Siman 373

Just as a kohen is warned not to contract tumah from a corpse, so too is he warned regarding minor kohanim not to make them tamei, as it is written: "Speak to the kohanim the sons of Aaron, and you shall say etc." – to warn the adults regarding the minors (Yevamot 114a). And the derivation is because everywhere else it is written "the sons of Aaron the kohanim," and here it is written "the kohanim the sons of Aaron" – to warn the adult kohanim regarding the sons (Bach). And behold, according to the conclusion of the Gemara there that regarding a minor who eats nevelot – the beit din is not commanded to separate him, as I wrote in Orach Chaim siman 343, the Gemara there establishes that the explanation is not to make them tamei with one's hands, see there. And this prohibition applies both to adult kohanim or adult Israelites, that it is forbidden to make a minor kohen tamei with one's hands. But if the minor makes himself tamei – they are not obligated to separate him, except for his father by way of chinuch.

This is the opinion of the Rambam in the third chapter of Laws of Mourning (Rambam Hilkhot Evel 3), who wrote that adults are not warned regarding minors except not to defile them by hand. But if he comes to defile himself on his own—beit din is not commanded to separate him, but rather his father is commanded to train him in holiness. Thus far his words. And the Tur brought his words, and wrote regarding them, and this is his wording: And it seems to me that they must separate him. And so implies the language that they expounded: "Speak... and you shall say"—to warn adults regarding minors. This implies that one must warn them against defiling themselves. Thus far his words. And it is not understood, for this is against the conclusion of the Gemara, see there. And behold, the Nimukei Yosef on the Rif, Hilkhot Tumah, also wrote likewise that tumah is not similar to other mitzvot, and the father is commanded to separate him, see there. And they have already labored over their words to reconcile them (see Beit Yosef Orach Chaim siman 343 and Taz ibid. subsection 1). And it seems to me the reason is: for behold in the Gemara there we learn from "Speak... and you shall say" to warn adults regarding minors, but in Torat Kohanim they expounded: "the sons of Aaron"—to include the minors, see there. And it is not understood upon whom the commandment falls: for surely a commandment is not applicable to a minor, rather certainly the commandment is upon his father. And according to this it fits well: for certainly that exposition of the Gemara "to warn adults regarding minors," which is for everyone, is like the rest of the Torah, not to defile them by hand. But that exposition of Torat Kohanim is upon the father. And that which the Tur wrote from the language "to warn adults etc."—he did not concern himself to clarify, and his main intention is so. For behold explicitly the warning is specifically upon the kohanim, and if the intention is not to defile them by hand, why specifically kohanim, even Israelites as well? Rather certainly it is incumbent upon the kohanim to see that the minors do not defile themselves, and that is each father over his son. And you should know that such is the intention of the Tur, for if not so, what is this inference from the language "to warn etc."? For there in the Gemara it brings this language also regarding blood and creeping things, and nevertheless we conclude that the explanation is not to give to them by hand, so what is inferred regarding tumah more so? Rather certainly as we said. (However, regarding a minor kohen who has reached the age of chinuch—all agree that we prevent him from defiling himself, as our teacher, the Rema, wrote in Orach Chaim there. And therefore the Shach, subsection 1, wrote in the name of the Agudah that when he has reached chinuch—even when he is sleeping it is good to wake him, see there.)

