Siman 349

The Rambam wrote at the end of the Laws of Mourning: The deceased – it is prohibited to derive benefit from all of it, except for its hair which is permitted for benefit, because it is not its body, etc. Thus far his words. And they raised a difficulty against him, for it is explicitly explained at the end of the first chapter of Arachin that the hair of the deceased is prohibited for benefit. And even a wig that is attached to her body – it is prohibited for benefit (Kesef Mishneh). And in truth, it is not a difficulty at all. For it is true that Rav holds so there, but afterward Rav Nachman bar Yitzchak disagrees and said: This one – its death prohibits it, and that one – its final verdict prohibits it. And Rashi explained: Actually it refers to her actual hair, and as for that which is difficult to you that they are prohibited for benefit? It is not a difficulty, for the hair of the deceased is not prohibited for benefit. For it is not similar to the hair of an animal that was killed, for a woman's death prohibits her, and hair is not subject to death, as it is not prone to change. But an animal – its final verdict prohibits it, etc. Thus far his words. And the Rambam ruled like Rav Nachman bar Yitzchak, for he is later (and so it appears from the words of the Lechem Mishneh, see there). And the Tur and the Shulchan Aruch ruled that it is prohibited for benefit, as will be explained, for they ruled like Rav. And in my humble opinion – the opinion of the Rambam is correct, for Rav Nachman bar Yitzchak is among the later ones after Abaye and Rava, and we establish that the halacha is like the later ones. (See Tosafot Bava Kamma 10a, who ruled like the Rambam.)

And behold, from the words of the Rambam, the Tur, and the Shulchan Aruch, who did not write that his skin is permitted for benefit, it is evident that they hold that even the skin of a human is forbidden for benefit. But it does not appear so in Chullin (Chullin 122a): Ulla said: By Torah law – human skin is pure. And for what reason did they say it is impure? A decree lest a person make the skins of his father and mother into mats to sit upon. See there. And if it should enter your mind that they are forbidden for benefit, how could he make mats? And why did they need to decree impurity? And indeed, our teachers, the authors of the Tosafot in Zevachim (Zevachim 71b, end of the heading beginning "And in a treifah") wrote that human skin is permitted for benefit, see there. And so too in Niddah (Niddah 55a, heading beginning "Lest") they wrote so. And they brought a proof for this, for the prohibition of benefit from a corpse we learn from the eglah arufah, and eglah arufah we learn from kodashim, and in kodashim itself the skin is permitted for benefit, see there. But the Tosafot in Chullin ibid. and in Sanhedrin (Sanhedrin 48a, heading beginning "The accessories") wrote in the name of Rabbeinu Tam that the skin of the deceased is forbidden for benefit, and that which they required to decree impurity was because impurity is more serious to people than a prohibition. And this is also the opinion of the Rambam. And it must be said that from kodashim there is no proof, for even bones that are not fit for eating are permitted in kodashim for benefit, and nevertheless in a corpse it is forbidden. And thus we hold, since the Rambam, the Tur, and the Shulchan Aruch ruled for a prohibition. And in Tosafot there are two opinions, we hold for a prohibition.

And know that the Rambam did not distinguish regarding the prohibition of benefiting from a corpse between an Israelite corpse and an Egyptian. The Tur also did not mention this at all. Our teacher, the Beit Yosef, wrote in section 1 (Shulchan Aruch Yoreh Deah 349:1): A corpse, whether Egyptian or Israelite, and its shrouds—are forbidden for benefit, etc. See there. And so it is in the Responsa of the Rashba (365), and he rejected the one who wished to distinguish between an Israelite and an Egyptian, see there. However, the Tosafot in Bava Kamma (Bava Kamma 10a, at the end of the comments beginning "She-hashor") wrote, and this is their wording: For it was necessary for a slave and an Egyptian owned by an Israelite who fell into a pit, for that one is permitted for benefit. Thus far their words. And it is possible to say regarding their reasoning that since the prohibition of benefit from a corpse is derived from Miriam, from where do we have a source to include an Egyptian? But conversely it is difficult, for from what logic is there to distinguish between this one and that one? Therefore, it is possible that the intent of the Tosafot is also only when he was owned by him, for he is his property, and therefore it is impossible to cause his property to be lost, but not regarding other Egyptians. Nevertheless, there is no correct reasoning in this, for if it is forbidden for benefit, what does it help that he is owned by him? And it is explicitly explained so in the Yerushalmi Shabbat (Chapter 10, Halacha 6) that an Egyptian corpse is permitted for benefit, see there. And there is also a proof from David who betrothed with the foreskins of the Philistines (the Gra). And from the Rambam and the Tur there is no proof, for they are dealing with an Israelite corpse. And the words of our teacher, the Beit Yosef, require further study. (See Mishneh LaMelech at the end of the Laws of Mourning (Rambam Laws of Mourning) who elaborated on this with doubts this way and that way, and afterwards decided from the Yerushalmi for permissibility. And so the Gra ruled.)

