Parashas Chayei Sarah includes with the first Torah passage that describes a burial. In the burial of Sarah by her husband Avraham, we learn the lesson of kever Yisrael – the importance of burying the deceased in a specially designated Jewish burial site.
In the continuation of the Book of Bereishis we find further reference to the importance of burial in the instruction given by Yaakov to Yosef: “Do not bury me in Egypt.” Indeed, the mitzvah of burial is so great that the a mes mitzvah (a corpse with nobody to tend to burial) defers all other mitzvos – even the Pesach offering, which is among the most severe of Torah mitzvos (see Sukkah 25b).
In the present article we will discuss the fundamentals of the mitzvah to bury the dead, and to its most basic laws. Is this a Torah or rabbinic mitzvah? How is the mitzvah related to the obligation to love one’s neighbor? Do individual limbs require burial? When does one transgress the prohibition of delaying a burial?
These questions, among others, are discussed below.
The Source of the Mitzvah
The source of the mitzvah to bury the dead is found in Parashas Ki-Tetztei: “Do not let his corpse remain on the tree overnight, but you must surely bury him the same day” (Devarim 21:23).
Commenting on the verse, the Sifri writes that burying the dead is a positive mitzvah. However, the verse itself (and the accompanying Midrashic statement) refers specifically to harugei beis din, somebody put to death by a Torah court. The extension of this obligation to all people appears in the Mishna (Sanhedrin 46a), which states: “They untie him [from the tree] immediately, and if not – a prohibition has been violated…. Moreover, they said that whoever leaves his deceased [relative] overnight [without burial] violates a prohibition.”
The Gemara derives the prohibition against leaving one’s relative unburied overnight from the phrase in the verse mentioned above, “but you must surely bury him”. Later (46b), the Gemara writes that there is also a positive mitzvah involved: “Rabbi Yochanan said in the name of Rabbi Shimon Ben Yochai: Where is there an allusion to burial in the Torah? The verse says, ‘But you must surely bury him’ – here is an allusion to burial in the Torah.”
The nature of this allusion is unclear: Does it mean an allusion in the text (asmachta) as opposed to an actual Biblical source, or does it mean a Biblical obligation of burial (see Ramban in his glosses to Sefer Ha-Mitzvos, shoresh 3)?
Rabbenu Chananel (Sanhedrin, loc. cit.) understands the word “remez” to imply that burying the dead constitutes a Torah obligation, but later concludes, “We hold that this mitzvah is rabbinic”. However, many maintain that burial is a Torah obligation (see below), and different opinions of later authorities in this matter are cited by the Sedei Chemed (Kelalim, Kuf, no. 39).
Burial of Those Executed by Beis Din
The Radvaz (no. 311) was asked why it is common to delay the burial of the dead into the night: Is there not an obligation to bury the dead on the very day of their death?
The Radvaz replies that there is a difference between those executed by Beis Din, to whom the scriptural instruction refers, and those who die from other causes: To those executed by Beis Din a positive mitzvah of burial applies as well as the negative prohibition to delay burial. To others, only the negative prohibition applies, and this is only transgressed if the delay extends to the following morning. For this reason, no prohibition is transgressed by waiting until the night.
The Radvaz suggests that the rationale for the Torah’s distinction is that those executed by Beis Din are killed specifically in the morning, and therefore there is time in the day to bury them. A natural death, by contrast, might happen when there is no time to fulfill the positive instruction to bury on the same day.
The Rambam’s Position
The Rambam rules (Sanhedrin 15:8): “There is a positive mitzvah to bury all those executed by Beis Din on the day of their execution… and not only those executed by Beis Din, but whoever leaves his deceased [relative] overnight violates a prohibition.” This implies that the positive mitzvah of burial applies only to those executed by Beis Din, whereas the prohibition of leaving the deceased overnight applies to all people.
However, in Sefer Ha-Mitzvos with regard to the positive mitzvah of burying the dead, the Rambam writes (231): “We are commanded to bury those executed by Beis Din on the day they are executed… This applies even to other deceased people. We therefore refer to a dead person with no one to care for his burial as a meis mitzvah.” This indicates that the positive mitzvah to bury the dead applies to all people, according to the Rambam.
With regard to the negative commandment, the Rambam in Sefer Ha-Mitzvos (66) does make a distinction between those executed by Beis Din and others: “We are warned against leaving those who were hung to remain overnight upon the tree, in order that the blessing [meaning, the curse] of Hashem should not be publicized.”
However in Mishnah Torah, in his Laws of Mourning (12:1), the Rambam appears to contradict his above ruling. Discussing the question of a person who requests that he not be eulogized and not be buried, the Rambam writes that concerning the eulogy we abide by his wishes. Concerning burial, however, we do not heed his wishes, “since burial is a mitzvah, as it is written: ‘But you shall surely bury him.”
