WHAT OVERRIDES THE ISUR TO DISGRACE A MES? [Mes: disgrace]
Shmuel had an idea regarding R. Yosi's opinion of Simanim of adulthood in girls. He tested it on his Shifchah (Kena'anis slave), and paid her four Zuz compensation for embarrassment.
(Shmuel): "L'Olam Bahem Ta'avodu" -- we have slaves for labor, but not to embarrass them.
Shmuel would designate one slave to be a "husband" for each Shifchah, to spare his Shifchos from embarrassment;
Rav Nachman would switch their marital partners. He was not concerned for their embarrassment;
Rav Sheshes gave them over to an Aravi (who would have relations freely with them), and told them not to have relations with Yisraelim.
Bava Basra 154a (Beraisa): A case occurred in which Reuven sold his father's property, and Reuven died. Members of the family said that the sale was invalid, for he was a minor at the time. They asked if they may check the body (for Simanim).
R. Akiva: Firstly, you may not check the body, for it is a disgrace. Secondly, Simanim often change after death.
(Reish Lakish): The buyers were Muchzak in the property. The family wanted to check the body to take back the property.
Support: When R. Akiva told them that they may not check the body, they were silent.
Granted, the family would agree to this. However, the buyers would not agree. They may try to get what they paid for, even if it disgraces him!
Rejection: (The buyers said this.) R. Akiva told them 'you may not check the body. Even if you will say that since you paid money, you may disgrace him, still, it does not help to check, for Simanim often change after death.
Bechoros 45a (Rav Yehudah): A case occurred in which the king sentenced a harlot to be cooked in water. R. Yishmael's Talmidim counted the bones.
Shekalim 2:5 (Mishnah): If money was collected for (burial of) a Mes and not all was used, the rest is given to his heirs;
R. Meir says, it is left until Eliyahu comes;
R. Noson says, we use it to build a monument on his grave.
Gitin 43a (Beraisa): "One bought for money and one born to his slave" teaches that just like a slave's child eats Terumah even if he is not worth anything, also a purchased slave.
Inference: This shows that one cannot sell a slave for rights to collect the fine (if he will be gored). If one could, every slave is worth a Perutah!
Rejection: A Terefah slave (who is a disgusting leper, and unfit for service) is worthless. There is no fine for him.
Rambam (Hilchos Mechirah 29:16): If Reuven sold his or his father's property, and he died, and his relatives said that he was a minor and they want to check the body, we do not let them disgrace it. Also, Simanim change after death. The Chazakah is that witnesses do not sign unless they know that the seller is an adult.
Tosfos (154b DH Zuzei): (The buyers said that they paid money, and they are willing to disgrace the Mes,) but the heirs may not disgrace the Mes for the sake of their inheritance, since they did not give anything. Also, they are relatives.
Shulchan Aruch (CM 235:13): If Reuven sold his or his father's property, and he died, and his relatives said that he was a minor at the time and they want to check the body, we do not heed them.
Rema: This is because the Chazakah is that witnesses do not sign unless they know that the seller is an adult. Also, Simanim are prone to change after death. Also they may not disgrace the Mes.
Noda bi'Yehudah (2 YD 210): A case occurred in which a man had a kidney stone. The doctors cut like they normally do, but could not heal him and he died. May they cut the body in order to understand this problem better, so if it occurs again, they will know what must be cut? If they can cut less, this decreases the danger. Is it forbidden due to disgrace to the Mes, or permitted because it can lead to saving lives in the future? Rabanan argued about this. The stringent opinion learns from R. Akiva, who did not permit checking the body. The lenient opinion says that we are more lenient in order to save lives than for the sake of money. The case of R. Akiva proves that the buyers would be allowed to disgrace the body if needed to avoid a loss!
Note: He explains that in the rejection of Reish Lakish, R. Akiva needed to give the second answer. The buyers rejected his first reason, because they paid money.
Rebuttal (Binyan Tziyon 170): Tosfos says oppositely! He says that heirs did not pay anything, therefore they may not disgrace the Mes. The Rambam and Shulchan Aruch say similarly. The Mes did not owe anything. Why should we disgrace it?
Binyan Tziyon (171): Presumably, a person pardons his disgrace for his heirs, like the first Tana in Shekalim. (Note: seemingly, it is a small disgrace if extra money for a Mes is not used for the Mes. How can we learn to a bigger disgrace of checking the body? - PF) The Noda bi'Yehudah brought a proof from Bava Basra, but in YD 356:1, we rule like the first Tana in Shekalim! I answer based on Rashi (Sanhedrin 48a DH Tana), that the first Tana holds that he pardoned his honor before death. This applies only to what he anticipated even before death, e.g. that money will remain. One cannot pardon after death. In Bava Basra he did not anticipate this.
