סִימָן מוּבְהָק קָא מִיפַּלְגִי; מָר סָבַר: סִימָן מוּבְהָק, וּמָר סָבַר: לָאו סִימָן מוּבְהָק.

is an unambiguous distinguishing mark that they disagree. One Sage, Rabbi Eliezer ben Mahavai, holds that a mole is an unambiguous distinguishing mark and may be relied upon by Torah law. Consequently, if a man’s corpse was identified in this manner, his wife may remarry. And one Sage, the anonymous first tanna , holds that a mole is not an unambiguous distinguishing mark.

וּלְהָךְ לִישָּׁנָא דַּאֲמַר רָבָא סִימָנִין דְּאוֹרַיְיתָא, הָא קָתָנֵי אַף עַל פִּי שֶׁיֵּשׁ סִימָנִין בְּגוּפוֹ וּבְכֵלָיו!

The Gemara asks: According to the first version, that Rava said that distinguishing marks are recognized as valid identification by Torah law, there is a question: Isn’t it taught in the mishna: Although there are distinguishing marks on his body and his personal belongings, one may not rely on these as identification, implying that distinguishing marks are not valid identification by Torah law?

גּוּפוֹ – דְּאָרוֹךְ וְגוּץ, כֵּלָיו – דְּחָיְישִׁינַן לִשְׁאֵלָה. וְאִי חָיְישִׁינַן לִשְׁאֵלָה, חֲמוֹר בְּסִימָנֵי אוּכָּף הֵיכִי מְהַדְּרִינַן?

The Gemara answers: The mishna’s intent is that ordinary distinguishing marks on one’s body, which constitute only weak evidence to a person’s identity, e.g., that he was tall or short, are not valid identification. Additionally, one cannot rely upon distinguishing marks on his personal belongings, as we are concerned about borrowing, i.e., perhaps the deceased had borrowed the clothes he was wearing from someone else. The Gemara asks: But if we are concerned about borrowing, then, with regard to returning lost property, how can we return a donkey based solely upon distinguishing marks on the saddle? Why don’t we consider the possibility that the saddle was borrowed?

לָא שָׁיְילֵי אֱינָשֵׁי אוּכָּפָא, דִּמְסַקֵּיב לֵיהּ לַחֲמָרָא. מְצָאוֹ קָשׁוּר בְּכִיס וּבְאַרְנְקֵי וּבְטַבַּעַת הֵיכִי מְהַדְּרִינַן?

The Gemara answers: People do not normally borrow a saddle because it bruises the donkey, as the saddle must fit exactly to the donkey’s measurements. The Gemara raises further objections based upon the baraita cited earlier: If he found the lost bill of divorce tied to a purse, or a money bag, or a ring, he may rely upon the distinguishing marks on those items and deliver the bill of divorce to the woman. But how can we return it and not be concerned that these belongings may have been lent to someone else whose bill of divorce is tied to them?

טַבַּעַת חָיֵישׁ לְזִיּוּפֵי, כִּיס וְאַרְנְקֵי מְנַחֲשֵׁי אֱינָשֵׁי וְלָא מוֹשְׁלֵי. וְאִיבָּעֵית אֵימָא: כֵּלָיו – בְּחִיוָּרֵי וְסוּמָּקֵי.

The Gemara answers: The case of the ring is referring to a signet ring, which one does not lend, because he is concerned about forgery, i.e., that the borrower might use it to forge his consent on documents without his knowledge. With regard to a purse or a money bag, people consider it a bad omen to lend them out and do not lend them to others. And if you wish, say that the reason not to permit a woman to remarry and not to accept that her husband is dead based upon the distinguishing marks found on his personal belongings is that the distinguishing marks referred to are only general ones, e.g., he wore white or red clothing, but they are not unambiguous distinguishing marks.

