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Yevamos, 121

1) HALACHAH: FORENSIC EVIDENCE AND THE TIME OF DEATH

OPINIONS: The Tana Kama of the Mishnah (120a) maintains that one may not testify about the identity of a deceased person who has been dead for more than three days, because physical changes take place in three days making it impossible to identify the body. The Gemara tells us that if the person drowned, then even after five days one may testify about his identity, because the water preserves the body. What is the Halachah concerning identifying a body after three days when the body was not in water?

(a) RABEINU TAM (in Sefer ha'Yashar, Teshuvah 92; see previous Insight) writes that if the face is complete and not wounded, then it is certainly possible to recognize a person even if he has been dead for more than three days. We see that a person's face does not change after he has been dead for three days, and one can certainly recognize him. The Mishnah is discussing a case where the face was not recognizable and the identification of the body was based on characterizing marks found on the body.

(b) However, the Rishonim here reject Rabeinu Tam's view, because the Gemara implies that when a person drowns, even if his body is found complete and not wounded, , one may identify the body after three days only because the water preserves it. The Gemara implies that without this preservative property of water, the body would *not* be identifiable after three days, and we would not be able to permit the wife of the suspected victim to remarry. According to Rabeinu Tam, it should be possible to identify the body based on the face which is complete!

Rabeinu Tam answers that the case of the Gemara refers to when the witnesses did not recognize the body with Tevi'us Ayin (general recognition), since the body was partially eaten by fish (see previous Insight). They only recognized the body based on Simanim on his face, but not through Tevi'us Ayin. In such a case, their testimony about his identity is not accepted if they saw the body three days after the death. With Tevi'us Ayin, though, they would be believed even after many days have passed. Even though the Gemara does not mention that the body in the case of the drowning is not whole, it is clear that this is the situation (since fish often eat from the corpses that are found underwater).

HALACHAH: The RAMBAM does not differentiate between whether the face is complete or not, implying that he, too, disagrees with Rabeinu Tam. The SHULCHAN ARUCH cites Rabeinu Tam's opinion and writes that other Rishonim argue with him.

OPINIONS: If a body is found and we are not sure how many days have passed since its death (see previous Insight), what is the Halachah regarding accepting testimony identifying the corpse?

(a) TOSFOS writes that we do accept testimony identifying the corpse, because, out of doubt, we may assume that it is still within three days of the death. We may make such an assumption because, as the RASHBA writes, the Halachah that testimony is not accepted after three days is only a Chumra mid'Rabanan (because, as Rabeinu Tam says, it *is* possible to reliably recognize a corpse after three days).

The RITVA accepts the testimony for a different reason. He proposes that since the witnesses claim that they do recognize him, there is strong reason to assume that it is within three days.

(b) Others, however, are stringent and cast doubt on the reasoning of Tosfos. The conclusion of the RASHBA in our Sugya (as cited by the MAGID MISHNAH, Hilchos Gerushin 13:21) and the TESHUVOS HA'RAN (#71) is that we should be stringent and not accept the testimony identifying the corpse when there is a doubt about how long the person has been dead.

The reason they are stringent is either because they hold that the limitation of accepting testimony about the body after three days is a Halachah d'Oraisa, and not d'Rabanan (RIVASH #379-380), and therefore in the case of a Safek we must be stringent, or because even if it is only d'Rabanan, we cannot apply the rule of Safek d'Rabanan l'Kula because the woman has a Chazakah that she is an Eshes Ish (NODA B'YEHUDAH EH 1:29, DH v'Achshav, and SHAV SHMAITSA 7:21).

HALACHAH: The SHULCHAN ARUCH (EH 17:27) cites both opinions.

121b