Siman 364

It is stated in Sanhedrin (Sanhedrin 47b) that the earth of the grave is not forbidden for benefit. Specifically, a grave of structure is forbidden for benefit, but natural ground does not become forbidden, as it is compared to avodah zarah which is not forbidden when attached to the ground, as it is written: "their gods upon the mountains," and not "the mountains are their gods." Therefore, Shmuel permitted taking earth from the grave of Rav for a remedy. And even though one may not benefit from cemeteries, as will be explained in siman 368, this is because of the honor of the deceased, so that one should not treat them with levity, and not because there is an inherent prohibition of benefit in this. Therefore, when taking it for a remedy, levity is not applicable (Mordechai, fourth chapter of Megillah).

This is the wording of the Rambam in chapter fourteen: The earth of the grave is not forbidden for benefit. However, a grave of building is forbidden for benefit. Thus far his words, and such is the wording of all the poskim. It is clear from this that even the earth that they dug and took from the grave, and afterwards placed the earth to be buried over the deceased as is customary—this earth is also not forbidden. And so the Tur understood the wording of the poskim, and wrote that Rabbeinu Yeshaya disagrees on this. This is the wording of the Tur: Rabbeinu Yeshaya wrote that the earth with which they cover the deceased inside the grave is forbidden for benefit, for it is detached and ultimately attached, and it is considered as detached. And what is "natural ground"? For example, one who digs a niche in a rock, which is ground that was not detached. Thus far his words. And the Tur wrote that it does not seem so, but rather the earth is called "natural ground" even if he detached it and afterwards returned it, for the Talmud only found reason to forbid in a grave of building. And such is the opinion of my lord, my father, the Rosh, of blessed memory. Thus far his words. And in the Rosh it is not explicitly explained so, but rather it is so by implication, according to the way of graves where they dig the earth and return and cover it. And if the Rosh held according to the opinion of Rabbeinu Yeshaya, he should have specified. And so it is in all the poskim.

And ostensibly the words of Rabbi Yeshaya are reasonable, for we learned regarding a corpse from idolatry, and regarding the term "detached and subsequently attached," it is considered as detached and is forbidden, as I wrote above in siman 145, see there. However, in truth this is not a comparison, for anything "detached and subsequently attached" was detached from one place and attached in another place. And this is indeed the reason that a built grave is forbidden even though it is now attached, for this is "detached and subsequently attached." This excludes the soil of the grave where they dig the soil in order to place the corpse therein, and to return the soil to that same place—this is completely attached, for the restoration of the soil to the ground is as it was. And this is the reasoning of all our teachers who disagreed with the words of Rabbi Yeshaya. And I wonder at our teacher, the Rema, who was concerned for his words, as he is a single opinion against many. And from the phrasing "detached and subsequently attached" itself this is proven, for it implies that it was detached and subsequently he decided to attach it to the ground. But this is not "subsequently," and he detached it in order to attach it, and it is not like detached. (And I wonder at the Shiltei Gibborim in Sanhedrin there who combined them together, see there. And it is not understood according to Rabbi Yeshaya how he explained regarding the grave of Rav, for if he explained regarding the sides of the grave, in any event Shmuel should have asked. And it cannot be explained as a niche, for they took soil, and in a niche there is no soil. And it requires great study).

The Tur further wrote that Rabbi Yeshaya wrote that it is forbidden to sit on the grave, or on the stones that cover the grave, or on the earth of the grave, for all of them are considered as detached and subsequently attached. And my lord father, the Rosh, of blessed memory, would not forbid sitting on the stone, for it is not considered part of the grave, but rather a marker that they place upon it afterwards. Thus far his words. And ostensibly it implies from his wording that the Rosh disagrees with Rabbi Yeshaya. And according to this, it is impossible to explain that the intent of the Rosh is regarding the monument that they erect at the side of the grave, for if so, from where do we know that Rabbi Yeshaya does not hold so? For he only forbade the stones with which they cover the grave, and not the monument that is at the side of the grave. Rather, one must say that the intent of the Rosh is regarding the stones that are upon the grave, and he holds that even these stones do not belong to the deceased, but rather it is a marker to know the location of the grave so that the living, when they wish to go to the grave, will know the place, like a monument among us. And it would seem more correct to explain that in truth the intent of the Tur is not that the Rosh disagrees, but rather he is stating distinct matters: that Rabbi Yeshaya forbids sitting on the stones that are upon the grave. And in this everyone agrees, for even the Rosh who disagrees regarding the earth of the grave with Rabbi Yeshaya, nevertheless regarding the stones he agrees that this is certainly as detached and subsequently attached. And afterwards he says that the Rosh would not forbid sitting on the stone, and this is the monument that is from the side. And therefore previously he said "stones" and afterwards "stone", because previously he is dealing with the stones that are upon the grave, and afterwards he wrote "stone" because the monument is one stone. And in this Rabbi Yeshaya does not disagree.

