Question: Is there anything in Jewish law that prohibits replacing an old, existing matzeivah (tombstone) with a new, better one? I would greatly appreciate your response to this question.
A Reader
Tucson, AZ
Answer: My late neighbor and mentor, HaRav Simcha Zissel Levovitz, zt”l – mashgiach ruchani of the (then) Mesivta of Boro Park and head mashgiach at Empire Poultry – once came back from Europe and showed me a photo of a new monument he made for his father, the famed Mirrer mashgiach, HaRav Yeruchem Levovitz, zt”l. He explained that the old monument had worn out to the point that the letters on it were illegible. He therefore had a durable plastic overlay with the text as it appeared on the original stone fashioned and fastened to the front of the existing monument.
His act comported with the view of the Rashba (Responsa 1:537) who allows replacing a monument with one of better quality. The Rashba actually maintains (ibid., 1:296) that erecting a monument is not strictly necessary; people do so for the honor of the deceased. The Aruch HaShulchan (Yoreh De’ah 364:4-6) agrees, noting that one may lean on a monument since it has not been set up for the need of the deceased.
Interestingly, the Chasam Sofer (Y.D., Responsum 337) posits that the mere presence of a monument on a property is not reason enough to forbid a kohen from entering the area since there is no clear proof that a Jewish graveyard exists in that location.
In order to understand why we erect monuments on graves, we need to refer to the Talmudic debate (Sanhedrin 46b) on whether burial is a means of averting disgrace (for the deceased and the survivors) or a means of atonement (for the sins the deceased committed during his lifetime). Since righteous people are buried, how can we say that burial might be for atonement? The Gemara answers by quoting Ecclesiastes 7:20: “For there is not a righteous man on earth who does [only] good and does not sin.” Thus even the righteous are in need of atonement for the few sins they may have committed.
The biblical source for placing a monument on a grave is probably the verse describing what Jacob did after Rachel died on the way to Efrat (Genesis 35:20): “Va’yatzev Yaakov matzeva al kevuratah, he matzevet kevurat Rachel ad hayom – Jacob set a monument upon her grave; this is the monument of Rachel’s grave to this day.”
The Midrash (Bereishit Rabbah 82:10) asks why Jacob buried Rachel on the roadside (and not in the town)? It explains that he anticipated that the exiles in the future would pass that way. He thus buried her there – and put a monument on her grave – so that they would recognize the site and she would pray for mercy on their behalf.
The Jerusalem Talmud (Yerushalmi, Shekalim 2:5 – also found in the Babylonian Talmud and quoted by the Midrash) states, “The surplus [of the money raised for the burial] of a deceased person is given to his heirs … R. Natan says: It is used for building a monument over his grave.” The Yerushalmi elaborates: R. Natan says that the surplus is used to build a monument (nefesh) over his grave and to sprinkle (aromatic wine) before his bier. Tiklin Had’tin (a commentary by a disciple of the Vilna Gaon on Tractate Shekalim) explains “nefesh” means a structure (binyan) or grave marker (tziyun) that serves as a remembrance of the soul of the departed. Thus, the surplus money is used for the honor of the deceased. The Gemara subsequently cites the opinion of R. Shimon b. Gamaliel who states that monuments are not erected for the righteous because their words (of Torah) serve as their remembrance.
The dispute between the Tanna Kamma and R. Natan centers on the fact that money collected for a certain purpose should be used for that purpose only. A third opinion, that of R. Meir, states that the money should be put aside until the arrival of the Prophet Elijah (who will decide how to dispose of the funds).
These views are quoted in Tractate Sanhedrin (48a) in a discussion on whether one may derive benefit from items that were intended for the deceased. It explains that the Tanna Kamma’s opinion is based on the assumption that although the deceased was humiliated by the fact that a collection had to be made for his burial, he overlooks and forgives this humiliation for his heirs’ sake; therefore, they should receive the surplus of the funds collected. R. Meir questions this assumption, and thus states that the money should not be used at all. R. Natan, however, is certain that the deceased does not overlook the humiliation and therefore the surplus money should be spent for a monument on his grave or for sprinkling before his bier.
Tractate Mo’ed Katan (the opening mishna, 2a) lists activities that may be performed during Chol Hamo’ed. At the end of the mishnah we read, “All public needs may be performed and graves may be marked…” Tosafot (s.v. “U’metzai’nin”) notes that this activity involves no particular exertion.
Further on (5a), the Gemara asks: What is the Biblical source for the requirement to mark graves (with whitewash of lime to warn passersby against defilement)? A pasuk from Yechezkel (39:15) is cited as the source: “Ve’ra’ah etzem adam u’vanah etzlo tziyyun – [Those passing through the land], whenever one shall see a human bone, he shall set up a sign near it.” But, continues the Gemara, how did we know this to be a requirement before the Prophet Yechezkel stated it? The Gemara concludes that this is a “halacha leMoshe miSinai,” a law given to Moses at Sinai, and Yechezkel provided the asmachta, the Scriptural support for it.
We might ask: Why doesn’t the Gemara quote the verse in Bereishit stating that Jacob set up a matzeva on Rachel’s grave?
The Rambam (Hilchot Avel 4:4) rules (based on Tractate Shekalim and Tractate Mo’ed Katan, as the Kesef Mishneh points out) that we place markers (metzainin) throughout a cemetery and also build monuments (nefesh) over graves. Thus, we see that “place markers” and “monuments” do not refer to the same object. The Rambam also states (ibid. 14:19), based on Sanhedrin 48a, that if a monument was built for a specific living person, and a different person was buried at the site – and a row of stones was placed at his grave – no benefit can be derived from the site even if the remains of the person buried there are removed.