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May a Jew instruct a gentile to bury a meis on Yom Tov Rishon even when the body does not yet smell? The Bahag says no—the leniency is for the living's discomfort, so wait until Yom Tov Sheni. The Rambam (רמב"ם), Rosh, and Tosafos (תוספות) hold yes—the leniency is for the deceased's needs, and immediate burial honors the meis more. The shiur traces this chakira (whether burial is performed from the standpoint of the living or the dead) through Gemara (גמרא), Rishonim, and practical halachos of carrying, digging graves, and amira l'akum.
Rabbi Zweig presents a fundamental machloket Rishonim regarding burial on Yom Tov, centering on a conceptual question: when a living person is obligated to bury the dead, is the halachic framework based on the needs of the deceased (tzorech hameis) or the needs of the living person discharging the mitzvah (מצוה) (tzorech hachai)? This underlying chakira drives multiple disputes among the Rambam (רמב"ם), Bahag, Rosh, Ran, Tosafos (תוספות), and other Rishonim. The Gemara (גמרא) in Beitzah 6a discusses burial on Yom Tov. The Rambam (Hilchos Yom Tov 1:24) rules that on Yom Tov Rishon, gentiles handle the burial, while on Yom Tov Sheni, Jews may be involved. Critically, the Rambam states this rule stam—without distinguishing whether the body has begun to smell (ishtoy) or not (lo ishtoy). The Bahag, however, holds that on Yom Tov Rishon one may use gentiles only if the body smells; otherwise, one must wait until Yom Tov Sheni. Mar Zutra in the Gemara states "hani mili heich dishtoy"—this leniency applies only when the body smells—and the Bahag extends this to Yom Tov Rishon as well. Additionally, the Bahag rules that on Yom Tov Sheni, if gentiles are available, one should use them rather than Jews. The Rambam disagrees on both points: burial on Yom Tov Rishon is permitted via gentiles even lo ishtoy, and on Yom Tov Sheni Jews may bury even if gentiles are available.
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Beitzah 6a
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