QUESTIONS: The Mishnah (64b) states that "one who finds a Mes lying in a normal manner may move it together with its Tefusah." The Gemara infers from this wording that the Mishnah excludes from this Halachah several types of Mes: one that was "Matzuy" ("'Matza' Prat l'Matzuy"), one that was murdered ("'Mes' Prat l'Harug"), one that was found sitting up ("'Mushkav' Prat l'Yoshev"), and a corpse whose head was between its legs ("'k'Darko' Prat l'she'Rosho Munach Bein Yarkosav").

The Rishonim disagree about the meaning of "Matzuy." The RI (cited by TOSFOS) explains that "Matzuy" refers to a Mes that was not suddenly found but that was known to be in that place. Since the Mes was already known to be in that place, it may not be moved because of the prohibition against moving the grave of a Mes (Sanhedrin 47b). One is permitted to move a Mes only when the Mes was killed and the place in which it was found was not its intended place of burial.

The RASHBAM disagrees and explains that "Matzuy" refers to the law in the second part of the Mishnah which states that if a person finds three Mesim in one place, they have the status of a "Shechunas Kevaros" and may not be moved. The Rashbam explains that if one of the three Mesim was already known to be there (and now the other two were discovered there for the first time), the group does not have the status of a "Shechunas Kevaros" (as the Gemara says later), and therefore one is allowed to move them even though there are three Mesim in one place.

(a) Why does the Rashbam not accept the explanation of the Ri, who explains that "Matzuy" simply refers to a Mes that was known to be there, which may not be moved as the Gemara in Sanhedrin says?

(b) Why does the Halachah of the Mishnah (that a Mes which was found may be moved with its Tefusah) does not apply to "Harug," one that was murdered? Why is there no Halachah of "Tefusah" and "Shechunas Kevaros" for a "Harug"?

(c) The Gemara itself gives reasons for the final two exceptions to the Halachah in the Mishnah -- a Mes found sitting up, and a Mes found with its head between its legs. The Gemara explains why the Halachah of the Mishnah does not apply in those cases. The fact that the Mes is sitting up or resting its head between its legs indicates that it is a Nochri. This explains why a Mes found sitting up or with its head between its legs does not have the Halachah of "Tefusah" and "Shechunas Kevaros." Why, though, does the Gemara not explain why "Matzuy" and "Harug" also do not have the Halachah of "Tefusah" and "Shechunas Kevaros"?

(a) The reason why the Rashbam does not explain "Matzuy" like the Ri (that "Matzuy" refers simply to a known grave) is that all of the other exceptions to the Halachah of the Mishnah are exceptions l'Kula -- lenient exceptions. That is, in all of the other cases which the Mishnah excludes, the Halachah of "Shechunas Kevaros" does not apply and one is permitted to move even three Mesim found together. However, in the case of a known grave, the Halachah is not more lenient but more stringent; even if only one Mes was found, it is prohibited to be moved since it was known to be there. This exception is different from the others. For this reason, the Rashbam explains that "Matzuy" refers to a case in which three Mesim were found, one of which was already known to be there. In such a case the Halachah is lenient; the Halachah of "Shechunas Kevaros" does not apply and one is permitted to move them.

(b) The Rishonim offer several explanations for why the Halachah of "Shechunas Kevaros" does not apply to a "Harug."

1. TOSFOS and the ROSH explain that "Harug" is in the same category as "Chaser," a Mes that was missing part of its body, which does not have the Halachah of "Tefusah" or "Shechunas Kevaros."

This answer is not clear. What is "Chaser" ("lacking") about a Mes that was murdered? If he was stabbed by a sword or strangled, the body is still whole and is missing nothing!

The ROSH explains that a "Harug" is like "Chaser" ("k'Chaser Dami"). The Rosh may mean that when the Mes is "Chaser," it is a sign that it did not die naturally but that its life was shortened as a result of the severance of a limb (in which case the Gemara which discusses a "Chaser" might refer only to a "Chaser" which is missing a vital part of the body, as the Rambam writes in Hilchos Tum'as Mes 9:5). Similarly, when the Mes shows signs of having been murdered, it is evident that the Mes did not die naturally but that its life was shortened. Therefore, it does not have the Halachah of "Shechunas Kevaros."

The reasoning behind both exceptions ("Chaser" and "Harug") is that the presence of three such corpses still does not prove that they were buried there intentionally (SEFAS EMES). Therefore, regardless of how many corpses are found there, they are treated as a single Mes which presumably was left there temporarily. (See RAMBAM, Hilchos Tum'as Mes 9:1.)

(TOSFOS writes questions why a "Chaser" is treated differently, and suggests that it is a Halachah l'Moshe mi'Sinai. However, it is possible that Tosfos refers to the other Halachah of "Chaser" -- it does not have "Tefusah." Tosfos is asking why a "Chaser" should not have "Tefusah," since even a single Mes that is found and is not "Chaser" has "Tefusah.")

The SIDREI TAHAROS explains that the Rosh's logic for why a "Harug" does not have the Halachah of "Shechunas Kevaros" is that a "Harug" is "k'Chaser Demei" -- the murder victim is considered to be "lacking blood. (He reads the word "DMY" as "Demei" and not "Dami.") This explanation, however, is difficult to understand, because the loss of blood should not render the Mes a "Chaser," since the body is still whole. A Kohen, who is prohibited from burying his close relatives when they are "Chaser," is permitted to bury them when they have lost blood because the loss of blood does not render them "Chaser."

