This week’s parashah begins with the first recorded funeral in human history – the funeral and burial of our matriarch, Sarah. Her burial spot is the backdrop for this week’s article. Is halachic burial a Torah-obligation or of rabbinic nature? Is the burial spot or form of any importance? Why is burial important for the departed, and what precautions should be taken to make it optimal?

Lately, burial in Jerusalem is performed in Burial Buildings – small niches in large concrete buildings, many stories high. This solution is an attempt to solve the real-estate scarcity in Jerusalem. Is this a halachically viable burial? And what can be done ex-post such internment?

Judaism has been burying it’s dead in the ground from time immemorial, but some cultures traditionally cremate them. Why is it forbidden? What about Auschwitz ashes – should they be given a Jewish burial? Of this and more, in the following article.

Burial in Halacha

In this week’s parashah, we read of Avraham Avinu’s burial of his wife, Sarah. Avraham discovered this burial cave through a miraculous chase of his oxen (Yalkut Shimoni). This week’s article will cover various aspects of Jewish burial – obligations, importance and practices.

Avraham Avinu invested a great deal in order to give Sarah a proper burial. In his negotiations with Bnei Chet, Avraham insisted on paying for the plot and refused to receive it as a gift. He ended up paying 400 silver shekels, an equivalent of 8 kilograms of pure silver. At the time, 400 shekels could cover living expenses of one person for 48 years! (This clearly explains Chazal’s criticism of Ephron’s money-hungry business tactics…).

The Mitzva of Burial

Bringing the body of a deceased Jew to burial includes a double obligation – both positive and negative. A sinner of cardinal sins is hanged after being put to death (according to Rabbi Eliezer every chayav skila is hanged, while Chachomim opine that only a megadef and idolater is hanged after skila), however, we are warned “But you shall not leave his body on the pole overnight. Rather, you shall bury him on that [same] day, for a hanging [human corpse] is a blasphemy of G-d, and you shall not defile your land, which the Lord, your G-d, is giving you as an inheritance” (Devarim21:23).

The Gemara (Sanhedrin 46b) deduces from this pasuk a negative commandment necessitating burial all human remains, not only the corpse of a convict:

King Shapur, the monarch of Persia, once said to Rav Hama: From where in the Torah is there a hint to the mitzva of burial in the ground and not in a coffin? What proof is there that the dead must be buried and not treated in some other manner? Rav Hama was silent and said nothing to him because he would not have understood that the mitzva of earth burial, as opposed to placing him in a box, is derived from the doubled verb “you shall bury him” [kavor tikberennu], and it is not merely a stylistic choice but the source of a new halacha.

The Rambam counts this mitzva among the negative mitzvos (#66). He explains that the prohibition incudes only leaving the convict on the tree overnight, because it results in a Chilul Hashem – publicizing the fact that a person sinned so gravely. However, in the list of the positive commandments, the Rambam writes (ase 231) that there is a positive commandment to bury all human remains, whether or not they were put to death in Beis Din. Here we learn that leaving a copse without burial is not a transgression of a negative commandment, but a transgression of a positive one. And indeed, the Rambam writes (Hilchos Sanhedrin, chapter 15, halacha 7-8) that the prohibition of leaving a corpse without burial applies to all dead, not only to convicts put to death in Beis Din.

Similarly, the Smag (lo sa’ase 197; ase 104), Ramban (Hasagos L’sefer Hamitzvos, shoresh alef), and Chinuch (536; 537) all count the mitzva of burial as two separate mitzvos, both positive and negative.

The Radvaz (Avel, chapter 4:8), though, writes that the Rambam’s listing of the negative mitzva of burial refers to the rabbinic mitzva, because the Torah obligation only refers to burial of a convict hanged in Beis Din. However, in his responsa it seems that he too, agreed that the negative and positive mitzvos are both Torah-originated.

Contemporary halachic authorities all see the mitzva of burial in the ground as a Torah obligation.

Eretz Yisroel

The Ramban (Devarim 21:22) mentions an additional isur in leaving the deceased unburied in Eretz Yisroel: “…and you shall not defile your land, which the Lord, your G-d, is giving you as an inheritance.” In his opinion, leaving the deceased without burial in Eretz Yisroel comprises three transgressions — two negative commandments, and one positive one. This obligation includes non-Jewish corpses. This is also the opinion of the Radak (Yehoshua 10:27), Rabbenu Yosef Bechor Shor (Devarim 21:23), Abarbanel (Yehoshua 8:29) and Maharsha (Sanhedrin 46b).

