Friday, May 02, 2008

Nazir 43a - Meis Mitzvah

The Rosh and Tosafos point out from our gemara that one would only qualify as a "meis mitzvah" to allow a kohein or nazir to be metameh for them, if there is no one else around to do the job such as the case of the gemara where they are on the road and there is no one else to bury the person. Based on this hagdara of "meis mitzvah" Tosafos struggles with the gemara in yevamos 89b which says that a ketana married to a kohein where the marriage is only d'rabonon, he can be metameh for her when she dies. The gemara explains that since her blood relative don't inherit her, they will not want to bury her and she is like a meis mitzvah where we allow her husband to bury her. Tosafos asks, if the case is where there are others available to bury her so she is not technically a meis mitzvah, why should we allow her husband to be metameh? And if the case is where there is no one else around to bury her, it is an actual meis mitzvah and therefore his right to be metameh had nothing to do with being married to her (which is the implication of the braisa)? Both Tosafos here and Tosafos in Yevamos take the approach that she is not actually a meis mitzvah, but chazal have the power to uproot the issur of being metameh when there is a real reason to do so. Therefore although she is not technically a meis mitzvah, chazal treat her like a meis mitzvah and allow the husband to bury her.
Agav, Tosafos seems to imply that even if there are others around who refuse to bury the meis, since they technically are available to do so, the meis would not have a status of meis mitzvah (מדכתבו התוס' "אלא דאיכא אחרים דיכולים להתעסק וחשוב כמת מצוה, אלמא כהן ומת לפניו ויש שם ישראל ואינו חושש ליטפל חשיב מת מצוה, ואור"י דודאי מן הדין לאו מת מצוה התם וכו' - אלמא דכשיש שם ישראל ואינו חושש ליטפל לא חשיב כמת מצוה ודו"ק). I find this to be a big chiddush - why should the fact that there are others around remove the status of meis mitzvah if they are not actually willing to bury the meis?

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