And according to this, I wonder at our teacher, the Rema, who wrote that there are those who prohibit sitting on the stone that they place on the grave for a matzevah, and there are those who disagree and permit it. Thus far his words, and these are the two opinions in the Tur. And I wonder: for behold, Rabbi Yeshaya did not mention a matzevah stone at all? However, in truth, it appears clear that all the early authorities who mentioned "matzevah" – it is not like ours which they stand at the side of the grave, but rather it is upon the grave. As is explained from the words of the Tosafot in several places, who wrote in the name of our teacher Tam that the "golel" is a large stone that they place upon the grave for a sign, and it is a matzevah, as it is written: "that is the matzevah of Rachel's grave, etc." And according to this, the Rosh also deals with a stone that is upon the grave, as is explained from his wording: a marker that they place upon it afterward. And according to this, he disagrees with Rabbi Yeshaya. And so too all the early authorities who mentioned the law of a matzevah, these prohibiting and these permitting – this is regarding a matzevah placed upon the mouth of the grave, for those who permit hold that this does not belong to the deceased but is for honor alone. And the Rashba wrote in a response (siman 296) that this is as if they stipulated regarding it that it be permitted to sit upon it. And there are those who prohibit for the reason that this also belongs to the deceased. And also the intention of our teacher, the Rema, is so. But our matzevot that they stand from the side – certainly they do not belong to the deceased, and everyone agrees that they are permitted to sit upon them. And I have seen later authorities who labored over permissions for our matzevot, and in my humble opinion it is not clear at all, for our matzevot are obvious that they are permitted, as they were made only for a marker in order to know the location of the grave. (And what the Rema wrote that vessels with which they dig and bury are permitted for benefit, it has already been explained in siman 349, see there. And what he wrote that one should not use them except with the knowledge of the gabbai, etc. – it is simple that they belong to the people of the city, and the gabbaim are the owners.)

And know that this which has been explained, that a grave of masonry is forbidden for benefit, its meaning is when they built inside the grave and placed the deceased there. But if one wants to erect a building around the grave, as they are accustomed to do for the wealthy and the great, and they call this an "ohel" – it is not included in the category of the grave, for it was made afterward. And according to what many have understood, it depends on the dispute of Rabbi Yeshaya and the Rosh. But according to what we have explained, even according to Rabbi Yeshaya it is permitted, for this does not belong to the deceased at all, and they do so for the honor of the living, just as with our matzevot. So it appears in my humble opinion. However, if he says explicitly that he is doing it for the honor of the deceased – perhaps it is more stringent than a matzeva, which is certainly only for a marker to know the location of the grave, for they write the name of the deceased upon it. But it is a great folly if they do so for the honor of the deceased, and it is not an honor before him in the world of truth. And many of the greats commanded that they should not do so for them. And also not an expensive matzeva. And if so, this is nothing other than for the honor of the living, and it is permitted for benefit.

And that which a grave of building is forbidden for benefit—this is specifically when he built it for the sake of a deceased person and placed the deceased person in it, for it is designation with an action. Therefore, even if they did not place him in it to be there forever, but rather with the intent to remove him—it is forbidden even after they removed him from there, because it is designation and action. And even if they buried a stillborn in it—it is forbidden forever for benefit. But if he did not designate this for a deceased person, the law is as follows: if they placed the deceased person inside it with the intent that he be there forever—it is forbidden for benefit even if it happened that they removed him. For there is no lack of designation here, since they placed him with the intent to be there forever—this is its designation, and the designation and action came as one. But if they placed him with the intent to remove him—it is permitted for benefit after they removed him, for it lacks designation. And there are times that even in such a case it is forbidden forever, such as where there was no designation and they also placed him with the intent to remove him, yet he added there one dimus, which is a row of stones, for the sake of the deceased person, for the entire building was forbidden because of this dimus. And the intention is not that this dimus has the power to forbid, but rather because it is not known to him which dimus it is, as is the way of a building that when it is finished they plaster it and the dimus is not recognizable. Therefore, if he truly recognizes the dimus that he added for his sake—he removes it after they removed him, and it alone is forbidden, and the rest of the grave is permitted. And see what I wrote in Orach Chaim siman 42 section 9.