Even a kohen with a blemish who is disqualified from the service of the Mikdash, nevertheless, he is warned not to become tamei like all kohanim. However, a chalal who was born from those disqualified from the priesthood—for example, if his father married a divorcee, a zonah, or a chalalah—is removed from his priesthood and is permitted to become tamei. Similarly, the female kohanot were not warned regarding tumah, and they are permitted to become tamei to a corpse. And thus they expounded in Torat Kohanim: "Speak to the kohanim, the sons of Aaron"—the sons of Aaron do not become tamei to corpses, but the daughters of Aaron do become tamei to corpses. "The sons of Aaron"—could it mean chalalim? The verse teaches: "The kohanim"—this excludes chalalim (meaning: for they have been profaned from their priesthood). And from where do we include those with blemishes? The verse teaches: "The sons of Aaron." Thus far his words. Meaning: for they are the sons of Aaron, and they eat of the holy offerings like complete kohanim. And that which they are disqualified from service due to blemishes—this is not a removal from the priesthood but rather a disqualification of the body, like a tamei kohen or those who have drunk wine. And if he is healed of his blemish, he will be permitted for service. This is not the case for a chalal, who is disqualified forever, both from service and from eating.

And specifically a chalal according to Torah law, who was born from a divorcee, a zonah, or a chalalah. However, a chalal according to rabbinic law, such as one born from a chalutzah—and a chalutzah is by rabbinic law—is forbidden to contract tumah from the dead. And if he was born from a doubtful chalutzah, he is a fit kohen for all matters, as it is a doubt regarding a rabbinic law. But when he is born from a doubtful divorcee, or a doubtful zonah or chalalah, as it is a doubt regarding a Torah law, we follow the stringency in every matter. And these laws were explained in Even HaEzer siman 7.

It is written in the Torah: "He shall not defile himself for a person among his people. Except for his kin... for his mother, and for his father, and for his son, and for his daughter, and for his brother, and for his virgin sister, who is near to him, who has had no husband—for her he shall defile himself." And "his kin"—this is his wife. And these seven deceased for whom the Torah permitted him to defile himself—it is not a permission but an obligation, for it is a mitzvah to defile himself for them. And if he did not want to—they defile him against his will. And so we learned in Zevachim (Zevachim 100b): "For her he shall defile himself"—a mitzvah. If he did not want to—they defile him against his will. And it happened with Yosef the Kohen that his wife died on the eve of Pesach, and he did not want to defile himself, and his brother kohanim defiled him against his will, see there. And the Rambam wrote in the second chapter of Hilkhot Avel: To what do these words apply? To males who were warned regarding defilement. But female kohanim, since they are not warned regarding defilement, so too they are not commanded to defile themselves for relatives. Rather, if they wished—they defile themselves. And if not—they do not defile themselves. Thus far his words. And the Ramban and the Ra'avad and the Rosh disagreed with him, and they hold that they too are obligated to defile themselves. And this is what the Tur and the Shulchan Aruch wrote: "Whether a man or a woman," see there.

And it is not understood: from where does the Rambam derive this law? And furthermore it is difficult: for if it is according to his words, then at the end of the third chapter of Sotah (Sotah 23a) where the Mishnah explained the distinctions that exist between a kohen and a kohenet, see there – why did it not count this distinction? For just as it counts there that the kohen is prohibited from becoming tamei to the dead but not the kohenet, let it also count the opposite: that the kohen is commanded to become tamei to relatives but not the kohenet? Therefore it appears to me that another intention is hidden in his words, and he does not disagree at all with the rest of the poskim. And that is, that it is a simple matter that every individual is obligated to attend to their deceased, in their shrouds and their burial. And this is the primary reason why an onen is exempt from all the mitzvot, as is explained in siman 341. And there is no distinction in this between a man and a woman, and certainly the kohenet is also obligated to do so. Rather, regarding a kohen the sages said that it is a mitzvah to actually become tamei to them in practice, beyond the preparation for burial. And they derived this from that which is written: "for her he shall become tamei" – a mitzvah. That is to say: that it is a mitzvah to become tamei to her and to all the relatives. And the reason of the Torah is to show that in contrast to what the Torah prohibited the kohen regarding becoming tamei to the dead, it permitted it to him for his relatives. And through what will this be seen? Certainly not through the preparation of the burial and the shrouds, for this is possible to do without actual tumah as is understood. And for this the Torah commanded that he is obligated to become tamei to him. And if so, automatically this does not apply to a kohenet at all, since there is no prohibition upon her even without this. And this is what the Rambam says, "since they are not prohibited etc. so too they are not commanded to become tamei etc.", that is to say: that in her case this command does not apply at all, as I have written. And in this they certainly will not disagree with him, for in her case there is no recognition of this as is understood.

