Tum'at Met - Chapter 8

It was known that a person had been buried in a field, but the location of the grave was unknown. Such a field is similar to a field in which a grave has been plowed over (a beit hap‘ras; see Chapter 2, Halachah 16). Indeed, when referring to this situation in his Commentary to the Mishnah (Ohalot 18:3), the Rambam states: “This is a second beit hap’ras.”

Like a beit hap’ras, the impurity imparted is only of Rabbinic origin.

Which imparts impurity when touched or carried.

This applies even in the summer months when many people walk in the fields and they are considered as the public domain. Although generally, whenever there is a question about impurity in the public domain, we rule leniently, in this instance, we rule stringently, because it was an established fact that there was a grave there (see the Rambam’s Commentary to the Mishnah (op. cit.).

In his Commentary to the Mishnah (Ohalot 17:5), the Tosafot Yom Tov asks: Why is this case different from a situation described in Ohalot 7:1 (note a parallel situation mentioned in Chapter 7, Halachah 4)? There the mishnah states that if there is a portion of a corpse in a wall, no matter how many stories of a house are built above it, they are all impure. Why then is the impurity limited to the first house in this instance? The Tosafot Yom Tov explains that there is a difference between the wall itself being impure (as in Ohalot 1:7) and it merely covering impurity (as in the present instance).

See Chapter 12, Halachah 1, and Chapter 16, Halachah 3. As will be explained there, since the loft does not project beyond the boundaries of the house, the impurity is contained within the house and does not spread beyond its limits. See also Chapter 25, Halachah 3.

But rather the loft projects beyond the perimeters of the house.

Causing it to be considered as an ohel.

It is common to bury a corpse deep in the ground. Hence, it is unlikely the roots of plants growing from seeds will penetrate that deeply.

One may, however, plant trees that do not produce food (Ohalot 18:3).

In his gloss to this halachah, the Ra’avad explains that the reason for this prohibition is that people are likely to build dwellings near fruit trees, but will not necessarily do so near trees that do not produce fruit. See also the Ra’avad’s gloss (here and in Chapter 10, Halachah 10), where he refers to the above mishnah which states that trees growing in such a field may not be maintained. The Rambam’s Commentary to the Mishnah (Ohalot, loc. cit., 18) states that the prohibition “is because of impurity.” That interpretation is also reflected by the Kessef Mishneh who explains that the rationale is that the fruit will become impure.
It appears that the intent is not that it will become impure as food, for it does not become impure until it is uprooted from its source and exposed to liquid. Instead, the intent appears to be, as explained by other commentaries, that the prohibition stems from the prohibition against benefiting from a corpse (see Hilchot Evel, ch. 14). Since the roots reach the corpse, it will serve as nurture for the tree and thus cause it to be forbidden.
As evident from a comparison to Chapter 10, Halachah 8, the laws governing such a field are directly opposite to those governing a field in which a grave was plowed.

As mentioned in Chapter 2, Halachah 3, an entire limb that is separated from a living person imparts impurity like a corpse.

And thus the original prohibition could apply to it.

Our addition is made on the basis of Rashi’s gloss to Ketubot 20b.

In his Commentary to the Mishnah (Ohalot 18:4), the Rambam describes such a place as “far from the cemetery and close to the city.” There is not necessarily a contradiction between the sources. The intent could be an open place on the way to the cemetery.

In the above source, the Rambam writes that such a field is also used to eulogize the departed. He also calls such a field “a third beit hapras.” However, unlike an ordinary beit hapras, a person who enters such a field is not ritually impure, for it has not been established that there is impurity there.

Generally, it is forbidden to disinter a corpse even with the intent of reburying it (Hilchot Evel 14:15). Nevertheless, in this instance, an exception is made. Since it was not known that there was a grave in this place, it can be assumed that the corpse was buried without the knowledge of the owner of the field. This is forbidden. Hence, it does not acquire its place and it is permitted to disinter it (Rashi, Sanhedrin 47b; Siftei Cohen 364:8). We do not assume that it was a meit mitzvah, a corpse that was discovered lying in the open field (Hilchot Evel 3:8), which may be buried anywhere (Halachah 7), for then the grave would have been likely to have been marked.

This reflects the version of Sanhedrin 47b and the Tosefta (Ohalot 16:5) possessed by the Rambam which follows the Jerusalem Talmud’s treatment of the subject (Nazir 9:3). Rashi and others had a different version of these texts which reverses the rulings entirely, maintaining that the area around a grave that is discovered is pure and that around a grave that is known is impure. The Shulchan Aruch (Yoreh De’ah 364:2) quotes both perspectives, but considers the Rambam’s as a minority view. See also the gloss of the Ra’avad who apparently had a third version of these sources.

The Kessef Mishneh explains that the intent is not that the earth becomes actually forbidden. This never applies. Instead, the intent is that one must treat the place with reverence and not conduct oneself frivolously there, pasture one’s animals there, or the like, as applies with regard to a cemetery (see Hilchot Evel 14:13).

Lest there be other corpses buried there. This obligation applies only when three corpses were found. This warrants an investigation to see whether there had been a cemetery in that place. If only one or two corpses are found, an investigation is not necessary (Kessef Mishneh, based on Chapter 9, Halachah 3).

See Chapter 9, loc. cit.

For one can assume that it was buried with the consent of the owner and thus “acquires” its place forever.

For it can be assumed that there are no other graves there.

I.e., it is located in· a place where people frequently walk and thus causes them to contract ritual impurity (Rashi, loc. cit.).

