QUESTION: The Gemara explains that the dispute between Rebbi Yehudah and Rebbi Meir involves a woman who consents to her husband's sale of his field (which is a lien for her Kesuvah). They disagree about whether her consent is binding (and the sale valid) or whether she may claim that she did not really want the field to be sold and the only reason she agreed was "Nachas Ru'ach Asisi l'Ba'ali," to make her husband feel good.

The Gemara cites a Beraisa which discusses a man who sold two fields, one after the other. When he sold the first field, his wife did not consent to the sale. When he sold the second field, she did consent. Rebbi Meir says that the sale of the second field is valid because a woman may not claim "Nachas Ru'ach Asisi l'Ba'ali." Rebbi Yehudah says that she may claim "Nachas Ru'ach Asisi" and thus the sale of the second field is not valid.

Clearly, the Gemara understands that according to Rebbi Meir the woman may never say "Nachas Ru'ach Asisi," even when she consented to the sale of the first field (similar to the case of the Mishnah). Why, then, does the Beraisa mention at all that the woman did not consent to the sale of the first field? The Beraisa should discuss only one sale of one field! From the fact that the Beraisa discusses two sales it seems that Rebbi Meir says that the second sale is binding only when she did not consent to a prior sale and thereby show that she was not interested in making her husband feel good, as the Gemara itself concludes. If there was only one sale and the woman consented, Rebbi Meir agrees that she may say "Nachas Ru'ach Asisi." What, then, did the Gemara initially think when it asked its question? (TOSFOS DH Ha)

(a) TOSFOS suggests in the name of his Rebbi that the Gemara initially thought that when the wife does not consent to the first sale, she shows that she feels strongly against the sale of the field to anyone. Therefore, when she consents to the second sale, there is more reason to think that she is consenting only in order to make her husband feel good and not because she really wants the sale to take effect, because she already showed that she does not consent to selling the property. The Mishnah therefore teaches that despite this logic, Rebbi Meir maintains that her consent to the second sale is viewed as genuine and the sale is binding even though she showed earlier that she does not want her husband to sell the fields.

(b) TOSFOS himself suggests that the Gemara initially thought that the Beraisa discusses a case of two sales in order to teach a Chidush according to Rebbi Yehudah -- that even though she was not afraid to show that she did not agree to the husband's first sale, we may assume that she agrees to the second sale only because of "Nachas Ru'ach Asisi" and not because she really wants the sale to take effect. Rebbi Meir indeed could have expressed his opinion (that a woman never agrees only because of "Nachas Ru'ach Asisi") in a case of a single sale, but the Beraisa discusses two sales in order to teach Rebbi Yehudah's Chidush.

(c) The SHITAH MEKUBETZES proposes, based on an inference from Rashi's words, that the Gemara initially thought that the Beraisa mentions two sales in order to teach that once the woman agrees to the sale of the second field, she loses not only the right to collect from the second field but also the right to collect from the first field as well. The Gemara thought that if the "Nechasim B'nei Chorin" -- the property that remains in the hands of the husband from which the woman may collect her Kesuvah -- becomes rotted or destroyed such that it cannot be collected as payment for her Kesuvah, then she may not collect from the first field (which is now in the hands of the buyer), as the Gemara later discusses.

QUESTION: The Mishnah states that although the heirs of the husband (the Yesomim) must support their father's widow, they do not inherit her property and therefore they are not obligated to bury her. Instead, after she dies, her own heirs (that is, those who inherit her Kesuvah) are obligated to bury her.

RASHI explains that the Gemara earlier (47b) teaches that a woman's husband is obligated to bury her only because he inherits her Kesuvah (the "Nichsei Tzon Barzel"). Now that the husband is dead, he is not going to inherit her and thus his heirs do not keep the Nichsei Tzon Barzel, and "she must bury herself."

Why does Rashi say that "she must bury herself"? Rashi should say instead that her heirs must bury her, as the Mishnah says! What does Rashi mean?

(a) The HAFLA'AH cites the SHULCHAN ARUCH (CM 107:2, EH 118:18) who rules that a person to whom the deceased owes money may delay the burial until his loan is repaid from the estate. The Shulchan Aruch adds that if the creditor's collection of his debt depletes the entire estate of the deceased person, then the deceased is buried with funds of Tzedakah (this ruling is based on the Tosefta in Kesuvos 9:4).

The Hafla'ah suggests that this ruling applies only when the deceased person himself owed money and his creditor seeks to collect before the burial. However, if the heirs owe money and their creditor tries to delay the burial and prevent them from spending their inheritance on the burial instead of giving it to him, Beis Din does not allow him to hold up the burial because the money for the burial was designated for that purpose even before the money reached the hands of the heirs. It is as if the deceased is burying himself with his own funds. This is what Rashi means when he says "she must bury herself."

(b) The Hafla'ah's disciple, the CHASAM SOFER, suggests that Rashi writes that "she must bury herself" because it is not necessarily her heir's obligation to bury her. An heir is obligated to bury his relative only by setting aside money that he receives from the deceased relative's inheritance for the burial. If the deceased did not leave enough money for the burial, then the heir has no obligation to pay from his own funds for the burial. When Rashi writes that the woman "must bury herself," he means that whatever money she leaves is used for her burial by whoever inherits it. If she leaves no money, then the heirs are not obligated to use their own money for the burial.