Our teacher, the Beit Yosef, wrote in section 5 (Shulchan Aruch Yoreh Deah 373:5): For all of these for whom he may contract tumah, he may do so even if it is not for a necessity; and some say specifically for a necessity, and he only contracts tumah for them until the golel is closed. And if his intention is to evacuate him—it is permitted to contract tumah for him for a necessity until the second golel is closed. Thus far his words. And our teacher, the Rema, wrote that according to the first opinion, even if one's dead relative died on Shabbat when it is impossible to bury him on that day—it is permitted to contract tumah for him and to guard him, so that he should not lie in disgrace. And it is proper to be stringent like the latter opinion, not to contract tumah except for the necessity of burial and to bring him a coffin and shrouds. Thus far his words.

And behold, the Tur wrote simply that one may contract tumah whether for a necessity or not for a necessity until the closing of the golel, and he did not bring another opinion. And this is explained from Semachot chapter four, regarding the brother of the deceased who came after the closing of the golel and wanted to contract tumah for him, and the sages did not permit him. This implies that prior to this, one may contract tumah even not for a necessity. And only our teacher, the Beit Yosef, in his great book, brought from the Terumat HaDeshen who wrote that the Tosafot in Pesachim 9a regarding the case of the metzik wrote that one should not contract tumah except for the necessity of the deceased, see there. And I wonder: for the incident of the metzik was after they buried him, as is explained in the Gemara there that they cast the miscarriage into a pit, and it is like after the closing of the golel. And if so, they do not disagree with that of Semachot. And that which they wrote there that one should not contract tumah except for the necessity of the deceased—certainly it is so, and that is as long as he is engaged in the needs of the deceased. Furthermore: for we have already explained in section 6 that the primary Torah commandment of "for her he shall contract tumah" applies even if he is able to bury him without his actual tumah. And more than this, the words of our teacher, the Rema, are puzzling, for it is explained from his words that according to the latter opinion it is forbidden to contract tumah for him in order that he not be cast in disgrace. But is there any necessity of the deceased greater than this? And is being cast in disgrace not like the necessity of burial? And it requires further study. (The closing of the golel is when he is in the grave, and not when they close him in the coffin outside, as the Shach wrote in subsection 11.)

And these are the relatives for whom he contracts tumah: his married wife when she is fit. But if she is unfit, or divorced, or betrothed—he does not become an onen nor does he contract tumah for her. And likewise, she does not become an onen for him, and she is not required to contract tumah for him or involve herself in his burial. But for his mother, he contracts tumah in any case, even if she became profaned. That is to say: that after she gave birth to him in fitness, she was profaned by a forbidden cohabitation. And all the more so for his father, as profanation is not applicable to a father. And for his son and his daughter when they are from thirty days and onward, or even before thirty days when it is known that their months were complete. And even for unfit children he contracts tumah for them, such as if he married a divorcee and they were born. Only if he married a maidservant or a gentile woman and she gave birth, he does not contract tumah for them because they are not related after him. And for his brother and his sister from his father, even if they are unfit, except if his father fathered them from a maidservant or a gentile woman for the reason that has been explained. And also when they have left the status of a nefel. And the permission of tumah for his sister, the Torah wrote specifically a virgin who has not belonged to a man, and "belonging" refers to kiddushin. Therefore, when she becomes betrothed—he does not contract tumah for her, even if she is betrothed to a kohen, and all the more so when she is married. However, in this there is a practical difference, for a married woman even when she is divorced he does not contract tumah for her, as she is not a virgin. And even if she entered the chuppah and did not have cohabitation, for every married woman is considered as one who has had cohabitation. But when she is divorced from betrothal—he contracts tumah for her. And it appears to me that if she was betrothed through cohabitation—he does not contract tumah for her even after she is divorced, for she is not a virgin. And for this reason he does not contract tumah for a victim of rape or seduction. But for a bogeret or one whose hymen was ruptured by wood—he contracts tumah for her. And likewise he contracts tumah for a shomeret yavam, when she fell before him and he has not yet performed yibbum—he contracts tumah for her, for he is considered like her husband since he inherits her ketubah. Even if it is written in her ketubah "if you die without children her ketubah shall return to her father's house," for he inherits her nichsei melog. And also it is impossible to differentiate her from other yevamot (Beit Yosef in the name of the Rashba). And likewise even if he married a minor orphan and she died, though her marriage is only rabbinic, nevertheless he contracts tumah for her because he inherits her, and her status is like a met mitzvah (see Yevamot 89b). And he does not contract tumah for his sister from his mother, and likewise not for his brother from his mother, for brotherhood is only from the father. And in Torat Kohanim we learned: Might it be his brother and his sister from his mother? The verse says: "for his son and for his daughter." Just as his son and daughter whom he inherits etc., see there.