״וַאֲפִילּוּ רָאוּהוּ מְגוּיָּיד״ וכו׳ לְמֵימְרָא דִּמְגוּיָּיד חַיֵּי? וּרְמִינְהִי: אָדָם אֵינוֹ מְטַמֵּא עַד שֶׁתֵּצֵא נַפְשׁוֹ, אֲפִילּוּ מְגוּיָּיד וַאֲפִילּוּ גּוֹסֵס. טַמּוּיֵי לָא מְטַמֵּא, הָא מִיחֲיָיא – לָא חַיֵּי!

§ We learned in the mishna: And even if one saw him cut open [ meguyyad ] and severely wounded, one may not testify that he died. The Gemara asks: Is this to say that a person who is cut open is fit to live for much time afterward? The Gemara raises a contradiction from what was taught in a mishna ( Oholot 1:6): A dead person renders other people and objects impure only when his soul actually departs, even if he is cut open and severely wounded, and even if he is clearly dying. From this we may deduce that he does not yet render others ritually impure, as he still has some life in him, but he is not fit to live for much time afterward.

אֲמַר אַבַּיֵי: לָא קַשְׁיָא, הָא רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר, הָא – רַבָּנַן, דְּתַנְיָא: מְעִידִין עַל הַמְגוּיָּיד, וְאֵין מְעִידִין עַל הַצָּלוּב. רַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר אוֹמֵר: אַף עַל הַמְגוּיָּיד אֵין מְעִידִין, מִפְּנֵי שֶׁיָּכוֹל לִכָּווֹת וְלִחְיוֹת.

Abaye said: The contradiction raised is not difficult: This mishna here is in accordance with the opinion of Rabbi Shimon ben Elazar, while that mishna from tractate Oholot is in accordance with the opinion of the Rabbis, as it is taught in a baraita : One may testify about the death of a person who is cut open, but one may not testify about a crucified person. Rabbi Shimon ben Elazar says: Even concerning a person who is cut open, one may not testify that he is dead because his wound can be scorched, and this cauterization of the wound may stop the flow of blood and allow him to survive.

וּמִי מָצֵית לְאוֹקוֹמֵי כְּרַבִּי שִׁמְעוֹן בֶּן אֶלְעָזָר? וְהָא קָתָנֵי סֵיפָא: מַעֲשֶׂה בְּעַסְיָא בְּאֶחָד שֶׁשִּׁילְשְׁלוּהוּ לַיָּם, וְלֹא עָלְתָה בְּיָדָם אֶלָּא רַגְלוֹ, וְאָמְרוּ חֲכָמִים: מִן הָאַרְכּוּבָה וּלְמַעְלָה – תִּנָּשֵׂא, מִן הָאַרְכּוּבָה וּלְמַטָּה – לֹא תִּנָּשֵׂא!

The Gemara challenges this: But can you establish the mishna to be in accordance with the opinion of Rabbi Shimon ben Elazar? Isn’t it taught in the latter clause (121a): An incident occurred in Asya in which they lowered a certain man into the sea on a rope, and when they pulled the rope back to land only his leg came up in their hands. They were not certain whether he was alive or dead. The Sages said: If his leg was cut from the knee and above, his wife may marry, as he would not survive such a wound; if his leg was cut only from the knee and below, she may not marry. This indicates that someone cut open in the first manner is assumed to be dead. If this follows Rabbi Shimon ben Elazar’s opinion, why doesn’t it say that there is a concern that he might be alive even if the leg was cut from the knee and above?

שָׁאנֵי מַיָּא דְּמַרְזוּ מַכָּה.

The Gemara answers: Water is different, as it aggravates the wound. Since he was in the water, it can be assumed that such a wound will certainly lead to death.

וְהָאֲמַר רַבָּה בַּר בַּר חָנָה: לְדִידִי חֲזִי לִי הַהוּא טַיָּיעָא, דְּשָׁקֵיל סַפְסֵירָא וְגַיְּידֵיהּ לִגְמַלֵיהּ, וְלֹא אַפְסִיקַתֵּיהּ לְנַעֲרוּתֵיהּ! אֲמַר אַבַּיֵי: הַהִיא כְּחִישָׁא הָוְיָא.

