It was the spring of 1971 when Harav Moshe Feinstein found it necessary to address an occurrence that, in retrospect, seemed an ironic display of how history repeats itself. Perhaps as he penned his response, he too considered how similar occurrences had drawn the need for sharp halachic responses — close to 1,000 years before him in France, and some 700 years earlier in Babylonia.
The matter at hand was Jewish burial on Yom Tov, and leniencies in America needed to be curtailed. On the one hand, the Talmud (Tractate Beitza 6a) states openly that burial is permitted on Yom Tov, and the latter Talmudic sage, Rav Ashi makes it unequivocal: Vis-à-vis burial, the second day of Yom Tov is like a regular weekday, even if there was no delay (and decay will not set in before the end of Yom Tov). That being said, when a funeral procession set out circa in roughly 1150 C.E. from the city limits of Malène, France, and passed by the town of Rabbeinu Tam, the latter called out in protest: “The Bascareans are not learned, but the people of Malène are?”
Torah scholars of that era understood the reference right away. Bascar was a remote town in Babylonia that had sent a series of halachic questions to the sage, Levi, and the responses are recorded in Tractate Shabbos 139b. “Can Jewish burial be done on Yom Tov?” was one of their questions.
Since Levi had already passed away, Rav Menassia replied in his place: “Neither on the first nor the second day [of Yom Tov], neither by Jews nor gentiles.”
Students who were present when this answer was about to be sent mentioned to their teacher the halachic leniencies mentioned above (second paragraph). Rav Menassia’s response: “The Bascareans are not learned.” In other words, such leniencies cannot be dispensed to people who do not know their precise application.
Although Rabbeinu Tam saw a parallel between the halachic reliability of people of his region and the Bascareans, his colleague, Rabbeinu Yitzchak, disagreed. Now, in 1971, Rav Feinstein saw history repeating itself, as on Yom Tov, a funeral took place in the New York area that triggered a wave of phone calls, as relatives informed each other and then arrived by car to the funeral home, after which a convoy of cars followed the hearse to the cemetery. It was clear that the scope and application of the above Talmudic ruling needed to be clarified.
“First of all,” he began, “the Talmud’s ruling [above] was a leniency. It did not stem from a halachic imperative to have burial done right away. Were this to be the reason, burial would be permitted via gentiles on Shabbos and Yom Kippur as well. This is not the case, however, and this in fact is the reason why the Jewish calendar always separates Shabbos and Yom Kippur by at least one day, so no case will ever arise of a body being denied burial for two consecutive days.”
Why is burial forbidden on Shabbos and Yom Kippur? Because the halachic prohibitions involved in burial desecrate the holiness of these days. This is a disgrace for the departed and causes the soul pain.
If so, why should Yom Tov be any different? Why is burial permitted on Yom Tov?
This, Rav Feinstein concedes, is a good question, and the one answer he mentions (that of the Aruch Hashulchan) he finds acceptable only in light of an additional concern, one he sees as over-arching: delaying burial may cause decay to set in. This too is a disgrace for the departed.
Therefore, because Yom Tov in the Diaspora spans two days, the Sages invoked their halachic prerogative to ease restrictions vis-à-vis burial. However, these leniencies were intended only in cases where there was risk of decay.
Rav Feinstein now avoids a halachic counter-attack with an original explanation of the Talmudic passage at hand: “And even though Rav Ashi (ibid.) said that ‘vis-à-vis burial, the second day of Yom Tov is like a regular weekday, even if there was no delay,’ ultimately, his ruling stemmed from the need to permit burials, and since on the second day permission to bury extends to Jews, his ruling was intended to ensure that such activities done by Jews would not be a source of disgrace and pain to the soul of the departed. Only if vis-à-vis burial, the second day of Yom Tov has no prohibitions of Yom Tov whatsoever, is the matter of disgrace for the departed resolved.”
Does this apply in our era, when hospitals have morgues and there is no risk of decay over two or even three days (as when a two-day Yom Tov precedes or follows Shabbos)? “Definitely not,” says Rav Feinstein, “and if cold storage had been available in the Talmudic era, the sages would not have permitted burial on Yom Tov, not even by gentiles.”
That being said, Rav Feinstein was quick to defend the silence of other Rabbanim concerning the burial in New York: “One might suggest that since the freezer systems that exist today are not available throughout the world, this requires us to continue the ancient practice of burials on Yom Tov, so that there be no disgrace to the departed in countries that lack such systems, because only for this reason did Rav Ashi say that the leniency on the second day of Yom Tov was enacted. Perhaps this was the reason that other Rabbanim did not protest the recent burial.”
Such defenses aside, Rav Feinstein concludes with a moving recollection of the protest raised almost a millennium earlier by Rabbeinu Tam: “While the above may be a basis for their silence, we must consider Rabbeinu Tam’s position on the matter, which is that even in his time, the people of his region were not sufficiently learned to apply such halachic leniencies, and even though Rabbeinu Yitzchak disagreed with Rabbeinu Tam, today, unfortunately, even in the New York area the vast majority of Jews are not learned. Perhaps the Rabbanim remained silent because these matters are generally handled by burial societies, whose management are learned in these halachos, and therefore they could not protest even other burial societies that are not learned. We see, however, the results of such actions. Namely, a mass of telephone calls and use of cars on Yom Tov, all of which is expressly forbidden in the Shulchan Aruch. This was the greatest form of disgrace for the departed — that all of these transgressions were committed because of him.
From Bascar to Malène to New York, the Torah continues to be upheld, thanks to Torah scholars such as Rav Menassia, Rabbeinu Tam and Harav Moshe Feinstein, each of whom saw the basis for halachic precedents, knew how they applied to cases at hand, and how to convey their rulings to the public.
By: R’ Rachmiel Daykin