사무엘하 3:14의 Halakhah

Mishneh le-Melekh readily concedes that his permissive view with regard to deriving benefit from gentile cadavers is not universally accepted. Although Rambam and Tur Shulḥan Arukh both record the prohibition attendant upon deriving benefit from a corpse, neither of these codifiers indicates in any way that the reference is limited to the corpse of a Jew.³²See Radbaz, Hilkhot Avel 14:21. Even more explicit is the ruling of Shulḥan Arukh, Yoreh De'ah 349:1, declaring that no benefit may be derived from the shrouds of "either a gentile or a Jew."³³As is well known, the author of the Shulḥan Arukh, R. Joseph Caro, was also the author of Kesef Mishneh, a classic commentary on Rambam’s Mishneh Torah. Curiously, this authority, in his Kesef Mishneh, Hilkhot Arakhin ve-Ḥaramin 5:17, seems to assume that no issur hana’ah is attendant upon the corpse of a non-Jew. Cf., however, Mishneh le-Melekh’s attempt at reinterpretation of the comments of Kesef Mishneh. It is clear that the prohibition is not limited to shrouds but that the identical restriction applies to the corpse itself.³⁴Mishneh le-Melekh also cites the interpretation of King David’s demand, “Deliver my wife, Michal, whom I betrothed to me for a hundred foreskins of the Philistines” (II Samuel 3:14), recorded in the Gemara, Sanhedrin 19b. According to the Gemara’s analysis, Saul regarded the marriage to be a nullity ab initio because he deemed the foreskins delivered to the bride as consideration to be worthless. David, on the other hand, regarded them as objects of at least minimal value since they could be fed to dogs or cats. Since issurei hana’ah cannot be used as consideration for the purpose of contracting a marriage, the implication is that there was no transgression associated with any benefit that might have been derived from the foreskins of the Philistines. Mishneh le-Melekh notes, however, that it is possible that the foreskins were severed from the Philistines before they were put to death and hence no prohibition against deriving benefit would have been attendant upon them. Cf., R. Chaim Sofer, Teshuvot Maḥaneh Ḥayyim, Yoreh De‘ah, II, no. 60, who maintains that no issur hana’ah is attendant upon the corpses of prisoners captured in battle. Cf. also, R. Azriel Hildesheimer, Teshuvot R. Ezri’el, Even ha-Ezer, no. 30, who avers that no issur hana’ah is attendant upon the foreskin of a cadaver, but fails to set forth any substantive demonstration of that thesis. Similarly, Shitah Mekubezet, Ketubot 60a, cites a statement attributed to Re'ah indicating that "there is no difference between a gentile and a Jew" in this regard. On the other hand, Ramban, Ketubot 60a, advances an opposing view in remarking, "I know of no prohibition with regard to a non-Jew since we derive [the prohibition] from Miriam." Mishneh le-Melekh, however, notes that in other places Ramban's comments, if not expressly contradictory, are at least equivocal as are the comments of Teshuvot ha-Rashba, 1, nos. 364 and 365.³⁵Elsewhere, in his commentary on Ketubot 60a, Rashba espouses the position of Tosafot. Cf., Bedek ha-Bayit, Yoreh De‘ah 349. Other authorities cited by Mishneh le-Melekh who espouse the view that it is not forbidden to derive benefit from the corpse of a non-Jew include Sefer Yere'im, no. 310, and Tosafot, Baba Kamma 10a.³⁶For discussions of this question by latter-day authorities see Teshuvot ha-Radbaz, III, no. 979; Teshuvot Maharam Shik, Yoreh De‘ah, no. 349; R. Jacob Emden, She’ilat Ya‘aveẓ, I, no. 41; R. Meir Shapiro, Teshuvot Or ha-Me’ir, no. 74; as well as sources cited by Pithei Teshuvah, Yoreh De‘ah 349:1 and Sedei Ḥemed, Kelalim, Ma‘arekhet ha-Mem, no. 103.
Pitḥei Teshuvah also cites Teshuvot Even Shoham, no. 30, who maintains that although the issur hana’ah pertaining to a Jewish corpse is biblical in nature, the prohibition regarding a non-Jewish corpse is of rabbinic origin; cf., Sedei Ḥemed, loc. cit., s.v. ve-katav. See also R. Jacob Emden, She’ilat Ya‘aveẓ, I, no. 41.