Siman 369

The Rambam wrote in the third chapter of Laws of Mourning: Any kohen who becomes defiled by a corpse, except for the six deceased relatives specified in the Torah or his wife, with witnesses and a warning—is lashed, as it is said: "He shall not defile himself for any person among his people." And this applies whether one touches a corpse, or forms a tent over it, or carries it. And it applies both to the corpse itself and to other defilements that emanate from the corpse, as it is said: "He shall not defile himself for any person among his people." Thus far his words. And so we learned in Torat Kohanim at the beginning of Parshat Emor: I have only the corpse itself, from where do we include the blood of a corpse? The verse teaches: "for any person etc." And so it says: "for the blood is the soul." And from where do we include all the defilements that emanate from the corpse? The verse teaches: "and you shall say to them" (so it should be said)—to include the defilements that emanate from the corpse. See there.

From the words of the Rambam it is explained that even in this time one is liable for malkot. However, the Smag in the positive commandments at the end of mitzvah 231 wrote, and this is his wording: I found in the name of our teacher Yaakov (and he is Rabbeinu Tam) that in this time a kohen who contracts tumah in a cemetery—is not lashed. And he brings proof from that which is taught in Semachot: If one buried his dead and another dead person arrived, as long as he is occupied in the cemetery—he may occupy himself with it. If he separated from the grave, and returned and buried—he is lashed. These are the words of Rabbi Akiva. Rabbi Tarfon says: All day he is not lashed, because he does not increase the days of tumah upon himself. And the Bahag rules like Rabbi Tarfon. If so, what "increase of days of tumah" is relevant in this time, since the waters of purification are not practiced? Thus far his words. The explanation of his explanation: That in this time we are all tamei from the tumah of a corpse, and we do not have the ashes of the parah to be purified. And even a kohen, since he became tamei to one of the six relatives for whom he must mourn—behold, he has no purification forever, and he does not add days of tumah. Therefore he is not lashed, but there is a prohibition from the Torah.

He further wrote in law 6 (the Rambam, Laws of Mourning 3) regarding a kohen gadol: He may not contract tumah for relatives, as it is said: "For his father and for his mother he shall not contract tumah." And likewise, he may not enter a tent with the deceased, even for his relatives, as it is said: "And upon any dead souls he shall not come." Thus you have learned that he is liable for "he shall not come" and liable for "he shall not contract tumah." How so? If he touched or carried—he is lashed once. If he entered a tent and remained there until the person died over him, etc.—behold, he is lashed twice on account of "he shall not come" and on account of "he shall not contract tumah." Thus far his words. Because both of them occurred simultaneously. And he already explained previously in law 3 (the Rambam, Laws of Mourning 3) that even a kohen hedyot, if he enters a tent of tumat met—behold, he is lashed, see there. And that which he wrote that he is lashed twice in such a case when they occurred simultaneously, the same law applies to a kohen hedyot, even though the verses of "he shall not come" and "he shall not contract tumah" are written regarding a kohen gadol. As it is taught in Torat Kohanim there: It is stated "he shall not contract tumah" regarding a kohen gadol, and it is stated "he shall not contract tumah" regarding a kohen hedyot. Just as "he shall not contract tumah" stated regarding a kohen gadol—he is liable for "he shall not come" and for "he shall not contract tumah," so too "he shall not contract tumah" stated regarding a kohen hedyot—he is liable for "he shall not come" and for "he shall not contract tumah." Thus far his words. And only because the Rambam in the enumeration of the mitzvot counted this regarding a kohen gadol, and explained his reason in Sefer HaMitzvot, negative commandment 168, see there—therefore he mentioned this regarding a kohen gadol. But the same law applies to a kohen hedyot. And the explanation of the matters will be explained in section 8.

He further wrote in law 2 (the Rambam, Laws of Mourning 3): And so too, if a kohen touched a grave – he is lashed. But he may touch garments that touched a corpse, even though he becomes impure through them with a seven-day impurity. Thus far his words. And he follows his reasoning in the fifth chapter of Laws of Corpse Impurity (the Rambam, Laws of Corpse Impurity 5), for that which our sages, of blessed memory, said, "a sword is like the slain" – this applies to all vessels and to all garments. But the opinion of the Ra'avad there is not so, and he holds that only with metal vessels is it so. And such is the opinion of Rabbeinu Tam in Tosafot, and to this the Rash and the Rosh at the beginning of Ohalot agreed, for they cited there that one of the authors of Tosafot wrote like the Rambam and they rejected his words. See there, for they cited from the Yerushalmi of the first chapter of Pesachim, regarding that of Rabbi Hanina the Deputy High Priest, where it is explicit there like Rabbeinu Tam, see there. Nevertheless, a kohen is permitted to touch them because in Semachot (chapter four) it is taught: Any impurity for which a nazir does not shave – a kohen is not warned against it, see there. And in the Tosefta at the beginning of Ohalot it is explained that a nazir only shaves for corpse impurity alone, and so too regarding entry to the Temple, see there. And so wrote the Tosafot in Nazir (Nazir 54b, s.v. Ta Shema). Therefore the Rambam wrote: "But he may touch etc."

