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Week 78 - Monday - 21 May 2001

NAZIR: CHAPTER 9: MISHNAH 3

If one finds a corpse for the first time lying in its usual manner - he may remove it and its tevusah. If a person found two - he may remove them and their tevusah. If he found three: if between this one and that one there is from four to eight amot - then this is a graveyard. He examines from it outward twenty amah. If he found one at the end of twenty amah - He examines from it outward twenty amah, for there is a basis for the matter; for if he found it initially - he may take it and its tevusah.

Kehati

This and the following mishnah are brought here incidental to the expression taught at the end of the previous mishnah, "for therein a basis for the matter," for in these mishnayot as well this expression serves as a basis and reason for the laws taught in them.

This mishnah deals with the law of the location in which buried bodies were found, and there is a doubt whether this is a graveyard, or whether these are isolated corpses, which were buried here by chance, with the intention of exhuming them after a few days, and transferring them to a cemetery. It was the practice to examine the highways suspected of being unclean, and to cleanse them of their uncleanness on behalf of pilgrims, those offering the Passover sacrifice, and those bearing food in a state of purity; if individual graves were found on the road, there was a problem, whether it was permitted to exhume the corpses.

Indeed the law is that a corpse acquires its place; therefore, if even a single grave is found there, and the grave is known, for the corpse had been buried there with permission, it is prohibited to exhume the corpse from there, but rather we mark the place, so that it will be noticeable to passersby; if, however, the grave was found there by chance, and it was not known, the mishnah teaches that in such a case exhumation is permitted.

If one finds a corpse - e.g., if he was digging in the ground, either by chance, or in order to examine the places in which there is a suspicion of uncleanness, as was explained above, and found a corpse for the first time - i.e., other graves had not been discovered previously in this place or close to it, and the corpse was lying in its usual manner - in the manner in which the Jewish dead are buried, he is permitted to exhume the corpse and re-inter it in another place: he may remove it - the corpse, and - with - its tevusah - the earth underneath the corpse, which absorbed the blood and the liquid that issued from the corpse. The word tevusah is derived from the expression "wallowing [mitboseset] in your blood" (Ezek. 16:6); according to another version, the mishnah reads "his tefusah," i.e., the soil from the land which was grasped [tafus] by the corpse. After this the place is clean. And similarly, If a person found two - corpses, about which people had not known, and they apparently were buried there by chance, he may remove them and their tevusah - and move them to another location, and we do not suspect it is a cemetery.

But - If he found three - corpses: if between this one - the first grave, and that one - the third grave (Gemara), there is from - not less than - four to - not more than - eight amot - then this is a graveyard - and it is forbidden to exhume the corpses. If, however, there are less than four amot, between them, this is a sign that they were buried there by chance, in haste and under pressing circumstances; and similarly, if there are more than eight amot between them, this is a sign that they are individual graves, and it is not a cemetery, for the practice was to construct burial caves of four by six amot, the diagonal measurement of which was about eight amot; accordingly, when the distance between them is between four and eight amot, this is an indication that this is a burial cave, and He examines from it - the last corpse that he found, outward - on each side - twenty amah - as we have stated, the dimensions of a burial cave were four by six amot. It was the usual practice to construct a courtyard, six by six amot, with (at least) two burial caves on its two sides. Hence the length of the two caves and the intervening courtyard is eighteen amot (three times six), and since at times he would examine a cave diagonally, and the diagonal measurement of the cave is greater than its length by approximately two arnot, this then totals twenty amot (see the Gemara, B. B. 102a).

If he found - even - one - corpse - at the end of twenty amah - He examines from it outward twenty amah - and any grave that he finds is from the graveyard, for there is a basis for the matter - to say that the place is set aside for graves; therefore, even though he found only one grave at the end of twenty amot, nevertheless, since he found it after he had already found the first three graves, it is clear that this is a permanent grave, and it is forbidden to remove it from there; for if he found it initially - before he found the three first ones, he may take it and its tevusah - as was taught in the beginning of this mishnah.