(Rashi may have derived this from the extra words in the Mishnah, "Yorshei Kesuvasah" -- "the heirs of her Kesuvah," which the Mishnah uses instead of simply, "Yorshehah" -- "her heirs" (the Gemara earlier itself (81a) makes such an inference). Rashi understands that the Mishnah does not say "Yorshehah" because that word implies that her heirs are obligated to bury her whether or not they inherit anything from her. Rather, the Mishnah says that "Yorshei Kesuvasah" are obligated to bury her, implying that only if they actually inherit her Kesuvah are they obligated to bury her.)

This question -- who is obligated to bury a dead person -- is a broad issue discussed by a number of early Poskim.

RASHI (89b, DH Metamei Lah, and elsewhere) writes that the obligation to bury the deceased rests upon his or her seven close relatives ("Kerovim"). This is also the ruling of the RA'AVAD (Hilchos Avel 2:6) and most other Rishonim (in contrast to the ruling of the RAMBAM (see Sotah 3a) who writes that it is only obligatory for a male Kohen to bury his seven close relatives).

However, that obligation does not necessarily entail spending one's own money to bury the relative. Perhaps it only obligates the relatives to physically exert themselves to ensure that their relative is buried. The NIMUKEI YOSEF (Yevamos) writes that even for a Mes Mitzvah one is not obligated to spend his own money for the burial, even though one certainly is obligated to involve himself in the burial. In fact, the Halachah is that even for one's own parent, during the parent's lifetime one is not obligated to spend his own money in order to fulfill the Mitzvah of Kibud Av va'Em (Kidushin 31b), and certainly after the parent's death he should not be obligated to spend his own money for his parent's burial.

What do the Poskim write on this matter?

The SHULCHAN ARUCH (YD 348:2) cites the TESHUVOS HA'ROSH (13:18) who writes that if a man declares that he does not want his entire estate to be spent on his burial, his words are not binding. He has no right to prevent his money from being used for his burial. His heirs are forced to pay for all the necessities of the burial in a manner consistent with the standard to which the family is accustomed. However, this applies only when the heirs inherited something from their father. If they inherited nothing, they do not have to spend their own money on the burial.

The same Halachah may be implied from the words of the Shulchan Aruch in Choshen Mishpat and Even ha'Ezer (cited in (a) above). The Shulchan Aruch writes that if the inheritance is used to pay back a debt of the deceased person, then the deceased person is buried with funds of Tzedakah. This implies that his heirs are not obligated to spend their own money for the burial.

The MAHARAM MINTZ (#53, #55) cites the RA'AVAN who asks that if the relatives are obligated to spend their own money on the burial, why did the Chachamim institute that the husband is obligated to bury his wife (in return for the Nichsei Tzon Barzel), as Rashi here mentions? The husband is one of the seven close relatives and thus is already obligated to spend his own money for her burial! If, on the other hand, a person is not obligated to spend his own money for the burial of his close relative, it is clear what the Takanah of the Chachamim gains. They enacted that the husband must bury his wife from his own funds, regardless of what he inherits from her.

The HAFLA'AH (in KUNTRUS ACHARON EH 118:12) seems to arrive at a conclusion similar to that of the Chasam Sofer. He points out that RASHI in Eruvin (17b, DH d'Is) implies that the heirs are not obligated to spend their own money to bury their relative. Rashi himself is merely paraphrasing the Gemara in Yevamos (end of 89b) which has the same implication. On the other hand, the CHAVOS YA'IR (#139), who also raises the possibility that the relatives do not have to pay for the burial if they do not inherit anything, remains in doubt and concludes with no affirmative ruling.

However, the Maharam Mintz (loc. cit.), as cited by the BEIS LECHEM YEHUDAH (YD 348:2 and in a Teshuvah) rules that there is a Mitzvah for the relative to spend his own money for the burial. The Maharam Mintz cites proof from the Gemara earlier (8b) which says that the relatives of the deceased used to find the burial more difficult than their relative's death because they had to spend so much money to buy fancy shrouds (Tachrichin), until Raban Gamliel instituted that inexpensive shrouds be used. This implies that it was the relatives' obligation to spend their own money on the burial. The Hafla'ah (ibid.) points out that this indeed is the way the PISKEI TOSFOS here rules (#344; the RASHBA here also rules this way); the obligation to bury one's relative is not related to whether or not that relative left an inheritance to cover the expenses of the burial.

The Poskim (see Hafla'ah and Hagahos Rav Shlomo Eiger in YD 348) suggest that even if there is an obligation to bury a deceased relative from one's own funds, the Torah may obligate the relatives to pay for only the most basic burial. The Rabanan instituted that when the relatives receive an inheritance, they must bury the deceased person according to the honor to which his family is accustomed. It was necessary for the Rabanan to institute that the husband bury his wife for the same reason -- so that she receive a proper, respectful burial and not just a basic one, regardless of whether she left an inheritance or not.