Yair is a chiddush gadol rejected by other poskim and is used only as one snif l’hakeil in the larger argument of the Maharatz Chaiyus. At the end of his essay the Mahartz Chiyu”s quotes the response of the Chasam Sofer to his argument, and among the C”S’s critiques is an attack on his minimizing the issur of halanas hameis).

5 comments:

  1. anon16:16 PM

    Why dont we say about halanas ha-mes that yesh koach beyad chachamim laakor davar min haTOrah beshev veal taaseh?

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  2. Tal Benschar9:07 PM

    And what does he do with possuk?

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  3. anon19:46 AM

    Tal -- pshuto shel mikra is that it is talking about someone who was killed by beis din. The rishonim say kol shekein that it applies to others but that position is subject to machlokes. IIRC I think the Torah Temimah says that it is only mederabanan as well for non-harugei beis din.

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  4. Anon1 - he holds that hefsed mamon alone is insufficient reason to be doche a lav b'shev v'al ta'aseh (I did not write that clearly in the post).

    I would just add to your response to Tal the lashon haRambam Sanhedrin 15:8 mitzvas aseh likbor harugei B"D... but then the Rambam extends it to all others, but interestingly implies only with respect to the lav, not an aseh.

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  5. Anon1 - he holds that hefsed mamon alone is insufficient reason to be doche a lav b'shev v'al ta'aseh (I did not write that clearly in the post).
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    Interesting - thanks.

    I would just add to your response to Tal the lashon haRambam Sanhedrin 15:8 mitzvas aseh likbor harugei B"D... but then the Rambam extends it to all others, but interestingly implies only with respect to the lav, not an aseh.
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    IIRC, the minchas chinuch discusses if the lav applies to everyone or only harugei beis din.

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