Siman 363

We say in the Yerushalmi, the second chapter of Moed Katan (halacha 4), that one may not evacuate the deceased or the bones, neither from an honorable grave to an honorable grave, nor from a base grave to a base grave, and not even from a base one to an honorable one, and certainly not from an honorable one to a base one, for the disturbance is difficult for the deceased. And who is greater to us than Shmuel the Prophet, who said to Shaul: "Why have you disquieted me to bring [me] up etc." – for he was afraid of the judgment? And a sign for this matter: "I would have slept, then I would have been at rest." Nevertheless, into his own, meaning to place him among the members of his family – it is permitted even from an honorable one to a base one, because it is pleasant for a person to rest near the members of his family. Likewise, to transport him from a grave in the diaspora to Eretz Yisrael – it is permitted, as it is written: "And His land will atone for His people." And for this reason, some have the custom to place some of the earth of Eretz Yisrael in the grave. And so it is implied in Midrash Tanchuma, Parshat Vayechi, see there. And it is obvious that if they remove him in order to bury him in a Jewish burial, that it is well and good. And likewise from a place that is not guarded to a place that is guarded and the like, for he acts for the benefit of the deceased.

Our teachers, the authors of the Shulchan Aruch, wrote in section 2 (Shulchan Aruch Yoreh Deah 363:2): One may not transport a deceased person from a city that has a cemetery to another city, unless it is from outside the Land to the Land, or if they are transporting him to the place of his fathers' graves. And if he commanded to transport him from place to place, or if he commanded to bury him in his house and not in the cemetery – we listen to him. And it is permitted to place lime upon him in order to decompose the flesh quickly, and to transport him to the place which he commanded. Thus far their wording. And some have written the reason that "one may not transport etc." is because of the honor of the deceased who are buried here (Shach, subsection 4). And they raised a difficulty regarding this: for if so, why is it permitted when he commanded? Rather, the reason is so that he will not decompose on the way and be disgraced (the Gaon Rabbi Akiva Eiger in the name of Z.Y.). And I wonder: for perforce when he commanded to bury him in his house, the reason of decomposition is not relevant, but rather because of the honor of the deceased, and nevertheless when he commanded – it is permitted. And if so, here too when he commanded to bury him in another place, it is specifically when we act of our own accord that it is a disgrace to the deceased who are here, which is not the case when we act according to a command. And that which he commanded so is not a disgrace to the deceased who are here, for presumably he has some reason for this, and every person may do as he wishes regarding himself. And on the contrary, in my humble opinion, if there is a concern that he will decompose on the way – even when he commanded we do not listen to him. And more than this I found in the name of Sefer Chasidim (siman 720 and brought in the Ba'er Heitev) that one commanded his son to transport him to the place of his fathers, and the time was hot and they feared decomposition, and they ruled that he does not need to fulfill his command, see there. Rather, the reason is only because of the disgrace of the deceased. (And it is possible that therefore they wrote that it is permitted to place lime upon him etc., in order to fulfill his command. And certainly when there is a solution – one should fulfill the command. But when there is no solution – one should not fulfill it.)

And that which they wrote that "it is permitted to place lime upon it, etc." – this is from a responsum of the Rashba (siman 369) regarding one who commanded to be brought to the burial place of his ancestors, and they were under duress and could not carry him immediately, and they buried him here. And he ruled that it is a mitzvah for his sons to fulfill his command, and that is to place lime over his entire body to hasten the decomposition of the flesh. For as long as the flesh exists, his soul mourns, as it is written: "But his flesh upon him shall have pain, and his soul within him shall mourn." And when they move him while the flesh still exists – he trembles from the fear of judgment, but not so afterward (Taz subsection 3). Therefore, they shall place lime upon him so that the flesh will decompose, and they shall afterward carry the bones to the burial place of his ancestors (and the Beit Yosef brought it in Bedek HaBayit). And according to this, it must be said that what we wrote in section 1 based on the Yerushalmi, that to bury him within his family is permitted even from an honorable place to a base place, and it implies explicitly even without a command, and also not to wait until the decomposition of the flesh – for this is the explanation: when the body is still whole, such as when he was buried close to this time, or that it is not a transport from city to city but rather in this cemetery from place to place. (And what I wrote in the previous section from Sefer Chasidim, it must be said that it was not possible to carry him afterward. For in truth it is a difficult matter, and they are entirely exempt.)

