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Bava Basra, 154

1) HALACHAH: DISGRACING A DEAD PERSON THROUGH A POSTMORTEM EXAMINATION

OPINIONS: The Gemara discusses a case in which a person sold the possessions of his deceased father's estate, and then he died. The other heirs claimed that their relative was a minor at the time of the sale, and thus his sale was invalid (and they should inherit the property). Rebbi Akiva was asked whether it is permitted to examine the body of the relative who sold the property in order to see if he had signs of maturity. Rebbi Akiva answered that it is not permitted to examine him, because to do so would be a disgrace to the dead person. In addition, he said, signs of maturity sometimes change even after the person has died.

When is it considered a disgrace to examine the body of a dead person?

(a) The BEIS YOSEF (YD 363) cites the ruling recorded in Maseches Semachos (4:12) that it is forbidden for relatives "to open a grave to examine their dead relative merely for monetary reasons." This seems to imply that only the actual opening of the grave is forbidden, while examining the body before burial is permitted.

The CHACHAM TZVI (Teshuvos 47, 50) introduces his discussion of the matter by giving another reason for why opening a grave should be forbidden, in the name of the AVODAS HA'GERSHUNI and RAV DAVID OPPENHEIM zt'l. When the grave of the deceased is open, the dead person becomes terribly frightened that his day of final judgement has arrived. This is the fear that Shmuel experienced when Shaul ha'Melech had a sorceress bring Shmuel up from the grave in order to ask him for his advice regarding his war with the Plishtim. When raised up from the grave, Shmuel exclaimed, "Lamah Hirgaztani l'Ha'alos Osi?!" -- "Why have you terrified me, to raise me up?!" (Shmuel I 28:15; see Chagigah 4b).

(b) The CHACHAM TZVI cites another opinion which maintains that there is no problem of disgrace nor of frightening the dead by merely opening the grave. The disgrace comes through the examination for signs of adulthood, or any other sort of handling the dead after burial.

The CHACHAM TZVI himself says that frightening the dead does not apply by merely opening the grave. However, if -- after opening the grave -- one sees the decomposed figure of the corpse, then he transgresses the prohibition against disgracing the dead as there is no greater disgrace to a dead person than exposing his decomposed body. The SEDEI CHEMED quotes this opinion in the name of the TIFERES YOSEF. This also seems to be the opinion of RAV SHLOMO EIGER (in Gilyon Maharsha to our Gemara). The transgression of frightening the dead (without disgracing him) applies to disinterring him without having to look at him (of course, if exhuming the dead person is done for the benefit of the dead person, such as to restore his Kever or to bring his body to a more respectable burial place, then it is permitted).

This is also the view of the SHEVET HA'LEVI (5:186). (Y. Montrose)

QUESTION: The Gemara discusses a case in which a person sold the possessions of his deceased father's estate, and then he died. The other heirs claimed that their relative was a minor at the time of the sale, and thus his sale was invalid (and they should inherit the property). Rebbi Akiva was asked whether it is permitted to examine the body of the relative who sold the property in order to see if he had signs of maturity. Rebbi Akiva answered that it is not permitted to examine him, because to do so would be a disgrace to the dead person. In addition, he said, signs of maturity sometimes change even after the person has died.

The Gemara gives two possibilities to explain exactly what occurred in that incident. The first possibility is that the property was in the hands of the purchasers, and the relatives were trying to get it back from them, and thus they wanted to prove that the seller was a minor at the time of the sale. The second possibility is that the property was still in the hands of the family, and the purchasers were trying to get it from them, and thus they wanted to prove that the seller was an adult at the time of the sale.

TOSFOS asks that according to the second possibility (that the purchasers were trying to prove that the seller was an adult), how could Rebbi Akiva tell them that examining the body would be of no help, since the signs of adulthood tend to change after one's death? Obviously, he was telling them that even if they did examine the body and find it to have Simanim (signs of adulthood), those Simanim cannot be relied upon because Simanim tend to change after death. If, however, the person was indeed a minor, then how is it possible for him to have acquired Simanim after his death, to make it appear as though he was an adult even though he was really a minor? According to the first way of understanding the case -- that the relatives were trying to prove that the seller was a minor -- then it makes sense that perhaps he *lost* the signs of maturity (his hairs fell out) after he died, making it look like he was a minor when in fact he was an adult. How, though, is it possible for him to *acquire* signs of maturity after his death?

ANSWERS:

(a) RABEINU TAM answers that perhaps the seller indeed was a minor, and he had hairs that were *white*. Such hairs are not a sign of adulthood. After death, though, such hairs tend to change and to appear black, giving the impression that the person was an adult.

Tosfos, however, rejects this explanation, because we never find such a distinction that only black hairs are considered signs of physical maturity.

The RAMBAN also questions Rabeinu Tam's explanation. He defends the explanation of Rabeinu Tam and gives a possible source for the Rabeinu Tam's difference between white hairs and black hairs. Rebbi Yehudah in Nidah (ibid., and as quoted later on 156a) says that hairs are not a sign of maturity "until the black is more than the white." Tosfos in Kesuvos (36) quotes Rabeinu Tam who explains that this means that the hair near the flesh must be black, while the end of the hair can be white, meaning that a majority of the hair must be black. Thus, Rabeinu Tam learns that Rebbi Yehudah himself says that a hair is not a sign of maturity until it is black.

