It is stated in Masechet Semachot (2:8): “One who separates himself from the ways of the community is not attended to in any respect. His brothers and relatives wear white and wrap themselves in white, eat and drink, and rejoice that the enemies of the Omnipresent have perished, as it is stated: ‘Do I not hate those who hate You, O Hashem, and contend with those who rise against You? I hate them with the utmost hatred; they have become enemies to me.’” This is likewise written by the Rif and the Rosh (end of Masechet Moed Katan), Rambam (Hilchot Avel 1:10), and Shulchan Aruch (Yoreh De’ah 345:5), as follows: “All those who separate themselves from the ways of the community—namely, people who have cast off the yoke of mitzvot from their necks and are not included among the Jewish people in the performance of mitzvot, honoring the festivals, and attending synagogues and batei midrash, but rather consider themselves free, like the other nations—and likewise apostates, apikorsim, and informers: no aninut is observed for any of these, nor is mourning observed for them. Rather, their brothers and other relatives wear white, wrap themselves in white, eat and drink, and rejoice, for the enemies of the Holy One, blessed be He, have perished. Regarding them Scripture says: ‘Do I not hate those who hate You, O Hashem?’”
However, the Radbaz (on Rambam, ibid.) writes that they are buried in their family graves because of the disgrace to their family, but not near righteous people. So too writes the Rashba in a responsum (vol. I, no. 763), cited in Beit Yosef (Yoreh De’ah 334) and in Darchei Moshe (345:1, and likewise in Bedek HaBayit): although it was said that they are not attended to in any respect, this was not said concerning burial or the shrouds of the deceased. Rather, it means that one does not rend his garment, deliver a eulogy, or perform chalitzah for them, as was taught regarding one who takes his own life. These are his words.
However, the Bach (Yoreh De’ah 362) writes in the name of the Or Zarua (Hilchot Avelut, end of no. 422, second section, letter 3): “It is forbidden to attend to the burial of a person known to be wicked who did not repent. But regarding an average person who is not known to be wicked, it is a mitzvah to attend to his burial.” These are his words. The Bach asks: from the statement that one does not bury a wicked person beside a righteous person, it is clearly evident that one does attend to the burial of a wicked person, only that he is not buried beside a righteous person. Likewise, from the statement that one does not bury a severely wicked person beside one who is less wicked, it is evident that one attends even to the burial of a severely wicked person. He answers that a distinction must be made between burial itself and attending to the burial. Certainly, he is buried, but one does not attend to his burial by providing shrouds and burial needs as for other deceased persons. Rather, he is placed in the grave as he was found, without shrouds, and this is the ruling. These are the Bach’s words.
The Gaon Rabbi Betzalel Ze’ev Shafran, of blessed memory, notes in Teshuvot HaRavaz (Yoreh De’ah 131) that the above-cited Or Zarua explicitly states that concerning a person known to be a habitual transgressor, not only is there no mitzvah to attend to his burial, but it is also forbidden to attend to it. The Or Zarua cites proof from the Yerushalmi (Terumot 8:3; Avodah Zarah 2:3; Midrash Rabbah, Vayikra 5:6), concerning a butcher who fed Jews neveilot and tereifot. Once, he drank wine on Erev Shabbat, climbed onto a roof, fell, and died. Dogs licked his blood, and he was not taken for burial, as it was taught in Masechet Semachot: “All who separate themselves from the ways of the community are not attended to in any respect.” This indicates that they are not attended to even for actual burial. The Or Zarua concludes: “Therefore, my heart tells me—I, Yitzchak the author—that it is forbidden to attend to the burial of a person known to be wicked who did not repent.”
It emerges that the Rishonim disagree as to whether one attends to the burial of a wicked person. The Or Zarua maintains that one does not attend to his burial at all. The Bach holds that one attends to bury him, but without shrouds. The Rashba maintains that one attends to his burial and merely does not mourn for him. The Beit Yosef likewise writes this as the view of Rambam and the Rishonim. See further Rabbi Chaim Palaggi, of blessed memory, in Teshuvot Chaim B’Yad (no. 99), who likewise discusses a Jew married to a non-Jewish woman, whether one should attend to his burial, and upholds the view of the Rashba that one should attend to his burial. See also Sdei Chemed (Ma’arechet Avelut, letter 128).
I saw in Teshuvot Chatam Sofer (vol. II, Yoreh De’ah 341) that he was asked about a Jewish soldier in a non-Jewish army who died in a hospital with a cross hanging around his neck: did the Chevra Kadisha act properly in attending to his burial? At first, he elaborates that there is room for concern that the cross may have been placed upon him only after his death, or that he himself may have put it on only when he was no longer of sound mind. It is also possible that he repented before his death.
He then writes that even if he was an apostate, from where do we say that there is no obligation to bury him? After all, those executed by Beit Din include idolaters, Shabbat desecrators, and the inhabitants of an apostate city. Their relatives do not mourn them, and they are regarded as having died in their wickedness, as explained in Sanhedrin (47a). Nevertheless, they must be buried, for the fundamental positive mitzvah of burial is derived from the burial of those liable to execution by Beit Din, concerning whom it is written: “You shall surely bury him.” He explains that what Chazal said—that one who separates himself from the ways of the community is not attended to in any respect—refers only to the practices of mourning and condolences to mourners.
He further brings proof from what is stated in Sanhedrin (ibid.): one might have thought that if his fathers separated themselves from the ways of the community, a kohen may become impure for them; therefore the verse states, “among his people”—one who acts as his people do. If they are not buried, why is a verse needed to teach that a kohen may not become impure for them? A kohen becomes impure only for the purpose of burial. Similarly, the Magen Avraham (no. 502, subparagraph 20) asks regarding the Hagahot Mordechai, which holds that there is no mitzvah to bury stillborn infants: if so, why is a verse needed to teach that a kohen may not become impure for a stillborn infant? It should follow simply from the fact that he becomes impure only for burial.
The Chatam Sofer further asks: Chizkiyahu, King of Yehudah, although he dragged his father’s bones on a bed of ropes, nevertheless had him buried. He concludes that it is therefore very clear that the Chevra Kadisha acted properly in endeavoring to bury him. However, ideally they should not have buried him among observant Jews, thereby offending the honor of those righteous people.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. Therefore, it may contain inaccuracies and should not be considered a definitive reference.
This response was translated automatically from Hebrew and has not yet been reviewed by a person. It may therefore contain inaccuracies and should not be considered a definitive reference.
