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?
Name withheld by request
Synopsis: Last time we discussed the origin of the custom to put a gravestone on or erect a monument at the grave of the deceased. We have the biblical source of Jacob setting up a monument over the grave of his wife Rachel who died on the way to Efrat, and subsequent proof from the Prophet Yechezkel that the custom was extant many hundreds of years later. Grave markers and demarcation lines to indicate the location of graves were always needed in order to warn passersby of the danger of ritual defilement. But tombstones and monuments were also seen as a sign of honor and respect for the departed. Since it is prohibited to derive any benefit from whatever is needed for the deceased, whether it be the graves prepared for the deceased or the gravestones and monuments that are set up over the graves, one of the questions that arise is whether it is permitted to lean or sit on a gravestone.
* * *
Answer: Although in our days we talk about tombstones that are obviously placed on the grave after burial, the Bach (Yoreh De’ah 364) remarks that one should nevertheless take care not to sit on either the monument or the grave, including the soil, as stated by Rabbenu Yeshaya who is quoted by the Tur, even though the Gemara (Sanhedrin 47b) concludes that the soil is considered karka olam (natural soil, and thus ownerless), and only the structure or monument on it should not be used.
The Beit Yosef (Rabbi Yosef Caro’s commentary on the Tur, ad. loc.) explains Rabbenu Yeshaya’s stringency in that he considers the soil that covers the deceased as being a kever shel binyan (lit. a structured grave).
The Bach then quotes Rabbenu Yerucham, whose opinion is that we are careful not to sit on a monument (or any other structure above the grave). However, wherever it is the custom for family members to sit on such structures, we are more lenient since we assume that a stipulation to that effect was included when the monument was erected.
The Bach also quotes Haggahot Asheri, who states that it is not permitted to derive any benefit from anything that was made specifically for the needs or in honor of the deceased. That is why it is forbidden to sell a monument that is deteriorated or has cracked, and it is forbidden to lean on it, etc.
The Beit Yosef, too, quotes Rashba (Responsum 296; which we cited at the beginning of this column) in which he permits sitting on a monument because in these days, tombstones are erected just as a sign of respect for the deceased, and the very fact that people sit on them proves that there was no stipulation to forbid sitting on these stones.
Darkei Moshe (the commentary of Rabbi Moshe Isserles, the Rema, on the Tur, ad.loc.) points out that Rashba states in another Responsum (537, which we also cited) that one cannot derive any benefit from a gravestone, but that it would be permitted to place it on another grave because that is not considered to be deriving benefit for the living, since it is even permitted to bury someone in a grave that has been vacated, and that is not deemed to be “deriving benefit” either. Darkei Moshe notes that the matter requires further consideration since the wording of the Tur implies that nobody forbids it, but we see that were it not for the above reason, we would forbid it here as well.
The same rulings, essentially, are presented in the Mechaber and the Rema (Y.D. ad loc.) including the statement of Rabbenu Yeshaya that concurs with Haggahot Asheri, to the effect that some prohibit sitting on the stone that was erected as a monument.
The Taz explains in the name of Rashal that we have adopted the custom to forbid sitting on a gravestone. He also quotes the Haggahot Asheri that it is prohibited to derive benefit from anything that was done for the deceased or for the honor of the deceased. Therefore, it is prohibited to sell a tombstone that was damaged and one must not lean on it either. Furthermore, it is also prohibited to step on a grave for that same reason. The Taz then refers to a discussion concerning burial caves in Tractate Bava Batra (101a, Mishna), where the configuration of the walled burial chambers is such that the carriers of the bier have to tread on graves when they enter the cave to bury the deceased they are carrying. R. Shimon allows them to step on the graves, and Rashbam explains that we look away since they have no other choice of access and it is only for a short while.
Pit’chei Teshuva (ad loc.) quotes Teshuvot Eliyahu (54) who cites two reasons why it is forbidden to sit on a gravestone: the first is because of the prohibition to derive any benefit from the monument, and the second is lest the deceased be denigrated by such an action. He notes that there is a clear distinction between the two. There is truly no pleasure from stepping on a grave since it is easier to walk on level ground, and therefore it is rather a case of avoiding the denigration of the deceased. This is why it is allowed to step on a grave if it occurs during the performance of a mitzva (i.e., during a burial). Sitting on a gravestone, however, is altogether different. If there were no gravestone, it would be inconvenient to sit there; therefore sitting is considered deriving a benefit.
Gilyon Maharsha (ad loc.) cites Responsum 296 of the Rashba, which would permit us to sit on a gravestone not because it has not been explicitly forbidden, but because of the accepted custom to do so. But now, continues Rabbi Shlomo Eger, in lock-step with the reasoning of Haggahot Asheri, we should not sit on a monument at the grave precisely because it is no longer the custom to do so (using the very same reason Rashba had used to permit it). He also quotes another Responsum (534) of the Rashba permitting the use of a gravestone for another deceased, since, the Gemara (Sanhedrin 48a) states that another deceased may be buried in a grave that has been vacated, with the exception of one’s father. In such an instance, namely, if the grave was dug for his father and the father was buried elsewhere, the father may not be reinterred in the grave originally prepared for him because of the special honor due to one’s father.
Rabbi Shlomo Eger also quotes the Responsa of Rabbi Menachem Azariah da Fano (10:44) who states that if tombstones were removed but not preserved in a dignified manner (i.e., they were not buried), communal leaders [tuvei ha’ir] may sell them to monument makers, but only with the proviso that the engraved letters be erased so that the names of the previous “owners” would be removed. The money acquired in exchange should be used only for the needs of the community.
Finally, he cites Abohab (Rabbi Samuel Abohab, Responsa Devar Shmuel 342), who restricts the use of such monuments only for the benefit of another deceased, and only after erasing the original names and replacing them with the names of those for whom these gravestones are now to be used.