פירוש על נזיר 9:3

המוציא מת מתחלה – it was not known that there were was a grave there, that is what we said in the Gemara (Tractate Nazir 65a): “he who finds and not that it was accessible, ” and furthermore, we derive from the language of our Mishnah that someone died, but not that he was killed.

Introduction Yesterday’s mishnah ended with the phrase, “for there are grounds for such an assumption” (raglayim ledavar). This can be translated literally as “the matter has legs”, but it means that an assumption is probably correct. The following two mishnayoth are brought here in this tractate because they too contain that phrase. Specifically, today’s mishnah deals with a person who finds a body or more than one body buried on his property. The question is, was his property a cemetery or not. Note that normally speaking Jewish law forbids the moving of a corpse. However, in certain circumstances it is permitted. In our mishnah the owner of the property wants to prevent his property from being unclean and therefore the mishnah allows him, under certain circumstances, to remove the body.

מושכב – and not that he was sitting.

If a man finds a corpse for the first time lying in a typical position, he may remove it together with the soil that it occupies. A person finds a single corpse on his property and he has never found one there before. The corpse is lying in a position typical for the burial of Jews. If it had been a non-Jewish body, there would be no concern for impurity since non-Jewish corpses do not defile. The mishnah rules that he may move it, together with the soil surrounding it. The soil must be removed for it has soaked up some of his blood and moisture and hence may be impure.

כדרכו – and not that his head was placed between his thighs, for all of these, we suspect of them that they are heathens, for it is not the manner of Israelites to bury their dead in such a manner.

[If he finds] two, he may remove them together with the ground they occupy. If he finds two bodies, he may proceed in the same manner. Two bodies is not enough for us to begin to be concerned about it being a cemetery.

נוטלו ואת תפושתו – it is permissible to remove him from there and to bury him in another place, and he must take from the dirt of the grave with him which is pressed by the body in the grave (and which is considered “the dead man’s property”) which is all the crushed, loose earth that is below him and he digs in virgin ground three fingers as it is written (Genesis 47:30): “[When I lie down with my fathers,] take me up from Egypt and bury me in their burial-place,” for it is not necessary to state “from Egypt,” but rather this is what he said: from the dust of Egypt take my people.”

If he finds three, then if the distance between the first and the last is from four to eight cubits, this is a graveyard site. He [must] check from that point twenty cubits in all directions. If he finds one twenty cubits away, he must check from it another twenty cubits, for there are grounds [that it is a graveyard]. For if he had found it at the outset he would have removed it and the soil that it occupies. However, if he finds three bodies and there are no more than eight cubits separating the two furthest apart, he must assume that he has stumbled upon a cemetery. In this case he cannot move the corpses. He must look around in a twenty cubit radius to see how large the cemetery is. If he finds another corpse even twenty cubits away, he must treat the entire area as a cemetery. He may not remove this single corpse, even though it is a large distance away from the others, for there are grounds (no pun intended) to assume that the entire area was used as a cemetery. In contrast, if he had found a single corpse there before finding others, it would not have been considered part of the cemetery, and he would have been allowed to remove it with its soil.

מצא שלשה אם יש בין זה לזה מד' אמות עד שמנה – meaning to say from the first grave until the third [grave], there Is not less than four cubits and no more than eight [cubits].

הרי זו שכונת קברות – and it is recognized that for the sake of burial they were placed there and it is forbidden to remove them, and even one dead person, if it was known that for the sake of burial they were placed there, it is forbidden to remove it, other than that with one or two we leave undecided that they were not buried there other than temporarily and that it was their intention to remove them, but with three, it is proved that this is a special place for burials. And the length of the cave, its manner is to be six [cubits] and four [cubits] wide, and crosswise there is an excess of two cubits which is eight, therefore it is taught in the Mishnah: “from four until eight,” with the fulness of a coffin but those who bury it are not taught here.

ובודק הימנה ולהלן עשרים אמה – for the burial cave is four [cubits] by six [cubits] and the courtyard that the caves are open to it from here and there is six [cubits] by six [cubits]. And this is what the Rabbis hold in the chapter (Tractate Bava Batra] המוכר פירות/One who sells fruit [102b]. It is found that the length of two caves and the courtyard that is between them is eighteen cubits, and since that sometimes, he examines one cave with a diagonal line and the diagonal line of one cave has an excess of two cubits in nearness, which makes it twenty cubits: eight [cubits] of the first cave with a diagonal line and six [cubits] of the courtyard that is between the two caves and six [cubits] of the second cave, since we state one diagonal line/diameter. And further, one needs to check from above and from below twenty cubits which is forty cubits lest this is a cave that is in the east of the courtyard and there is yet another opposite on the western part of the courtyard. Alternatively, that which is in the western part of the courtyard, and there is yet another on the east of the courtyard.

מצא אחד בסוף עשרים בודק ממנו ולהלן כ' אמה – for who will say that from the cemetery there would be this cave for perhaps it is another grave, and another courtyard of another person, and one also needs to make for the sake of all of the examinations mentioned above just like there is a grave there, similarly, there are others.

שרגלים לדבר – that this field was made for graves and there were in it also other caves, and because of grounds for such a decision these Mishnayot are taught here.