I'm a little confused by the two points of the Rosh on 43b. First, he explains that only relatives qualify to make a person not a meis mitzvah (lishna kamma), and then in the next part he deduces that if the kohein can call any yisroel, even a non-relative, the kohein may not become tamei. How can we resolve this? Also curious about the halacha. Thanks
Sender Klein, New York, USA
Let's analyze the Din: I am going to make an assumption that a Meis Mitzvah means "a Meis for which nobody in particular has responsibility." Therefore, if the Meis has a family member (i.e., one fit to inherit him) then the responsibility for burial falls on that person. For example, if a Kohen finds a Niftar, he is expected to notify the next of kin and not become Tamei to the Meis. What if he himself is the next of kin? He must arrange burial, but he cannot become Tamei himself because the Meis has not qualified as a "Meis Mitzvah" since there is a qualified next of kin who will arrange the burial. This is the understanding according to the first version in the Rosh and is backed by the Rosh's proof from the Gemara in Yevamos (ha'Ishah Rabah). If we accept this understanding absolutely literally, then we have a dilemma: a strange Niftar without any family found at this spot may be buried by this Kohen, but his own father may not! Such a situation is illogical. To this the Gemora answers that since in this forsaken place there is nobody else to perform the burial, so the Kohen may proceed with the burial, even though the Niftar has next-of-kin nearby.
The second version in the Rosh states that "he calls and they come" does not refer to the Niftar (in which case he is "calling" to his next-of-kin, but it refers to the current "first responder," in this case the son (who is a Kohen) -- if he can return to town and find a Yisrael to come perform the burial, he is required to do so and not bury his father. The Rosh rejects this Peshat as an excessive stringency.
As far as the Halachah is concerned, any Kohen who finds a Niftar and cannot call to anybody else to bury him must bury the Meis himself. I imagine that today, when almost everybody has a phone in his pocket, this would be an extremely rare situation. What comes out of this Sugya, however, is not rare: a Kohen is obligated to become Tamei to his closet relatives as Niftarim. Hoewever, if the relatives are not whole of body, this then reverts to an Isur d'Oraisa of Tum'as Meis. There are important details and some controversy about what constitutes "not whole," so any Kohen who finds himself in this unfortunate position should consult with a competent rabbinic authority.
I hope this sufficiently answers your question.
Shimon Brodie