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 was 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 may the Nefel be buried. The HAGAHOS MAIMONIYOS (Hilchos Milah 1:10) and the BI'UR HA'GRA (OC 526) cite the Gemara here as proof for the Rema's ruling. The Gemara here implies 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 against burying 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 the burial of the Nefel is permitted on Yom Tov. This ruling does not seem consistent with the Gemara here, 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 there is a doubt about whether the birth was a Nefel or was a healthy child that happened to die, then the infant may be buried on Yom Tov.)

(b) The MAGEN AVRAHAM argues with these opinions for many reasons, and he refutes the proof from the Gemara here. 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 the Gemara here, 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 Magen Avraham).

The MISHNAH BERURAH 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 burying a definite Nefel is permitted on the second day of Yom Tov, when the burial is performed by Nochrim. (Y. MONTROSE)

QUESTION: 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 for the purpose of giving 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"?

ANSWER: RASHI (DH Tzuras Chamah) explains that this "form" refers to the Mazal of the sun. Apparently, Rashi understands that the Mishnah refers not to a picture of the sun itself, but rather 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's words 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 consistent with the question of the Gemara on Raban Gamliel's conduct. Raban Gamliel kept pictures of the moon which he used when he questioned 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 against keeping such vessels and the prohibition against benefiting from them. Rashi agrees that one is prohibited to keep both symbols of the sun and pictures of the sun. However, if one 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 allowed even to derive benefit. This is similar to what the Rema writes 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). When the Shulchan Aruch writes that one is not allowed to make certain objects, the Rema comments that if one finds such objects, 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 one may assume that it probably was not worshipped before it was found. (Y. MONTROSE)