יורה דעה שע״דYoreh De'ah 374

Siman 374 of 402 in Yoreh De'ah — 11 se'ifim

Se’if 1א׳

מִצְוָה לְהִטָּמְאוֹת לְמֵת מִצְוָה, אֲפִלּוּ הוּא כֹּהֵן גָּדוֹל וְנָזִיר וְהוֹלֵךְ לִשְׁחֹט אֶת פִּסְחוֹ, וְלָמוּל אֶת בְּנוֹ, וּמָצָא מֵת מִצְוָה, הֲרֵי זֶה מִטָּמֵא לוֹ.

It is a religious obligation to defile oneself for a corpse [whose burial is] a religious duty,2Heb. מת מצוה Glos. s.v. Meth Miẓwah and cf. infra. even if one is a High priest or3Lit. ‘and.’ a Nazirite and he was going to slaughter his Paschal lamb or3Lit. ‘and.’ to circumcise his son and [on the way] he found a corpse [whose burial is] a religious duty, — [the law is that] he defiles himself for him.4Ber. 19b; Naz. 48b and Tosaf. ibid. 47a s.v. וכן משוח according to which the Kohen may move the corpse from the sun to the shade in order that it should not spread stench — R. A. Eger. Cf. supra § 364, 3.

Se’if 2ב׳

אֵינוֹ נִקְרָא מֵת מִצְוָה לְעִנְיָן זֶה, אֶלָּא אִם כֵּן מָצָא רֹאשׁוֹ וְרֻבּוֹ. וְאִם מָצָא רֹאשׁוֹ וְרֻבּוֹ חוּץ מֵאֵבֶר אֶחָד, חוֹזֵר לִטָּמֵא בִּשְׁבִיל אוֹתוֹ אֵבֶר.

He is designated a corpse [whose burial is] a religious duty with respect to this matter [of defilement], only if he found his head and the larger portion [of his body].5 supra § 364, 3 end and cf. supra § 353, 7; infra § 375, 7. If, however, he found his head and the larger portion [of his body] save one limb, he may [later] return to defile himself for that limb [when he finds it].6Y.Naz. VII, 1(55d). In this respect the limb is treated with more stringency than in the case of a near-of-kin for whom the Kohen defiles himself only if the corpse is whole but not for limbs or when the body is defective. supra § 373, 9.

Se’if 3ג׳

אֵיזֶהוּ מֵת מִצְוָה, שֶׁמְּצָאוֹ בַּדֶּרֶךְ אוֹ בְּעִיר שֶׁל עוֹבְדֵי כּוֹכָבִים, וְאֵין לוֹ קוֹבְרִים, וּמִמָּקוֹם שֶׁמְּצָאוֹ אֵינוֹ יָכוֹל לִקְרוֹת יִשְׂרָאֵל שֶׁיַּעֲנֵהוּ וְיָבֹא לְטַפֵּל בּוֹ וּלְקָבְרוֹ, אָסוּר לוֹ לָזוּז מִשָּׁם וּלְהַנִּיחַ אֶת הַמֵּת, אֲפִלּוּ לֵילֵךְ לָעִיר לְהָבִיא קוֹבְרִים, אֶלָּא יְטַמֵּא עַצְמוֹ וְיִקְבְּרֶנּוּ. אֲבָל אִם הָיוּ יִשְׂרָאֵל קְרוֹבִים לִמְקוֹם הַמֵּת, שֶׁהַמּוֹצֵא אֶת הַמֵּת קוֹרֵא אוֹתָם וְהֵם עוֹנִים לוֹ וּבָאִים לְקָבְרוֹ, אֵין זֶה מֵת מִצְוָה שֶׁיִּטָּמֵא עָלָיו הַכֹּהֵן, אֶלָּא קוֹרֵא אוֹתָם וְהֵם קוֹבְרִים. בָּאוּ בְּנֵי הָעִיר, אִם יֵשׁ לוֹ כָּל צָרְכּוֹ, מוֹשֵׁךְ אֶת יָדָיו. (לְשׁוֹן רַמְבַּ"ן בתה"א ורא"ש בְּהִלְכוֹת טֻמְאָה) הַגָּה: יֵשׁ אוֹמְרִים אִם אֵינוֹ מוֹצֵא שֶׁיִּקְבְּרוּהוּ, רַק בְּשָׂכָר, אֵינוֹ חַיָּב לִשְׂכֹּר מִשֶּׁלּוֹ, אֶלָּא מִטָּמֵא, אִם יִרְצֶה (נ"י פֶּרֶק הָאִשָּׁה רַבָּה בְּשֵׁם ריטב"א). מֵת הַנִּמְצָא, וְלֹא יַדְעִינָן אִם עוֹבֵד כּוֹכָבִים אִם יִשְׂרָאֵל הוּא, אַזְלִינָן בָּתַר רֻבָּא הַנִּמְצָאִים שָׁם, אִם יֵשׁ, שֶׁלֹּא נוּכַל לוֹמַר כָּל קָבוּעַ כְּמֶחֱצָה עַל מֶחֱצָה (בֵּית יוֹסֵף בְּשֵׁם תְּשׁוּבַת הָרַשְׁבָּ"א).

