Photo Credit: Jewish Press

Question: I came to the cemetery, only to find that a stone has never been placed over a close relative who died a year and a half ago. I spoke to the children and they tell me they will get to it when they have time. They seem to think that this is not a matter of any importance. I know that each rushed to take their share of the yerusha that was left them. I’m sure that in the will there is a set aside of money as well as a directive to place a monument. Please help me set them straight with sources that will prove their being obligated to erect a monument over their parent’s grave.

I have another related question; while I was there I also noticed one or two monuments that were quite dilapidated. Should they and may they be replaced?

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Answer: In response to your second question, we find in the Responsa of Rashba (1:537) that he would allow replacing a monument on a grave with one of better quality. This complements his view expressed in Responsum 1:296, stating that the monument is not a necessity in and of itself, but is erected for the honor of the deceased.

A similar opinion is given by Aruch HaShulchan (Yoreh De’ah 364:4-6), where he notes that one may lean on a monument, since it has not been set up for the need of the deceased.

The question about the replacement of a matzeva is connected to the fact that if the tombstone is considered a necessity of the deceased, it would be an item from which we are forbidden to derive any benefit – as we will discuss further.

In order to understand the concept of erecting a monument on a grave, we have to refer to the talmudic discussion regarding burial (Sanhedrin 46b): whether interment is a means of averting disgrace (both for the deceased and the survivors, because of decomposition of the body), or as a means of atonement (for the sins committed during the person’s lifetime).

Since righteous people are buried, how can we say that it might be for atonement? The Gemara quotes a pasuk (Ecclesiatises 7:20), “For there is not a righteous man on earth who does (only) good and does not sin.” Thus even the righteous are in need of atonement for the few sins that they commit.

The biblical source for placing a monument on a grave is probably the verse describing what Jacob did after Rachel died on the way to Efrat (Bereishit 35:20): “Jacob set a monument upon her grave; this is the monument of Rachel’s grave to this day.”

The Midrash (Bereishit Rabbah 82:10) asks: What is the reason that our Patriarch Jacob buried Rachel on the roadside [and not in the town]? He anticipated that the exiles in the future would pass that way. He buried her there, and put a monument on her grave, so that [they would recognize the site and] she would pray for mercy on their behalf.

Rambam (Hilchot Eivel 4:4) rules (based on Tractate Shekalim and Tractate Mo’ed Katan, as Kesef Mishneh points out) that we place markers (metzai’nin) throughout the cemetery and also build monuments (nefesh) over the graves. Thus we see that the two are not identical. Rambam also states (ibid. 14:19), based on Sanhedrin 48a, that if a monument was built for a [specific] living person, and a [different] deceased was buried at the site – and a row of stones was placed at the grave for the one buried there – no benefit can be derived from the site even if the remains of the person buried there are removed.

(Note: In Tractate Sanhedrin 48a the discussion refers to a grave that was dug and a “nefesh” that was built at the site, while Rambam uses only the term “nefesh,” a monument. Rashi ad loc. explains that “nefesh” refers to a structure such as an ohel above the reserved plot. Obviously, we do not place a body in a monument.)

Rambam clearly states that the whole site is restricted from use unless there is a clear demarcation between the row of stones that was added and the original structure. In such a case, the site may be used when the added stones are removed. If, however, the person for whom it was intended was buried there and subsequently removed, the site remains permanently forbidden for any other.

The Tur (Yoreh De’ah 364:4, Hilchot Kevura) rules that even sitting on the grave, on the stones that cover the grave or on the soil of the grave, is not permitted, since all these are considered to be items that were uprooted and subsequently re-attached, and thus they have become part and parcel of the grave itself. He quotes his father, the Rosh, whose opinion is that one may sit on the stone since it is not part of the grave, but is to be considered as a grave marker on it (see Bayit Chadash and Perisha ad loc., who refer to it as just a sign). The Tur then quotes the Gemara (loc. cit.) as a basis for forbidding the use of the structure above the grave site for perpetuity only if it was built specifically for the deceased, he was indeed buried there, but was subsequently removed to be buried elsewhere.

In our days, monuments are placed on the grave after burial, and thus they might not be considered part of what was built for the deceased prior to his death.

To be continued

 

Addendum: Consoling Mourners

Our discussion of June 25 sought to explain the term Hamakom – the Place – that is in the text of the consolation that one offers mourners as opposed to the word Hashem. The full text of the consolation being; “Hamakom yinachem etchem b’toch she’ar aveilei tziyon vi’Yerushalayim – May you be comforted amongst the mourners of Zion and Jerusalem. (actually ‘May the Place [Omnipresent] comfort you amongst the mourners of Zion and Jerusalem.’”) We offered numerous explanations for this text, but my dear cousin Naomi Mauer, publisher of The Jewish Press, related to me a very different and poignant explanation based on the following story.

A number of years ago a couple in Eretz Yisrael were unfortunately sitting shiva for their son who gave his life in defense of his homeland. Both father and mother were survivors of the Holocaust, each losing a spouse and children. Rabbi Shlomo Riskin, Rav of Efrat in Israel, and a group of his congregants came to be menachem avel this couple. They sat down and were waiting for the couple to speak to them following the rule that when consoling mourners one waits for the mourner to initiate the conversation (Mechaber, Yoreh De’ah 376:1, according to R.Yochanan, Moed Kattan 28b).

They were sitting for some twenty minutes and no one spoke, at which point Rabbi Riskin and his entourage arose and began to console the mourners with the traditional text. As they were about to depart, the mourners suddenly addressed them. “You are aware that we both lost everything in the Holocaust, our complete families, our children and now we came to Eretz Yisrael and we had this one son, our only child, and he gave up his life for this ‘Place; indeed that is our consolation that he gave his life for Eretz Yisrael.

Indeed, for that couple Hamakom had a very special meaning; for a life that embodied self-sacrifice for our beloved land of Israel, and a great awakening for us.

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Rabbi Yaakov Klass is Rav of K’hal Bnei Matisyahu in Flatbush; Torah Editor of The Jewish Press; and Presidium Chairman, Rabbinical Alliance of America/Igud HaRabbonim.