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Shabbat Parashat Matot| 5766
From the works of Hagaon Harav Shaul Yisraeli zt”l - Honor of the Deceased, the Grave, and Re-interring - Part I - The Prohibition to Derive Benefit From the Grave - Based on Chavot Binyamin, siman 25
The gemara (Sanhedrin 47b) relates that people took earth from Rav’s grave to use as medicine. Shmuel said that this was permitted because the dirt was part of the ground, and ground cannot become forbidden. This idea is learned from the proximity of words (hekesh) in Melachim (II, 23:5) between idolatry and graves. Only if one worships idolatry that is detached from the ground does it become forbidden in benefit, not if he worships the ground. So too, the earth of a grave does not become forbidden.
The Tur (YD 364) cites a dispute on this matter’s parameters. R. Yeshaya says that while the grave’s walls are permitted, the earth on top of the body is forbidden, as the earth was separated from the ground before being returned. The Rosh says that even that earth is permitted. The Chazon Ish (260:2) asks on the Rosh. Since graves are compared to idolatry, just as if one creates a hill in order to worship it, its earth is forbidden, so should the earth that is returned to the grave to cover the body. This should be so because the designation of the earth for the purpose that prohibits it occurs while the earth is detached. Then it can be forbidden when it becomes idolatry or serves the deceased when it is returned to the ground. The Chazon Ish answers that preparing idolatry is a more central part of its becoming forbidden, whereas for a grave, the proximity to the corpse makes it forbidden, and that occurrs after being reconnected.
Rav Yisraeli asked on the Chazon Ish, inferring from Rishonim that the prohibition on benefit from that which serves idolatry and that which serves the deceased is the same (albeit for opposite reasons). The only time, according to the aforementioned R. Yeshaya and the Yad Rama, that once detached earth that is now on the grave is permitted is when it was returned to the ground to be used for the living and was changed later. In fact, the Rosh permits the earth on top of the deceased only when it was removed from a given place with the intention to return it to the same place with the corpse. Under such circumstances, it is as if it was never removed and, as ground, does not become forbidden. In this regard, there is no difference between that which serves the idolatry and that, which serves the deceased.
The gemara (Avoda Zara 51b) says that even though attached ground is not usually forbidden by idolatry, if one makes physical changes in the ground then it does become forbidden. The Ritva derives this in such a way that it applies only to idolatry, whereas a grave that serves the deceased remains permitted even though burial includes changes to the ground. The Chatam Sofer (YD 335) says that the distinction is not between idolatry and the deceased, which are learned one from another, but between that which is worshipped as an idol and that which only serves the idol, which is more lenient.
We should note that while the gemara learns a prohibition on benefit from the deceased from the Torah law of egla arufa (a beheaded calf- see Devarim 21:4), some authorities claim that the Torah-level prohibition does not extend to that which serves the deceased. That is because to extend the prohibition to things that serve, one needs the aforementioned pasuk in Melachim, which is post-Torah. Thus the source of such items’ prohibition is later and potentially less severe than the prohibition on the idol or the deceased itself.
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