RRT 128-135

SELLING PART OF THE CEMETERY

QUESTION :

A congregation is planning to sell the unused part of its historic cemetery. Is this sale in accordance with the enactments or spirit of traditional Jewish law? (Asked by Louis J. Freehof, Sinai Memorial Chapel, San Francisco, California.)

ANSWER:

THE ORIGINAL BURIAL places in the land of Israel were in caves, in the walls of which niches were cut to receive the bodies. These caves were generally privately owned by a family, and so there is very little public law with regard to them. But after the permanent set tlement of the Jews in Babylonia, where rocky caves were not available in the sandy soil, bodies were buried directly in the ground in cemeteries. As a result, Jewish law began to discuss cemeteries as a matter of social and public policy. Since those days, a large amount of Jewish law has developed governing cemeteries, as to the ownership of cemeteries by various communities, the buying of individual graves by families or individuals, the relationship of the Kohen to the cemetery, the handling of the graves and the tombstones, etc.

In all the vast amount of law that has accumulated, I have never found a single reference to the selling of part of cemetery land. Eliezer Deutsch of Bonyhad, Hungary, one of the leading Hungarian authorities of two generations ago, and his son-in-law, Joseph Schwartz, devoted a great amount of study to cemetery questions. They became, as it were, the authorities on these matters, and many questions of cemetery law were addressed to them. Now it happens that in Eliezer Deutsch’s book Dudoye Ha-Sodeh, which deals almost entirely with cemetery matters, the index has been amplified by Joseph Schwartz to include a listing of all the cemetery matters discussed in all of the other books of Eliezer Deutsch and also in all of the books of Joseph Schwartz himself. (By the way, Joseph Schwartz wrote a book, Hadras Kodesh, devoted entirely to the laws governing the Chevra Kadisha.) This index, which lists about 360 questions on burial, cemetery, mourning, etc., is certainly the most complete index to Jewish law on the matter. After I was asked the present question, I went through the entire list and did not find even a single passing reference to questions dealing with the sale of cemetery property. A more recent collection which deals with cemetery matters, Mishmeres Shalom by Shalom Cherniak, also does not have a single reference to the sale of cemetery land. This is a remarkable fact since such a vast variety of subjects in this field are discussed in the law.

Why is there not a single reference to the sale of cemetery property? One cannot argue that this is because it just never happened or, if it happened, never was recorded. With Jewish law in this matter ranging from Babylon for seventeen centuries down to our day, with Jews living in different countries under varying circumstances, sometimes at peace, sometimes forced into exile, certainly it is conceivable that in a Jewish community under oppression, or in financial straits, or forced into exile from its homes, some would entertain the idea of selling their cemetery land. Yet not a single instance of such an act is recorded. Evidently it was not recorded because it never happened. It was clearly inconceivable that a Jewish community should ever sell its cemetery, or part of it.

Besides this historical evidence, which, after all, is negative, there are many indications which point to reasons why cemetery land was not and should not be sold. In the first place, Jewish communities went to great efforts to own and maintain cemeteries of their own, and very often, when they were unable to purchase the land outright, they were greatly grieved at the fact. Authority after authority urged that cemetery land be purchased outright and not merely on a lease. This was the decision of Ezekiel Landau of Prague (Noda B’Yehuda, I, Yore Deah 89). In fact, Cherniak, in his collected code, Mishmeres Shalom, cites Isaac Elkanan Spector (Ayn Yitzchok, Yore Deah 34) to the effect that he would never consent to a burial unless the cemetery were owned outright. Often Jewish communities had to struggle against the prince or duke of the land who, for example, wanted to run a road through the Jewish cemetery. See the responsa of Samuel, the son of Ezekiel Landau, on this matter (Shivas Zion #62; also Moshe Feinstein in Igros Moshe, Yore Deah 247).

The land, once owned, was treated with great reverence. While there is no ancient law for formally dedicating cemeteries, the custom developed in recent centuries to do so; and, of course, this dedication, being a religious ceremony, added to the sanctity of the cemetery. As to respecting the cemetery, the law {Shulchan Aruch, Yore Deah 368) is emphatic that the cemetery must be treated with decorous behavior and great reverence. One may not commit a nuisance even outside the walls of the cemetery (see S’day Chemed, Avelus # 13 4) . In fact, the authorities, speaking of the attitude of respect one must have for the cemetery, compare it to the attitude of respect one must show to the synagogue itself (see Menachem Azariah Fano, a leading Italian rabbi, 1548-1620, responsum 5 6) .

