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

OPINIONS: The Gemara relates an incident in which a person sold the property from 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 was 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 was not permitted to examine him, because such an examination would be a disgrace to the dead person. Besides, he added, signs of maturity sometimes change even after a 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 relatives are forbidden "to open a grave to examine their dead relative for mere monetary reasons." This implies that only the actual opening of the grave is forbidden, but examining the body before burial is permitted.

The CHACHAM TZVI (Teshuvos 47, 50) introduces his discussion of the issue by giving another reason, in the name of the AVODAS HA'GERSHUNI and RAV DAVID OPPENHEIM zt'l, for the prohibition against opening a grave. When the grave of a deceased person is opened, the dead person becomes terribly frightened that his day of final judgment has arrived. This is the fear that Shmuel experienced when Shaul ha'Melech had a sorceress bring him up from the grave in order to ask his advice regarding the war with the Plishtim. When he was raised 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 if a person merely opens a grave, there is no problem of disgracing the deceased or of frightening him. A deceased person is disgraced only by an examination for signs of adulthood, or if his body is handled in any other way after burial.

The CHACHAM TZVI himself says that a deceased person does not become frightened if his grave is merely opened. However, a person who opens a grave and sees the decomposed corpse transgresses the prohibition against disgracing the dead, as there is no greater disgrace to a dead person than having his decomposed body exposed. 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 here). The prohibition against frightening a deceased person (without disgracing him) applies when he is disinterred even if no one looks at him. (Of course, if a dead person is exhumed for his own benefit, such as to restore his Kever or to bring his body to a more respectable burial place, it is permitted).

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

2) SIGNS OF ADULTHOOD

QUESTION: The Gemara relates an incident in which a person sold the property from 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 was 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 was not permitted to examine him, because such an examination would be a disgrace to the dead person. Besides, he added, signs of maturity sometimes change even after a person has died.

The Gemara records two versions of the incident. In the first version, the property was in the purchasers' possession and the relatives wanted to reclaim it from them by proving that the seller was a minor at the time of the sale. In the second version, the property was still in the family's possession, and the purchasers wanted to claim the property by proving that the seller was an adult at the time of the sale.

TOSFOS asks, according to the second version (that the purchasers wanted to prove that the seller was an adult), why did Rebbi Akiva tell them that it would be of no help to examine the body because the signs of adulthood tend to change after a person's death? According to this version of the incident, the obvious intention of Rebbi Akiva's statement is that even if they were to examine the body and find Simanim (signs of adulthood), those Simanim could not be used as proof of the seller's adulthood because Simanim tend to change after death. If, however, the seller indeed was a minor, then how would it have been possible for him to acquire Simanim after his death? According to the first version of the incident -- that the relatives wanted to prove that the seller was a minor -- it is possible that the seller indeed was an adult and lost the signs of maturity after he died (i.e. the hairs fell out), which would cause him to look like a minor when in fact he was an adult. According to the second version, however, it seems that Rebbi Akiva maintained that a person could acquire signs of maturity after his death. How is this possible?

ANSWERS:

(a) RABEINU TAM answers that the seller may have been a minor and had white hairs, which are not a sign of adulthood. Such hairs tend to change color and to appear black after death, which would give the impression that the person was an adult.

Tosfos, however, rejects this explanation, because there is no source for a distinction between black and white hairs with regard to the signs of physical maturity.

The RAMBAN also questions Rabeinu Tam's explanation but suggests a possible source for it. Rebbi Yehudah in Nidah (52a, and as quoted later on 156a) says that hairs are a sign of maturity only "when there is more black than white." Tosfos in Kesuvos (36) quotes Rabeinu Tam who explains that the hair near the flesh must be black, while the end of the hair may be white, meaning that a majority of the hair must be black. Thus, Rabeinu Tam understands Rebbi Yehudah's statement to mean that a hair is not a sign of maturity unless it is black.

The MISHNEH L'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 Rebbi Akiva's ruling in accordance with Rebbi Yehudah's position? Moreover, Rebbi Akiva explicitly rejects Rebbi Yehudah's opinion in Nidah there. Second, Rebbi Yehudah distinguishes between black and white hairs only with regard to the laws of Mi'un, but not with regard to the laws of adulthood. Finally, none of the Poskim quote this opinion of Rabeinu Tam; they mention no distinction between black and white hairs with regard to the physical maturity of a person.