NAZIR: CHAPTER 9: MISHNAH 4

Any doubt concerning afflictions at the outset is clean until he is confirmed to be unclean; once he is confirmed to be unclean - in doubt it is unclean. In seven ways they examine the zav before he is confirmed as a zav: concerning food, drink, a load, jumping, illness, sight, and thought; once his zivah is confirmed - they do not examine him. A circumstance beyond his control, his doubt, and his seminal discharge are unclean, since there is a basis for the matter. If a person strikes his fellow and they considered him likely to die, and his state improved, and subsequently worsened and he died - he is liable. Rabbi Nehemiah says, He is exempt, since there is a basis for the matter.

Kehati

This mishnah presents three different laws, all of which are based on the principle, "let the matter stand on the ground of its presumptive condition, since there is a basis for the matter," i.e., assume that the ordinary condition has not changed, until proved otherwise. The first law concerns afflictions, the second the zav, and the third concerns one who strikes his fellow.

(1) Regarding afflictions, the Torah states, "When a man shall have in the skin of his flesh a wool-white blotch, or a scab, or a discoloration ... then he shall be brought unto Aaron the priest, or unto one of his sons the priests. And the priest shall look upon the affliction in the skin of the flesh; and if the hair in the affliction has turned white, and the appearance of the affliction is deeper than the skin of the flesh, it is an affliction of tzara'at; and the priest shall look on him, and pronounce him unclean. And if there is a white spot on the skin of his flesh, and the appearance is not deeper than the skin, and the hair has not turned white, then the priest shall confine the affected person seven days. And the priest shall examine him on the seventh day; and if the affliction did not increase in size and had not spread in the skin, then the priest shall confine him for a second seven days more. And the priest shall examine him again on the seventh day; and if the affliction has faded, and not spread in the skin, then the priest shall pronounce him clean: it is a discoloration in the skin; and he shall immerse his clothes, and be clean. But if the discoloration spread in the skin ... he shall show himself to the priest again. And the priest shall look, and if the discoloration spread in the skin, then the priest shall pronounce him unclean: it is tzara'at" (Lev. 13:2-8).

This mishnah teaches that the priest does not declare the metzora unclean until he is certain that the affliction has spread, and the priest does not confine metzora until he is certain that the affliction "did not increase in size," and the priest does not pronounce the metzora clean until he is certain that the spreading is over. If, however, he is in doubt, he judges the affected person on the ground of his presumptive condition.

(2) Regarding the zav, the Torah states, "When a man has a discharge out of his flesh, his discharge renders him unclean" (Lev. 15:2). The law is that he who has a flux for the first time is considered to have experienced a ken, about which it is written, "When a man has a seminal discharge, then he shall immerse all his body in water, and be unclean until the evening" (ibid., v.16); a second flux renders him a zav regarding uncleanness, i.e., he renders unclean the bed upon which he lies and everything upon which he sits, and he must count seven clean days and immerse in running water in order to be clean. A third flux without a day's separation between one experience and the other, renders him a confirmed zav; thus after he counts seven days for his cleansing, he must immerse himself and after the sun sets on him, he brings his sacrifices on the eighth day: two turtledoves or two young pigeons, one for a hatat and one for an olah. As long as he has not brought his sacrifices, he must not enter the Temple and may not eat sacrificial meat.

The Sages derived from the words, "When any man has a discharge out of his flesh" - out of his flesh, and not because of something else; thus if he experienced a second issue because of a circumstance beyond his control, (see anon in our mishnah), and not because of an illness of flesh, he is considered merely having experienced keri. This mishnah teaches that they examine the zav, to determine whether the issue is the result of an unavoidable circumstance or as a result of illness, only after the second sighting, see our mishnah; but after two discharges, they do not examine the third discharge, which renders him a confirmed zav, "seeing that there is a basis for the matter."

