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Nazir, 65

1) MOVING A "MES" FROM THE PLACE IT IS FOUND

QUESTIONS: The Mishnah (64b) states that "one who finds a Mes lying normally, he may move it together with its Tefusah." The Gemara infers from the wording of the Mishnah that the Mishnah is excluding a Mes that was "Matzuy" ("'Matza' Prat l'Matzuy") and one that was murdered ("'Mes' Prat l'Harug"), as well as one that is found sitting up ("'Mushkav' Prat l'Yoshev") and one whose head was between his legs ("'k'Darko' Prat l'she'Rosho Munach Bein Yarkosav").

The Rishonim dispute what "Matzuy" means. The RI (cited by TOSFOS) explains that "Matzuy" means a Mes that was known to be there. If the Mes was already known to be there, then it is prohibited to move it because of the Halachah (Sanhedrin 47b) that it is prohibited to move the grave of a Mes. It is permitted to move a Mes only when the Mes was killed and the place in which it was found was not its intended place of burial.

The RASHBAM argues and says that "Matzuy" refers to the second part of the Mishnah, which states that if a person found three Mesim, they have the status of a "Shechunas Kevaros" and may not be moved. The Rashbam explains that if *one* of the three Mesim that a person found was already known to be there (and only the other two were discovered there now for the first time), the entire group does not have the status of a "Shechunas Kevaros" (like the Gemara says later on the Daf), and therefore one is allowed to move them even though there are three Mesim.

(a) Why does the Rashbam not accept the simple explanation of the Ri, who explains that "Matzuy" means that if the Mes was already known to be there, it cannot be moved, like the Gemara says in Sanhedrin?

(b) Second, what is the reason why the Halachah of the Mishnah (that a Mes that was found may be moved with its Tefusah) does not apply to "Harug," one that was murdered? Why is there no Halachah of "Tefusah" and "Shechunas Kevaros" for a "Harug?"

(c) The Gemara itself gives reasons for the final two exceptions to the Halachah in the Mishnah -- a case where the Mes was found sitting up, and a case where it was found with its head between its legs. The Gemara asks why does the Halachah of the Mishnah not apply in those cases. It answers that the fact that the Mes is sitting up or resting its head between its legs indicates that it is a Nochri. This explains why a Mes that is found sitting up or with its head between its legs does not have the Halachah of "Tefusah" and "Shechunas Kevaros." Why, though, does the Gemara not explain why "Matzuy" and "Harug" also do not have the Halachah of "Tefusah" and "Shechunas Kevaros?"

ANSWERS:

(a) The reason the Rashbam does not explain "Matzuy" like the Ri (that "Matzuy" refers simply to a known grave) is because all the other exceptions to the Halachah of the Mishnah are exceptions *l'Kula* -- *lenient* exceptions. That is, in all of the other cases that the Mishnah excludes, the Halachah of "Shechunas Kevaros" does *not* apply and it is permitted to move even three Mesim found together. However, if there is a known grave, the Halachah is not more lenient, but it is more *stringent*; even if only one Mes was found, it is prohibited to be moved since it was known to be there. This exception, then, would be different than the others. For this reason, the Rashbam explains "Matzuy" to be referring to a case where *one* of *three* Mesim that were found was already known to be there. In such a case the Halachah is *lenient* and it is not considered a "Shechunas Kevaros" and it is permitted to move them.

(b) The Rishonim give a number of explanations for why the Halachah of "Shechunas Kevaros" does not apply to a "Harug."

1. TOSFOS and the ROSH explain that "Harug" is in the same category as "Chaser," a Mes that was missing part of its body, which the Gemara says does not have the Halachah of "Tefusah" or "Shechunas Kevaros."

This is not clear, though. What is "Chaser" about a Mes that is found murdered? If he was stabbed by a sword or strangled, the body is still whole and is not missing anything!

The ROSH explains that a "Harug" is "k'Chaser Dami" -- it is *like* Chaser. The Rosh might mean that when the Mes is Chaser, it is a sign that it did not die naturally but that its life was shortened by having a limb severed (in which case the Gemara might be referring only to a Chaser that is missing part of the body without which it could not live, as the Rambam says in Hilchos Tum'as Mes 9:5). Likewise, when the Mes shows signs of being murdered, it is evident that the Mes did not die naturally but that its life was shortened. Therefore, it does not have the Halachah of "Shechunas Kevaros."

The general reasoning behind both the exceptions of Chaser and Harug is that if there are three of them, it still does not prove that they were buried there intentionally (SEFAS EMES). Therefore, no matter how many of them there are, they are treated as a single Mes which we assume was left there temporarily. (See RAMBAM, Hilchos Tum'as Mes 9:1.)

(TOSFOS writes that it is difficult to understand why a Chaser is treated differently, and says that perhaps it is a Halachah l'Moshe mi'Sinai. However, Tosfos might be referring to the other Halachah of Chaser -- that it does not have "Tefusah." It is not clear why it should not have "Tefusah," since even a single Mes that is found and is not Chaser does have "Tefusah.")

The SIDREI TAHAROS explains that the Rosh's logic behind why a "Harug" does not have the Halachah of "Shechunas Kevaros" is that a "Harug" is "k'Chaser Demei" -- he is *lacking blood* (as opposed to the straightforward way of reading the Rosh's words, that he is "k'Chaser Dami," similar to a Chaser"). This, however, is difficult to understand, because the loss of blood should not make the Mes into a Chaser, since the body is still whole. We learned that regarding the Halachah of a Kohen, who is prohibited from burying his close relatives when they are Chaser, the Kohen is permitted to bury them when they have lost blood because that does not make them Chaser!

