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 Shabbat Parashat Massei| 5766Moreshet ShaulFrom the works of Hagaon Harav Shaul Yisraeli zt”l - Honor of the Deceased, the Grave, and Reinterring - Part II - The Prohibition to Derive Benefit From the Grave - Based on Chavot Binyamin, siman 25
How much earth becomes forbidden in benefit when the deceased is buried nearby? For example, what is the halacha if earth is added under a grave that is too low to easily inter the body? It appears that only the three tefachim (app. nine inches) closest to the body is forbidden, with the indication being as follows. The Tur (YD 363) rules that if one wishes to bury someone under an existing grave, he must leave six tefachim between graves, so that three can be the boundary of one and likewise for the other. So we see that no more than three tefachim is necessary to encase the body.
R. Akiva Eiger (Shut 45) follows a similar line, writing that according to R. Yeshaya [see last week] earth taken and returned to cover the deceased becomes forbidden. Referring to the earth above the body, he says that only the amount that is needed to properly cover the body is forbidden. Additional soil to raise the gravesite to the level of the surrounding ground is not considered as servicing the deceased and is permitted. Even the Yad Rama who argues on R. Akiva Eiger does so only on the assumption that all of the earth on top of the grave is considered for the use of the deceased. However, regarding the soil underneath the body, all should agree that no more than three tefachim will be forbidden.
Not only does an individual grave become forbidden in benefit, but a cemetery, as a place set aside for burial, has a special status, even beyond the direct vicinity of any graves. The Pitchei Teshuva (YD 368:1) cites the Chatam Sofer and Shiltei Giborim that a cemetery, similar to a place set aside for prayer or Torah study, is muktzeh l’mitzvato (set aside for a mitzva) and is off limits to personal enjoyment. This applies even to the ground itself, as the nature of the prohibition to benefit is of a different nature from that which we have previously discussed. So understood Rav Kook (Da’at Kohen 201) that it is like a beit k’nesset shel rabim (a shul for the masses) and thus its sanctity cannot be removed. The Chazon Ish (209: 15) understood the nature of not using a cemetery differently, that it is not a matter of sanctity but of not disgracing the dead and because the place is set aside for the mitzva of chesed (kindness). As support he brings Tosafot (Megilla 29a) that one cannot graze his animals in a cemetery because of disgrace to the dead but he can eat from fruit of trees that are there because they are not on the ground of the graves themselves.
It appears that the Shiltei Giborim intended to say something similar to the Chazon Ish. The reason that one cannot use the entire area of the cemetery is because it is like an area that was claimed by the masses, which one is not allowed to take from them. The Shiltei Giborim compared the matter to that of a beit k’nesset shel rabim to explain why the area away from the graves is forbidden. The reason is that since people from anywhere could want to bury there in the future, the entire area is spoken for. It is important that the area’s nature of sanctity is not qualitatively different for a cemetery than for a single grave. It makes a difference if there is a reason that one has to exhume a body, for example, if it were causing damage to the public. If a cemetery were like a public shul then it would have been impossible to remove the sanctity from the area, which is not a problem if the issue is only of individual rights.
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