He further wrote in law 4: A kohen who entered a tent of a corpse or a cemetery inadvertently, and after he became aware they warned him, if he jumped and exited – he is exempt. But if he remained there for the duration of a prostration – behold, he is lashed. Thus far his words. And he wrote similarly regarding a nazir in the laws of nezirut chapter five, see there. And even though it is a negative commandment that does not involve an action, and indeed the Tosafot in Shevuot wrote that one is not lashed for this reason, see there, however the Rambam does not hold accordingly. And he similarly ruled regarding kilayim at the end of the laws of kilayim that one is lashed for remaining, because since it was in his power to separate himself from the prohibition and he did not separate – it is like an action. And so wrote the Ritva. (Ibid. in the Kesef Mishneh. And therefore, what the Beit Yosef wrote in siman 371 regarding the words of the Kol Bo, that his intention was on a rabbinic level – requires further study. And the Lechem Mishneh already took issue with this, see there.)

He further wrote: If he entered and exited, and returned and entered and exited, if they warned him for each and every time—he is lashed for each and every entry. And similarly, if he touched a corpse, and they warned him and he separated, and he returned and touched it and they warned him even a hundred times—he is lashed for each and every one. If he was touching and did not separate, or if he was standing in a cemetery and touching other corpses, even though they warned him several times—he is lashed only once, for behold, he remains profaned as long as he has not separated. Thus far his words. And it is simple.

He further wrote: One who renders a kohen impure, if both were intentional—the kohen is lashed, and this one who rendered him impure violates "do not place a stumbling block before the blind." And if the kohen was unintentional, and this one who rendered him impure was intentional—behold, this one who rendered him impure is lashed. Thus far his words. And so he wrote at the end of shaatnez (the Rambam, Laws of Shaatnez) that one who dresses his fellow in shaatnez, if the wearer was unintentional—the one who dresses him is lashed, see there. But in the fifth chapter of Nazirite Laws (the Rambam, Laws of Nazirite Laws 5) he ruled regarding a nazir in such a case that he is not lashed, see there. And the Rishonim have already wondered at his words, and we do not know his source (Lechem Mishneh). And the truth is that his words are taken from the Tosefta of Makkot, chapter three, see there. And even though it is explicit in the Tosefta there that also regarding nazirite status the law is so, see there, nevertheless he rejected it based on the sugya of the Gemara in Nazir (Nazir 44a), for regarding a nazir the verse revealed that it did not treat the one who renders impure like the one who becomes impure, see there. But regarding other prohibitions that involve an action, when two participated in the transgression, and one was unintentional and one was intentional—the intentional one is liable for lashes, even though the prohibition was upon the body of the second. And we have already explained this above in siman 304, section 3, see there.

It has already been explained in section 3 that a kohen who enters a tent and remains there until the deceased dies is liable for two: on account of "he shall not enter" and on account of "he shall not become impure," since they came as one, see there. For a tent is like contact as well. And if you say: if so, even when he enters the tent of a deceased, why should he not be liable for two? And it can be said that when he inserted the tips of his fingers, it is like contact, and entry does not occur until the entire body enters. Thus it is found that at the time he becomes impure through the tent, he is already profaned from the impurity of contact, and he is exempt from the impurity of the tent. This is not the case when he enters while still alive and remains until the death—both indeed come as one (Keseph Mishneh). And so too if he separated from the impurity of contact and entered the tent of a deceased, he is liable also for the impurity of the tent, as I wrote in section 6. But when he has not separated, the second impurity does not take effect upon him.

The Rambam wrote there in law 7: If he became tamei beforehand and afterward entered a tent, if they warned him, he is lashed even for the entry. Thus far his words. And his intention is as I have written: when he separated from the tumah of contact and entered the tent of the corpse, he is liable for two when they warned him regarding both of them. And according to his words, it is explicitly stated in Nazir. And the Ra'avad critiqued him, and his critique was not clarified. (See Kesef Mishneh who wondered at him. And it appears that the Ra'avad rules like Rabbah there, but even according to Rabbah, he admits regarding tumah and entry; see there. And the Tosafot wrote there in the heading starting "Amar Rabbah" that when he enters the tent of the corpse, he is lashed twice; see there. And certainly their intention is not that the truth is so, but rather this is according to the initial thought, and not according to the conclusion that "he brought his hand in for the sake of tumah etc." but the commentator explained if he became tamei by a corpse and then again became tamei in a tent etc. Thus far his words. That is to say: after he separated from the tumah of contact. Examine closely and you will find it simple.)