In addition, this does not explain why a "Harug" who was strangled to death (and did not lose any blood) should be considered like a Chaser.

2. The MEFARESH explains that if the Mes is found murdered, that in itself is reason to assume that it was a Nochri. This seems to be the intention of the Rambam as well (in Perush ha'Mishnayos and in Hilchos Tum'as Mes 9:2). Apparently, if a Jew is found killed, then anyone who finds him would have taken him to a Jewish cemetery. Therefore, if the Mes is found buried there, we assume that it is a Nochri and that his comrades buried him there.

3. The RAMBAM (Hilchos Tum'as Mes 9:1 and in Perush ha'Mishnayos, Ohalos 16:3) seems to give another interpretation of the reason why "Harug" is treated differently. The Rambam says that if one finds a number of Mesim that were murdered together in one place, then even if they are more than three, they are to be treated like a single Mes and do not constitute a "Shechunas Kevaros." The reason for this is that any number of Mesim that were buried at the same time are considered to be like a single Mes. It is a "Shechunas Kevaros" only when one finds three Mesim who were buried there at different times.

(According to this explanation, the Rambam is learning that the "Harug" does not have "Shechunas Kevaros" but *does* have "Tefusah.")

(c) Regarding our question why the Gemara does not explain the reasoning for "Matzuy" and "Harug," according to TOSFOS and the MEFARESH the Gemara indeed does give a reason why "*Harug*" does not have "Shechunas Kevaros." According to Tosfos, that reason is expressed by the statement of Ula bar Chanina for it is included in "Mes she'Chasar." According to the Mefaresh, the suspicion that the Mes is a Nochri applies to a "Harug" just like it applies to a Mes found sitting up and one found with its head between its legs.

Regarding the case of "Matzuy," according to the Ri -- who says that "Matzuy" means that the Mes was not buried there intentionally, the Gemara does not feel that it is necessary to give a reason for why it has no "Tefusah." The Gemara is only explaining the Kulos of the Mishnah, the places where "Tefusah" and "Shechunas Kevaros" do not apply, and not the Chumra of "Matzuy" where if the Mes was known to be there it cannot be moved at all.

Regarding the view of the Rashbam, it could be that the Rashbam is following his own view expressed elsewhere. In TOSFOS (DH Echad Yadu'a), the Rashbam explains that indeed there is no reason why the Halachah of "Shechunas Kevaros" does not apply in a case where one of the three Mesim found was known to be there. It is a Halachah l'Moshe mi'Sinai. (According to the Rashbam, "Yadu'a" means not that we knew that this Mes was buried there intentionally, but that we knew about this one before we found the others.) Since it is a Halachah l'Moshe mi'Sinai, the Gemara cannot give a reason for it. (This is like the MEFARESH writes in DH v'Chol Hani. The ROSH, however, explains like the Rashbam, but nevertheless he gives a logical reason, like the Ri, for the case of three Mesim that were found and one of them was already known to be there. According to the Rosh, it must be that the Gemara does not ask what the reason is for why "Matzuy" is different, because the reasoning is obvious.)

The RAMBAM (Hilchos Tum'as Mes 9:5 and Perush ha'Mishnayos) has a different explanation for the word "Matzuy." He says that "Matzuy" means that the Mes was buried and was not on top of the ground. (According to the Rambam, it is the word "b'Techilah" in the Mishnah that excludes the case of one Mes which was known to be there, and not the word "Matza," as is clear from the Rambam in Hilchos Tum'as Mes 9:6.)

The Rambam in Perush ha'Mishnayos implies that the reason why the Halachos of the Mishnah do not apply to a Mes found not buried is also because the Mes is assumed to be a Nochri, for if he was a Yisrael, his escorts would have buried him properly.

The Gemara learns from the verse, "And you shall carry me from Mitzrayim" (Bereishis 47:30), that when moving a Mes, one must take the "Tefusah" (the dirt around the Mes) together with the Mes. Yakov was telling to Yosef that after his death, when Yosef takes his body out of Mitzrayim, Yosef should take the dirt around his body as well. TOSFOS (DH Kamah) cites the Yerushalmi that says that the reason the "Tefusah" must be taken together with the Mes is because fluids from the decomposition of the Mes are absorbed into the ground around the Mes.

However, we know that Yakov Avinu's body did not decompose! Why, then, was it necessary to take his "Tefusah?" (SIDREI TAHAROS)

Moreover, Yakov was not even buried in Mitzrayim! Rather, he was embalmed and taken to Eretz Yisrael, so there was no "Tefusah" at all to take! (TOSFOS YOM TOV)

ANSWERS:

(a) The TOSFOS YOM TOV explains that the verse is only an Asmachta (like the wording of the Rambam in Perush ha'Mishnayos implies).

This does not answer the question fully, though, because how can the verse be even an Asmachta if Yakov Avinu was not buried in Mitzrayim?

(b) Yakov Avinu -- before he died -- told Yosef to take him from Mitzrayim after his death. Yakov did not know what circumstances would arise after his death. He suspected that Pharaoh would not let Yosef take him out of Mitzrayim and that he would end up buried in Mitzrayim for a long time. Therefore, he told Yosef that if he is buried in Mitzrayim, then his "Tefusah" should be brought with him to Eretz Yisrael.

65b