Moreover, this approach does not explain why a "Harug" who was strangled to death (and lost no blood) should be considered like a "Chaser."

2. The MEFARESH explains that the very fact that the Mes was found murdered is reason to assume that it was a Nochri. This seems to be the intention of the Rambam as well (Hilchos Tum'as Mes 9:2 and Perush ha'Mishnayos). Apparently, if a Jew would have been killed, his relatives would have taken his body to a Jewish cemetery for a proper burial.

3. The RAMBAM (Hilchos Tum'as Mes 9:1 and Perush ha'Mishnayos to Ohalos 16:3) seems to give another interpretation for why "Harug" is treated differently. The Rambam writes that when a number of Mesim that were murdered are found together in one place, even if there are more than three they are treated like a single Mes and do not constitute a "Shechunas Kevaros." This is because any number of Mesim that buried at the same time are considered like a single Mes. It is a "Shechunas Kevaros" only when three Mesim were buried there at different times.

(According to this explanation, the Rambam learns that the "Harug" does not have "Shechunas Kevaros" but does have "Tefusah.")

(c) Why does the Gemara not explain the reasoning for "Matzuy" and "Harug"? According to TOSFOS and the MEFARESH, the Gemara indeed gives a reason why "Harug" does not have "Shechunas Kevaros." According to Tosfos, that reason is expressed by the statement of Ula bar Chanina: it is included in "Mes she'Chasar." According to the Mefaresh, the suspicion that the Mes is a Nochri applies to a "Harug" just as it applies to a Mes found sitting up and one found with its head between its legs.

As for the case of "Matzuy" according to the Ri (who explains that "Matzuy" means that the Mes was not buried there intentionally), the Gemara does not find it necessary to explain why it has no "Tefusah." The Gemara explains only the lenient rulings of the Mishnah, the cases in which "Tefusah" and "Shechunas Kevaros" do not apply, and not the Chumra of "Matzuy" (in which case, the Mes may not be moved at all when it was known to have been there).

The Rashbam, on the other hand, is consistent with his own view expressed elsewhere. Tosfos (DH Echad Yadu'a) quotes the Rashbam who explains that indeed there is no reason why the Halachah of "Shechunas Kevaros" does not apply when one of the three Mesim found was known to be there. It is a Halachah l'Moshe mi'Sinai. (According to the Rashbam, "Yadu'a" does not mean that it was known that this Mes was buried there intentionally, but that this one was known before the others were found.) Since it is a Halachah l'Moshe mi'Sinai, the Gemara has no need to give a reason for it. (This is similar to what the MEFARESH writes (in DH v'Chol Hani). The ROSH, however, explains the case like the Rashbam but nevertheless gives a logical reason, like the Ri, for the case of three Mesim that were found and one was already known to be there. According to the Rosh, apparently the Gemara does not ask why "Matzuy" is different because the reason is obvious.)

The RAMBAM (Hilchos Tum'as Mes 9:5 and Perush ha'Mishnayos) has a different explanation for the word "Matzuy." He explains that "Matzuy" means that the Mes was buried and was not found on top of the ground. (According to the Rambam, the word "b'Techilah" in the Mishnah excludes the case of one Mes which was known to be there, and not the word "Matza," as is clear from the Rambam in Hilchos Tum'as Mes 9:6.)

The Rambam in Perush ha'Mishnayos implies that the reason why the Halachos of the Mishnah do not apply to a Mes found on top of the ground is because the Mes is assumed to be a Nochri. A Jewish Mes would have been given a proper burial by his companions.

QUESTIONS: The Gemara derives from the verse, "And you shall carry me from Mitzrayim" (Bereishis 47:30), that when one moves a Mes he must take the "Tefusah" (the earth around the Mes) with the Mes. The verse relates that Yakov told Yosef that after his death, Yosef should take his body, as well as the earth around his body, out of Mitzrayim.

TOSFOS (DH Kamah) quotes the Yerushalmi which says that the reason why the "Tefusah" must be taken together with the Mes is because fluids from the decomposition of the Mes are absorbed in the ground around the Mes.

How can the Gemara derive from this verse that one who moves a Mes must move the earth around it as well? Yakov Avinu's body did not decompose, and thus there was no reason to take the "Tefusah." (SIDREI TAHAROS)

Moreover, his body was not even buried. Before his body was taken to Eretz Yisrael, it was embalmed (Bereishis 50:2-3), and thus there was no "Tefusah" to take. (TOSFOS YOM TOV)

(a) The TOSFOS YOM TOV explains that the verse is merely an Asmachta (as the wording of the Rambam in Perush ha'Mishnayos implies).

This answer, however, does not fully resolve the question. If Yakov Avinu was not buried in Mitzrayim, how can the verse be used even as an Asmachta for the law of "Tefusah"?

(b) When Yakov Avinu told Yosef to take him from Mitzrayim after his death, he did not know what circumstances would arise after his death. He suspected that Pharaoh would not let Yosef take him out of Mitzrayim and that he would have to be buried in Mitzrayim for a long time. Therefore, he told Yosef that if he is buried in Mitzrayim, his "Tefusah" should be brought with him to Eretz Yisrael.