Who is regarded as a corpse [whose burial] is a religious duty? — One whom he7The Kohen. found on the road or in a town of heathens, and there is no one [available] to bury him, and from the spot where he7The Kohen. found him he could not call upon an Israelite to answer him7The Kohen. and come to attend to him8The corpse. and bury him, — [the law is that] he7The Kohen. is forbidden to depart therefrom and leave the corpse, even to go to the town [in order] to fetch [people] to attend to the burial rites, but he7The Kohen. should defile himself [for him] and bury him. But if there were Israelites [available] in proximity of the spot of the corpse, [so] that if the one who finds him8The corpse. would call upon them, they would answer him,7The Kohen. and come to bury him, — such a one is not regarded as a corpse [whose burial] is a religious duty for whom the Kohen1 Glos. should defile himself, but he7The Kohen. calls upon them and they bury [him].9Ber. 19b-20a; Yeb. 89b; ‘Er. 17b; Meg. 3b; Zeb. 100a; Naz. 43b; Y.Naz. VII, 1(56a); Y.Ber. III 1(6a); Sem(H). IV, 16. also Ket. 103b, Tosaf. s.v. אותו and Mid. Mishle § A corpse whose burial is a religious duty is applicable only in a case where there are not sufficient people present to carry the bier and to attend to the burial rites — TaZ. If there are heathens available to bury the corpse, he must not defile himself, provided he does not have to pay them for their services (v. infra Gloss) — A.H. [If] the townspeople came, [then the law is that] if his8The corpse. needs are adequately attended to,10Y. and Sem. ibid. Cf. supra § 361, 1. he7The Kohen. withdraws himself.11Cited from N in T.H. and Asheri on Laws of Uncleanness — G. Gloss: Some say that if he is able to secure people to bury him only [if he hires them] for money, he is not bound to hire [them] with his own [money], but he may defile himself [for the corpse], if he so desires.12N.Yos. to Yeb. X on the authority of RITBA — G. [In the case of] a corpse that is found and we do not know whether he is a Gentile or an Israelite,13This refers to a case where the signs of circumcision are no longer recognizable — A.H. we decide14Lit. ‘follow.’ according to the majority of those present there,15 Y.San. V, 1(32c), ‘One who is found slain between Tiberias and Sepphoris is presumed to be a Jew.’ We decide according to the majority of the passers-by who are likely to frequent that spot or the majority of the surrounding cities. If the majority consists of heathens, the Kohen is not dutibound to bury him; if the majority consists of Israelites, the corpse is regarded as one whose burial is a religious duty. We do not decide on grounds of the nearer city, even if the nearness of that city shows evidence for such a decision, but we follow the majority, — for whatever comes out of a mixed multitude is presumed to have come from the majority, i.e., it has the legal status of the majority (כל דפריש מרובא פריש). Ket. 15a a.e. — ShaK. unless16Thus according to reading of ShaK and A.H. we can apply17Lit. ‘say.’ [the principle] that everything which is stationary is regarded as half to half.18B.Yos on the authority of RaShBA Resp. — G. Concerning the principle ‘whatever is stationary is regarded as half to half’ (כל קבוע כמחצה על מחצה) cf. Ket. ibid. and parallel passages. The point is this. We decide according to the majority only when the minority is not stationary or fixed (קבוע). Otherwise, it is equal to the majority. Were the case in question as follows: It is known that nine heathens and one Jew were present in the locality where the slain person was found, then we would consider it ‘fixed’ and would not follow the majority of heathens, but we would apply the principle ‘whatever is fixed or stationary is regarded as half to half,’ and because of the uncertainty we would adopt a stringent view. Hence, the Kohen would not defile himself for the slain person. supra § 373, 8 — ShaK.

Se’if 4ד׳

כָּל הַקְּרוֹבִים שֶׁהַכֹּהֵן מִטָּמֵא לָהֶם, שֶׁהֵם: אָבִיו, וְאִמּוֹ, וּבְנוֹ, וּבִתּוֹ, וְאָחִיו, וַאֲחוֹתוֹ מֵאָבִיו הַבְּתוּלָה, וְאִשְׁתּוֹ, מִתְאַבְּלִים עֲלֵיהֶם. וְעוֹד הוֹסִיפוּ עֲלֵיהֶם: אָחִיו מֵאִמּוֹ, וַאֲחוֹתוֹ מֵאִמּוֹ, בֵּין בְּתוּלָה בֵּין נְשׂוּאָה, וַאֲחוֹתוֹ נְשׂוּאָה מֵאָבִיו, שֶׁמִּתְאַבְּלִים עֲלֵיהֶם אַף עַל פִּי שֶׁאֵין כֹּהֵן מִטָּמֵא לָהֶם. וּכְשֵׁם שֶׁהוּא מִתְאַבֵּל עַל אִשְׁתּוֹ, כָּךְ הִיא מִתְאַבֶּלֶת עָלָיו. וְדַוְקָא אִשְׁתּוֹ כְּשֵׁרָה וּנְשׂוּאָה, אֲבָל פְּסוּלָה אוֹ אֲרוּסָה, לֹא. אֲבָל בְּנוֹ, וּבִתּוֹ, וְאָחִיו, וַאֲחוֹתוֹ, אֲפִלּוּ הֵם פְּסוּלִים, מִתְאַבֵּל עֲלֵיהֶם, חוּץ מִבְּנוֹ, וּבִתּוֹ וְאָחִיו וַאֲחוֹתוֹ מִשִּׁפְחָה וְכוּתִית, שֶׁאֵינוֹ מִתְאַבֵּל עֲלֵיהֶם.