The Zohar (Teruma 141a) provides a deeper explanation for this: during the night, the forces of tuma reign supreme. In Eretz Yisroel, however, they cannot rest due to its holiness, yet if it finds an unburied corpse, it has where to rest. This explanation also appears in the Iben Ezra (Devarim 21:23). The Netziv (Ha’amek Davar, ibid) maintains that explanation of the mitzva of burial outside of Eretz Yisroel pertains only a Jewish corpus, while inside Eretz Yisroel there is an additional isur of leaving any human, even a non-Jew, unburied.

Other commentaries do not count burial of Eretz Yisroel’s deceased as a separate mitzva.  Rather, they view this pasuk as an additional explanation. The Shulchan Aruch, likewise does not differentiate between Eretz Yisroel and the rest of the world.

The Akeidas Yitzchak (Bereshis, sha’ar 22) and Abarbanel (Bereshis 23) clarify that the tuma’a here refers not to spiritual impurity but to physical contamination. An unburied corpse will rot and cause pollution and disease. This explanation pertains to burial in the whole world, and is not specific for Eretz Yisroel.

Yerushalayim

The Gemara recounts an additional burial restriction in Yerushalayim (Bava Kama 82b): “One may not leave a corpse overnight in Jerusalem”. The Shita Mekubetzes and Yam Shel Shlomo explain that leaving the deceased overnight for his honor, although permitted in the rest of the world, is forbidden in Yerushalayim. The Gemara quotes the source for this in the Gemara. Rashi (ibid) explains that this restriction is an oral tradition, without explanation. The Kaftor V’Perach (chapter 6) and Pe’at Hashulchan (3:23) recount this tradition is maintained even nowadays. The Radvaz (volume II, 633) reasons that this is because it is forbidden to amplify tuma in Yerushalayim.

Gesher Hachayim (volume I, chapter 7:3) notes that his isur of halanas hameis applies only in the holy parts of the city, not in its entirety. The borders of the holy parts of the city don’t necessarily coincide with the wall of the Old City as it appears today. The Gesher Hachayim adds that the late chief rabbi of Yerushalayim, Rabbi Shmuel of Salant was always careful to arrange burial of the deceased immediately, even if the passing took place in the middle of the night. He recalls only one occasion in which a meis was left to wait for his funeral – when the Maharil Diskin was niftar shortly after ma’ariv. Rabbi Shmuel ruled that the funeral should take place only the next morning due to the risk of trampling people, if crowds would squeeze their way through the narrow alleyways of the Old City during the dark.

Walking in G-d’s Ways

Burial carries an additional obligation – performing love-kindness — Gemilus Chessed, and walking in G-d’s ways (as mentioned in last week’s article). The Halachos Gedolos (34) counts the mitzva of burying the dead and Gemilus Chessed separately. The Ramban, however (Hasags L’Sefer Hamitzvos, shoresh alef) does not count it as a separate mitzva but as part of the mitzva of Gemilus Chasadim.

Explanation

The passuk provides an explanation for the obligation to bury the hanged: “…For a hanging [human corpse] is a blasphemy of G-d”. The Mishna (Sanhedrin 46a) explains that a convict is hanged only after being proven as blaspheming or worshiping idols. Leaving him there increases people’s discussion of those sins. The Gemara (Sanhedrin 46b), however provides another explanation:

It is comparable to two brothers who were twins and lived in the same city. One was appointed king, while the other went out to engage in banditry. The king commanded that his brother be punished, and they hanged his twin brother for his crimes. Anyone who saw the bandit hanging would say: The king was hanged. The king, therefore, commanded that his brother be taken down, and they took the bandit down. Similarly, people are created in G-d’s image, and therefore G-d is disgraced when a corpse is hung for a transgression that the person has committed.

The Or Someiach (Sanhedrin, chapter 15:8) explains that the Mishna’s explanation only applies to a convict who was hanged in punishment for sin, and leaving him hanging adds to the Chilul Hashem.