The Shaagas Aryeh (Chadashos 6:1) makes a distinction between the Rambam’s purpose in Sefer Ha-Mitzvos, which is to outline the general nature of the mitzvahs, and his purpose in Mishnah Torah which is to detail the laws. This is why in Mishnah Torah he includes all dead, whereas in Sefer Ha-Mitzvos only those executed by Beis Din are mentioned with regard to the prohibition against leaving a deceased unburied.
However, this does not resolve the contradiction of the Rambam’s mention of all dead as included or not in the positive mitzvah of burial.
Burial as an Act of Kindness
A further contradiction in the rulings of the Rambam arises from another statement in the Laws of Mourning (14:1).
The Gemara (Sotah 14a) discusses the origin of the obligation to perform acts of kindness (chesed), and writes: “What does it mean, ‘You shall follow Hashem your G-d’? Can a person actually follow the Shechina? Rather, it refers to following His conduct… Just as He buries the dead, so must you bury the dead.”
The Rambam rules accordingly: “There is a positive rabbinic [mi-divreihem] mitzvah to visit the sick, comfort the mourners… and to concern oneself with all burial needs. These constitute bodily acts of kindness, which have no set amount. Although all these mitzvos are rabbinic, they are included under, ‘You shall love your fellow as yourself.’”
Here the Rambam takes the position that the specific mitzvah of burying the dead is a rabbinic imperative, though it is included in the general Torah requirement of loving one’s neighbor as oneself.
The Ramban (glosses to Introduction to Sefer Ha-Mitzvos, Shoresh 1) discusses this contradiction. The Rambam states that rabbinic mitzvos, such as visiting the sick and burying the dead, should not be listed among the 613 mitzvos. But surely the Rambam himself rules that burying the dead is a Torah obligation, as noted in Sefer Ha-Mitzvos and in the Laws of Sanhedrin?
Burial on the Same Day
In explaining the Rambam’s opinion, an important possibility is that there is a difference between burial on the day of death, and burial on subsequent days. Several commentaries (Lev Same’ach, end of Shoresh 1; Afra De-Ar’a, Kuf, no. 77; Gesher Ha-Chaim Vol. 2, Chap. 12; Einayim Le-Mishpat, Sanhedrin 46b) note this distinction, and it can perhaps be used to resolve at least some of the contradictions in the Rambam.
The Torah obligation of burial may refer specifically to burial on the day of death – as the Torah mentions concerning those who are executed by Beis Din. When the day of death has passed, the obligation to bury the dead is no longer a Torah injunction. It is, rather, a rabbinic imperative, based on the Torah obligation of, “Love your neighbor as yourself.”
Indeed, we find that in the caption to the Laws of Sanhedrin, the Rambam mentions (no. 11) the positive mitzvah “to bury somebody killed on the day he is killed.”
Burial of Limbs
According to a number of authorities, the obligation of burial applies to any kezayis of a corpse. Meaning, if all we have left of a dead person is a kezayis of his body, the Torah obligation of burial remains (Shut Tiferes Tzvi, Orach Chaim 27; Maharsham Vol. 4, no. 112; Shevet Ha-Levi Vol. 1, no. 134; see also Tosafos Yom Tov, Shabbos 10:5). Others maintain that the obligation applies even to less than a kezayis (Noda Biyhuda Kama, Yoreh De’ah 90; see Minchas Chinuch 537:1).
According to some authorities, there is no obligation to bury even a kezayis of a corpse (and certainly not for less than a kezayis), The entire obligation applies specifically to his head and most of his body (Mishnah Le-Melech, Eivel 14:21; Shut Amud Ha-Yemini 34). The Chazon Ish (Yoreh De’ah 208:6) writes that there is room to doubt whether the obligation applies even to small pieces of a corpse.
There may be a distinction between somebody who is entirely buried but in pieces, Heaven forbid, for whom the obligation would apply only to his head and most of the body, and between somebody who is only partially buried, yet pieces remain unburied – for whom a kezayis (or even less) is obligated in burial (see Gesher Ha-Chaim Vol. 3, Chap. 28, no. 3). Rav Moshe Feisntein (Iggros Moshe, Yoreh De’ah Vol. 2, no. 150) writes that there is always an obligation, out of respect for the dead, to bury part of a corpse.
An important additional point arises in cases where limbs are amputated from a live person, such as an amputated leg or fingers (this sometimes happens in acute cases of diabetes). Are we obligated to bury such limbs?
Rav Moshe Feinstein (Yoreh De’ah Vol. 3, no. 141) discusses the issue, and cites the Noda Biyhuda (Yoreh De’ah 209) who rules that there is no obligation to bury such limbs. Rav Moshe brings proof to the contrary, and although the proof can be deferred he writes that it stands to reason that the obligation does apply. He qualifies this, however, by explaining that the obligation is limited to actual limbs that include a bone, sinews, and flesh.