A kohen, while he is occupied with his deceased relative and becomes tamei for him, does not commit a transgression if he makes himself tamei for other deceased persons as well, since he is already in a state of profanation from his own deceased relative. However, after the golel has been closed upon his deceased relative, it is again forbidden for him to make himself tamei for another deceased person. According to this, a kohen whose relative died must be careful when he goes to the cemetery to stand outside, before the graves, and it is forbidden for him to walk until the place of the grave of his deceased relative. For even though in his walking he does not commit a prohibition by walking near the graves, since he is still occupied with his deceased relative, nevertheless, after the burial, how shall he return and walk over other graves or near them, unless he buried his deceased relative at the edge of the cemetery? (And the Bach is stringent even regarding the walking there, since it is possible to bury him at the edge of the cemetery. And the Ma'avar Yabbok and the Shach are lenient, and such is the common custom. And what relevance is there to "it is possible to bury him at the edge"? Perhaps the place is not honorable for him.) (And in the wording of the Rambam at the end of the second chapter it is implied like the Bach, see there. Examine it and you will find it easy.)

If the deceased relative of the kohen was one who separated from the ways of the community, or was an informer – he does not contract tumah for him, and likewise for those executed by a beit din during the time of the Temple. Nor for one who commits suicide willfully. Nor for a doubtful relative, such as if his offspring was mixed with the offspring of another and similar cases. And likewise other cases of doubt, such as the doubt of a seven-month child for the latter husband or a nine-month child for the former husband, and all those enumerated in the Mishnah in Yevamot (Yevamot 100b). And likewise in a case of a doubtful divorce, and all types of doubts.

We say in Nazir (Nazir 43b): If his father’s head was severed – he does not contract tumah for him, as it is said: "For his father" – when he is whole, and not when he is lacking. Therefore, a kohen does not contract tumah for a limb from the living of his father, nor for a bone from the bones of his father, and likewise for all the relatives. And even if he is lacking any amount, and even if that which is lacking is placed beside him – he does not contract tumah for him, for he only contracts tumah for the whole. And there is one who says that these words apply when he was lacking after death. But if a limb was missing from him during his life and he died – he contracts tumah for him even though he is not whole. And some say that he does not contract tumah for one who was killed, for he is called lacking. And our teacher, the Rema, wrote that it is proper to be stringent. (See Beit Yosef in the name of the Kol Bo: because we consider one who was killed as lacking in several places. And I do not know where this is found? And if it is found, perhaps the intention is when there is truly some deficiency, as is the way of most who are killed. But when we see him whole, why should we consider him as lacking? And it requires further study. And look closely and you will find it easy.)