Noda bi'Yehudah: Perhaps the stringent opinion holds that the relatives may not disgrace the Mes for monetary gain, like Tosfos (DH Zuzei) and the Rema (CM 107:2) say. Presumably, here they may not do anything to the Mes without the consent of the relatives.
Noda bi'Yehudah: The questioner said so. I say that a Safek Piku'ach Nefesh overrides even Shabbos, and all the more so disgrace to a Mes. However, here there is no Choleh (sick person) in front of us, just they want to learn in case there will be more Cholim. Surely this does not override any Torah Isur, or even an Isur mid'Rabanan.
Chasam Sofer (YD 336): Seemingly, it is forbidden because one may not benefit from a Yisrael's corpse! R. Yishmael's Talmidim counted the bones of a Shifchah executed through boiling. She was not a Yisraelis. According to one opinion, we can say that she was a Shifchah Kena'anis. Gitin 43a discusses a slave not worth a Perutah. If one may benefit from a dead slave, any slave (even alive) is worth money, for when he dies one can feed the corpse to dogs, or to sell to doctors to practice dissection! This shows that it is Asur b'Hana'ah.
Note: The master need not feed or house the slave until he dies. He can say 'go beg for your food', and whenever the slave dies, the body belongs to the master. However, perhaps the slave is not worth a Perutah in a place where there is no demand for dog food (there are not enough dogs or Nochrim to eat all the Trefos and Nevelos) or doctors who want to dissect!
Chasam Sofer: Rather, one may not disgrace slaves, like it says in Nidah 47a.
Igros Moshe (YD 2:151): In Bava Basra we say that if checking the Mes would benefit the buyers, it would be permitted, because they paid money. The latter answer in Tosfos holds that the heirs could not do so even if they had paid. The Noda bi'Yehudah learned from here that strangers may disgrace the Mes for a need, but since they cannot do so without the consent of the heirs, the heirs may not consent. This is wrong. Everyone is commanded not to disgrace a Mes! Also everyone is commanded to bury the Mes, just when there are relatives, it is incumbent on them first. When there are no relatives here, or even if relatives are here but they do not want to bury the Mes, it is incumbent on all of Yisrael. This is a Mes Mitzvah. All the more so, all of Yisrael are commanded not to disgrace the Mes. Regarding the disgrace that the strangers want to do, it is like a Mes Mitzvah to prevent them. How can we permit strangers more than relatives?! In Bava Basra, we needed to clarify who owns the property. The buyers say that the heirs should lose the property in question, in order to avoid disgrace to the Mes. This is because when there are relatives, Kevod ha'Mes and preventing disgrace is incumbent on them, just like the Chiyuv of burial is on the relatives more than on others. Normally, the monetary question should be resolved through checking, just disgrace to the Mes prevents this. Since the relatives are commanded more about this, they should lose the money to prevent disgrace.
Igros Moshe: Really, the Gemara there shows that also the buyers may not disgrace the Mes. R. Akiva said 'firstly, you may not disgrace the Mes.' The Gemara did not discuss what is the disgrace of checking. Semachos 4:12 says 'Chachamim said, after the Golel (cover of the coffin) was sealed, we do not move the Mes.' This implies that the Golel was sealed, and they wanted to open it. This was the disgrace, even though he was buried that day. We can say that it discusses this episode, even though there are several changes. I say that if there will be true disgrace, i.e. to open the coffin after the body has rotted and cleaved, even strangers may not do so to prevent a loss. If it is before burial, and the only disgrace is delaying the burial until experts can check, this depends on the law of burial. The strangers have no obligation to bury, since there are relatives here. Therefore, they may delay burial. Perhaps they may even open the coffin before there was time to cleave and decay. Perhaps this will help the Mes in his judgment, to ensure that no one lose due to him! We permit re-interment in Eretz Yisrael, since Eretz Yisrael atones, and this helps the Mes. We may re-inter to bury a Mes with his fathers, for he desires this. Since the only reason not to check is due to burial, the buyers said that the relatives should suffer the loss. R. Akiva answered that after burial, there is real disgrace (not just due to burial), for the body already cleaved and rotted, which is forbidden also to them. Before or very soon after burial, the only disgrace is due to burial, but in any case Simanim are prone to change.