OUTLINES OF HALACHOS FROM THE DAF
prepared by Rabbi Pesach Feldman of Kollel Iyun Hadaf
Rosh Kollel: Rabbi Mordecai Kornfeld
KESUVOS 104-105 (5 Teves) - Dedicated in memory of Max (Meir Menachem ben Shlomo ha'Levi) Turkel, by his children Eddie and Lawrence and his wife Jean Turkel/Rafalowicz. Max was a warm and loving husband and father and is missed dearly by his family and friends. His Yahrzeit is 5 Teves.
1) HASTENING DEATH [Goses: euthanasia]
1. The day Rebbi died, Chachamim had decreed a fast, and were praying for him. Rebbi's slave went on the roof and said 'the higher beings want Rebbi, and also the lower beings. May it be Hashem's will that the lower beings' request is done.'
2. When she saw how often Rebbi had to go to relieve himself, remove his Tefilin and put them on again, and his pain, she said 'may it be His will that the higher beings' request is done.' Chachamim continued to pray that Rebbi live. She took pottery and threw it to the ground. Chachamim stopped praying, and Rebbi died.
3. Nedarim 40a (Rav Dimi): One who visits a sick person causes him to live; one who does not visit him causes him to die.
4. Question: How does he cause this?
i. Suggestion: One who visits him prays that he should live. One who does not visit him prays that he should die.
ii. Rejection: He does not pray for him to die!
5. Answer: Rather, one who does not visit him does not pray from him to live or die.
6. Eruvin 41b: There are three that die even when they (have much strength and can) talk: one who dies from stomach pains, giving birth, and Hadrikon (jaundice). We need to know this so that we will prepare shrouds for them.
7. Rosh Hashanah 17a: Rav Huna brei d'Rav Yehoshua was very weak. Rav Papa visited him, and commanded to prepare shrouds. Rav Huna recovered.
1. Rif and Rosh (Mo'ed Katan 16b and 3:75): We learned in Evel Rabsi (1:2-4) that a Goses (dying person) is considered to be alive in every respect. We do not do the following until he dies: tie his jaws, plug up his openings, put a metal Keli or a cold Keli by his navel, anoint him, rinse him, put him on sand or salt, or close his eyes. Closing the eyes of a Goses or touching him before he dies is murder.
2. Rambam (Hilchos Evel 4:5): A Goses is considered to be alive in every respect. Until he dies, we do not tie his jaws, plug up his openings, put a metal Keli or a cold Keli on his stomach lest it swell up, anoint him, rinse him, or put him on sand or salt. One who touches him or closes his eyes murders. We wait a little, for perhaps he fainted. We do not tear clothing over him, bare the shoulder, eulogize him, or bring into the house a coffin or shrouds until he dies.
3. Rambam (Hilchos Rotze'ach 2:7): One is killed even for killing a sick person, even if he was Goses. However, if he was Goses due to people, e.g. he was beaten and was about to die, one who kills him is not executed.
4. Ran (Nedarim 40a DH Ein): Sometimes it is proper to pray for a sick person to die, e.g. if he is in great pain and cannot live, like the case of Rebbi.
i. Note: The Ran explains (like Tosfos) that one should not visit a Choleh in the last three hours of the day, for then he appears overly sick and the visitor will despair of requesting mercy. Seemingly, there is a bigger concern lest the visitor pray for him to die!
ii. Igros Moshe (CM 2:73:1 and 2:74:1 DH v'Af): Rebbi's slave knew Torah law; Chachamim learned things from her. She saw that the prayers were not helping for Rebbi's recovery; and not even to alleviate his suffering, only to prolong his life. She saw his affliction and realized that it is proper to pray that he die. The Ran learns from her to all such situations. Our Tefilos are not accepted as well as theirs were. Heaven forbid that we conclude that it is better to pray that someone die! However, if doctors see that there is no chance for recovery, only to continue living amidst affliction, they should not give drugs to prolong life. One may not do an act to hasten death, even a moment. This is murder. One must do nothing. We should prolong life if a better doctor who is not here now who may know how to cure him. It is best to persuade the Choleh to agree, but even if we cannot, we prolong his life against his will.
