Commentary for Berakhot 38:16

[TO] WHAT [PURPOSE] DID THE VERSE STATE: AND HIS SISTER? Within the general discussion of הבריות כבוד the Gemara arrives at the particular issue of burying a dead person who has nobody to bury him. He is in a place where he is not known or very distant from his relatives and they cannot be reached to take care of his needs. At this point he is called a mais mitzvoh. It is a mitzvoh for anybody and everybody to bury him. The Rabanan derive the obligation to bury him from a verse dealing with the laws of a nozir. The Torah writes in Bamidbor 6, 7, כל־ימי הזירו ליהוה על־נפש מת לא יבא -- “all of the days that he is a nozir to Hashem, he shall not come in contact with a corpse”. The Torah is very clear that he may not come in contact with any corpse. This raises a question about the next verse לאביו ולאמו לאחיו ולאחתו לא־יטמא להם במתם -- “To his father and to his mother, to his brother and to his sister, he shall not become tomay to them when they die”. Why did the Torah list all these relatives? The first verse prohibited the nozir from becoming tomay to all people.
Why did the Torah have to repeat that he should not become tomay to his close relatives? Our Rabanan understood that the Torah is indicating by mentioning each relative, that one may not become tomay to that relative, but he may become tomay to somebody else. Who is that somebody else? The mais mitzvo. Tosfos will now show us how each and every word in the verse is used to teach us something new. See Artscroll note 33, for a general idea of the material discussed by this Tosfos. In regard to a nozir the Torah writes, “He shall not come in contact with any corpse”.
And it is written immediately after that verse, “to his father and to his mother, to his brother and to his sister he shall not become tomay”. And all of these individual relatives are redundant, because they can all be derived from the previous verse; he shall not come in contact with a dead person, which includes all people even his close relatives. Why did the Torah enumerate the close relatives? And we expound the verse as follows: why is “to his father” mentioned? To teach us the rule that he may not become tomay when his father dies, is not necessary, because from “a dead person” it can be learned that a nozir may not become tomay to any person including his close relatives. And the posuk comes only to exclude a mais mitzvoh from the general prohibition, that it is permissible to become tomay to bury him.
The Braiso continues expounding the verse: Why is it necessary to state “to his mother”? To teach us the rule that the nozir may not become tomay when his mother dies is not necessary. And to permit the nozir to become tomay to a mais mitzvoh is also not necessary because we have already learned that exclusion from “to his father”. Rather, “to his mother” comes to teach us that if he was a nozir and a kohain, that even when there are two sanctities upon him, the Torah only prohibits him from becoming tomay to his mother but he may become tomay to a mais mitzvoh.
The Braiso continues expounding the next word in the verse: Why does the Torah write the word “to his brother”? To teach us the rule that when his brother dies that he may not become tomay is not necessary we already know that from the very first verse. To teach us that a nozir who is a kohain may become tomay to a mais mitzvoh is also not needed because we have learned that from “to his mother”. It comes to teach us that if he was a kohain godol and a nozir whose sanctity is even greater than an ordinary kohain, for even without his being a nozir, it is forbidden for him to become tomay to his relatives. Even so, “to his brother” he may not become tomay but he may become tomay for a mais mitzvoh. The basis for this type of expounding is if this verse is not needed to teach us about one who is only a nozir because that is derived from “to his father” and not for a regular kohain who is a nozir because that is derived from “to his mother”, apply the verse “to his brother” to a kohain godol who is a nozir and it is teaching us that even he may become tomay in order to bury a mais mitzvoh.
Tosfos shows us how the final word of the verse is used. Why was it necessary to write “and to his sister”? This is speaking about one who is a kohain godol and a nozir, and he went to slaughter his Pesach sacrifice and to circumcise his son, where there are many mitzvos with which he is occupied, even so “to his sister” he may not become tomay because this would not only violate his many sanctities but would also prevent him from fulfilling all those mitzvos, but he may become tomay to a mais mitzvoh, even though he will not be able to fulfill all those mitzvos.

