BODY LOST BUT FOUND LATER
A man was drowned in a reservoir. The authorities have been searching for the body for a number of days. The search has been unsuccessful. The body cannot be found. What should be the funeral and mourning ritual procedure in this case? Furthermore, if the body does reappear later, what will be the ritual procedure then? (Asked by Rabbi Norman S. Lipson, Hattiesburg, Mississippi.)
THE QUESTION is in two parts, first as to what is the procedure when a body is drowned and cannot be found, and second, what would be the procedure if, let us say, months later the body appears.
As for the first part of the question, with regard to a body that disappears in a river, a lake, or the ocean, the law in general is fairly clear. It is stated first in the post-Talmudic booklet Semachos (Vol. II, #11), namely, that if a body is drowned in a river and cannot be found, the family begins its regular mourning (seven and thirty days, etc.) from the moment they despair of finding the body (mi-she-nis -yo-ashu). That moment of despair is taken to be the substitute for an actual burial. Just as mourning begins when the body is buried, so in the case of drowning, the raourning begins when the family gives up hope.
This question was discussed rather fully in Reform Responsa (pp. 147 ff.), where certain variations of the law are also given, namely, whether it is a man or a woman who is drowned, whether the man was married or not (on which the widow’s right to remarry depends), and more importantly for our special question, whether the waters in which the drowning took place are “limited” (so that one could see the shoreline) or “unlimited,” like the ocean. This (as to “limited” or “unlimited”) is based upon the Mishnah Yevamos 16:4, and the Talmud 121b. In the case of “unlimited” waters, the man who is presumed drowned may perhaps have saved himself and may be, for all we know, safe on a distant island. Therefore the law is stricter about a woman being permitted to remarry if the supposed drowning was in “unlimited” waters and also, therefore, stricter about prohibiting the formal family mourning, which would be tantamount to a public declaration that she is truly a widow, a fact which is as yet uncertain. However, if it is “limited” water, as in this case, then whether it be a man or a woman who was drowned, there is no question that the formal mourning begins when hope is given up for the recovery of the body.
Now as to the second half of the question: What should be done ritually if, as sometimes happens a month or two following a drowning, the body reemerges and is found after all the formal mourning (after an optional memorial service)? This specific situation is rarely mentioned in the Halachah. But there are a number of analogous situations in the law which are sufficient to guide us.
First of all, as a general guide, in all debatable circumstances with regard to death and mourning, there must always be borne in mind the principle enunciated by Rabbi Samuel in Moed Katan 26b, namely, that when there is a disagreement as to what the procedure should be with regard to a situation involving mourning, the law is always in accordance with the more lenient decision (halachah k’makil b’ovel). It will be noticed that this principle of leniency is actually followed in many situations contained in the law which are analogous to the question asked here. In the Shulchan Aruch, Yore Deah 375:3, the following law is given: If a body had been buried and mourning had begun, and then for some reason the body is disinterred and reburied in another grave, the family does not need to begin mourning again. The first mourning is sufficient. In fact, even if the burial in the first grave was with the announced intention of later burying the deceased elsewhere in another grave (for example, in his native city, when the opportunity would arise)—even then, in spite of the original intention, if the disinterment occurred after seven days, the family does not need to mourn again. Another case illustrating the leniency principle is given in 375:4. It is as follows: Normally, when a body is taken to another city for burial, the family in the first city begins mourning once the body leaves. In the second city (the destination), the mourning, of course, begins once the body is buried. But suppose—as, alas, often happened—the body was confiscated by the authorities on its journey and the family does not know when they can get the body for burial; nevertheless, having begun their mourning (in the original city), they do not need to mourn again (Yore Deah 375:7, Isserles).
There is only one circumstance under which some mourning must be repeated, and that is if the son of the deceased (or, for that matter, any other of the seven close relatives) actually finds the body himself or is present when it is found. Then he and, some would say, the family must sit shiva for one hour and mourn for one day. So, too, if they are informed of the exact hour of discovery.
This requirement (needing to sit shiva for an hour and mourn for a day) is derived from the law in Shulchan Aruch, Yore Deah 403, in the laws of “gathering the bones,” which means, the reburial of a body. Even in such a case of reburial, the great authority Moses Sofer practiced Samuel’s principle of leniency. In his responsa, # 3 5 3, he is asked about an order by the authorities for the Jewish community to vacate a certain cemetery, to remove all the bodies. By the law in the Shulchan Aruch, all the families, knowing the exact hour of the disinterment of their relatives, would need to sit shiva for that hour. Thereupon, Moses Sofer decreed that the Chevra Kadisha be forbidden to inform the community when the disinterment would take place, so that they should not need to sit shiva for the hour and mourn that day.
All this is applicable in the case mentioned. First of all, the drowning took place in “limited” waters. There is no doubt that the mourning begins the moment the family gives up hope, and this moment can be fixed by a memorial service if desired. If the body reemerges, let us say a month later, it is not likely that a son will be present at that moment, nor is it likely that the family will be informed that day (because of the need for official identification). Even if the son happened to be present at the actual reappearance of the body or if the family were informed that very day—all of which is highly improbable—then even so, we follow the unquestioned authority of Moses Sofer and have no ritual at all.
This is clearly the intention and the spirit of the law. If the body is found, it should be quietly buried. At the burial there is no objection to saying Kaddish, which may be said at any time, but otherwise no mourning ritual for the family is required.
This situation finds occasional mention in the Halachah (see Tur 375). So, too, Joshua Falk, in his commentary to the Tur above (Derisha, para. 3), says that when the body is recovered, no repetition of the mourning ritual is required. Greenwald, in his Kol Bo (p. 299), speaks of such a case mentioned by the Hagahos Smak.