Parshas VaYechi:Mitzvah L'Kayeim Divrei HaMeis

This week’s shiur was on the topic of mitzvah l’kayeim divrei hameis. The Rishonim ask why Yosef needed to take a shevuah that he would bury Ya’akov in Eretz Yisroel. He should be obligated to listen to his father anyway. One of the reasons that Yosef would have to listen would be because of mitzvah l’kayeim divrei hameis.

D’Oreisa or D’rabanan

Is this a chiyuv d’oreisa or only a d’rabanan? The Shoeil U’Meishiv (Mahadura Tinyana Chelek 1 Siman 1) quotes R’ Yaakov Ibn Shu’an that the Ramban says there are ten things we learn from Ya’akov and one of these things is mitzvah l’kayeim divrei hameis. Therefore, R’ Yaakov Ibn Shu’an feels that this is a chiuv d’oreisa. The Shoeil U’Meishiv disagrees. There is a machlokes Rishonim whether you need a third party ( a shlish). According to Rabbeinu Tam that you need a shlish, Yosef could not have been obligated to listen because of mitzvah l’kayeim divrei hameis. The Maharsham (Chelek 2 Siman 224) also asks on this that it is against the Ramban. The Ramban in VaYechi only says Yosef had to listen because of kibud av. Why didn’t he mention the reason of mitzvah l’kayeim divrei hameis? Furtehrmore, the Maharsham says Tosafos in Kesuvos (86a) says it is only a din d’rabanan. The Shoeil U’Meishivb wants to say it is a taknah based on the idea of chesed shel emes.

How it Works

There is a machlokes Rishonim how this din works. The Machaneh Ephraim (Hil Zichiyah Siman 29) writes that Rashi (Gittin 14B) and Tosafos (Gittin 38a) both hold that it is a kinyan. In fact Rashi says that if Reuvein when he is healthy says to give Shimon $100, then if Reuvein dies Shimon immediately gets the $100 without any ma’aseh kinyan because of mitzvah l’kayeim divrei hameis. The Rashba (Gittin 38a) disagrees and holds mitzvah l’kayeim divrei hameis is just an obligation to carry out the wishes of the meis. The Ran and Ramban seem to agree with the Rashba. The nafka mina according to the Machaneh Ephraim is by yesomim ketanim. A katan would not have a chiyuv to carry out his father’s wishes but if it works a sa kinyan then he would have no choice since the m’kabeil gets it immediately. The Ketzos (248:5) also says it is not a kinyan because other wise you would have to explain how you can circumventthe dinei yerusha. (also ayin R’ Elchanan Kesuvos Siman 315)

There is another machlokes Rishonim whether you need a shlish, a 3rd party. Rabbeinu Tam (Gitttin 14a) holds you need a shlish but the Ramban and Ran hold you don’t. Al pi pashtus one would say this is toloi on th e above machlokes but I think I saw the Minchas Asher try and say it is two independent ideas. The Maharsham quotes a Teshuvas Rivash that the Ramban only holds you don’t need a shlish when the meis was a sh’chiv meira. If the meis was a healthy person, you even the Ramban holds you would need a shlish.

When Do We Say It

There is discussion in the poskin whether mitzvah l’kayeim divrei hameis. Is this solely a monetary issue or even applies to other areas. The Sh’vus Ya’akov (siman 165) says it is only a monetary issue but there is a lifnim m’shuras hadin to listen to the meis in non monetary issues. One of his proofs is from Ya’akov. Why did Yosef require a shevuah if there is a chiyuv of mitzvah l’kayeim divrei hameis? It must be that mitzvah l’kayeim divrei hameis only applies to monetary issues. The problem with this is that the Ramban clearly says the shevuah was to help Yosef convince Pharoah. The Maharshdam takes a middle road that there is a chiyuv by monetary issues and a mitzvah by non monetary issues. The Noda BeYehuda (Tenyana Siman 75) discuss this issue also and says if the request was not made to the person it affects there is no chiyuv to listen. The example was a father instructed his wife to marry their daughter to a certain person. Since the command was to the wife and not the daughter there is no mitzvah l’kayeim divrei hameis. (even if it was made to the daughter directly in this situation there is also no mitzvah l’kayeim divrei hameis.