We learn in Sanhedrin (Sanhedrin 47b): There are three types of graves: A found grave, meaning when a grave is found in a field where the owners never gave permission to dig a grave there. And he was buried through theft, and therefore it is permitted to evacuate him from there. And there is no prohibition in this, neither due to moving the deceased, nor a prohibition of benefit, even if it is of a structure. And the second is a known grave, where he was buried there with the knowledge of the owner of the field. And therefore it is forbidden to evacuate him, for he has acquired his place forever. And consequently it is forbidden for benefit if it is of a structure. And the third is a grave that harms the public. Meaning: even if they buried him there with permission, since it is in a place where the public walks and it is necessary that kohanim walk there, and he is unable to do so, and therefore it is permitted to evacuate him. However, in this it is different from a found grave, for with a found grave when they evacuated him – its place is pure and permitted for benefit. And with this – its place is pure and forbidden for benefit. For it is well and good regarding the matter of impurity that there is a remedy, but for the prohibition of benefit, behold the owners can forbid their own property for benefit. And a known grave, its place – is impure and forbidden for benefit.

The Rambam has another version of this according to the Yerushalmi in Nazir, chapter nine. He reads: A found grave—it is permitted to evacuate it. If they evacuated it—its place is tamei and forbidden for benefit. A known grave—it is forbidden to evacuate it. If they evacuated it—its place is tahor and permitted for benefit. Thus far his words, and these words of his are in the eighth chapter of Tumat Met (Rambam, Laws of Tumat Met 8). And he does not disagree with the previous version, but rather explains a different explanation: that it is called a "known grave" when it is known that he was buried there without permission, and a "found grave" is one whose nature is not known. Therefore, to evacuate it is permitted, but regarding tumah and benefit, we are concerned that perhaps there is a graveyard neighborhood here. And one must check around the grave as he explains there. But in a case where it is found and known that it was without permission—he agrees with the previous version.

At the end of the chapter "Merubeh," it is stated that Yehoshua established ten conditions, and one of them is that a met mitzvah acquires his place. That is to say: if one died or was killed on the way, they bury him in his place. And whoever finds him, it is a mitzvah upon him to bury him there in the place where he was found. And the owner of the field cannot protest against him, whether in Eretz Yisrael or outside of the Land. And this is when he is not lying on a path where many people walk. But when he is lying on the path, it is necessary to move him from there, so that he should not be like one who causes damage to the public. And the law is as follows: if on one side is a fallow field and on the other side is a plowed field, he moves him to the fallow field. And if one is plowed and the second is sown, he moves him to the plowed field. And if one is a field of grain and the second is a field of trees, he moves him to the field of grain. And if one is a field of trees and the second is a vineyard, he moves him to the field of trees. For it is preferable to minimize the damage. And the owner of the field cannot protest, for such was the enactment. And if both are equal, he moves him to the closer one. And if they are equal in this as well, he moves him to whichever of them he desires. And nevertheless, it seems to me that he should not receive money from one side so that they move him to the second side. And all this is when he found him outside the boundary of the cemetery. But within the boundary of the cemetery, he moves him to the cemetery. And he is not called a "met mitzvah" unless they found his head and the majority of his body. But limbs are not called a "met mitzvah," and all the laws that have been explained do not apply to them. Rather, he moves them to the cemetery even at a distance, or to bury them in a place where the owners give permission. And it seems to me that the law is the same regarding a stillborn—these laws do not apply. And currently these laws are not relevant, because there are statutes regarding this from the laws of the kingdom, and it is not within our power to do as we wish. And the law of the kingdom is the law. And it seems to me that now it is also so by the law of the kingdom, to bury him in the place where he was found.