The Gemara (Sanhedrin 46b) remains undecided whether the chiyuv of burial is because the Torah didn’t want that the deceased to be publicly shamed when people see how his body disintegrates, or so to serve as atonement for him – when his body is lowered and buried in the depth of the earth.

The Gemara explains a ramification of this difference in opinion: if the reason for burial is to prevent the disgrace of decay, the request of one who asked not to be buried after his death cannot be honored, because one cannot request a public disgrace of the King’s image. However, if the burial serves as atonement, one who wishes to forgo it, is free to do so and there is no obligation to bury him. The Gemara remains undecided on the matter, and in practice, halacha follows both explanations (Shulchan Aruch and Beis Yosef, Yore Deah 348:2). Contemporary poskim seem to maintain that both explanations are true, and the only dispute that remains is under which positive and negative mitzva burial is listed.

Rabbi Samson Raphael Hirsch (Devarim 21:22) mentions this debate, and adds that while we find in halacha the possibility of postponing burial to show honor to the deceased, the Gemara is undecided if the reason for underground burial is to prevent disgrace or to bring on atonement through disgrace.

Conclusion

We find several explanations for the obligation to bury the dead – so people should not speak of the sin of one put to death in Beis Din (applicable only to sinner); the obligation to prevent disgrace from G-d’s image – either in its hanging or in its decay; and the obligation to help the deceased achieve atonement. Some Rishonim list an additional reason applicable only in Eretz Yisroel – preventing spiritual or physical pollution of the Holy Land.

Disgrace

The Zohar (Naso 143b) adds another reason for not postponing burial. The Zohar quotes the pasuk from Tehilim (49:13): “But man does not repose in his glory; he is compared to the silenced animals.” Mankind is the crown prince of creation and his body must not be left out lifeless, degraded like an animal.

Hastening Kapara

The Rama (Yore Deah 363:2) rules that lime or plaster can be poured on a corpse to speed up its decay. The Taz learns this from the pasuk (Iyov 14:22) “But his flesh causes him pain, and his soul mourns for him.” As long as the body exists the soul finds no rest from judgement. But, the Pischei Teshuva (5) writes, it is not the accepted custom. Har Avel (branch 11) writes that although it is permitted, trying to outsmart G-d is forbidden. However, the Igros Moshe (Yore Deah part III 143) warns not to do anything to prevent the body’s natural disintegration, as doing so will cause great pain for the deceased.

The Igros Moshe mentions three levels of atonement in death: the first is one who was killed by the government – he achieves atonement immediately, even without burial. One who was killed by Beis Din in punishment for his sins is not atoned for until burial. In this case, the Igros Moshe is undecided if it is immediately upon being interred in his grave, or only after the body has disintegrated. A regular Jew is not atoned for until his flesh has disintegrated completely.

Concrete Above-Ground Catacombs

As real estate for cemeteries has been running low, the Israeli government has recently begun encouraging building of above-ground concreate burial edifices — the deceased are interred in niches in the walls, or in square holes in the floors of the structure, which can be several stories high. This issue is debated among the poskim and no two structures are the same. Some structures are terraced, partially connected to the mountainside, while others are simply concrete buildings with niches into which the corpse is placed, along with a sack of earth. Here we will provide a general overview, as well as the problems that may arise as a result.

The Igros Moshe notes a question (Yore Deah, part III, 143) regarding a plot of the Cleveland cemetery that was purchased by the Reform community in which they planned to build a concreate above-ground catacomb. The plan was for every story to have several niches into which the corpses would be deposited. He answered that one who buries the dead in this setup transgresses the positive and negative commandment of postponing burial on a daily basis, because the dead must be laid to rest in the ground and not in a box/closet/structure as mentioned in the Gemara.

An additional problem with this setup is the decay rate – internment in concrete significantly slows the decay rate. Since atonement is achieved only after the body is completely decomposed, burial in concrete causes tremendous undue pain to the deceased for which the deceased cannot forgive. One who buries his loved on in such a manner has no kapara until the deceased forgive him for causing them so much unwarranted pain.

The Igros Moshe adds that the Gemara (Megillah 26b) mentions a halacha: a ruined sefer Torah is buried near a Talmid Chacham. We see here that there is a special virtue in being buried near an object used for a mitzva. This teaches us that it is dishonoring to be buried near a place where grave sins are committed. Therefore, concludes Rav Moshe, it is very important to appeal against the sale in court and prove that the sellers of the land had no right to sell the land for use that would contradict halacha.

