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Kesuvos, 95


QUESTION: The Gemara explains that Rebbi Yehudah and Rebbi Meir argue regarding a woman who consents to her husband's sale of a field (that is a lien for her Kesuvah) whether her agreement 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, though, she did consent. Rebbi Meir says that the sale of the second field is valid, because a woman may not claim that "Nachas Ru'ach Asisi l'Ba'ali." Rebbi Yehudah argues and says that she may say "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 can never say "Nachas Ru'ach Asisi," even when she consented to the sale of the *first* field (similar to the case of our Mishnah). Why, then, does the Beraisa bother to 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 clear that Rebbi Meir only says that the second sale is binding when she did *not* consent to a prior sale, showing 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, then 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 first suggests in the name of his Rebbi that the Gemara initially thought that when the wife does not consent to the first sale, it 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 only consenting 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 agree with selling the property. The Mishnah therefore teaches that despite this logic, Rebbi Meir holds 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 still say that she is agreeing to the second sale only because of "Nachas Ru'ach Asisi" and not because she really wants the sale to take effect. Rebbi Meir could have indeed expressed his opinion, that we never say that a woman 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, based on an inference from Rashi's words, proposes that the Gemara initially thought that the Beraisa mentions two sales in order to teach us 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 she loses 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 could 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 discusses later.


QUESTION: The Mishnah states that although the heirs of the husband (the Yesomim) must support the 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, whoever inherit her Kesuvah) are obligated to bury her.

RASHI explains that the Gemara earlier (47b) states that the husband is obligated to bury his wife only because he inherits her Kesuvah (the "Nichsei Tzon Barzel"). Now that the husband is dead, says Rashi, and he is not going to inherit her nor will his heirs keep the "Nichsei Tzon Barzel, "she must bury herself."

Why does Rashi say that "she must bury herself?" Rashi should have said that her heirs must bury her, as the Mishnah says! What does Rashi mean to tell us?


(a) The HAFLA'AH explains that in the SHULCHAN ARUCH (Choshen Mishpat 107:2, an Even ha'Ezer 118:18) we find that someone to whom the deceased person owes money may hold up the burial until his loan is repaid from the estate. The Shulchan Aruch continues and says 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 is based on the Tosefta in Kesuvos 9:4).

The Hafla'ah suggests that this applies only when the deceased person himself owed money and his creditor wants to collect before he is buried. However, if the *heirs* owe money and their creditor tries to hold up the burial and prevent them from spending their inheritance on the burial instead of giving it to him, we do 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 is implying when he says "she must bury herself."

(b) His 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 only obligated to bury his relative 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 might have learned this from the extra words in the Mishnah, "Yorshei Kesuvasah" -- "the heirs of her Kesuvah," which the Mishnah used instead of simply saying, "Yorshehah" -- her heirs (the Gemara itself makes such an inference earlier, Daf 81a). Rashi understands that the Mishnah did not want to say "Yorshehah," because that implies that her heirs -- whether or not they actually inherit anything from her -- are obligated to bury 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 question which is discussed by a number of early Poskim.

RASHI (89b, DH Metamei Lah, and elsewhere) writes that the obligation to bury a deceased person rests upon his or her seven close relatives ("Kerovim"). This is also the ruling of the RA'AVAD (Hilchos Avel 2:6) and most Rishonim (in contrast to the RAMBAM (see Sotah 3a) who says 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 means only that the relatives are obligated to physically exert themselves to see to it that the relative is buried. The NIMUKEI YOSEF (Yevamos) writes that even for a Mes Mitzvah one is not obligated to spend one's own money for the burial, even though one is certainly obligated to involve himself in the burial. In fact, even for one's own parent, we know that 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), so certainly after one's parent's death he should not be obligated to spend 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 says that he does not want his entire estate to be spent on his burial, his words are not binding, for 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, he says, this applies only when the heirs inherited something from their father. If they inherited nothing, it seems, then they do not have to spend their own money on the burial.

The same can be implied from the Halachah in Choshen Mishpat and Even ha'Ezer (cited in (a) above) that states that if the inheritance is used to pay back a debt of the deceased person, then the deceased person is buried with funds from 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 have to spend their own money on the burial, then why did the Chachamim have to institute that the husband is obligated to bury his wife (in return for the Nichsei Tzon Barzel), as Rashi mentions here? The husband is one of the seven close relatives and should already be obligated to spend his own money on her burial! If there is no obligation for a person to spend his own money on the burial of his close relative, it is clear what was gained by the Rabbinic institution. The Rabanan enacted that the husband must bury his wife from his own funds, regardless of what he inherits from her.

The HAFLA'AH, in his Kuntrus Acharon (EH 118:12) seems to come to a conclusion similar to that of the Chasam Sofer, pointing out that RASHI in Eruvin (17b, DH d'Is) seems to hold that the heirs are not obligated to spend their own money to bury their relative. Rashi, in turn, is simply paraphrasing the Gemara in Yevamos, end of 89b, which carries the same implication. On the other hand, the CHAVAS YAIR (#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 issues 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 for this from the Gemara earlier (8b) that 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 that can be spent on 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 might only obligate the relatives to give a very basic burial to the deceased person. The Rabanan instituted that if the relatives receive an inheritance, then they are obligated to 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.

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