And similarly, the shrouds of a corpse are forbidden for benefit. And specifically when one designated them for its purpose and placed them upon it. But if one designated them and did not place them upon it—they are permitted, for designation is not a substantial matter. And similarly, if one placed them but did not designate them beforehand—they are not yet forbidden. And designation is not effective even if one designated them after its death, for also regarding all matters of holiness we maintain "designation is not a substantial matter." Therefore, an elder who prepared shrouds for himself—he may retract and use them for whatever he desires. And know that that which is forbidden for benefit—is forbidden even not in the manner of its benefit (the Gaon Rabbi Akiva Eiger). And also a change is not effective, for only regarding the matter of theft is a change effective, and not for a prohibition of benefit (Be'er Heitev in the name of a responsum of the Bach).

The Tur and the Shulchan Aruch wrote: The adornments of the deceased that are attached to his body, such as a sheitel and the like—are forbidden like the deceased himself. In what case are these words said? In an unspecified case. But if he commanded that they give the adornments of his body that are attached to it to his son or for the sake of another matter—it is permitted for benefit. However, his actual hair, even if he commanded regarding it—is forbidden for benefit like his body. Thus far their words. And they disagree with the Rambam, as I have written. Our teacher, the Rema, wrote that this is specifically when they are tied to the hair of his body. But if they are not tied—it is permitted. Therefore, it is permitted to take rings that are on the hands of the deceased and the like. Thus far his words. And he inferred this from Rashi at the end of the first chapter of Arachin, who wrote that the sheitel is tied to her hair. And it appears to me that his intention is not only "tied," for the same law applies to those braided into her hair. He only came to exclude the term "attached," which implies a mere attachment like rings on the hands—for this he wrote that they must be tied. But the same law applies even if they are braided. (And with this, that which the Bach questioned is settled; see there.) And when he commanded—even if they are tied they are permitted, since he does not wish to nullify them to his body. The Rambam omitted all of this, for he follows his reasoning that even her hair is permitted, and all the more so these. And he holds that the sugya there follows the one who forbids her hair, but according to the one who permits—it is obvious that these are permitted.

And even according to the Tur and the Shulchan Aruch that the hair of a corpse is forbidden, nevertheless, if her verdict was finalized for death during the time of the Temple, and she went out to be executed—it is permitted to benefit from her hair while she is alive. For regarding a person, the finalization of the verdict does not forbid him, and therefore as long as he is alive—it is permitted to benefit from his hair. But an animal whose verdict was finalized to be stoned—it is forbidden to benefit from it while it is alive, for regarding an animal, the finalization of its verdict forbids it.

And that which has been explained, that the shrouds of the deceased are forbidden when one designated them for the deceased and dressed him, even if he did not actually dress him but they touched his bier upon which they carry him for burial—they are forbidden. And the rabbis decreed this matter because they might be confused with the shrouds of the deceased, and they would come to say that even shrouds in which they dressed him are permitted for benefit. Therefore, if they see that his father or mother, out of their grief, are throwing extra vessels upon the deceased to be buried with him—it is a mitzvah for others to save them before they touch the bier, for afterward their saving will not avail if they designated them for this. And even though they designated them due to bitterness of heart, and this is not a designation, nevertheless, since they touched the bier that is buried—they will come to confuse them with his shrouds. (See Rashi, Sanhedrin 48b, s.v. "bamitah," and examine carefully and you will find it easy.) And it is a mitzvah for others to save them, for it is literally the returning of a lost object, as they will afterward regret it themselves. And when he has saved them—he is obligated in their safeguarding as with all lost objects. And if he returned them by hand to his father and mother, and they threw them again and they became forbidden—the one who returned them is obligated to pay, for it is like one who threw them to a place of troops of wild beasts and bandits, which is like one who destroys by hand. And it is simple that specifically their own property can they forbid, but not that of others. And likewise, specifically when they threw them with the intent that they be buried with him.

According to what has been explained, specifically vessels that are placed upon the deceased in order to bury him, and which touched the bed – are forbidden. However, when his intention is not to bury them with him – they are not forbidden. Therefore, the pillow that they lay under the deceased, and the sheet that they spread over him, and likewise the board upon which they purified him, and all the vessels that they bring with the deceased to the burial – are not forbidden, for he did not place them on condition to bury them with him. And anyone who increases vessels upon the deceased to bury them with him – behold, he violates the prohibition of "bal tashchit."