The kohanim are not cautioned against the tumah of carcasses or creeping animals, nor against the tumah of a zav, a zavah, or a niddah, and in these matters they are equal to Yisrael. They were cautioned only regarding the tumah of a corpse alone. This is the wording of the Tur (Tur Yoreh Deah 369): "Speak to the kohanim... he shall not become tamei for a soul among his people" – from here we learn that the kohen is cautioned not to become tamei from a corpse, and likewise from all the forms of tumah that separate from it. And not to a golel, which is the stone placed upon the grave as a marker, and not to a dofek, which is when they sometimes support the stone with small stones, and they are called "dofek." For all of these convey tumah, and the kohen is cautioned regarding them. And likewise regarding a limb from a living being that has upon it enough flesh that if it were attached it would be capable of healing. And even a doubt of tumah, such as a tree that overspreads the ground and its branches are separated from one another, and tumah is under one of them and it is not known under which; or stones protruding from a fence, and tumah is under one of them and it is not known under which; or a field in which a grave was plowed and its location is not known, and all the land of the nations – it is forbidden for a kohen to become tamei through them. Thus far his words.

And that which he wrote regarding the "rolling stone" that they place upon the grave as a marker, we have already written in siman 364 that in my humble opinion it appears that this is not our monuments that we stand at the side of the grave, but rather they would place the stone upon the grave itself, see there. And that which he wrote "a limb from a living being that has flesh upon it etc. to heal etc." – the Rambam in the third chapter of Tumat Met (Rambam Laws of Tumat Met 3) did not rule so, but rather even if it does not have enough to heal. But in truth they do not disagree, for the Tur is dealing with matters that transmit tumah in an ohel, and in an ohel it must have enough to heal. And the Rambam is dealing there with tumah of contact, see there. And it is simple that a limb from a living being only transmits tumah when it is severed from the body, and not while it is still attached, even with any attachment whatsoever. And in every place we have learned "a limb that separates from a living being," and according to this, the wording of the Shulchan Aruch who wrote: "and not for a limb from a living being etc. if it were attached" his intention is: if it were attached – it would have enough to heal. And it is simple that a kohen himself, when a limb is severed from him – it is forbidden for him to touch it, and to carry it, and to be with it in one ohel, if it has flesh upon it as is proper. For what difference is it to me if it is his limb or that of others? And likewise, from what he wrote regarding a tree and a fence we have learned that if it is known to him under which branch the tumah is located, or under which stone – he is permitted to stand and to touch the remaining branches and stones when they are separated from one another. And that which he wrote that it is forbidden for a kohen to become tamei in the land of the nations, his intention is: a kohen who is in Eretz Yisrael, in ancient times when Eretz Yisrael was presumed to be in a state of taharah – it was forbidden for a kohen to go out to the land of the nations, because they would bury their dead everywhere. And in this time, this law does not apply. (And the Shevut Yaakov siman 85 forbids even in this time for a kohen to go out from Eretz Yisrael to outside the land, see there.)

A nefel also imparts tumah through contact, through carrying, and through an ohel, even if its limbs have not yet been bound by its sinews. As we learned at the beginning of the second chapter of Ohalot: These impart tumah etc., and in an ohel of the dead, and an olive-bulk from the dead. Our rabbis explained: "The dead" – even if it does not contain an olive-bulk, such as a nefel whose limbs have not been bound by its sinews; see there, for so it is stated in the Gemara (Nazir 49b). Therefore, a woman who miscarried after forty days of her pregnancy – it is forbidden for a kohen to be in that house where the nefel is located. For before forty days it is merely water, but after that it is a doubtful nefel. And all the more so with a definite nefel. And even if the wife of a kohen miscarried – it is forbidden for him to be there, for the kohen does not contract tumah for his relatives when they are nefalim. And one does not mourn for nefalim, and the tumah of a kohen is dependent upon mourning, and it will be explained in siman 374; see there. And according to this, when a son or daughter, or brother or sister, dies for a kohen when they are less than thirty days old – the kohen must leave the house. And explicitly we derive in Torat Kohanim that a kohen does not contract tumah for a nefel, and it will be explained in siman 373.

Our teacher, the Rema, wrote: There are those who say that kohanim are forbidden to contract tumah from a sword that was defiled by a corpse. And there are those who are lenient. And such is the custom to be lenient, and they are not careful regarding this. Thus far his words. For those who forbid hold that a nazir shaves for this, and the kohen is warned against it, and it conveys tumah even in a tent. And those who are lenient are lenient for two reasons: The first: for in the Tosefta of the first chapter of Ohalot it is explained that the nazir does not shave for this, and consequently the kohen is not warned regarding it, as I wrote in section 4. And the second: because we are all defiled by the dead, and we have nothing with which to purify ourselves since we do not have the ashes of the parah, and no additional tumah is added to us, as I wrote in section 2. However, this is effective regarding lashes but not regarding the prohibition, and the primary point is the first permission.