איסור הנאה במת ובתכריכיו. ובו ד' סעיפים:
מת בין עובד כוכבים בין ישראל תכריכיו אסורים בהנאה ודוקא שהזמינם לצרכו ונתנם עליו אבל בהזמנה לבד אפילו עשאם לצרכו לאחר שמת לא נאסרו דהזמנה לאו מלתא וכן אם נתנם עליו ולא הזמינם לכך בתחילה עדיין לא נאסרו:
[When] one dies, whether he is a Gentile'1RaShBA, Resp. 365. Cf. also Yad, Ebel XIV, 21 who makes no distinction between a Gentile and an Israelite with respect to the prohibition extending to any benefit that may be derived from a dead person. According to the following sources one may derive profitable use from a heathen corpse: Y.Shab. X, 6(12c); B.K. 10a, Tosaf. s.v. שהשור; RaShBA in his comments to B.K. ibid., RaN to Shab. 94b; N in T.H.; The case of David who married King Saul’s daughter, Michal for a hundred foreskins of the Philistines. W.G. (Cf. also Mishneh le-Melek, Yad, Ebel ibid.) rules that one may derive profitable use from a heathen corpse. Shebuth Ya‘akob maintains that one is permitted to derive profitable use from a heathen corpse only if the latter was acquired by an Israelite (v. Tosaf B.K. ibid.) — Yad Abraham. G.Mah. cites a dissenting opinion. Jewish dead are forbidden to be put to profitable use, Biblically; heathen dead only Rabbinically — P.Tesh. or an Israelite, his shrouds are forbidden [to be employed] for profitable use,2This is deduced from the similar expression ‘there’ used both in connection with the heifer whose neck was to be broken (Deut. XXI, 4), and the death of Miriam (Num. XX, 1). Just as the heifer was forbidden to be employed for profitable use, so also in the case of a dead person and his shrouds, the same prohibition applies — ShaK. A.Z. 29b. This holds even if the benefit thus derived was not the result of employing the article in its normal or natural way — R. A. Eger. and [this is applicable] only if one designated them for his need3e., the dead person. Derived from San. 47b-48a, where Abaye holds that ‘designation is considered a reality.’ Hence, by mere designation for the dead person, the article becomes subject to the prohibition against profitable use, as though it were already used for the designated purpose. Raba, however, maintains that ‘mere designation is not considered a reality.’ and also placed them upon him;3e., the dead person. Derived from San. 47b-48a, where Abaye holds that ‘designation is considered a reality.’ Hence, by mere designation for the dead person, the article becomes subject to the prohibition against profitable use, as though it were already used for the designated purpose. Raba, however, maintains that ‘mere designation is not considered a reality.’ but mere designation, even if one made them [the shrouds] for his3e., the dead person. Derived from San. 47b-48a, where Abaye holds that ‘designation is considered a reality.’ Hence, by mere designation for the dead person, the article becomes subject to the prohibition against profitable use, as though it were already used for the designated purpose. Raba, however, maintains that ‘mere designation is not considered a reality.’ need after he died, they [the shrouds] do not become forbidden [before being placed upon the dead], for mere designation is not a reality.4In accord with Raba’s ruling. O.Ḥ. § 42, 3. Likewise, if one placed them [the shrouds] upon him,3e., the dead person. Derived from San. 47b-48a, where Abaye holds that ‘designation is considered a reality.’ Hence, by mere designation for the dead person, the article becomes subject to the prohibition against profitable use, as though it were already used for the designated purpose. Raba, however, maintains that ‘mere designation is not considered a reality.’ but did not designate them for such a purpose in the beginning, they are still not considered forbidden.5In accord with R. Ḥisda (San. ibid.) that we require both designation and the use of the designated article. Cf. infra § 364, On this principle, if a person prepared shrouds for himself, he may change his mind later, and use them for another purpose — A.H. Changing the form and the name of the object שינוי does not apply, as it would in the case of an illegitimately obtained article — Ba’er Heteb on the authority of BaḤ in Resp. To perform an autopsy in order to determine the cause of death is forbidden. Thus N.B., Ḥatam Sofer, Binyan Ẓion, MaHaRaM ShiK a.o. The following reasons are advanced for this prohibition. a) Disgrace to the corpse ניוול המת. b) A corpse must not be put to profitable use איסור הנאה c) The possibility that certain parts of the corpse will not be buried. This prohibition stands even if only one of the above reasons applies. Ḥatam Sofer rules that even if one agreed during his lifetime that after he dies an autopsy be performed on him, it is still forbidden. Others, however, permit under these conditions. One who desires that his son should study medicine in which case autopsies play a very important role, should leave instructions that after he dies he grants permission to have an autopsy performed on him — Kol Bo(G) I, p. 40-41; Sh.M.B. IV p. 255-6. On the question of embalming, v. Kol Bo(G) I, p. 51-53. Blood which was removed from the corpse through embalming requires burial —Kol Bo(G) ibid.