And know that I have seen the great authorities who wrote that it is forbidden to lean on a headstone, and it is forbidden to step on graves, as they are forbidden for benefit (Shach, subsection 3, in the name of the Hagahot Ashri and the Bach). And behold, regarding our headstones, we have explained in my humble opinion in section 5 that there is no prohibition in this. And even regarding stepping on graves, I wonder why they prohibited it? This is because they were concerned for the opinion of Rabbi Yeshaya, which the Tur cited, that the earth upon the deceased is forbidden for benefit. But we have already explained that most of the poskim disagree with him. And even according to his opinion, I do not know if walking over a grave is called "benefit." We have not found anywhere that it would be forbidden to pass through a place that is forbidden for benefit. Only regarding one who vows to exclude his fellow from his property, for the reason that a concession is forbidden to one who is vowed off from benefit, as I wrote in siman 221, and it is as if he explicitly prohibited him from the treading of the foot. But regarding all things forbidden for benefit, we have not found that it is forbidden to step on them. Certainly, to sit on a grave or to step on it in a treading manner is forbidden due to the degradation of the deceased. However, to pass over it—there is no degradation here. And who is greater for us than the site of the Mikdash, for in the entire Temple Mount it was permitted to walk and step on the ground and on the floor. (And also in the Pitchei Teshuvah, subsection 2, he cited from a responsum that some say there is no benefit in this for another reason, see there. But for me, there is no need for this. Examine it and you will find it simple.)

And that which has been explained, that a grave that causes damage to the public, such as one that is adjacent to a road, even if he was buried there with the knowledge of the owner of the field, it is permitted to evacuate it, and its place is pure and forbidden for benefit—this is when the grave preceded the road. But if the road preceded—its place is permitted for benefit, for it is not within his power to forbid a public road for benefit. And that which has been explained, that a grave that was evacuated and is permitted for benefit, such as one where he was buried without the knowledge of the owners—nevertheless, due to the honor of the deceased, one should not make upon the place of the grave a straw-store, or a wood-store, or a storehouse, and the like. And so we learned in Semachot chapter thirteen, see there. And it appears to me that a house to dwell in—this is not a disgrace and is permitted. And that which has been explained, that designation without an action is nothing, nevertheless, regarding the honor of his father, it is forbidden even with designation alone. For example, one who hews a grave for his father, and for some reason they buried him in another place, nevertheless, he shall never be buried in it due to the honor of his father. But another is permitted to be buried in it. And it appears to me that all his relatives are permitted to be buried in it, except for the sons and daughters of the deceased. And the same law applies to any other thing he made for the sake of his father, such as a monument and the like, that he should not make it for himself.

Our teachers, the authors of the Shulchan Aruch, wrote in section 4 (Shulchan Aruch Yoreh Deah 364, 4): If they found a slain Israelite—they should bury him as they found him without tachrichin, and they should not even remove his shoes. And so they do for a woman who died in childbirth, or for one who fell and died. And some say that they clothe them in tachrichin over their garments. And the custom is that they do not make tachrichin for them like other deceased persons, but rather they bury them in their garments, and over them a sheet like other deceased persons. Thus far their words. And some wrote the reason regarding one who was slain, that this is in order to arouse wrath against his killers (see Taz and Shach). And according to this, it is only relevant to one who was slain. However, some wrote the reason because they are concerned that perhaps there remained on the garments blood with which the soul departs, for this blood certainly requires burial. Therefore, they search for any blood that came out of the slain person or the woman in childbirth, and they bury the blood in his grave or her grave due to this concern, perhaps it is the blood of the soul (Bach). And according to this, if he died from cold, or from another cause where no blood came out of him—they clothe him in tachrichin like all the deceased. And so too regarding a woman in childbirth—there is no concern except for the garments that were on her at the time of her birth, as is understood. And so too a woman who died several days after her birth, when the blood had already ceased—they perform taharah for her and clothe her in tachrichin like all the deceased. So too in a similar case of one who fell from a roof and died after several days—they also do so. And regarding the matter of taharah, if blood is still flowing from him or from the woman in childbirth—one should not perform taharah for them at all. But if the blood has ceased from flowing—they perform taharah for them, and thus the great authorities agreed (ibid. and Shach and Taz). And if there is some custom in this—they should act according to their custom, for there are no clear reasons in this.