by R. Gil Student
Graveside funerals, or visits, often generate crowds around a grave, forcing people to search for space to stand. Are you allowed to step on someone else’s grave for a service or in order to get to the right place in the cemetery?
I. Magical Cure
The Gemara (Sanhedrin 47b) says that people used to take dirt from Rav’s grave to use as a cure for a one-day fever. Some observers told Shmuel about this practice and he said that it is permissible because they are taking from permanent dirt. Rav Ya’akov Ben Asher (14th cen., Spain; Tur, Yoreh De’ah 364) quotes Rav Yeshayah who explains that “permanent dirt” is undisturbed. Dirt that is removed from the ground and then used to fill in the grave is not permanent dirt. Therefore, we are forbidden to derive benefit from the dirt used to cover the coffin, what we usually call the grave. Tur disagrees, and says that his father Rabbenu Asher (Rosh) disagrees as well. We are allowed to derive benefit from any dirt that is intended to remain there permanently, including what we commonly call the grave.
Rav Yosef Karo (16th cen., Israel; Shulchan Arukh, Yoreh De’ah 364:1) follows the lenient view of Rosh and Tur. Rema (16th cen., Poland; Glosses, ad loc.) follows the strict view of Rav Yeshayah. According to Rema, we would not be allowed to derive any benefit from a grave. Does this mean that we cannot stand or walk on top of it?
II. Briefly Standing
The Gemara (Bava Basra 101a) tries to understand the Mishnah’s description of graves inside a cave, in which people are buried in holes dug into the walls of a cave. One suggestion is that two graves are dug underneath the area near the entrance to the cave. The Gemara objects that then people will stand on graves. Rashbam (ad loc., s.v. ha) writes that when someone is buried in other graves, people will come and stand on the graves for a long time. However, Rashbam says explicitly, there is no concern if people stand on a grave momentarily while carrying someone to be buried.
Rav David Ha-Levi (17th cen., Poland; Taz, Yoreh De’ah 364:1) quotes Rav Yisrael of Krems (15th cen., Austria, Hagahos Asheri, Mo’ed Katan 3:79) as saying that you may not walk on top of a grave. But he qualifies this with Rashbam’s view that we may walk on a grave briefly. Rav Avraham Eisenstadt (19th cen., Lithuania; Pischei Teshuvah, Yoreh De’ah 364:2) quotes Yad Eliyahu who argues that walking on top of a grave briefly does not constitute deriving benefit from the grave. The existence of the grave does not make your walk any easier. However, sitting on a grave constitutes deriving benefit, which is forbidden.
Rav Shlomo Zalman Braun (20th cen., America; She’arim Metzuyanim Ba-Halakhah, Bava Basra 101a s.v. i) quotes Rav Nesanel Weil (18th cen., Germany; Korban Nesanel, Ta’anis, ch. 2 22:3) who disagrees with Taz and says that there is no proof from the Rashbam in Bava Basra. The Gemara is discussing graves within a cave. People who stand on a grave there are standing on dirt that was never disturbed, which everyone agrees is permissible. The question is about graves with dirt that was refilled.
III. Replanting
Rav Naftali Tzvi Yehudah Berlin (Netziv, 19th cen., Lithuania; Meishiv Davar, vol. 2, Aveilus (end of volume), no. 5) quotes a debate between Rashi and Tosafos in Avodah Zarah (45b). The Mishnah (45a) says that the ground (e.g. a mountain) cannot be forbidden as an idol even if people worship the ground. The Mishnah says that a tree used as an idol (asheirah) is different because it is planted by human hands. The Gemara (45b) adds that there is a debate about whether a tree that is planted for permissible purposes and then worshipped becomes forbidden as an idol. Rashi (ad loc., s.v. ilan) says that the debate is about a tree that is planted from a seed because that is created in part by human hands. But taking a sapling from one place and planting it in the ground is not really planting it. Tosafos (ad loc., s.v. ve-hacha) disagrees and considers replanting a tree the same as planting it for the first time.
Netziv seems to understand Rashi as saying that a replanted tree is not fully connected to the ground because it did not originate there. Therefore, such a tree can become forbidden as an idol. Tosafos believe that a replanted tree is as connected to that ground as if it was planted there for the first time. Shulchan Arukh (Yoreh De’ah 145:1) follows Tosafos. Netziv argues that dirt that was dug up and then refilled is like a tree that was dug up and replanted. Tosafos (Sanhedrin 46b s.v. telishah) could be read as supporting this. Therefore, since we follow Tosafos, dirt that is used to refill a grave is like unmoved dirt and therefore we may receive benefit by standing on a grave. While Rema disagrees with this conclusion, Netziv argues that he only means this as a proper stringency, a chumra, but for any mitzvah need we may rely on the lenient view and walk on, or even stand on, a grave.
III. Honoring the Deceased
Rav Avraham Eisenstadt (Pischei Teshuvah, ibid.) further quotes Yad Eliyahu as saying that while he believes that there is no prohibition of receiving benefit from a grave, there is still a concern for the deceased’s honor. You may not step on a grave because that disgraces the person buried there. However, if there is no other choice, then you may do so. In his conclusion, even though not in his reasoning, he effectively agrees with Netziv. Similarly, Rav Nesanel Weil (Korban Nesanel, ibid.) reaches the same conclusion but for a different reason. He believes that it is forbidden to receive benefit from a grave. However, when you have no other option but to walk on a grave, you are not considered as benefiting from it.
Rav Akiva Eiger (19th cen., Poland; Responsa 1:45) suggests tentatively that only the dirt directly on top of the deceased is placed in his honor, and therefore only that dirt is forbidden for benefit. All other dirt would be permissible and therefore you would be able to walk or stand on it. However, he points out that seems to be contradicted by the ruling that on the second day of Yom Tov we fill in the grave completely (Shulchan Arukh, Orach Chaim 526:4 and commentaries). Rav Shalom Schwadron (19th cen., Ukraine; Responsa Maharsham 1:43) argues that this approach is also contradicted by the Talmud Yerushalmi (Kilayim 2:8).
Rav Shlomo Zalman Braun (She’arim Metzuyanim Ba-Halakhah, ibid.; Kitzur Shulchan Arukh 199:19) adds that there is a general rule that people do not mind when their belongings are used for a mitzvah. He suggests that this might apply to the deceased also, who do not object when their graves are used for a mitzvah.
(reposted from Jan ’21)