1. Shulchan Aruch (YD 339:1): A Goses is considered to be alive in every respect. We do not tie his jaws, anoint or rinse him, plug up his openings, remove the pillow from under him, put him on sand or pottery or earth, put on his stomach a bowl, trowel, flask of water or grain of salt, announce about him in cities, hire flutists or eulogizers, or close his eyes. Closing the eyes when he is dying is murder. We do not tear clothing over him, bare the shoulder, eulogize him, or bring into the house a coffin or shrouds until he dies.
i. Gilyon Maharsha: Beis Yakov forbids to prevent death through Pu'ah (rubia). Shevus Yakov disagrees, for a skilled doctor is surely allowed to prolong life. We may Mechalel Shabbos even to extend life for a short time!
ii. Aruch ha'Shulchan (5): A healthy person may prepare shrouds for himself. A dangerously sick person may not, for this is like a suggestion to the Satan.
2. Rema: Some say that we may not dig a grave for him even outside the house until he dies. One may not dig any grave if a Mes will not be buried in it that day; this is dangerous. One may not cause the person to die quickly, e.g. if he was Goses a long time and cannot die, one may not remove the pillow and blanket underneath because they say that feathers of certain birds cause this. One may not move him or put the keys of the Beis ha'Keneses under his head in order that he die. However, if something is preventing death, e.g. someone is chopping wood nearby and it is heard in the house, or there is salt on his tongue, one may remove it. This is not an act, it is merely removing the obstacle
i. Taz (2): One might have thought that one may remove the pillow and blanket underneath because this merely removes the obstacle to death. The Rema forbids it, because it moves him. We should forbid removing salt for the same reason!
ii. Beis Lechem Yehudah: It can be removed without moving him. We must say that the Rema holds that it was forbidden to put it there to prevent death, therefore one may remove it. Sefer Chasidim forbids screaming at the time of death, lest the Neshamah return to the body and suffer greatly.
iii. Nekudas ha'Kesef: Such a tiny movement (removing the salt) does nothing.
iv. Aruch ha'Shulchan (4): The Mechaber forbids anything to hasten death. The Rema adds that it is forbidden even if people think that it is a Mitzvah to hasten death, e.g. he has been Goses a long time and has great afflictions, for this is Hashem's will. One may not cause death even without acting on the body, e.g. to put keys of the Beis ha'Keneses under his head. However, one may remove a side obstacle to death. Even if it really was preventing death, since the body itself was not fitting to live, it is permitted. This is why one may remove the salt (we need not say that it was forbidden to put it).
v. Beis Yosef (DH Kosav): The Rivash (114) was asked whether or not we may open a grave before Shabbos if we fear that someone is about to die (to enable burial before Shabbos). Some healthy people do so (for themselves). He forbade this, for Evel Rabsi forbids bringing a coffin into the house, and the Ramban says that we do not do anything done for a Mes until he dies. I say that the only concern is making the Goses despair, so we may do anything he cannot know about. Evel Rabsi (1:5)only forbids bringing the coffin into the house (lest the Goses realize this). However, R. Yerucham forbids, for R. Yehudah ha'Chasid says that any grave will be filled within 16 days.
vi. Bach (DH Kach): The Gemara (Eruvin 41b) teaches which people die even when they can talk, so we will know to prepare shrouds for them. This proves that one may prepare needs of burial before the Choleh dies, i.e. if the Choleh will not find out.
vii. Drishah (1): According to the Beis Yosef, these forbidden actions are listed in an awkward order in the Tur (and Shulchan Aruch). He lists at the beginning and end things that physically hasten death, and in the middle things that will cause the Mes to despair! It seems that the Tur forbids all things done for a Mes (whether or not the Mes realizes).
viii. Aruch l'Ner (Rosh Hashanah 17a DH Tzavisu): The Iyun Yakov challenges the Ramban from Rav Papa, who prepared shrouds. It seems that it appeared as if Rav Huna had already died. The Gemara supports this. They asked Rav Huna what he saw, and he said 'Yes, it was so (i.e. I died)'.
ix. Pischei Teshuvah (1, citing Shevus Yakov 3:75): If doctors say that a Choleh will die within a day or two, but there is a cure which could heal him or could make him die within an hour or two, one may give the cure if most expert doctors and the Chacham of the city agree.
x. Igros Moshe (CM 2:74:1 DH u'Pashut): The Rema says that we remove obstacles to death only when the Choleh is suffering. If not, we prolong life! Perhaps the Chiyuv to cure is only when he can recover, but surely we hasten death only due to suffering. One must consult with all doctors possible, even smaller ones, before despairing of a cure.