For all the near-of-kin for whom the Kohen1 Glos. defiles himself, viz., his father, mother, son, daughter, [paternal] brother, paternal virgin sister and wife, — one is dutibound to observe mourning rites.19M.K. 20b. To these they added one's maternal brother and one's maternal sister whether a virgin or married, and one's paternal married sister, — for whom one is dutibound to observe mourning rites, although a Kohen1 Glos. does not defile himself for them.20Ibid. And even as he observes mourning rites for his wife, so too, does she observe mourning rites for him.21The reason being that since a mourner observes mourning rites for all near-of-kin for whom a Kohen defiles himself, it follows that just as a woman defiles herself for her husband, she also observes mourning rites for him — B.Yos. Cf. Mishna Yeb. IV, 10 (41a) and infra par. 6. [This applies] only to one's lawful married wife, but for one's unlawful or betrothed [wife] one does not [observe mourning rites].22 supra § 373, 4 for whom a Kohen defiles himself, and v. Yeb. 29b regarding a betrothed wife with respect to mourning rites. For one's son, daughter, brother or sister, even if they are illegitimate, he observes mourning, save [in the case of] his son, daughter, brother or sister who are [the issue] of a slave or a heathen, for whom one does not observe mourning rites.23Mishna Yeb. II, 5 (22a). If one quarreled with his wife and decided to divorce her, and then immediately following the dispute, she died, the husband is not dutibound to mourn for her — R. A. Eger on the authority of MaHaRShaL. Nowadays, however, since one cannot divorce his wife against her will, but must obtain her consent, this does not apply — P.Tesh. (to E.H. § 90 n. 8) a.o. Hence, if the husband is a Kohen, he defiles himself and observes mourning rites for her. If she was divorced on a condition and subsequently the husband died, she is not dutibound to observe mourning rites for him. However, if she desires to adopt a stringency, she is permitted to weep over him and to follow his bier — E.H. § 145, 9, Gloss.

Se’if 5ה׳

הַגֵּר שֶׁנִּתְגַּיֵּר הוּא וּבָנָיו, אוֹ עֶבֶד שֶׁנִּשְׁתַּחְרֵר הוּא וְאִמּוֹ, אֵין מִתְאַבְּלִין זֶה עַל זֶה. וְהוּא הַדִּין גֵּר שֶׁנִּתְגַּיֵּר עִם אִמּוֹ, אֵין מִתְאַבֵּל עֲלֵיהֶם (סְבָרַת הָרַב מֵהַמָּרְדְּכַי הל' שְׂמָחוֹת מִמַּעֲשֶׂה שֶׁבָּא לִפְנֵי ר"י לְמַאי דקי"ל אֲבֵלוּת יוֹם רִאשׁוֹן דְּרַבָּנָן).

A stranger who became a proselyte along with24Lit. ‘and.’ his sons, or a slave who was emancipated25This refers to a Canaanite slave who was sold to a Jew and enjoyed a semi-Jewish status. He had to observe all religious duties that were binding on women. He was permitted to marry only a woman slave but not a Jewess. If he was set free by his owner, who then gave him a writ of emancipation to that effect, he then became entirely Jewish. along with24Lit. ‘and.’ his mother, do not observe mourning rites for one another.26Derived from Mishna Yeb. XI, 2 (97b). also Gemara ibid., ‘He who has become a proselyte is like a child newly born.’ Hence, all his previous family relationships cease to exist and mourning does not apply. Likewise, [if] a stranger became a proselyte along24Lit. ‘and.’ with his mother, he does not observe mourning rites for them.27e., for his sons or his mother. Deduced by Caro from Mord. Laws of Sem. from an actual case presented before RI in accord with the established principle that mourning observed on the first day is only Rabbinical — G. infra § 399 end and cf. supra § 269, 3.

…and 6 more se'ifim in this siman.

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Shulchan Aruch, Yoreh De'ah — Torat Emet 357 edition, via Sefaria — public domain

English: Code of Hebrew Law, tr. Chaim N. Denburg, Montreal 1955 — CC BY