נויי המת המחוברים בגופו כגון פאה נכרית וכיוצא בה אסורים כמו המת עצמו (ודוקא כשהם קשורים בשערות גופן אבל אינן קשורים מותר (כך משמע מפרש"י פ"ק דערכין) ולכן מותר ליטול טבעות שבידם של מתים וכיוצא בזה) במה דברים אמורים בסתם אבל אם צוה שיתנו נוי גופו המחוברים בו לבנו או לבתו או לצורך דבר אחר מותרים אבל שערו ממש אפילו אם צוה עליו אסור בהנאה: הגה אשה שיוצאת ליהרג נהנין בשערה אף על פי שנגמר דינה אין שערותיה נאסרים עד שתקטל (טור):
The ornaments of the dead which are attached to his body, e.g., a wig6Lit. ‘strange (false) curls.’ and anything similar to that, are forbidden [to be employed for profitable use] just as the dead person proper;7‘Arak. 7b. and only when they are tied8Even if the hair is plaited and not tied or fastened, it is still prohibited. Only when not fastened at all, i.e., it (the wig) hangs on a peg or hook, is it permitted — BaḤ. Artifical teeth even if made from the bone of a Nebelah (v. Glos.) should not be removed from the corpse, but should be buried with it — P.Tesh. to the hair of the body, but if they are not tied, it is permitted.9Derived from Rashi, ‘Arak. ibid. (s.v. בפאה נכרית) — G. Accordingly it is permitted to remove rings from the hand[s] of corpses and anything similar to that.10From this it follows that if a gold or silver ornament or the like is attached to the corpse, it should not be removed. But this may be questioned. For according to ‘Arak, ibid. only those ornaments which appear as part of his body (e.g., a wig or artifical teeth) should not be removed. But other ornaments, which do not appear as part of the corpse, even if attached, should not be any different from clothes worn at the time of death, which, even if fastened to the dead man’s body, do not become prohibited — P.Tesh. This applies only to a case where no instructions were given,11Lit. ‘an undefined (case).’ but if one instructed that the ornaments of his body which are attached thereto, should be given to his son or to his daughter, or for any other purpose, they are permitted;12‘Arak. ibid. but one's real hair, even if he left instructions regarding it, — [the law is that] it is forbidden to make any use of it.13Cf. also Kesef Mishneh to Yad, Ebel ibid. and B.Yos. a.l. Maim. and SeMaG rule that it is permitted to make use of a dead person’s hair. A closer examination of the Talmudic discussion in ‘Arak. ibid will reveal that the opinion which permits is correct — Nek. Hak. Gloss: If a woman is about to be put to death, use may be made of her hair, [for] although her trial is ended, her hair does not become forbidden until she is executed.14Tur — G. In accord with R. Naḥman b. Isaac (‘Arak. ibid.).
אם היו אביו ואמו מזרקים עליו כלים מצוה לאחרים להצילן אם לא נגעו במטה הנקברת עמו: הגה ואם הצילן חייב בשמירתן ואם החזירן לאביו ולאמו וחזרו וזרקום ונאסרו חייב המחזיר לשלם דהוי כזרקן למקום גדודי חיות ולסטים (במרדכי פרק המוכר את הספינה תשובת מהר"מ) : אבל אם נגעו בה אסורים אם הם של אותו שזרקן עליו והוא שיזרקם על דעת שיקברם עמו (טור בשם רא"ש והוא סוף מ"ק): הגה הדף שטיהרו עליו וכל הכלים שמוליכין המת עליהם לקבורה לא נאסרו דהרי לא נתנם שם ע"מ לקבור עמו (תשובת מהרי"ל סימן נ"ה וכך משמע מדברי הרא"ש שהביא הטור):
If one's father and mother were throwing garments upon him,15Their dead son. it is a religious duty for others to save them [the garments],16One is religiously dutibound to remove the garments from the corpse and thereby restore lost property, for the parents will certainly regret their action later — ShaK. [provided] if they [the garments] did not touch the bier which is buried with him.17Upon which he was carried out for burial as was the custom in those days. Derived from San. 48a-b in accord with R. Simeon b. Gamaliel. Gloss: And if one saved them he is bound to guard them, and if one returned them to his father and mother and again they threw them and [consequently] they became prohibited [for use], the one who restored [them] is responsible to compensate [the loss], for he is like one who threw them in a place where there are hordes of wild beasts and robbers.18Resp. of R. Meir of Rothenberg, cited in Mord. B.B. — G. However, if they [the garments] did touch it [the bier], they are prohibited [for profitable use],19The prohibition is Rabbinical, since the garments might be confused with the shrouds of the dead, and if permitted for use, people would apply this to the shrouds as well (San. ibid.). [provided] if they belong to the one upon whom they threw them,20Tur from N in T.H. who derives it from Yeb. 66b. Otherwise the law is that a person cannot prohibit something which does not belong to him — ShaK. and provided [too] that one threw them with the intention21e., in a manner expressing extreme grief and embitterment, in order to bury the garments along with the corpse, and the garments touched the bier which is also buried. This excludes a mattress or cushion usually placed under the head of the corpse, or a sheet or Talith spread over the coffin or bier in which the corpse is carried out for burial — ShaK. If the dead person possessed a becoming Talith, it should not be exchanged for one of inferior quality, for the principle, ‘Do not destroy,’ does not apply here (cf. supra § 348, n. 2) — B.L.Y. that he should bury them with him.22Tur on the authority of Asheri M.K. end — G. Prohibited articles were not buried together with the dead person, in the same grave, but rather in the earth surrounding the grave which becomes the possession of the corpse — T.H. Gloss: The board upon which they cleansed [the corpse] and the entire equipment upon which they carry the corpse to burial, do not become prohibited [for profitable use], for one does not place them there for the sake of burying [them] with him.23MaHaRIL Resp. 55. Thus also Asheri quoted by Tur — G.
כל המרבה כלים על המת הרי זה עובר משום בל תשחית:
Whoever [throws recklessly] many garments upon the dead,24 supra par. 3. commits a sin because of 'Do not destroy'.25Sem(H). IX, 23. Cf. M.K. 27b; Yad Ebel IV, 2 and commentaries ibid.; Sem(H). Int. p. 81. This is in accord with the opinion of R. Meir (Sem. ibid.) who states: ‘One should not be reckless by throwing garments upon the dead to be buried with them.’