YOU SAID: “HE SHALL NOT BECOME IMPURE.” The Gemara posed a question: if one is on his way to slaughter the Pesach sacrifice and to circumcise his son and he hears that his close relative died, should he return to participate in the funeral or should he proceed to slaughter the Pesach sacrifice and circumcise his son? The Gemara concludes that he should proceed with the Pesach and the circumcision of his son. There are two pints that are unclear:
a) Are we discussing the kohain godol who is a nozir and only he must proceed with the Pesach sacrifice, but an ordinary Jew or even a kohain must return for the funeral?
b) What is the basis for the decision to continue with the Pesach and not to return for the funeral?
Tosfos will shed some light on these questions. Because the Braiso is referring to a person who is a nozir and a kohain godol and he is about to sacrifice the pesach, it concludes that he should not become tomay. It appears that one who is only sacrificing the Pesach, and is not a combined kophain godol and nozir is allowed to become tomay to his relatives.
This conclusion is going to be challenged. And this is bewildering. For in Z’vochim (perek 12, 100a) in regard to the story of Yosaif Hakohain whose wife died on Erev Pesach, when the Pesach sacrifice is offered and he did not want to become tomay at her funeral, and his friends caused him to become tomay against his will. And the Gemara there poses a question from this Braiso of our Gemara. That the Braiso says that when faced with this situation one should not become tomay. And what is the question? Perhaps the Braiso rules that he should not go to his relative’s funeral because here the situation is different, because it is speaking of one who has all these sanctities. He is a nozir and a kohain godol, but one who is only sacrificing the Pesach, perhaps he is permitted to become tomay at his relative’s funeral.
This question forces Tosfos to reach another conclusion. Because of this it is more sensible to explain that when the Braiso says, will tell you that he should not become tomay, it refers even to one who is only sacrificing a Pesach and is not a kohain godol and a nozir.
Now that Tosfos says that the Braiso is ruling in the case of one who is only offering a Pesach sacrifice, and is not a kohain godol and a nozir, that he must also continue with the korbon Pesach, we must know how the Braiso came to this conclusion. And if you ask: from where is it so plain to the Tano, his conclusion that you should say that he may not become tomay. On what halachic analysis is this decision based?
And we can answer: The Tano concluded that one should become tomay as Rashi says, that a positive commandment that does not carry the punishment of korais such as becoming tomay at a relatives funeral cannot come and override a positive commandment that does carry with it a punishment of korais, for example, sacrificing a pesach. And for circumcision as well, there is a possibility of a korais punishment.
Tosfos taught us the legal basis for this decision. We must still know how the Gemara in Z’vochim knew that our Braiso was discussing even a case of one who is only sacrificing a korbon Pesach. Perhaps our Braiso was discussing a kohain godol who was also a nozir and is about to offer the korbon Pesach as we originally thought? And if you ask: There in Z’vochim 100a, where the Gemara questions the story of Yosaif Hakohain, whose colleagues forced him to become tomay at his wife’s funeral, and the Gemara, argues that our Braiso supports Yosaif Hakohain, by doing so, we see that the Gemara obviously holds that our Braiso that says one should not become tomay at a relative’s funeral is speaking even of one who is not a kohain godol and a nozir, how did the Gemara there know that this Braiso here is speaking of one who is only occupied with the korbon Pesach and is not a kohain godol and a nozir?
Perhaps the Braiso is speaking of one who has all three sanctities and is also offering a Pesach? And we can answer: That the Gemara in Z’vochim understood that our Braiso is speaking even of one who is only offering a korbon Pesach, because the Braiso did not combine all of the sanctities, when discussing the one who is offering a Pesach as it did when discussing the others.
Tosfos illustrates this point: When the Braiso discusses the second level of sanctity, the nozir who is a kohain, the Braiso says: he, who was a nozir and a regular kohain, the Braiso is especially bringing to our attention that we are adding another level of sanctity. For originally he mentioned nozir alone and then afterward when discussing the second level he mentions that there is an additional level of sanctity, he was a nozir and a regular kohain etc. when discussing the additional level of a kohain godol who is a nozir, the Braiso follows the same routine. However, when discussing one who offers a Pesach the Braiso does not mention that he was a kohain godol and a nozir who was offering a Pesach. Since the Braiso did not mention the combination of all these levels of sanctity, the Gemara understood that he is discussing one who is only offering a Pesach and has no other level of sanctity.
Ultimately, all these rules are derived from the verse that discusses a nozir. Essentially the nozir is totally unrelated to one who is offering a Pesach. This begs the next question: And if you ask: how did the Braiso know that this verse is discussing one who is offering his Pesach, and one who is about to circumcise his son, the verse is definitely discussing a nozir and not one who is offering a Pesach?
Tosfos gives us a classic answer that is used very often in Gemara: And we can answer: that we apply the rule if a verse is not needed to clarify anything more in the rules for the issue of nozir, for there are other verses that teach us that a nozir becomes tomay for a mais mitzvoh, use that not needed verse for the issue of one who has gone to slaughter his Pesach etc. whenever we have a situation that a verse or word in a verse is not needed in the context of the issue under discussion we use that verse to clarify a similar issue where we do not have a local verse. The Rabanan felt that the word ולאחותו was not needed to inform us of any more rules of the nozir and they applied it to a similar situation, one who is about to offer a Pesach and is faced with the burial of a mais mitzvoh.
