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Avodah Zarah, 42
1) HALACHAH: THE OBLIGATION TO BURY A "NEFEL"
QUESTION: The Gemara cites a Beraisa that relates an incident in which a
Jewish maidservant gave birth to a Nefel (a stillborn) and placed it in a
pit. A Kohen came and looked into the pit to discern whether the Nefel was
male or female, in order to rule how many days of Tum'ah and Taharah the
woman needed to observe. The Chachamim ruled that the Kohen is Tahor, and
the Gemara explains why he was considered Tahor.
Why was the Kohen looking into the pit merely to determine the gender of the
child (or, according to one of the Gemara's explanations, to determine
whether it was fully developed and had the status of a stillbirth or not)?
Why was he not concerned with giving the stillborn a proper burial?
(a) The REMA (OC 526:10) states that it is forbidden to bury a Nefel on Yom
Tov; only after Yom Tov is over may the Nefel be buried. The HAGAHOS
MAIMONIYOS (Hilchos Milah 1:10) and the BI'UR HA'GRA (O.C. 526) cite our
Gemara as proof to this ruling. We see from our Gemara that there is no
Mitzvah to bury a Nefel, since the Gemara makes no mention of any plans to
bury the Nefel that was put in the pit.
However, it is apparent from the DARCHEI MOSHE, the Rema's commentary on the
TUR and BEIS YOSEF, that the Rema does not apply this ruling to all cases.
He implies that the prohibition to bury a Nefel on Yom Tov is due merely to
the custom to remove his Orlah (if he is a male) with a stone, which cannot
be done on Yom Tov. Since this "Milah" does not override the laws of Yom
Tov, one must wait until after Yom Tov to perform this "Milah," and then
bury the Nefel. The Darchei Moshe implies that if the Nefel was a female or
already had a "Milah," then it is permitted to bury the Nefel on Yom Tov.
This does not to be consistent with our Gemara, which implies that there is
no obligation to bury a Nefel.
(The BEDEK HA'BAYIS (the addendum of the BEIS YOSEF to his commentary)
writes that the burial of a Nefel is delayed until after Yom Tov only for a
definite Nefel. If we are uncertain whether the birth is a Nefel or was a
healthy child that happened to die, then he may be buried on Yom Tov.)
(b) The MAGEN AVRAHAM (ibid.) argues with these opinions for many reasons,
and he refutes the proof from our Gemara. One of his proofs is the Gemara in
Nidah (56b-57a) that states that the Kusim would not bury a Nefel, since
they had a rule that only a person who can inherit land is required to be
buried. The Gemara there, which describes what the Kusim used to do, implies
that the Halachah is *not* like that, but rather the Halachah is that a
Nefel *does* require burial.
Among his many reasons for refuting the proof from our Gemara, the Magen
Avraham writes that throwing the child into a pit itself might be considered
as the fulfillment of the Mitzvah of burial.
The Magen Avraham apparently maintains that it *is* a Mitzvah to bury even a
definite Nefel. This is also the opinion of the MOR U'KETZI'AH (ibid.) and
the CHAZON ISH (OC 133:2, although he refutes some of the proofs of the
The MISHNAH BERURAH (ibid.) sides mainly with the opinion of the SHULCHAN
ARUCH and the REMA. The BI'UR HALACHAH quotes the opinion of the ME'IRI in
Beitzah (6a) who shares the opinion of the Shulchan Aruch and the Rema, and
even extends it to a doubtful Nefel (i.e. a birth that might have been a
live birth). However, he writes in the Mishnah Berurah that due to the
second opinion, it is possible that it is permitted to bury a definite Nefel
on the second day of Yom Tov, when the burial is performed by Nochrim. (Y.
2) A PICTURE OF THE SUN
OPINIONS: The Mishnah states that when one who finds a vessel that has a
"Tzurah" (form) of the sun, moon, or a Derakon, he must throw it into the
Yam ha'Melach. Rebbi Shimon ben Gamliel says that one must discard the
vessel only if it looks like an important vessel, used to give honor (such
as to an Avodah Zarah). The reason for this Halachah is that the sun, moon,
and Derakon were symbols that were worshipped, making them into an Avodah
Zarah (or at least a potential Avodah Zarah).
What does the Mishnah mean when it discusses a vessel that has a "Tzuras
Chamah," a "form of the sun?"
(a) RASHI (DH Tzuras Chamah) explains that this form refers to the Mazal of
the sun. Apparently, Rashi understands that the Mishnah is not referring to
a picture of the sun itself, but rather it is referring to a picture of its
"Mazal." What exactly is a picture of the "Mazal" of the sun?
When the SHULCHAN ARUCH records this Halachah (YD 141:3), the REMA explains
that this refers to pictures that are made to represent the sun and the
moon, such as the picture made by one who makes a talisman. Such a picture
is comprised of shapes that refer to the sun, such as a crowned king riding
in a chariot (which refers to the lion of the constellation Aryeh, or Leo).
The source of the Rema is the RAMBAM (in PERUSH HA'MISHNAYOS), and the
BARTENUNRA who also quotes the Rambam. This also seems to be the
understanding of Rashi.
The MAHARAM (DH v'Andarti) has difficulty with this explanation. It appears,
according to Rashi, that the normal manner of idol-worship involved
worshipping the symbol and not the actual form of the object itself. This
explanation does not seem to be consistent with the question of the Gemara
on Raban Gamliel. Raban Gamliel kept pictures of the moon which he used when
questioning the witnesses who came to testify about the new moon. The Gemara
asks how Raban Gamliel was allowed to keep such pictures, as the Mishnah
states that one is not allowed to maintain such pictures. Obviously, the
Gemara is referring to pictures of the moon itself, for it would be of no
use for Raban Gamliel to show witnesses a talisman of a king riding on a
chariot! Why, then, does Rashi explain that the Gemara is discussing symbols
and not the actual forms of the objects? This question is raised by the
BI'UR HA'GRA (YD 141) as well. Neither the Maharam nor the Bi'ur ha'Gra
answer this question.
The SHACH (YD 141:8) answers this question on Rashi. He explains that there
is a difference between the prohibition of keeping such vessels, and the
prohibition of having benefit from them. Rashi agrees that it is prohibited
to keep both symbols of the sun, and pictures of the sun. However, if
someone finds a vessel with a symbol or picture of the sun on it, he is
allowed to derive benefit from it. This is unlike a vessel which was
specifically made or acquired with a picture of the sun, from which one is
not even allowed to derive benefit. This is similar to what the Rema says at
the end of the paragraph when he comments that, nowadays, the Nochrim do not
commonly worship these things, and thus one who finds such a vessel is
allowed to derive benefit from it, although he still may not keep it in his
possession. The Rema continues with this logic later (YD 141:4). After the
Shulchan Aruch writes that one is not allowed to make certain objects, the
Rema comments that if one finds such objects, then he may derive benefit
from them. The logic is that one may not keep the object around, since its
presence arouses suspicion that it is being worshipped. However, one may
derive benefit from such an object, since we may assume that it probably was
not worshipped before it was found. (Y. Montrose)