Deriving Benefit from a Corpse

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By Reb Avi Lebovitz Hearos on the Daf

Tosfos (Bava Kamma 10) asks: Why do we need a special verse to exempt a person who is killed by falling in a pit? It should be included in the exposition of “and the corpse shall belong to him”!? This means that the owner of the pit is only liable when the corpse can belong to the owner of the animal. Just as we exclude an animal that is a disqualified sacrifice, which cannot belong entirely to its owner (since certain restrictions apply to it even after it is redeemed), we should exclude man as well, since it is forbidden to derive pleasure from a corpse!?

Tosfos answers that from this verse alone, I would have said that the owner of the pit is liable for damaging a gentile, since one is permitted to derive pleasure from his corpse, so we need a verse to exempt the pit owner for the death of all people.

Shulchan Aruch (Y.D. 349:1) writes that it is forbidden to derive benefit even from a gentile corpse. The Nekudas Hakesef quotes this from a Teshuvas Harashba. But, the Nikudas Hakesef points out that both our Tosfos and the Magid Mishnah hold that only a Jewish corpse is forbidden to derive pleasure from.

The Vilna Gaon proves that Tosfos is correct from David who used the foreskins from the Philistines to betroth the daughter of King Shaul. He also points out that the Rashba in his commentary on the Daf says like Tosfos.

However, the Pischei Teshuva reconciles Tosfos and the Rashba by saying that it is not Biblically forbidden, and that is why a special verse is needed to exempt the pit owner when a person is killed in a bor, but it is Rabbinically forbidden to derive pleasure from any corpse.

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Permitted Rulings

The Gemora (Daf Yomi: Gittin 41b) had stated, applying the classic principle that it is preferable to render a permissible ruling. Rashi in Beitzah (2b) explains that this means that something that is permitted indicates that the Tanna is relying on his knowledge of the subject matter, and is not afraid to rule leniently. One can be strict even if he is in doubt and it does not necessarily indicate the conclusiveness of the ruling.

Rashbam in Pesachim (102a) writes that if there is no compelling logic to rule stringently, then ruling leniently is not regarded as a more preferred option. Rather, it is the only option. The Rema in his responsa (§ 54) rules that one is not allowed to be stringent regarding an issue where there is no uncertainty.

Pischei Teshuvah (Yoreh Deah 116:10) cites a dispute amongst the Acharonim if one is permitted to be stringent for himself regarding a matter that has been permitted by the Torah, such as a prohibited matter that was nullified.

Bnei Yissachar writes that it is a mitzvah not to be stringent in such a situation.

The Tzlach writes that it is preferable to record the permitted ruling regarding a situation that may be subject to a Biblical prohibition, because if there would be uncertainty, we would be compelled to rule stringently. The Tanna would not be introducing a novel ruling if the ruling was that the matter is prohibited. Regarding a matter that may be subject to a Rabbinic prohibition, however, the reverse would be true. It is preferable to record the stringent ruling because if there would be uncertainty, we would rule leniently.

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Mummies and Kohanim Entering the Land of the Nations

By: Reb Avi Lebovitz (Heoros al Hadaf)

The Mishna L'melech (Avel 3:1) has a teshuva where he discusses Kohanim going into the mummy business. He begins by saying that although they may consist of very dry bones, theywill still transmit tumah. However, his reason to be lenient is based on the opinion of the Yerai'im that we follow the opinion of Rabbi Shimon bar Yochai that aside from idolaters not transmitting tumah through roof association, they also do not transmit tumah via “touching.” (Tosafos 54a clearly rejects this and says that even according to Rabbi Shimon bar Yochai, they will transmit tumah via “touching.”) Based on the combination of the Yerai'im, and the Ra'avad who says that any Kohen who is already tamei (even after he separates from the corpse) has no prohibition of becoming tamei again, the Mishna L’melech creates a s'fek sfeika (double doubt) to be lenient, but eventually rejects it, since it is clear from the many places, including our Tosfos, in the name of Rabbeinu Chaim Cohen that a Kohen cannot make himself tamei even if he is already a tamei meis.

The issue that is related to our Gemora is that the Gemora in Avoda Zara (13a) says that a Kohen cannot enter into the Land of the Nations except for a mitzvah because of the decree of tumah on the Land of the Nations. The Rambam in Hilchos Ohalos (2:3) seems to understand that the concern of the Land of the Nations is because of the fetuses of idolaters that are buried there. This would clearly indicate that there is at least a prohibition of touching and carrying for Kohanim even related to the corpses of idolaters. However, the Mishna L'melech rejects this proof based on Tosfos, who says that the decree of tumah on the Land of the Nations is due to “the many Jews that were killed outside of Eretz Yisroel,” not because of the idolaters.

