THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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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?
2) HALACHAH: FORENSIC EVIDENCE AND DOUBTS CONCERNING THE TIME OF DEATH
(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).
HALACHAH: The SHULCHAN ARUCH (EH 17:27) cites both opinions.
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).