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Yevamos, 120


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.


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