CONGREGATIONAL CHARGE FOR FUNERALS
A Jewish man passed away in a city about a hundred miles from the nearest congregation which has a rabbi. He was not a member of that congregation. He is to be buried in this larger city but the congregation there refuses to allow its rabbi to officiate until the family pays a $100 fee in advance for the services of a rabbi. Is this proper procedure? (Asked by Rabbi Abraham I. Shinedling, Albuquerque, New Mexico.)
THERE ARE A NUMBER of other questions involved which are not mentioned. For example: Does the deceased already own a lot in the cemetery of the congregation that is now charging the $100 fee? Also, is the family of the deceased able to pay the fee or does it put a great hardship on them? The latter fact would make a difference in evaluating the propriety of the practice of the congregation. To bury the dead is a Mitzvah. It is incumbent first of all upon the family of the deceased, and if there is no family it is incum bent upon the community to provide for his burial. See Greenwald, Kol Bo, p. 173, note 1. If, for example, it is extremely difficult for the family to raise that $100 and they certainly cannot pay for a lot in the cemetery, then it is absolutely wrong for the congregation to insist upon any fee at all. The body of this deceased is, as it were, a Mays Mitzvah, a body whom we are mandated to bury, just as much as even a priest may be defiled for a Mays Mitzvah if he comes across a body and there is no one but him to bury it.
But we will assume in this case that this is not a case of extreme poverty. Let us then first consider the purchase of a lot. It is the universal custom in Judaism for many centuries that the Chevra Kadisha (and in a modern congregation the Cemetery Committee) charges for lots. The old Chevra Kadisha charged more to a man who could pay more. But even the poorest of the poor should pay something for a lot because it is considered a virtue for a man to be buried B’soch Shelo, in his own property (cf. References, Kol Bo, p. 174, note 7) . So in case this man has no lot, it is right and proper that, if his family can afford it, they should pay for a lot.
Now as to the expenses of the burial: While burial is a Mitzvah incumbent on everybody, the Mitzvah falls first on his sons and heirs. As a matter of fact, even if the father has left no inheritance to his sons, there is a strong line in the law which insists that sons nevertheless have the responsibility to provide for his burial (Minz, Responsa Maharam, # 5 3 and Bachrach, Chavos Yair, # 13 9) . As a matter of fact, even if the man himself before he died said that he does not want any money from his estate to be used to pay the expenses of his burial, we pay no attention to such a request and exact the money from his estate to pay for the burial (Ketubos 48a and Yore Deah 348:2). It is clear so far, then, that if a man can afford it, he must be compelled to pay, or his heirs to pay, for his funeral.
The final question is: Is it right for the congregation to insure that the rabbi receive his fee from the funeral? This question involves the old and classic question, first fully discussed by Shimon ben Zemach Duran, as to the legitimacy of a rabbi receiving fees for his services (see the discussion in A Treasury of Responsa, p. 78 ff.). This question has changed with the changing times. If there were in the past any doubt as to the right of a rabbi to receive such fees, this doubt has vanished with the development of the rabbinate from the voluntary service of a scholar to the community to a regular profession. Now that the rabbinate is a regular profession, its status is clearly defined by the great Hungarian authority, Moses Sofer, in his responsa, Yore Deah 230. There he says that the questions which arose in the past as to fees no longer apply today. Today the rabbi is employed by the congregation and he is entitled to the fees as part of his livelihood.
Of course whether the congregation puts part of this fee in its own treasury and gives the rabbi the rest, whether also the fee is excessive or not excessive is not directly germane to the question. The basic fact is that a family is in duty bound by Jewish law to pay from the man’s estate for his funeral, both the land and the costs of the burial. Of course if there is no money at all available, then it becomes the duty of the congregation. Otherwise the action as outlined above is in perfect consonance with Jewish practice and involves no impropriety at all.