‘Alive Until Determined Otherwise’
Our Gemara cites a mishnah (Taharos 5:7) which discusses the status of a man who touched a body in the darkness of night and discovered the next morning that the body was a corpse. We don’t know, however, when the person died – before or after the person touched him. The sages argue that we assume the body was already a corpse before the person touched him due to the rule that “all uncleanness [discovered now] is assumed to have been present previously as well.” Thus, the person who touched the body has the status of tamei mes.
A Rabbinic Stringency
Tosafos (sv “shekol hatemei’os…” and supra 2a, sv “me’es l’es”) note that this ruling is a rabbinic stringency that only applies to kadshim. In biblical law, however, this individual is tahor since everyone has a chezkas chay – everyone is presumed alive until we know otherwise. In our case, this chazakahremained in place until the moment in the morning when it was determined that the body was a corpse.
Not So, Argues The Rashba
The Rashba (supra 2b) disagrees and argues that the person is tamei even on a biblical level. He cites a Tosefta (Taharos 6:5), which qualifies the sages’ assertion, to support his assertion. The Tosefta says that the sages agree with R. Meir that the individual in question is not tamei if the person he touched was seen alive the previous evening. In such a case, a chezkas chay exists, and we therefore assume that the person was still alive when the individual stumbled upon him in the darkness of night. If he wasn’t seen alive the previous evening, however, the man who touched the body is tamei since there is no chezkas chay.
Surely The Dead Once Lived
Rabbi Akiva Eger (hagahos to Rambam, Hilchos Avos Ha’tum’os 17:2) asks why it’s important for the person to have been seen alive the previous evening. Even if he wasn’t seen, surely he should have a chezkas chay since he obviously was living, and was known to be living, until the morning when his corpse was found.
Rabbi Akiva Eger answers that a person found dead in a certain location only has a chezkas chay if he was seen alive in the very location where he was later found dead. Being seen alive somewhere else, though, is not sufficient to establish a chezkas chay.
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