Ask the Rabbi: Reusing a Grave

Beit Midrash

Sections
Chemdat Yamim
Bemare Habazak - Rabbis Questions

קטגוריה משנית

Female Lesson Parashat Hashavua Series'Library Piskei Din (Hebrew)Test Yourself

Question: I, a relatively new rabbi, was looking through the records of my community’s cemetery and learned that some of the places that I thought were "available" for use have actually been used for corpses that were later removed, to be buried in Eretz Yisrael or a cemetery the family requested. May we use these plots, and if so, are there any conditions that must be met?

Answer: The gemara (Sanhedrin 47b) discusses the permissibility of using a grave and/or the material it was made of, for other purposes. In that context, the gemara distinguishes between a "grave that was built," which becomes forbidden, and a "grave of earth itself," which remains permitted, because one cannot make the ground forbidden. The Tur cites a machloket on the parameters of a built grave. R. Yeshaya reasons that since, generally, material that was detached from the ground and then becomes attached keeps the status of a detached object, the earth that was dug up and then placed back to form the grave is forbidden. The Rosh points out that the gemara implies that a standard grave, which is dug up from the ground, does not become forbidden, and he therefore reasons that the problem is only for mausoleum-type burial. One could understand that according to R. Yeshaya, it would be forbidden to reuse the gravesite, since much of it is soil was removed and returned, whereas the Rosh would permit it. It is not fully clear which opinion is primary as practical halacha (see Shulchan Aruch and Rama, Yoreh Deah 364:1; ibid. 363:3, 5; Da’at Kohen 207).
However, there are other grounds for leniency. The Rashba (Shut I:537) says that the prohibition on grave-related matters is on the benefit of those who are living, who are obligated in mitzvot, and that live people do not halachically benefit from the burial of the deceased. While the burial itself is not benefit for live people, as the fulfillment of mitzvot (i.e., to bury a deceased) is not halachically considered forbidden benefit, Acharonim wrestle with the fact that money is usually involved in the process. Some see it as a problem for the cemetery owners to sell the used grave, and thereby receive money for it (see Gesher Hachayim II, 4:3). Rav Kook (Da’at Kohen 202) recommends having the sellers stipulate that they are selling the part of the land that was not dug up and returned, but it is not unanimous that this works (see Gesher Hachayim ibid.). Shevet Sofer (YD 104) says that in a situation in which the inheritors would have had to pay for a burial spot, if they would receive the already used grave for free, this saving of money would be forbidden benefit.
The above complications apply only to things that were brought from elsewhere (like bricks and boards), and perhaps even the earth that was taken off and returned (see Rama ibid.). Therefore, it is best not to reuse these materials when using the plot (i.e., that which is beneath and to the sides of the coffin) (Bemareh Habazak III:71).
The matter is arguably more lenient when those who were exhumed were buried there with the intention that this would occur, as then the burial might not cause permanent prohibitions after the deceased is removed (see Pitchei Teshuva, YD 363:6). However, the gemara (Sanhedrin 48a) implies that if preparations were made for the use of the deceased [after his death – Bemareh Habazak ibid.] then even if the burial itself was done with the intention for him to remain temporarily, the prohibition continues after the exhumation (see Shulchan Aruch, YD 364:1). Since it appears that you do know about the history of the burials, we will not get into further details on the matter.
There is also a monetary or quasi-monetary matter of making sure that the first "owner" of the grave has no outstanding issues with the cemetery. Gesher Hachayim (ibid.) demonstrates why the inheritors of the deceased have halachic authority to agree to end any claims to the ground that could cause a problem.