According to the Rambam, not only is permission granted to move the corpse, it is desirable to do so. The Shulchan Aruch (Yoreh De’ah 364:5), however, states merely that it is permitted to move it. The corpse may be moved even if it was buried there with the knowledge of the owner of the place [Kessef Mishneh; Shulchan Aruch (loc. cit.)].

Here also there is a difference of opinion based on the versions of the sources cited in the notes to the previous halachah. In this instance, the Shulchan Aruch (loc. cit.) rules that the place is pure and does not mention the Rambam’s view.
The Kessef Mishneh states that, here also, the ruling that the place is impure applies only in an instance when three corpses are found there and there is the possibility that the place was a cemetery. Kin’at Eliyahu explains that this is likely. Otherwise, of what advantage would there be to moving the corpse?

The Shulchan Aruch (loc. cit.) also rules in this manner. The Kessef Mishneh explains that the prohibition against benefiting from the grave could be referring to an instance where a structure was built above the grave. Even if the corpse was removed, it is forbidden to benefit from the structure (see Siftei Cohen 364:12; Turei Zahav 364:4).

Literally, “a corpse [that it is] a mitzvah [to bury].” See Hilchot Evel 3:8 which states: “What is meant by a meit mitzvah? A Jewish corpse cast away on the road without anyone to bury it.” See also Hilchot Melachim 6:12.

The 2000 cubit area measured from the outer boundary of the city on all sides (Hilchot Shabbat 27:1). Our translation is based on the commentary of the Meiri to Bava Kama 81b. Others explain it as referring to 2000 cubits from the cemetery.

Which is very valuable.

See Hilchot Nizkei Mammon 5:3 which includes as one of ten conditions under which Joshua apportioned the ancestral heritages in the land of Israel that “a meit mitzvah acquires its place and should be buried in the place where it is found.”
The Shulchan Aruch (Yoreh De’ah 364:3) emphasizes that for this law to apply, the head of the corpse and the majority of its body must be found. The Siftei Cohen 364:10 states that for several reasons, this law is not practiced today and, instead, a corpse that is discovered should be brought to a cemetery. Kin’at Eliyahu adds that with today’s breakthroughs in transportation and communication, the ruling of the Siftei Cohen should certainly be followed.

Our translation is based on Rashi’s commentary to Bava Kama 81b.

To a place where it will not cause difficulty to passersby. He will thus be moving the corpse into a person’s private property.

The principle governing this and the following clauses is that the damage should be restricted as much as possible. In this case, since no effort had been invested to till that field, it was preferable to bury the corpse in it than in a field in which effort had been invested.

Since crops have already been sown, the loss will be greater if the corpse will be buried there.

For a vineyard is more valuable than a field.

Trees grow high with much foliage. If a corpse is buried under them, the branches and the leaves will be considered a shelter and render anyone who stands under them as impure. Vines, by contrast, are low-hanging and will not create as great a problem in this regard.
In his Kessef Mishneh, Rav Yosef Caro notes that there is a difference of opinion regarding this point depending on one’s understanding of Avel Rabati 4:32 and in his Shulchan Aruch (loc. cit.), he rules that the corpse should be buried in the orchard.

I.e., a person or utensils that passed over the place previously are also impure. Since we do not know when the corpse was placed there, we assume it was there previously and anyone who walked over it became impure. The fact that one was not conscious of his contracting impurity is of no consequence.

For we assume that the corpse was buried recently. The Ra’avad objects to the Rambam’s statements [basing himself on a Tosefta (Taharot 4:6)], which states that if the carcass of a lizard is found in a street, it imparts impurity retroactively from the time in which the street was cleaned. Similarly, in this instance, although the grave should not impart impurity beyond the time at which the person said there was no grave there, why should it not impart impurity from shortly after that time?
The Kessef Mishneh justifies the Rambam’s ruling, stating that there is a difference between the carcass of a lizard, that will not necessarily be noticed, and the burial of a corpse, which is likely to be public knowledge.

By causing the people or the implements or foods they are carrying to become impure.

The intermediate days of Pesach and Sukkot.

Although an olive-sized portion conveys ritual impurity, in this instance, since the flesh will decompose in the grave, we assume that the size of the portion will be reduced and thus be less than the minimum measure.

I.e., by causing them to become impure. Were the designation to be exact, it is possible it would not be noticed by a person until he stepped on it and that would cause the articles he was carrying to become impure (see Rashi, Mo'ed Kattan 5b).

When a person sees such a designation, he shuns the place and thus the useful area of Eretz Yisrael will be reduced (ibid.).

See Halachah 1.

Our definition of these terms is taken from Chapter 13, Halachah 2. It is feared that a corpse was buried under these objects.

I.e., whether a grave was lost in it or a grave was plowed in it. The point of this halachah is that, as seen from a comparison between halachah 3 of this chapter and Chapter 10, Halachah 8, there are various differences between these two types of fields, and thus it is necessary to be able to clarify this point.

As stated in Halachah 3. Tosafot, Mo’ed Kattan, loc. cit., emphasizes that this principle applies in a place where it would be fitting for trees to be planted.

See Chapter 10, Halachot 8 and 10.

This follows the Rambam’s version of Mo’ed Kattan 7a. (Tosafot also follows that version.) Rashi and the Ra’avad follow a slightly different version of the text that leads to different rulings.

In that era, it was common to place shards in between the stones of a building.

As stated in Halachah 9. Hence, it can be assumed that one would not designate an area unless there was a reason for doubt. The boundary lines are pure, because as stated there, a slight extension should be made.