Tosfos rejected Rashi’s explanation that the Braiso was indeed speaking about one who is offering a Pesach who was also a combined nozir and kohain godol. Tosfos said that the Gemara of Yosaif Hakohain seems to say that our Braiso is speaking of one who is not a combined kohain godol and nozir. Tosfos now advances a defense of Rashi’s position. We must keep in mind that the problem posed by the Gemara in Z’vochim is that if our Braiso is discussing an exemption from becoming tomay at a relative’s funeral for one who has all three levels of sanctity and is also in the process of offering a Pesach, how does the Gemara there attempt to show that Yosaif Hakohain was right for not wanting to become tomay at his wife’s funeral. Yosaif Hakohain did not have all three levels of sanctity. He was a regular kohain and he was not a nozir. How could the Gemara in Z’vochim say that Yosaif Hakohain was right based on what we learn from our Braiso?
And the Prince of Coucy defends Rashi’s explanation that we are speaking here of one who has all these sanctities, he is a nozir who is a kohain godol. And even so, the Gemara asks there in regard to Yosaif Hakohain that it can be seen from this Braiso that he was correct for not wanting to become tomay at his wife’s funeral on Erev Pesach. For we are compelled to say, that it can be seen from this Braiso that even one who is only offering a Pesach is not allowed to become tomay at a close relative’s funeral. For if it enters upon our minds that one who offers a Pesach may become tomay to relatives, why does the word ולאחותו need to be said to teach us that one who is offering a Pesach may become tomay for a mais mitzvoh? Since he can become tomay for his relatives, we see that the status of one who is offering a Pesach does not place any special stringency on him. If so, it is clear that he should become tomay to a mais mitzvoh.
This makes sense when discussing one who is only occupied with offering a Pesach, but since we are discussing one who is a kohain godol and a nozir perhaps a verse may be needed to teach us that with all these sanctities he still must become tomay to a mais mitzvoh. And if you should argue that it may very well be that a person who is in the process of offering a Pesach may be allowed to become tomay to close relatives, but even so the verse ולאחותו is needed to teach us that one may become tomay to a mais mitzvoh because the Braiso is discussing one who has three sanctities. That he is a nozir, a kohain and is offering a Pesach. We need a verse to teach us that even if he has all three sanctities he must become tomay to a mais mitzvoh but in reality I can tell you that one who is only offering a Pesach may become tomay to his relatives.
That is not so, for we gave already learned from ולאחיו ולאמו לאביו that being a nozir and a kohain godol has no effect on one’s obligation to become tomay to a mais mitzvoh. Even though one has all these sanctities he must become tomay to a mais mitzvoh. If so, we are compelled to say that the last verse ולאחותו is only needed to teach us the higher level of Pesach, and why is that necessary? It is clear that if one may become tomay for close relatives, he may certainly become tomay for a mais mitzvoh.
This argument that we see that each of the sanctities independently does not prevent one from becoming tomay to a mais mitzvoh and therefore collectively they also cannot prevent one from becoming tomay to a mais mitzvoh is subject to rebuttal as Tosfos will now demonstrate. We do see in the Braiso that although we know that with one sanctity one is required to become tomay to a mais mitzvoh we still need a second verse to teach us that when one has two sanctities he must become tomay to a mais mitzvoh.
This seems to refute what Tosfos is now saying. And even though the verse ולאמו is required to teach us that a regular kohain who is a nozir must become tomay for a mais mitzvoh, even though the verse says that a regular kohain must become tomay for his close relatives, and we require a second verse for when there are two sanctities, even though we have already learned that the higher level of nozir does not have any effect on one’s obligation to bury a mais mitzvoh from the word לאביו. We see that when there are two sanctities even though one of them does not prevent one from becoming tomay to a mais mitzvoh and the second one doesn’t even prevent one from becoming tomay to close relatives, we still require a verse to teach us that when they combine one must also become tomay to a mais mitzvoh.
Tosfos says that despite this argument, his position about one who is offering a Pesach is correct and a verse will not be needed to teach us that when one who is offering a Pesach combines with the other sanctities he must become tomay to mais mitzvoh. This statement is correct when we are discussing a kohain whose sanctity is eternal, and for this reason we could say that when he has two sanctities a kohain and a nozir that he is even more sanctified and may be forbidden from becoming tomay for a mais mitzvoh, and that is why we need a second verse. However, one who is offering a Pesach, whose sanctity is only temporary, if you permit him to become tomay for close relatives; the same should be true for a mais mitzvoh by a kal v’chomer. For why do you perceive that you should give him greater sanctity as regards a mais mitzvoh, and not allow him to become tomay to the mais mitzvoh, more so than for his relatives for whom he is permitted to become tomay?
Or perhaps we may briefly explain what can be learned from the Braiso. from the fact that the Braiso first speaks of a nozir alone and then of a nozir who is also a regular kohain and then about a nozir who is a kohain godol, we see that the Braiso was speaking of situations that are increasingly more likely for one not to become tomay to a mais mitzvoh. If so, logically we should say that one who is offering a Pesach, who is presented last, which indicates that his is the highest level of sanctity may not become tomay to close relatives just as the nozir and the others. And deduce this matter on your own and you will see that this line of reasoning is correct.

A Nazirite may not make himself ritually unclean by contact with the dead. The list of relations is: father, mother, brother, sister; and the Halakic commentary on Numbers and Deuteronomy, the Sifre, discusses the reason why each is mentioned : He may not defile himself for his father, but he must for a Met Miswah (see Glossary, s.v.); nor for his mother, but even if he be a Kohen as well as a Nazirite (i.e. doubly prohibited against such contact), he must defile himself for a Met Miswah ; nor for his brother, but even if he be the High Priest as well as a Nazirite, he must defile himself for a Met Miswah. The explanation of "his sister" is given in the Gemara.

The Nazirite who is a High Priest.

Which had to be performed at a certain time, and he would be precluded from officiating if he were unclean.