Re-use of a Vacated Grave

It is occasionally necessary to disinter a body, and the question has arisen whether there is any objection in Jewish law to the re-use of this vacated grave for the burial of another body.

At first impression the tendency of the law would seem to be against permitting the re-use of a grave vacated by a disinterred body or even the use of a grave intended for another body, even though the body for which it was intended was never placed in it. The Talmud (b. Sanhedrin 47b) says that if a man prepares a grave for his father, but the father is buried elsewhere, the son may never be buried in that grave. This dictum of the Talmud is codified in the later law (Shulchan Aruch, Yore Deah 364 : 7). Furthermore, there is certainly an objection in the law to getting any benefit (ha-na’a) from a grave in which someone had been buried. The Talmud (loc. cit.) seems to indicate that a grave may not be used for the benefit of the living. In other words, the living may not take advantage of a grave; it belongs to the dead. Thus the Tur (in Yore Deah 364), discussing this question, quotes Rabbi Isaiah concerning the custom of burying deceased children in their parents’ grave: “This custom is wrong and it ought not to be continued, because the grave of the dead is forbidden for benefit.” The Tur quotes that statement without disagreeing with it. On the basis of this, it would appear that once a grave has been used, it cannot be used again.

However, a closer consideration of the law indicates that this is not the case. The Talmud (loc. cit.) discusses an incident in which the people involved were described as gathering earth from the grave of the famous Amora Rab, to be used as a cure for fever. When this matter was discussed in the Talmud, the action was not deemed forbidden because (as the explanation is given) “natural earth” (karka olom) is not forbidden. Therefore the earth of the grave is not forbidden for use by the living. This explains the closer definition of the law which is given in the same section of the Talmud. It is only a constructed grave (kever shel binyan) that is prohibited. This refers to a grave that is built as follows: the ground is dug out and then the walls are built up from the bottom and the body placed in this sort of vault. This is forbidden because it is specifically made for a certain dead person and as such cannot be used otherwise. Thus in any sort of a built grave, if even an undeveloped body, a miscarriage (nefel), is put into it, it may not be used.

Israel of Kremsier (“Hagahot Asheri”) to Asher ben Yehiel, Chapter 3 of “Mo’ed Katan,” discusses these laws prohibiting benefit from constructed graves, but he adds: “Our graves [he is writing in fifteenth-century Austria], even though they are not stone-constructed, are also forbidden of benefit; because the earth is taken out and handled and put back again, and thus it comes under the rule that that which is made specifically for the dead is forbidden of benefit.” However, this opinion does not be-come the rule. In general, the Talmudic statement is fol lowed, that natural earth is not prohibited of benefit. Therefore the Tur and the Shulchan Aruch say specifically that a built grave is forbidden for benefit. The law thus far would seem to be that if a body were taken out of a mausoleum or built grave, no other body may be put in its place. But even that is not actually prohibited, though it seems to be so.

First of all, the prohibition against a son ever being buried in a grave intended for the father is not to be taken as a general law, namely, that no grave intended for one person may be used for another. The Talmud itself (b. Sanhedrin 48a) says that the law that a father’s grave may not be re-used is based upon a special reason, i.e., the special honor due from a son to a father. But that prohibi-tion does not apply to other graves. As for other graves, namely, built graves, which, having been used, are forbidden for benefit (i.e., no one may have any further benefit from them), the law becomes clear that the prohibition against “benefiting” from the grave is not at all a prohibition against the burying of other bodies in it (despite the opinion of Rabbi Isaiah, mentioned above). The benefit prohibited means a material benefit to the living. It refers specifically to making use of the grave to keep straw in, or for some other purpose of material benefit to the living. But as for burying someone in it, that may certainly be done.

This very question is taken up by the famous thirteenthcentury Spanish authority, Solomon ben Aderet, of Barcelona, in his Responsum #537, and the arguments that he uses are repeated by later authorities. Specifically he is asked whether a tombstone that was placed on one grave may be used for another person on another grave. He per mits it and bases his ruling upon an argument that is relevant to our question. He says that if a body is removed from a grave, another body may be buried therein, because the Talmud when speaking of a father’s grave says specifically that the son may never be buried in it, but when speaking of other graves from which in each case a body has been removed, it does not say anything about no one being buried in it, but merely that it is forbidden to benefit from it.

Solomon ben Aderet’s opinion is repeated by Abraham Samuel Sofer, son of Moses Sofer (“K’sav Sofer,” Yore Deah 177), in a long responsum on this same question. He develops the argument that to bury the dead is not a question of benefit but of mandate. It is a mitzvah to bury the dead, and it is a maxim of the law that the mitzvos are not given merely for benefit but must simply be obeyed. Therefore the prohibition against “making benefit” can have no bearing at all on the mandate, the mitzvah, of burying the dead. It simply means that one cannot take any material advantage of the vacated grave, such as using it for a storage place, et cetera. These authorities are also used by Abraham Isaac Glick in “Yad Yitzchok” (Vol. 3, #295), and he definitely decides that another body may, without any objection, be buried in a vacated grave.

However, a coffin used for one body may not be used for another body. This is clear. The law is first stated fully in Semahot (chap. 13): “If the coffin be of stone, it should be buried, if of clay it should be broken, and if of wood it should be burned.” This is codified as law in the Shulchan Aruch (Yore Deah 363 : 5).