The gemara explains that if a person on his way to do a brit for his son or slaughter the korban pesach and finds out that a relative passes away, he should continue on his way since those 2 mitzvos are more chamur than burying a relative since they carry kares if not done intentiinally. My question is why does the gemara have to resort to that svara, why can't we just say that since he was already on his way, we apply the rule of osek b mitzva patur min hamitzvah, and say that even if he was going to do ANY mitzvah (not specifically those 2),he would continue on his way and be patur from the burial?
Thank you rav
Elisha Yagudayev, Flushing , United States
1) The Ritva in Megilah (3b, DH v'Amri Tu v'la'Achoso, page 31 in the Mosad ha'Rav Kook edition) writes that the reason the Gemara singled out Milah and Pesach is because the Mitzvah of burying one's close relatives would defer any other simple positive Mitzvah. (See also Rashba there.)
2) The Ritva compares this to the Gemara in Chulin 141a where we learn that some positive Mitzvos may postpone other positive Mitzvos. There was a Sevara there in the Gemara that the Mitzvah of taking a bird in order to provide a Korban to make the Metzora become Tahor might override the Mitzvah of sending away the mother bird before taking the eggs. This is because the Mitzvah of making a Metzora Tahor could be considered a bigger Mitzvah than sending away the mother way, because if the Metzora is Taor this means that he is permitted to be with his wife, so there is a big Mitzvah of Shalom Bayis.
3) In a similar way, we would have said that the Mitzvah of burying one's close relatives is a greater Mitzvah than bringing a Korban Pesach (before we pointed out that Pesach and Milah are more severe Mitzvos than burying relatives, because Pesach and Milah involve Kares). The Mitzvah of burying relatives is a more severe Mitzvah than other Mitzvos.
4) I argue that we would also say that the Mitzvah of burying close relatives is a stronger Mitzvah than the rule of ha'Osek ba'Mitzvah Patur Min ha'Mitzvah, and if not for the Sevara that Pesach and Milah involve Kares, we would say that it is more important to bury the relative.
My friend, Rav Yechezkel Frenkel shlit'a, gave a different answer to this important question:
1) He answered that, indeed, even someone going to perform any Mitzvah, not merely Pesach and Milah because they are Chamur, would not return in order to perform the Mitzvah of burial. The reason why the Gemara mentioned Pesach and Milah is because of the continuation of the Beraisa that says that if the Mitzvah of Meis Mitzvah arises, then he delays the Mitzvos of Pesach and Milah, even though the latter involve Kares.
2) Even though the beginning of the Beraisa appears to mention the verse "Lo Yitama," this is not actaully the verse in Vayikra 21:1 of "Lo Yitama." Rather, the Beraisa is saying in simple language that the person on the way to perform Pesach or Milah should not do the Mitzvah of burial if it arises, and the way we say this is "Lo Yitama," he should not become impure. But this does not mean that we require a verse to tell us this, because it is obvious to us that we apply "ha'Osek ba'Mitzvah Patur Min ha'Mitzvah" and he does not break off in the middle of going to Pesach or Milah in order to do burial.
3) Rav Frenkel pointed out that the Gemara mentions other words in the verses that are superfluous -- namely "la'Achoso," "l'Aviv ul'Imo," "l'Achiv" -- but the Gemara never mentions that "Lo Yitama" is superfluous because we are not in fact learning anything from the verse "Lo Yitama." This is also stated by Tosfos in Berachos (19b, DH v'la'Achoso, that all the above words are superfluous, but Tosfos does not write that "Lo Yitama" is superfluos because the Beraisa is not learning a Halachah from that verse).
4) In short, the reason why the Gemara singles out the Mitzvos of Pesach and Milah as being Chamur is because of the later part of the Beraisa that says that he does return for a Meis Mitzvah even at the expense of these severe Mitzvos. However, the reason why he does not return for other burials is because of the rule "ha'Osek ba'Mitzvah Patur Min ha'Mitzvah."
5) After writing the above, I found, bs'd, that your question is asked by one of the Acharonim on Maseches Berachos.
a) The Gemara (Berachos 19b) cites the same Sugya as ours. Tosfos (beginning of Berachos 20a) asks why is it so simple to the Gemara that one says "Amarta Lo Yitama" -- "you say you do not go and bury." The Melo ha'Ro'im (printed at the back of the Gemara) says that he does not understand the question of Tosfos; it should be obvious that the person does not bury the relative because of the rule of "ha'Osek ba'Mitzvah Patur Min ha'Mitzvah"! This is your question, Elisha.
b) I found that the late Rav of Antwerp, Rav Alter Rubinstein zt'l, in Teshuvos Migdanos Eliyahu 4:87:3, gives a very nice answer to the question of the Melo ha'Ro'im. His answer is based on what the Ritva writes in Sukah (25a, DH uv'Lechtecha). The Gemara there (Sukah 25a) cites two sources from which we derive the rule of "ha'Osek b'Mitzvah Patur Min HaMitzvah. The first is the phrase, "b'Shivtecha b'Veisecha," and the second is, "uv'Lechtecha ba'Derech." Why do we need both of these phrases to prove that ha'Osek ba'Mitzvah Patur Min ha'Mitzvah? The Ritva explains that if the Torah would have written only "b'Lechtecha," we would have thought that "ha'Osek ba'Mitzvah Patur Min ha'Mitzvah" applies only when the Mitzvah is the actual "going." For example, there is a Mitzvah to go up to the Beis ha'Mikdash on the Three Festivals. In this case, the actual journey is the Mitzvah. In contrast, where the journey itself is not a Mitzvah but merely a means of getting to the place where one will perform the Mitzvah, if we would not have had the additional words "b'Shivtecha b'Veisecha" we would have said that ha'Osek ba'Mitzvah does not apply.
c) Now we need another very important Chidush of the Ritva in Sukah 25a in the Mishnah (DH Shluchei). The Ritva writes that if one is in the middle of one Mitzvah, it is not merely that one is not obligated to stop to do a second one, but even if one wants to break off from the first Mitzvah one is not allowed to do so. This is because the second Mitzvah is considered as an optional action in comparison to the first Mitzvah which has already been started, and one is not allowed to stop in the middle of a Mitzvah in order to do something optional.
d) The Migdanos Eliyahu now asserts that when the Ritva writes that one is not allowed to interrupt the first Mitzvah to do the second one, this applies only to going to a Mitzvah where the actiual journey itself is a Mitzvah. In contrast, if the journey itself is merely a means to arrive in the place where one does the Mitzvah, then one is allowed to break off in the middle if one wants. Now we can understand the case of the person going to slaughter the Pesach or to circumcise his son. In this case, the journey itself is not the actual Mitzvah, but instead the Pesach and the Milah are the real Mitzvos. Therefore, if one wanted to leave the Mitzvah of Pesach and Milah for the moment and go and do the burial, the rule of "ha'Osek ba'Mitzvah..." would not stop him from doing this. This is why Tosfos in Berachos (beginning of 20a) writes in the name of Rashi that it is only for Pesach and Milah -- which involve Kares -- that one is not allowed to stop in the middle in order to bury a relative who is not a Meis Mitzvah.
Kol Tuv,
Dovid Bloom