The Gemara asks: But didn’t Rabba bar bar Ḥanna say: I myself saw an Arab who took his sword [ safseira ] and cut open his camel, and the camel died so quickly that it could not even cease its braying before it died? This indicates that a living being that is cut open has no chance of surviving. Abaye said: That camel was emaciated and weak, causing it to die immediately, but a normal camel would not have died so quickly.

רָבָא אֲמַר: בְּסַכִּין מְלוּבֶּנֶת, וְדִבְרֵי הַכֹּל.

Rava said a different resolution to the apparent contradiction between the mishna here and the mishna in tractate Oholot : The mishna here is referring to a case where the man was cut open with a white-hot knife, and everyone agrees that one may not testify to the death of a person wounded in such a manner, as the wound would close due to the heat.

״וְהַחַיָּה אוֹכֶלֶת״ וכו׳. אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: לֹא שָׁנוּ אֶלָּא מִמָּקוֹם שֶׁאֵין נַפְשׁוֹ יוֹצְאָה, אֲבָל מִמָּקוֹם שֶׁנַּפְשׁוֹ יוֹצְאָה – מְעִידִין.

§ It was taught in the mishna: Or even if one saw that a wild animal was eating parts of him, Rav Yehuda said that Shmuel said: They taught this only where the animal was eating from a place on his body that does not cause his soul to depart, i.e., does not inevitably lead to death, such as his hand or foot. But if the animal was eating from a place on his body that does cause his soul to depart, one may testify to his death.

וְאָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: שָׁחַט בּוֹ שְׁנַיִם אוֹ רוֹב שְׁנַיִם וּבָרַח – מְעִידִין.

And Rav Yehuda said that Shmuel said: If someone cut a man’s two passageways, or most of the way through the two passageways, and the maimed person fled, one may testify to his death.

אִינִי? וְהָאָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל: שָׁחַט בּוֹ שְׁנַיִם אוֹ רוֹב שְׁנַיִם וְרָמַז וְאָמַר: כִּתְבוּ גֵּט לְאִשְׁתִּי – הֲרֵי אֵלּוּ יִכְתְּבוּ וְיִתְּנוּ! חַי הוּא, וְסוֹפוֹ לָמוּת.

The Gemara challenges that conclusion: Is that so? But didn’t Rav Yehuda say that Shmuel said: If someone cut a man’s two passageways, or most of the way through the two passageways, and the maimed person gestured and thereby communicated: Write a bill of divorce for my wife, then these onlookers should write it and deliver it to her. Since only a living person may give a bill of divorce, this indicates that the maimed man is considered alive. The Gemara answers: He is still alive at the moment, but he will eventually die from the wound. Consequently, he may appoint an agent to deliver a bill of divorce to his wife, but after a while one may testify that he is dead.

אֶלָּא מֵעַתָּה יְהֵא גּוֹלֶה עַל יָדוֹ, אַלָּמָּה תַּנְיָא: שָׁחַט שְׁנַיִם, אוֹ רוֹב שְׁנַיִם, הֲרֵי זֶה אֵינוֹ גּוֹלֶה! הָא אִיתְּמַר עֲלָהּ, אֲמַר רַב הוֹשַׁעֲיָא: חָיְישִׁינַן שֶׁמָּא הָרוּחַ בִּלְבְּלַתּוּ, אִי נַמִי, שֶׁמָּא אִיהוּ

The Gemara asks: If that is so, that such a wound is definitely fatal, one who unintentionally wounds another in this manner should be exiled on his account, in accordance with the halakha of one who unintentionally kills another. Why is it taught in a baraita : If one unintentionally cut the two passageways of another person, or most of the thickness of the two, he is not exiled? The Gemara answers: But it was stated with regard to that baraita that Rav Hoshaya said: We are concerned that perhaps the wind aggravated his condition and actually caused his death, in which case the perpetrator is not culpable for the death and should not be exiled. Alternatively, perhaps he, the maimed person,