And according to this, several laws have been explained regarding the transport of a deceased person from place to place, and likewise to move him from his grave. For without a command, even if he has not yet been buried—one may not transport him to another place, due to the slight to the deceased in the cemetery of this city. Unless it is from outside the Land to the Land, or to the graves of his ancestors. And when he commanded to bury him in another place, even if they were under duress now to bury him here—it is a mitzvah upon them to fulfill his command even afterwards, as per the ruling of the Rashba. And only if it is impossible to fulfill his command—he shall remain in his grave as per the ruling of Sefer Chasidim in section 2. And likewise even without a command, if initially they placed him in this grave only temporarily on the condition to move him—it is permitted to move him in any case. And all the more so if he is not protected in this grave, and there is a concern lest they steal the tachrichim from him, or bandits will remove him from his grave, or that water will come upon it, or that it is a "found grave" as will be explained in siman 364, that it is permitted to move him at any time that they are able to move him, and to bury him in a cemetery. And all the more so to bring him to a Jewish burial.

And that which the Tur and Shulchan Aruch wrote in section 3 (Shulchan Aruch Yoreh Deah 363:3): One may not collect bones, neither from within the casket, nor from within the grave to one side, in order to bury another deceased person there, or for the need of the place. Thus far their words, and this is from Masechet Semachot. This is its explanation: So that you should not say that moving the deceased from his grave is only forbidden when his flesh is upon him for the reason we explained, but when he is bones—it is permitted. It comes to teach us that it is forbidden. And likewise, do not say that it is specifically when they move him from his grave entirely that it is forbidden, but within this grave to clear them to one side—it is permitted. It comes to teach us that it is forbidden, for this deceased person acquired his place in the location where he lies. And it is forbidden to move him from there if not by way of duress, such as if the government decreed to clear them from there, and similar to this. Or if they placed him there at the outset temporarily.

And this is what they wrote in section 4 (Shulchan Aruch Yoreh Deah 363, 4): In a place where they were accustomed to bury in pits without a coffin until the flesh decomposed, and afterward they gather the bones and bury them in a coffin – it is permitted. Thus far his words. That is to say: for such was the custom of that place, that initially they buried them in deep excavations until the decomposition of the flesh, and afterward they gathered the bones and buried them in a coffin – it is permitted. And as for why they practiced this: presumably they had a necessity for this. But even when they have become bones – one may not mix the bones of two deceased persons together. And it will be explained in siman 403.

It has already been explained in siman 349 that everything belonging to the deceased is forbidden for benefit; see there. Therefore, a coffin of a deceased person from which they removed the deceased for some reason—the coffin is forbidden for benefit. If it is of stone, it has no remedy, and they shall only guard it from being benefited from. If it is of earthenware, they shall break it. If it is of wood, they shall burn it so as not to come to a stumbling block. Therefore, one who finds boards in a cemetery shall not move them from their place, for perhaps they are from a coffin that was emptied, and they are forbidden for benefit. Nevertheless, he is not obligated to burn them, since he does not know that they are from a coffin. The same law applies when he finds earthenware shards, when there is reason to fear that perhaps they belong to a deceased person, as I have written.

Our teacher, the Beit Yosef, wrote in section 5 (Shulchan Aruch Yoreh Deah 363:5): It is forbidden to open the grave after the goses has been closed, even if the heirs protest to open it in order to check if he produced two hairs. Thus far his words. Meaning: for example, where this deceased gave gifts from his property, and the heirs claim that he was a minor and his gift is nothing, and they want to open the grave and check him – we do not allow them. And there is a novelty in this law: for previously it was explained that to move him from his grave to another place is forbidden, and now it comes to teach us that even without moving him, but only to open the grave and see in his body what is needed – it is also forbidden. And this law is in Bava Batra (Bava Batra 155a) regarding one who sold property, and the heirs claimed he was a minor, see there. And the reason is because of degradation. Therefore, it is explained there that specifically for the benefit of the heirs we do not open the grave to see, for they lost nothing in this, as they did not pay from their pockets. But if the purchasers demand to open the grave for their benefit – we are not concerned with his degradation, and we open and see. And so some of the great authorities ruled that to open and see signs on his body in order to permit an agunah – it is also permitted. And some forbid. And in my humble opinion, the primary view is like the words of those who permit, for it is a merit for him. And so if they omitted a necessary thing from the tachrichin – we open the grave and place it there. The principle of the matter: anything that is for the need of the deceased, or for the need of a mitzvah, or a monetary loss to others – there is no concern in opening the grave to see what is needed. (See Pitchei Teshuvah subsection 7, who brought several responsa on this toward a prohibition. And he brought from Kneset Yechezkel to permit. And in my humble opinion, the primary law is like his words. And see there that he brought that they made a casket for a deceased, and placed the deceased in it and it was too small to contain him, and they made another casket – that the first is permitted for benefit. And it is simple.)