Question: Is there anything in Jewish law that prohibits replacing an old, existing matzeivah (tombstone) with a new, better one? I would greatly appreciate your response to this question.
Last week we discussed the origin of the custom to erect a monument at a person’s burial spot. We have the Biblical source of Jacob setting up a monument over the grave of his wife Rachel and proof from the Book of Yechezkel that the custom was extant many hundreds of years later.
Grave markers and demarcation lines to indicate the location of graves were always needed in order to warn passersby of the danger of ritual defilement. Tombstones and monuments were also seen as a sign of honor and respect for the departed. Since it is prohibited to derive any benefit from material needed for the deceased, it is questionable if one is permitted to lean or sit on a gravestone.
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The Bach (Yoreh De’ah 364) remarks that one should take care not to sit on either a monument or a grave – including the soil above it, as stated by Rabbenu Yeshaya who is quoted by the Tur – even though the Gemara (Sanhedrin 47b) concludes that the soil is considered karka olam (natural soil, and thus ownerless) and states that only the structure or monument on it should not be used. The Beit Yosef (the name of Rabbi Yosef Caro’s commentary on the Tur) explains that Rabbenu Yeshaya considers the soil covering the deceased to be a kever shel binyan (lit. a structured grave).
The Bach also quotes Rabbenu Yerucham, who maintains that we should be careful not to sit on a monument (or any other structure above a grave). However, if it is the custom of family members to sit on such structures, we are lenient, he maintains, since we assume that a stipulation permitting this behavior was made when the monument was erected.
The Bach also quotes Haggahot Asheri, which states that it is prohibited to derive any benefit from anything made specifically for the needs or in honor of the deceased. That is why it is forbidden to sell a monument that deteriorated or cracked, and that is why it is forbidden to lean on it, etc.
The Beit Yosef, too, quotes responsum 296 of the Rashba (which we cited at the beginning of this column) in which he permits sitting on a monument because tombstones nowadays are erected only as a sign of respect for the deceased.
The Darchei Moshe (the name of the commentary of the Rema on the Tur) points out that the Rashba states in responsum 537 (which we also cited) that one cannot derive any benefit from a gravestone, but it is permitted to place it on another grave; doing so is not considered deriving benefit for the living. Indeed, it is even permitted to bury someone in a vacated grave since. The Darchei Moshe notes that the matter requires further consideration since the wording of the Tur implies that nobody forbids it, but we see that were it not for the above reason, we would forbid it.
The same rulings, essentially, are presented in the Shulchan Aruch (Y.D. ad loc.) by the Mechaber and the Rema, including the statement of Rabbenu Yeshaya which concurs with Haggahot Asheri to the effect that some prohibit sitting on a stone that was erected as a monument.
The Taz says in the name of the Rashal that we have adopted the custom to forbid sitting on a gravestone. He also quotes Haggahot Asheri that it is prohibited to derive benefit from anything that was done for the deceased or for the honor of the deceased. Therefore, it is prohibited to sell a tombstone that was damaged and one must not lean on it either. Furthermore, for the same reason, it is prohibited to step on a grave.
The Taz refers to a discussion concerning burial caves in Bava Batra (101a), where the configuration of the walled burial chambers is such that the carriers of the bier have to tread on graves when they enter the cave to bury the deceased they are carrying. R. Shimon allows them to step on the graves and the Rashbam explains that we look away since they have no other choice of access and they are only stepping on the graves for a short while.
Pit’chei Teshuva (ad loc.) quotes Teshuvot Eliyahu (54) which gives two reasons why it is forbidden to sit on a gravestone: 1) because of the prohibition to derive any benefit from a monument, and 2) the deceased might thereby be denigrated. He notes that there is a clear distinction between stepping on a grave and sitting on a gravestone. A person derives no pleasure from stepping on a grave since he would rather walk on the ground. Sitting on a gravestone, however, does give a person pleasure since without the gravestone, where would he sit?
Gilyon Maharsha (ad loc.) cites responsum 296 of the Rashba, which permits sitting on a gravestone, not because it has not been explicitly forbidden, but because of the accepted custom to do so. But nowadays, states Rabbi Shlomo Eger in step with the reasoning of Haggahot Asheri, we should not sit on a monument precisely because it is no longer the custom to do so.
He also quotes responsum 534 of the Rashba permitting the use of a gravestone for another deceased person since, as stated in Sanhedrin 48a, another deceased may be buried in a grave that has been vacated with the exception of one’s father. In such an instance, namely, if the grave was dug for his father and the father was buried elsewhere, the father may not be reinterred in the grave originally prepared for him because of the special honor due to one’s father.
Rabbi Shlomo Eger also quotes Rabbi Menachem Azaria da Fano (Responsa 10:44) who states that if tombstones were removed but not preserved in a dignified manner (i.e., they were not buried), communal leaders (tuvei ha’ir) may sell them to monument makers, but only with the proviso that the existing engraved letters be erased. The money acquired in exchange should be used only for the needs of the community.
Finally, he cites the R. Samuel Aboab (Devar Shemuel 342) who restricts the use of such monuments for the benefit of other deceased after erasing the original names and replacing them with the names of those for whom these gravestones are to be used.
(To be continued)Rabbi Yaakov Klass