1) THE RAMBAM'S RULING REGARDING "HA'AMADAH V'HA'ARACHAH"
QUESTION: The Gemara discusses the process known as "Ha'amadah v'Ha'arachah" -- "standing up and estimating" the value of an animal of Hekdesh in order to redeem it. Some forms of Hekdesh need Ha'amadah v'Ha'arachah in order to be redeemed, while others do not.
What determines whether something requires Ha'amadah v'Ha'arachah before it is redeemed? The RAMBAM (Hilchos Erchin 5:12) explains that if an animal that requires Ha'amadah v'Ha'arachah dies before it is evaluated, then it must buried and not redeemed, since it did not have Ha'amadah v'Ha'arachah. If it does not require Ha'amadah v'Ha'arachah, then even if it dies before being evaluated, it still must be redeemed from Hekdesh.
It is unclear to which categories of Hekdesh the requirement of Ha'amadah v'Ha'arachah applies, according to the Rabanan of the Mishnah (32a). Rebbi Yochanan (32b) states that the requirement applies both to an animal of Kodshei Mizbe'ach that received a Mum and cannot be offered as a Korban, and to an animal of Kodshei Bedek ha'Bayis that one needs to evaluate in order to sell it and give the proceeds to Hekdesh. Reish Lakish argues and says that Ha'amadah v'Ha'arachah is required only for Kodshei Bedek ha'Bayis. Levi argues and says that not only is Ha'amadah v'Ha'arachah required for both types of Hekdesh (Kodshei Mizbe'ach and Kodshei Bedek ha'Bayis), it is required even for an animal that was sanctified to be Kodshei Mizbe'ach after it had become a Ba'al Mum (unlike Rebbi Yochanan, who says that such an animal does not need Ha'amadah v'Ha'arachah).
The Rambam (Hilchos Isurei Mizbe'ach 1:10) writes that when a person is Makdish a Ba'al Mum as a Korban, it must be redeemed according the evaluation of the Kohen. He adds that this is also the Halachah in the case of an animal of Kodshim that received a Mum. It is evident that the Rambam rules like Levi, who equates both cases and requires Ha'amadah v'Ha'arachah for both.
However, the Gemara's conclusion does not accept Levi's opinion. The Gemara asks that the verse states, "The Kohen will evaluate it, whether it is good or bad" (Vayikra 27:12). The Gemara understands that the verse implies that Ha'amadah v'Ha'arachah applies to both "good" and "bad" animals -- animals that have no Mum, and animals that have a Mum. However, the extra word "it" ("Osah") limits the things that require Ha'amadah v'Ha'arachah. Rebbi Yochanan explains that this word excludes an animal that was designated to be a Korban after it became a Ba'al Mum. Reish Lakish explains that this word excludes Kodshei Mizbe'ach from the requirement of Ha'amadah v'Ha'arachah. Levi, however, has nothing to exclude, and thus he has no way to explain the extra word "Osah" in the verse. The Gemara concludes, therefore, that Levi's position is difficult.
Like whom does the Rambam rule? If he indeed rules like Levi, then how does he reconcile his ruling with the Gemara's conclusion?
(a) The KESEF MISHNEH says that even though the Gemara has a difficulty with Levi's opinion, this is not a reason to ignore his opinion. The Rambam chooses to rule like Levi because he was "older" ("Kashish") than both Rebbi Yochanan and Reish Lakish.
The Kesef Mishneh, however, rejects this answer, because in his next statement the Rambam rules that when a Ba'al Mum that was sanctified to be a Korban dies before Ha'amadah v'Ha'arachah, the corpse is redeemed and not buried, unlike the opinion of Levi.
(b) The Kesef Mishneh gives a second answer, which is also the explanation of the MAHARI KURKUS. He says that the Rambam actually rules like Rebbi Yochanan. When Rebbi Yochanan says that a Ba'al Mum that was sanctified does not require Ha'amadah v'Ha'arachah, he means that if the animal died before Ha'amadah v'Ha'arachah, it still must be redeemed (as opposed to being buried without Pidyon). However, Rebbi Yochanan agrees that if the animal is still alive, then it needs to be redeemed through the process of Ha'amadah v'Ha'arachah. The Rambam here is stating the Halachah of redeeming the animal when it is alive, which is not a point of dispute. (Y. MONTROSE)
2) THE SOURCE FOR THE MITZVAH TO BURY ITEMS OF "ISUREI HANA'AH"
OPINIONS: The Mishnah lists the various items that one is required to bury. RASHI (DH Shilya Tikaver) explains that these items must be buried because they are all Isurei Hana'ah, items from which one may not derive benefit.