Practically speaking, what happened to the prohibition for a Kohen to go from Eretz Yisroel to the Land of the Nations (other than for mitzvah purposes)? The Shulchan Aruch (369) rules that a Kohen cannot go into the Land of the Nations, but the Shach (3) writes that it only applies when Eretz Yisroel is presumed to be in a state of taharah, but nowadays, this does not apply. This opinion is also quoted in the b'er hagola from the maharshal. The Shevus Yakov (brought in pischei teshuva) argues and claims that it applies even nowadays. Reb Akiva Eiger justifies the custom to be lenient about this, either because “sustaining one’s family” is a significant enough of a mitzvah (but this would not justify those who travel to chutz la'aretz for vacation) or because we are all tamei meisim. The second rationale seems to be either based on the opinion of the Ra’avad that the prohibition of tumas meis in general only applies when the Kohen is tahor, and although we are not lenient for a Biblical tumah, we rely on the Ra'avad for the Land of the Nations, which is only Rabbinical. But more likely he means to say that the entire decree of the Land of the Nations is in order to maintain the taharah of the Kohen, and it would not apply when the Kohen is a tamei meis.

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Nezirus Shimshon

It is evident from our Gemora (Daf Yomi: Nazir 14a) that one cannot nullify a nezirus Shimshon. If so, our version of hataras nedarim (the nullification of our vows) that we recite on Erev Rosh Hashanah is very problematic. We state explicitly that we are petitioning the Beis Din to annul all of our nedarim and nezirus, and even a nezirus Shimshon! How can it be nullified?

The Pischei Teshuvah (Y.D. 139:6), based on this question writes that our version is an erroneous one.

However, the Nitzotzei Ohr cites a Minchas Chinuch (368), who says in the name of the Leket Hakemach that nezirus Shimshon cannot be nullified only if the nezirus had begun already; however, if it did not start yet (i.e. he said, “I will be a nazir Shimshon in twenty days”), it may be annulled. On Erev Rosh Hashanah, we are petitioning the Beis Din to annul any future vows of nezirus that we may utter.

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Redemption with a Minor Kohen

The Pischei Teshuva (Y”D 305:4) cites a Chasam Sofer who holds that one may not redeem his firstborn son by using a Kohen who is a minor. For, generally, the Kohen uses his ability to remove the obligation of redemption from the father; a minor does not have the power to accomplish this.

Reb Chaim Kanievsky proves from our Gemora (Kesuvos 102a)otherwise. The Mishna (Bechoros 51a) states: If one wrote a document to a Kohen which said, “I am obligated to you for five selaim,” he is liable to pay him five selaim, but his son is still not redeemed (one who has a firstborn son is obligated to give five selaim to a Kohen in order to redeem him; since this document is regarded as an admission to a debt, it cannot be used for the independent obligation of redeeming his firstborn; if this document is an unsigned one, and nevertheless, it is regarded as a valid and binding admission to a debt, it would be following the opinion of Rabbi Yochanan and not Rish Lakish).

The Gemora deflects the proof: This case is different because there is a Biblical obligation to the Kohen (this, in turn, strengthens the unsigned document and renders it effective even according to Rish Lakish, just as if it would be a signed document).

The Gemora explains that the son is not redeemed because of Ula’s decree. For Ula said: Biblically, his son would be redeemed when he gives the money; the Rabbis decreed that he is not redeemed because people might mistakenly say that one may redeem a firstborn son with a third-party debt document (and those are Biblically invalid for redemption; his own debt document, like in our case, would be Biblically valid, but the Rabbis were concerned that people would not understand the difference between the two types of documents).

Reb Chaim states: It is evident from the Gemora that the father did not inform the Kohen that he was giving him the document for the sake of redemption, for if he would have done so, it would not be regarded as a new obligation according to Rabbi Yochanan.

It would emerge from here that if one gave money to a Kohen without informing him of the purpose, his son would be considered redeemed. This would prove that the Kohen is not actually effecting anything; it is the father’s giving of the money that accomplishes the redemption. Therefore, one would be able to give the five selaim to a Kohen who is a minor, and his firstborn son would be redeemed.

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