OPINIONS: The Mishnah states that a witness may not identify a corpse unless
he recognizes the forehead and nose of the dead person.
RABEINU TAM (in Sefer ha'Yashar, Teshuvah 92, cited by TOSFOS DH Ein and by
other Rishonim here) asserts that it is does not make sense that a dead
person can only be recognized through his facial features. Certainly, a
person can be recognized by his bodily features as well if the witness is
familiar with the dead person's bodily features, and thus the witness should
also be able to identify a corpse if he recognizes the body! Rabeinu Tam
therefore explains that our Mishnah is discussing a head without a body. The
Mishnah is saying that a corpse cannot be identified when the witness only
saw its head (since its body has been truncated) -- unless the witnesses
recognizes the forehead and the nose. If the whole body is there and one
recognizes the Simanim of the body, then one may certainly testify to
positively identify the dead person.
The RASHBA and Rishonim (121a) reject Rabeinu Tam's explanation. They argue
that the Mishnah makes no mention of the body, implying that whether the body
is there or not, one may only identify the corpse based on recognition of the
forehead and nose.
The ARUCH LA'NER answers this question by pointing out that Rabeinu Tam in
Sefer ha'Yashar explains that our Mishnah is discussing recognition based on
*Simanim*, specific features, rather than recognition based on Tevi'us Ayin,
general recognition. Accordingly, the reason our Mishnah says that one must
recognize the forehead and the nose is because even if the body is attached
to the head, one cannot testify based on specific signs on the body. Only
when one testifies to the identity of the corpse based on *Tevi'us Ayin*
(general recognition) may he testify based on recognition of the body. Our
Mishnah is discussing recognition based on signs (Simanim), and that is why
it does not mention Rabeinu Tam's testimony.
HALACHAH: The SHULCHAN ARUCH (EH 17:25) cites the opinion of Rabeinu Tam and
writes that other Rishonim disagree.
However, if a person recognizes the body or the head through Simanim Muvhakim
-- clear signs that were unique to this person, then his testimony is
accepted, because whether one holds that testimony based on normal Simanim is
accepted d'Oraisa or d'Rabanan, Simanim Muvhakim are certainly accepted
mid'Oraisa as testimony.
The RAMBAM (Hilchos Nachalos 7:3) writes that if a person was killed and
witnesses did not recognize the face but testified about Simanim Muvhakim
that they found on his body, we may not permit his wife to remarry. It seems
that the Rambam is saying that even Simanim Muvhakim are not accepted as
testimony! This also seems to be the ruling of the SEFER HA'ITUR (as cited by
the Beis Yosef).
The BEIS YOSEF (EH 17:40) and the KESEF MISHNAH (Hilchos Gerushin 13:21) ask
that our Gemara seems to make it clear that even if normal Simanim are
d'Rabanan, a mole that is a Siman Muvhak is certainly accepted as testimony
mid'Oraisa! Moreover, the Rambam himself (Hilchos Gezeilah 13:5) writes that
Simanim Muvhakim *are* accepted for all testimony mid'Oraisa, and in
accordance with this he rules (Hilchos Gerushin 3:11) that one may return a
Get based on a Siman Muvhak (such as a hole next to a certain letter).
The Kesef Mishnah therefore concludes that when the Rambam in Hilchos
Nachalos says that a "Siman Muvhak" is not accepted, he is referring to what
our Gemara calls a regular Siman, and not an actual Siman Muvhak. A Siman
Muvhak that *is* accepted, even according to the Rambam, is a Siman that is
*very* unique and singular to this person. Everyone agrees that we may rely
upon such a Siman Muvhak. He concludes that this must be the intention of the
Itur as well.