What is the source for the requirement to bury items of Isurei Hana'ah?
(a) The Gemara later (34a) asks why, according to the Tana of the Mishnah, an item that is supposed to be buried should not be burned, and that an item that is supposed to be burned should not be buried. The Gemara answers that there is a Halachah that even the ashes of an item that is supposed to be buried is forbidden from benefit, as opposed to the ashes of an item that is supposed to be burned (one is permitted to benefit from such ashes). Rashi (DH Mai Taima) explains that the reason why ashes of things that must be buried are forbidden is that "they might come to permit them." Rashi understands that such things must be buried and not burned because of an enactment that the Rabanan made in order to prevent people from using their remnants.
TOSFOS (33b, DH ha'Nisrafin) also discusses the Gemara's answer (34a) that the ashes of things that are supposed to be buried are forbidden from benefit, while the ashes of things that are supposed to be burned are not forbidden from benefit. He asks, why indeed are the ashes of the burned items permitted, while the ashes of the buried items are forbidden? Tosfos explains that since the burned items have had the Mitzvah of burning done to them, their ashes are no longer forbidden.
There are two ways to understand the answer of Tosfos.
1. The MINCHAS CHINUCH (146:5) explains that Tosfos agrees with Rashi that there is a Mitzvah d'Rabanan to bury such items so that people not come to use the remnants of forbidden items that have been burned.
The Minchas Chinuch, however, has difficulty with Tosfos. There are items which must be buried according to Torah law, such as the Eglah Arufah. The Gemara in Kerisus (6a) derives from the extra word "Sham" in the verse, "v'Arfu Sham" (Devarim 21:4), that "Sham Tehei Kevuraso" -- there (in the place that it is killed) shall be its burial." If Tosfos maintains that burying the Eglah Arufah is a Mitzvah d'Oraisa, then he should also maintain that the carcass may be retrieved and used after it has been buried. Since Tosfos maintains that when the Mitzvah has been done one may derive benefit from what remains, one should be permitted to derive benefit from the animal once the Torah's requirement to bury the Eglah Arufah has been fulfilled. Only things for which there is no Torah requirement to bury are prohibited (mid'Rabanan) to be exhumed and used, because of the concern that people will come to benefit from these items which the Torah forbids.
The Minchas Chinuch therefore states that Tosfos agrees that an Eglah Arufah does not require burial mid'Oraisa. How does he understand the verse, "v'Arfu Sham"? He explains that we derive from the verse only that "Sham Tehei" -- there it shall be, meaning that it should stay in that place. Once the Gemara teaches that there is a Mitzvah d'Rabanan to bury all such things, the Gemara adds "Sham Tehei Kevuraso" -- "there shall be its burial."
However, the Minchas Chinuch has additional difficulty with Tosfos because of another kind of burial -- that of humans. Despite the fact that it is a Torah commandment to bury a deceased person, the Gemara later (34a) says that the flesh of a dead person is forbidden from benefit even after burial. According to the Minchas Chinuch's understanding of Tosfos, benefiting from the body after the person has been buried should be permitted, since the Mitzvah to bury him has been fulfilled. The Minchas Chinuch concludes that the words of Tosfos require further elucidation.
2. The NER AHARON (#5) and the YAD BINYAMIN understand that Tosfos does maintain that an Eglah Arufah must be buried according to Torah law. Why, then, may one not benefit from the Eglah Arufah after it is buried, once the Mitzvah of burial has been performed?
They explain that when the Torah says that a certain item must be buried, it does not mean that there is a Mitzvah to bury it, but rather that there is a Mitzvah to ensure that the item remains buried. The Ner Aharon says that according to this understanding, there is an obligation to re-inter a body that is removed from the grave, because the Mitzvah is to ensure that the corpse remains buried. Since this is the nature of the Mitzvah of burial, the Mitzvah is never "finished," and, therefore, one may never derive benefit from an item that requires burial.
According to both of these explanations, Tosfos agrees with Rashi; the only difference is whether or not there can be a Torah obligation to bury an item. According to the Minchas Chinuch, the logic of Tosfos excludes the possibility that there can be a Torah obligation to bury something.
(b) The RAMBAM (in Perush ha'Mishnayos) writes that the requirement to bury certain items is an obligation "Al Pi Kabalah" -- "based on tradition." This implies that the Halachah to bury all of these forbidden items is mid'Oraisa, like a Halachah l'Moshe mi'Sinai. (Y. MONTROSE)