The Mishneh l'Melech cites the MAHARSH LEVI who answers that the Poskim do not quote Rabeinu Tam's opinion because Rabeinu Tam made his statement only according to the Gemara's initial assumption, when Rebbi Yochanan thought that the purchasers wanted to examine the seller to prove that he was an adult. The Gemara concludes, however, that it was the relatives who wanted to examine the seller to prove that he was a minor. According to the Gemara's conclusion, Rebbi Akiva's statement -- that Simanim may change after a person's death -- can be interpreted simply to mean that the hairs that indicate physical maturity may fall out after death. There is no indication that the Simanim may change to indicate that a person was an adult when he was really a minor, and thus there is no reason, according to the Gemara's conclusion, to distinguish between black and white hairs.

To answer the other questions, the Maharash Levi says that Rebbi Yochanan initially thought that Rebbi Akiva agreed in part with Rebbi Yehudah and maintained that a hair must be at least a little black near the flesh in order for it to be a sign of physical maturity. Rebbi Yochanan eventually rejected this understanding of the view of Rebbi Akiva (and understood 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") developed where the hair was supposed to grow, this, too, is a sign of adulthood. There is a Chazakah that people do not have follicles without hair, and therefore the person must have had hair which fell out. The Ri says that even if a person had no such follicles or cavities while he was alive, the 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 a person's hair does not change after his death. This implies that Rashi understands 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 a person's hair continues to grow even after he dies. The Gemara in Nidah (ibid.) states that in order for hairs to be a sign of maturity, they must be long enough for a person to bend them over and touch their tips to their roots. Accordingly, there is a concern that when the minor died, his hairs might not have been long enough to be a sign of maturity, and after he died the hairs grew to the requisite length.

(This explanation does not seem consistent with Rashi in Erchin, as mentioned above, who says that a person's hairs do not change after death.) (Y. MONTROSE)

3) HALACHAH: MUST A LITIGANT VERIFY A "SHTAR" IF THE OTHER PARTY ADMITS THAT HE WROTE IT?

OPINIONS: The Gemara relates a teaching of Bar Kapara. Bar Kapara discusses a case in which a person contests the ownership of a field that someone else has been living on and working, and the present owner of the field shows his deed of ownership to Beis Din in an attempt to prove that he bought the field from the claimant (or received it as a gift from him). Bar Kapara rules that if the claimant says that the Shtar is forged, then the present owner must be Mekayem the Shtar (by verifying the signatures of the witnesses therein), and he then may keep the field. If the claimant admits that he wrote the Shtar but claims 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 rules that if the claimant can bring witnesses to back up his claim he is believed. If he has no witnesses, Beis Din accepts the Shtar and allows the present owner to keep the field.

This ruling implies that there is no need for the defendant to verify a Shtar when the claimant admits that he wrote it but disputes its validity for another reason -- "Modeh bi'Shtar she'Kesavo Ein Tzarich l'Kaimo." The Shtar is presumed to be a valid Shtar because the claimant admits that he wrote it, and his claim that the Shtar is invalid is not accepted without witnesses. The Gemara cites opposing views which maintain that the defendant is still required to verify the Shtar -- "Modeh bi'Shtar she'Kesavo Tzarich l'Kaimo," since the claimant is believed to invalidate the Shtar with a "Migu" that he could have claimed that it was forged.

What is the Halachah?

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

(b) The RIF, RAMBAM, and others say that the defendant must verify the Shtar -- "Modeh bi'Shtar she'Kesavo Tzarich l'Kaimo." It follows from this ruling that they also 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 he gave the gift, and the recipient claims that he was healthy and not a Shechiv Mera, the benefactor is believed until the recipient proves otherwise. In that case, too, the benefactor admits that he wrote the Shtar but claims 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 the recipient therefore must be Mekayem the Shtar ("Tzarich l'Kaimo") in order to receive the gift.

The SHULCHAN ARUCH (CM 140:3, 251:2) follows this opinion. (Y. MONTROSE)