(3) If a person strikes his fellow, with a blow that can be mortal, and the person who was struck did not die during the blow, if the Court assesses that he will live, i.e., according to the evaluation of the Court, he will not die as a result of the blow, then the striker pays five things: damage, pain, healing, loss of time, and shame; and even if his illness worsened afterwards and he died, the striker is exempt from the death penalty. If, however, the Court assessed that he will die, the striker is imprisoned, and if the person struck dies, the striker is liable to the penalty for murder; if the beaten person recovers completely, the striker is liable only to payments. This mishnah deals with the case of a beaten person who was assessed to die, but his condition initially improved, and later worsened, and he died.

Any doubt concerning afflictions at the outset - when the afflicted person is still assumed to be clean, is clean - if there is a doubt regarding him, he is assumed to be clean, until he is confirmed to be unclean - as long as the priest has not declared him to be unclean; once he is confirmed to be unclean - after he has already been declared unclean, in doubt it is unclean - he is judged on the basis of his current status.

This is explained in Tractate Negaim: "How so? If two people came before a priest, one has a bright spot the size of a gris, and in the other one as a sela; after a week, in this one as a sela and in the other as a sela, and it is not known in which of them it spread, whether in one person (who had two bright spots, one of which spread, and it is not known which of them spread), or in two people, it is clean.

Rabbi Akiva says, In one person, it is unclean (in any case, for one bright spot undoubtedly spread), and in two people, it is clean"; this is the meaning in our mishnah, that in a doubtful case of affliction, he is considered clean before he is confirmed to be unclean. "When he is confirmed to be unclean - in a doubt it is unclean. How so? If two people came before a priest, in this one there is a bright spot the size of a gris, and in the other as a sela; after a week, in one as a sela and more, and in the other as a sela and more - both of them are unclean (the affliction having spread in each of them); even though both shrank to the size of a sela (it follows that the spreading ceased from the afflicted area which initially was as a sela), both of them are unclean (out of doubt), until they shrink to the size of a gris (and the spreading will cease in both of them)" (Neg. 5:4-5). This is the meaning of "When he is confirmed to be unclean - in doubt it is unclean."

In seven ways they examine the zav before he is confirmed as a zav - i.e., at the second sighting, they examine him in seven things, whether he saw the discharge due to them, for one who sees a discharge due to a circumstance beyond his control is clean, (see introduction to this mishnah): concerning food, drink - if he ate or drank food which induces a discharge, or if he ate or drank excessively, a load - if he carried a heavy load, jumping - if he jumped from one place to another, illness - if he was ill, sight- if he saw a woman, and thought - if he had thought about women; if one of these seven things had occurred to him before the second experience, this is not considered sighting flux, and he is clean.

However, - once his zivah is confirmed - he has had two experiences of flux, and was rendered unclean as a zav, and then experienced a third sighting, they do not examine him - regarding the above-mentioned seven ways, but he is rendered a confirmed zav, (see introduction to this mishnah), for a third sighting even due to a circumstance beyond his control - if he saw a third time, even as a result of one of the things listed above, his doubt concerning his flux, whether the third experience constituted an involuntary seminal discharge or a flux, and his seminal discharge - regarding uncleanness by carrying; others interpret, "doubt and his seminal discharge" - his doubt concerning his seminal discharge (Bartenura; see also Tosefot Yom Tov), are unclean - with the uncleanness of a zav, since there is a basis for the matter - since he has already seen two sightings and has become a zav, there are reasons to conclude that any third sighting, is that of certain flux.

If a person strikes his fellow and they considered him likely to die - the Court assessed that the beaten person would die as a result of the blow, and his state improved - to the extent that they now assessed that he would survive, and - but - subsequently - his health worsened and he died - he - the striker, is liable - according to the law, "He that smites a man that he die, shall be surely put to death" (Ex. 21:12). Rabbi Nehemiah says, He is exempt, for there is a basis for the matter - that his death was not due to the blow, for his condition improved. Other commentators state that the phrase "for there is evidence" refers to the words of the First Tanna: "He is liable," because "there is evidence" that he died as a result of the blow, since they had initially assessed that he would die (Rambam; see Tosefot Yom Tov).

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