The MISHNEH LA'MELECH (Hilchos Ishus 2:2) is perplexed by the words of the Ramban. First, he asks that the Gemara later (156a) clearly states that the Halachah does *not* follow the view of Rebbi Yehudah. How, then can Rabeinu Tam explain that in the case of our Gemara Rebbi Akiva was ruling in accordance with Rebbi Yehudah? Moreover, Rebbi Akiva explicitly rejects Rebbi Yehudah's opinion in Nidah there. Second, Rebbi Yehudah only stated this difference between black and white hairs with regard to the laws of Mi'un, but not with regard the laws of adulthood. Finally, none of the Poskim ever mention this opinion of Rabeinu Tam; they mention no difference between black and white hairs with regard to determining the physical maturity of a person.

The Mishneh la'Melech cites the MAHARSH LEVI who answered that the reason why the Poskim do not quote this opinion of Rabeinu Tam is because Rabeinu Tam said it only according to the initial assumption of the Gemara, when Rebbi Yochanan thought that the case involved the purchasers wanting to examine the seller to prove that he was an adult. The Gemara concludes, though, that it was the relatives who wanted to examine the seller to prove that he was a minor. This is the reason why the Poskim do not mention the opinion of Rabeinu Tam, and it also answers the first question; since Rabeinu Tam mentioned this difference only to explain the initial assumption of the Gemara, it does not need to be the Halachic opinion.

To answer the other questions, the Maharash Levi says that Rebbi Yochanan initially thought that Rebbi Akiva agreed in part with the view of Rebbi Yehudah and maintained that in order to be a sign of physical maturity , the hair must at least be a little bit black near the flesh. Rebbi Yochanan eventually rejected this understanding of the view of Rebbi Akiva (understanding Rebbi Akiva, instead, according to the Ri as cited by Tosfos).

(b) The RI quotes the Gemara in Nidah (52a) which states that even if a person had not grown hairs as a sign of maturity, if at least two follicles or cavities ("Gumos") had developed where the hair was supposed to grow, this, too, is a sign of adulthood. The reasoning is that there is a Chazakah that there are no follicles without hair, and thus we must assume that there was hair there which fell out. The Ri says that even if the person had no such follicles or cavities while he was alive, those follicles can develop after his death, making him appear to be an adult.

The HAGAHOS MAHARSHAM quotes RASHI in Erchin (7b, DH Ela) who says that hair does not change after death. This implies that Rashi understood the Gemara here like the Ri (that the follicles, and not the hair, can change after death).

(c) The HAGAHOS HA'BACH here adds his own explanation to Tosfos. The Bach says that it is known that hair continues to grow even after a person dies. The Gemara in Nidah (ibid.) states that in order to be a sign of maturity, the hairs must be long enough to bend them over and touch their roots. Accordingly, there is a concern that when the minor died, his hairs might not have been that long. After he died, the hairs grew longer and are not long enough to be considered signs of adulthood.

(This explanation does not seem to agree with Rashi in Erchin, as mentioned above, who says that hairs do not change after death.) (Y. Montrose)

154b

OPINIONS: The Gemara relates the following teaching in the name of Bar Kapara. One person contested the ownership of a field that someone else had been living on and working. The present owner of the field showed his deed of ownership to Beis Din, attempting to prove with it that he had bought (or received as a gift) the field from the person disputing his ownership.

Bar Kapara ruled that if the claimant says that the Shtar was forged, then the present owner needs only to be Mekayem the Shtar (by verifying the signatures of the witnesses therein), and he may keep the field. If the claimant admits that he wrote the Shtar, but that it was a "Shtar Pasim" or a "Shtar Amanah" (see Background to the Daf) and that the field was never really sold to the buyer, then, Bar Kapara ruled, if the claimant can bring witnesses to back up his claim, then he is believed. If he has no witnesses, then we follow the Shtar and allow the present owner to retain the field.

This ruling implies that there is no need for the defendant to verify the Shtar when the claimant admits that he wrote it but claims that the document is not valid for another reason -- "Modeh bi'Shtar she'Kasvo Ein Tzarich l'Kaimo." The Shtar is presumed to be a valid Shtar, because the claimant admits that he wrote it, and the claimant's claim that the Shtar is not valid is not accepted without witnesses. The Gemara cites opposing views which say that the defendant is still required to verify the Shtar -- "Modeh bi'Shtar she'Kasvo *Tzarich* l'Kaimo," since the claimant is believed with a "Migu" that the Shtar is not valid.

What is the Halachah?

(a) The RASHBAM and others (see HAGAHOS MAIMONIYOS Hilchos Zechiyah 9:30) maintain that the Shtar does not have to be verified ("Modeh bi'Shtar she'Kasvo *Ein* Tzarich l'Kaimo"). Their proof for this is that Rebbi Yochanan apparently rules this way according to the Gemara's conclusion (that Rebbi Yochanan's opinion is the opposite from what initially thought).

(b) The RIF, RAMBAM, and others say that the defendant must verify the Shtar. Because they rule that "Modeh bi'Shtar she'Kasvo *Tzarich* l'Kaimo," they also must rule like Rebbi Yakov in the previous Gemara (153b), who says that if a benefactor claims that he was a Shechiv Mera at the time that he gave the gift, and the recipient says that he was a healthy person and not a Shechiv Mera, we believe the benefactor until the recipient can prove otherwise. There, too, the benefactor is admitting that he wrote the Shtar but he is claiming that he was a Shechiv Mera when he wrote it and thus the gift is no longer valid (since he recovered from his illness). Since he is "Modeh bi'Shtar," his claim to invalidate the gift is also believed, and thus the recipient must be Mekayem the Shtar ("Tzarich l'Kaimo") in order to get the gift.

The SHULCHAN ARUCH (C.M. 140:3, 251:2) follows this opinion. (Y. Montrose)