Siman 368

The Rabbis taught: In cemeteries – one may not behave with levity. And one may not (so it is in the Rif) graze an animal in them, and one may not lead a water channel through them, and one may not gather grasses in them. And if one gathered – he must burn them in their place (Megillah 29a). And it appears to me that this is the explanation: One may not behave with levity – meaning to eat and drink there. Just as we learned there previously regarding synagogues, that one may not behave with levity – one may not eat in them, and one may not drink in them, and one may not adorn oneself in them, and one may not stroll in them, etc. And in the Mishnah there it added further things: that one may not twist ropes inside it, and one may not spread nets inside it, and one may not spread fruit on its roof, and one may not make it a shortcut, see there. And all these are included in levity. Therefore, the baraita here was brief, and only added that one may not graze an animal there, and a water channel, and gathering grasses, for all these are not relevant to a synagogue and therefore it enumerated them here regarding a cemetery. (And regarding a synagogue it mentioned eulogy under levity, and this is not relevant to a cemetery, for its primary purpose is for eulogy.)

And so it must be explained in the wording of the Tur who cited the wording of the Shas, see there. And the Rambam in chapter fourteen of Mourning explicitly explained so, and this is his wording: Cemeteries are forbidden for benefit. How so? One may not eat in them, and one may not drink in them, and one may not perform labor in them, and one may not read in them, and one may not study in them. The general rule of the matter: One may not derive enjoyment from them, and one may not behave in them with levity. Thus far his words. And it is difficult: From where do we derive all these? Rather, it is because all these are included in "levity" as we have seen regarding a synagogue. And in that which he wrote "and one may not perform labor in them" he included the other matters that have been explained. And that which he wrote "and one may not read in them, and one may not study in them" – this is not due to the reason of levity but rather because of "mocking the poor." And therefore he did not mention the matter of levity first because of this, for the reason is not due to that, and he wrote it at the end. But the reason that "one may not eat etc." is because of levity. And all the more so it is forbidden to relieve oneself there, even far from the graves. And so one must explain the words of our teachers, the authors of the Shulchan Aruch, section 1, see there.

The reason for all this: our teachers wrote that this is because of the honor of the dead, and it is likewise explicitly stated in the baraita there. And it says there that regarding this, if one gathered grass, he must burn them in their place—it is not due to the honor of the dead, see there, but rather the reason is because of a penalty, or so that they do not suspect him of taking them for his animal (Mordechai). And the Mordechai wrote in the name of Ri that this refers even to the ground itself which is not forbidden for benefit, and even so it is forbidden because of the honor of the dead. Therefore, trees planted in a beit kevarot—it is permitted to gather their fruit, for there is no issue of levity in this. And these are the words of our teacher, the Beit Yosef, in section 2 (Shulchan Aruch Yoreh Deah 368, 2), see there. And the intention is regarding those planted not upon the graves. And according to what we explained at the beginning of siman 364, even the trees upon the graves are not forbidden for benefit. However, the Acharonim held this to be a prohibition, and the opinion of our teacher, the Rema, inclines as such, as we will explain with the help of Heaven.

This is the wording of our teacher, the Rema: And so too, one may not take from the soil of a grave, even though it is permitted for benefit. And all this is only due to the honor of the dead. Therefore, if one needs it for healing – it is permitted. And so too, it is permitted to benefit from the grasses that are upon the graves, or the fruits of trees that are upon them, for the sake of the graves. For example, if the ruler grazes his animals upon the graves, and it is impossible to protest his action except through great expense, and the community cannot afford it – they sell these things in order to save the graves from them, for this is the honor of the dead. And if there are no things upon the graves to sell for the sake of the expense, if the community can afford it and it is in their power to protest with a small expense – they must protest, if there is no concern in the matter that the ruler will provoke them because of this. But otherwise, they do not need to protest. Thus far his words.

An explanation of his words: For it has already been explained that grazing animals is a matter of levity, and it is forbidden in the entire beit kevarot, even in a place where there are no graves. And if the ruler of the place grazes his animals—they are permitted to sell the grass that is on the entire beit kevarot, and the fruit of the trees that are on the graves themselves (see Be'er HaGolah), and they appease the owner of the place with the money so that he will not graze his animals there. However, if these things are not sufficient for this expense, if they lack the means entirely, or even if they have the means but there is a concern that he will provoke them—they are completely exempt, and he may do as his heart desires. However, if there is no concern that he will provoke them and they also have the means, if they can save it with a small expense from their pocket—they should save it. And if not—they are not obligated even when they have the means to save it with a large expense. (So it appears to me in his intention. And from this his opinion is clarified that fruits that are on the grave are forbidden, and they only permitted it to save the graves from the grazing of animals. Examine it and you will find it simple.) And that which he wrote previously "and the community does not have the means"—it is like "or they do not have etc."

And know that the wording of the Rambam that we brought in section 2, where he wrote: Cemeteries are forbidden for benefit. How so? One may not eat etc. — his intention is not a literal prohibition of benefit, but rather that they forbade them for benefit due to the reason of lightheadedness. And it is a rabbinic prohibition of benefit. (So it appears to me. And the Ran wrote regarding "one may not gather herbs in them" — because they are forbidden for benefit, see there. And it is not understood: for even if we say that he holds like the R. Yeshaya brought by the Tur in siman 364 (Tur Yoreh Deah 364) that what is upon the grave is forbidden for benefit, nevertheless it is explicitly explained that they forbade the entire cemetery even if it is very large, and even if there are no graves there at all but rather the entire place that was designated for a cemetery. Therefore it appears in my humble opinion that the intention of the Ran is also like what I wrote regarding the intention of the Rambam, meaning: that the sages forbade them for benefit because of the honor of the dead.) (And the Beit Yosef did not understand his words so. And he wrote that it deals with a built grave, see there. And this is certainly difficult, see there. And examine closely and you will find it simple.) (And see the Bach who also wrote similar to this.)

We have learned in Semachot (chapter fourteen): A new grave may be measured, sold, and divided. An old grave may not be measured, sold, or divided. That is to say: a new grave that they designated for burial, but have not yet buried in it—designation is not a substantial matter, as I wrote in siman 364. But an old grave in which they already placed a deceased person, but removed him from there for some reason—it is forbidden for benefit, and consequently it may not be sold or divided. And regarding the measuring, there is no prohibition, but rather it is so because measuring is only for the purpose of division and sale. And since it is forbidden for sale and division, why should he measure? And it concludes there that there is an old grave whose law is like a new one, such as when they buried without the permission of the owners of the land. And there is a new grave that is like an old one, such as when they buried in it even one stillborn, see there. And it is simple as I wrote above in siman 364. (See the Tur, and it requires further study. And look closely and you will find it easy.)