The same principle applies to a miscarried fetus: if the fetus’s limbs are developed, the obligation of burial applies. According to some authorities one must bury a miscarried fetus only if it happens after at least five months of pregnancy (Shoel U-Meishiv 3:1:15; Mishmeres Shalom, Kuf, 13 writes that this is the common custom), and others are stringent from the fourth month (Maharsham, Vol. 4, no. 146).
Those Obligated to Bury
Upon whom does the obligation to bury fall?
The Rambam implies (Sanhedrin Chap. 15) that for criminals that the obligation falls upon Beis Din, just as it is their obligation to hang the executed sinner. However, there is no indication in the Rambam concerning other people.
In his glosses to Sefer Ha-mitzvos (Shoresh 1), the Ramban writes that the obligation of burial falls upon every person with respect to every dead body – just as all other mitzvos of kindness apply to all people. The Ramban proceeds to note that if the deceased has living relatives, the obligation falls primarily upon them (see Yevamos 89b, which indicates a connection between the right of inheritance and the obligation of burial; see also Tosafos, s.v. kivan delo yarti). If, however, a person has no relatives, the mitzvah falls upon every person, and even overrides conflicting obligations (as we find in the laws concerning a meis mitzvah).
In his Gesher Ha-Chaim (Vol. 2, pp. 110-116), Rav Yechiel Michel Tuketchinsky argues against a view that the Torah obligation of burial applies only to relatives, whereas a rabbinic obligation extends the mitzvah to others. He writes that all people are included in the Torah obligation, but relatives have an additional requirement derived from the obligation upon Kohanim to become impure while tending to the burial needs of their seven close relatives. Because of the special obligation to bury one’s close relative, which allows Kohanim to become impure, we do not cast the obligation of burial on anyone else.
He concludes with a practical note that since the obligation upon one of the seven relatives (parents, children, siblings, and spouse) to bury the deceased derives from the obligation upon Kohanim to become impure, the mitzvah of burial applies only in those circumstances where a Kohen must become impure for a relative. Therefore, if the dead body is not whole, in which case a Kohen has no obligation to become impure, the mitzvah for a relative to bury does not apply, either. After relatives, all people are obligated in burial, in line with the mitzvah of “but you shall surely bury him.”
Others, however, maintain that the essential obligation to bury the dead applies to all equally – but relatives have preference, just as the dwellers of a given city are responsible primarily for care of its poor (even though the actual obligation of tzedakah applies to all evenly).
Authorities dispute when the prohibition to delay a burial is transgressed.
According to the Radvaz (ibid.), the prohibition is only transgressed if a person delays burying the dead until the next morning; the prohibition is to leave the dead unburied overnight. This is also the opinion of the Yere’im (384) and the Shulchan Aruch Ha-Rav (72:2). However, others maintain that the prohibition is transgressed at sunset (Yad Rama, Sanhedrin 46b; Gesher Ha-Chaim 2:2:4).
As noted above, it is possible that the Torah prohibition applies only on the day of death, and not to subsequent days. According to the Shaagas Aryeh (Chadashos 6) this is not the case, and the Torah prohibition (as well as the positive obligation) is transgressed every day that one fails to bury the dead. Rav Yerucham Perlow (Rasag Vol. 3, p. 177c) defers the proofs cited in this connection, and several authorities dispute the Shaagas Aryeh’s ruling (see He’emek She’elah, 34:7; Or Same’ach Sanhedrin 15:8).
Special Circumstances for Delaying Burial
Notwithstanding the prohibition to delay burial, there are times when it is permitted. Indeed, in the circumstances of Sarah’s passing we find that Avraham delayed the burial in order to eulogize Sarah and weep over her.
Indeed, all agree that it is permitted to delay a burial to honor the deceased, and this can be done even for several days if absolutly necessary(Sanhendrin 46a; Rambam, Eivel 4:8; Shulchan Aruch, Yoreh De’ah 357:1). One of the reasons one may delay burial is in order to enable relatives to attend (Shulchan Aruch ibid).
Even when it is permitted to delay burial (including the need to transport the corpse, for instance, for burial in Israel), there remains an imperative to bury the dead as soon as possible.
In Jerusalem the custom is to bury the dead immediately, and to avoid delay even to honor the deceased (the custom is binding within the walls of the Old City; for an urgent need, the burial is sometimes delayed outside the city walls). Outside of Jerusalem, the custom is to delay burial where there is an issue of honor, but one must ensure that the purpose is indeed legitimate (Iggros Moshe, Yoreh De’ah Vol. 3, no. 139) and not, for example, to save money because grave diggers charge extra on Sunday.