This respect for the cemetery is not confined to those parts of it in which there are graves. Even the parts of the cemetery in which no bodies are buried are to be respected. This is clear from the following three instances:

1. The law in the Shulchan Aruch which requires respectful demeanor in the cemetery is based on the

134 REFORM RESPONSA FOR OUR TIME

congregation selling part of its cemetery, all this would indicate the following: While there is no statute specifically prohibiting selling cemetery land, such a sale is clearly against the mood of the tradition. It is as if one would sell a room or two in the synagogue for some secular purpose.

Addendum

Since writing the above, I have come across an actual case of the sale of part of a cemetery by a Jewish community, but this case reinforces our conclusion. It is found in Bes Yitzchok (Choshen Mishpot # 61) , the great responsa collection of Isaac Schmelkes, rabbi of Lemburg. The incident is as follows: In the historic community of Buczacz in Galicia, the Chevra Kadisha sold part of the cemetery. A dispute arose on the ground that a certain member of the Chevra was not present and was not consulted, and therefore the sale was void. This question came to Isaac Schmelkes, who was the leading rabbi of Galicia in the year 1904. his responsum 335, in which he speaks about the fact that one may not sleep in the cemetery as one may not sleep in the synagogue, and he says it has the sanctity of the synagogue, and he continues: “Even not upon the grave itself but the whole place set aside for a public cemetery, [irreverent action] is forbidden with the sanctity of the synagogue.” This decision of Moses Sofer is repeated in the Pische Teshuvah to Yore Deah 368, par. 1. Menachem Fano explains that the unused parts of the cemetery are deemed equally sacred with the used parts because the land was set apart by the community for the purpose of burial and so must be treated with respect even when there are no graves in it.

Of course, if a congregation buys a large tract of land, intending to use all or part of it for a cemetery, and the whole tract has not been in any way dedicated for cemetery purposes or specifically declared to be for cemetery purposes, then, of course, before the land is actually a cemetery, part of it can be sold and the rest dedicated as a cemetery. But if it is land already used for a cemetery by the congregation, and especially one used for generations, it is land which has “a sanctity like that of a synagogue.” See also Hoffmann {Melamed L’ho-il, Yore Deah 125), who expressly forbids selling part of the cemetery.

To sum up: The efforts made by hundreds of Jewish congregations to protect their cemeteries against inroads and to purchase the land outright as a permanent possession, and the remarkable fact that, as far as I know, there is not a single reference in the law to any congregation selling part of its cemetery, all this would indicate the following: While there is no statute specifically prohibiting selling cemetery land, such a sale is clearly against the mood of the tradition. It is as if one would sell a room or two in the synagogue for some secular purpose.

Addendum

Since writing the above, I have come across an actual case of the sale of part of a cemetery by a Jewish community, but this case reinforces our conclusion. It is found in Bes Yitzchok (Choshen Mishpot # 61), the great responsa collection of Isaac Schmelkes, rabbi of Lemburg. The incident is as follows: In the historic community of Buczacz in Galicia, the Chevra Kadisha sold part of the cemetery. A dispute arose on the ground that a certain member of the Chevra was not present and was not consulted, and therefore the sale was void. This question came to Isaac Schmelkes, who was the leading rabbi of Galicia in the year 1904. After discussing the question of whether the sale was valid or not because of the absence of this important member, he concludes definitely as follows: the cemetery can never be sold. Magen Avraham (Abraham Gumbiner), in his commentary to Orah Hayyim 153, end of par. 12, seems to indicate that while a community may not sell a synagogue in a large city, it may sell the cemetery or part of it, basing this permission upon the well-known Turkish rabbi Moses Trani (Mabit), in his responsa, III, 143. But Schmelkes indicates that the right to sell mentioned by Gumbiner, citing Mabit, refers only to the right to sell for the purpose of Jewish burial and not for nonreligious purposes—except, of course, under the same circumstances as when a synagogue itself can be sold, which is rare. Generally a synagogue in a large city may not be sold, on the ground that Jews from all over the world have contributed to it. However, Abraham Gumbiner permits the sale of such a synagogue when it is no longer used for worship. In the same way, if the cemetery were no longer used for burial, he would give permission to sell that too, with the unanimous consent of the community. But that is rare. We have no record of any old cemetery being sold, even when filled up or when Jews were exiled. So the fact remains that other than this debatable sale in the city of Buczacz, I have found no mention of any sale of cemetery land anywhere in the literature.