In a follow-up question (144) Rav Moshe was asked if a compromise could be reached, one that if refused would cause the judge to accept the Reform community’s position. He answered that it may be accepted because after all, the building is connected to the earth and a body buried in the building can be considered buried in the ground, as concreate is considered earth although not appropriate burial. He supposes that the isur to bury in concreate is asur m’drabonon. An additional impropriety is the general approach to burial – imitation of non-Jewish burial practices. This approach causes pain and humiliation to the dead. However, Rav Moshe stipulated his agreement that the entrance to the building be separate from the general Beis Olam, and there should be a wall 10-tefachim tall separating between the regular cemetery and the new building.

I heard from my grandfather that Rabbi Dovid Feinstein zatal (of whose passing we sadly learned of this week) recounted that his father, Rav Moshe explained that he arranged the two quires one after the next in Igros Moshe, not because they came in that order or because of the halachic order in the Shulchan Aruch. He did so in order to teach the general approach to this topic — both before burial, and after all is said and done, when there is nothing else to do.

Rav Elyashiv (Kovetz Teshuvos, Yore Deah, volume II, 64) raised a different argument against the burial buildings – Rashi (Sanhedrin 46b) explains that atonement is achieved when the deceased is buried underground. This certainly does not take place in burial buildings. He also quotes the Dudaei Hasade (disciple of the Chasam Sofer, chapter 30) who prohibited burying in these buildings, even if technically not halachically problematic. He maintains that with regard to burial customs, the accepted practice prevails and must not be changed. He writes further, that if a problem arises, one should opt for burial in faraway locales. This overturns the assumption that people should do everything to bury their loved ones close to home so family can visit them easily. Indeed, if there is lack of regular burial spots, and the only option is burial in the buildings, one should opt for a faraway burial in accordance with halacha and tradition at the expense of convenience.

However, post facto, Rav Elyahsiv is quoted in Yisa Yosef (Yore Deah, volume I, chapter 64) saying that this kind of burial does not warrant digging up and reburial because we cannot say that m’ikar hadin the mitzva of burial didn’t take place. This is true in most cases, except for a talmid chacham for whom this kind of burial is unfitting.

In Teshuvos V’hanhagos of Rav Moshe Sternbuch he writes that l’chatchila, burial should not take place in this kind of structure, but b’dieved it seems not to have comprised of the sin of halans hameis.

Cremation

Melamed L’hoil (Yore Deah 113-114) writes that the ashes of a cremated Jew (Auschwitz ashes, for instance) even though they don’t conduct impurity (Niddah 27b) and therefore do not require burial, should be buried in order to lessen the disgrace. Furthermore, some degree of atonement can be achieved through burial of any remains, including ashes. He does however debate on the propriety of burying one who requested his own cremation.

Rabbi Meir Lerner, chief rabbi of Altona (Hadar Hakarmel, Yore Deah 69) and Rabbi Chanoch Eherntrau, chief rabbi of Munich (Kuntress Cheker Halacha), both leaders of German Jewry, debated this topic at length. Rabbi Meir opined that it is forbidden to deal with burial of such wicked people, while Rabbi Chanoch opined that burial is still required, because there still exists the possibility that a barley-grain size bone remains unburned. In addition, ashes should be buried because they are forbidden to use (all forbidden-to-use items require burial). Therefore, ashes from a cremated Jew should be buried in a corner of the cemetery.

Practically, the Igros Moshe (Yore Deah, volume III, 147) ruled that ashes do not require burial, and the ashes of a Jew who requested his cremation should not be buried in a Jewish cemetery.

Auschwitz ashes, though, are ruled differently – one who was killed by the government, especially if killed al kiddush Hashem, does not require any further kapara as we find in the Gemara (Sanhedrin 47a):

…It is written: “A song to Asaf. O G-d, nations are come into Your inheritance; they have defiled your Holy Temple; they have laid Jerusalem in heaps. The dead bodies of Your servants they have given to be food to the birds of the sky, the flesh of Your pious ones to the beasts of the earth” (Tehilim 79:1–2). What is the meaning of “Your servants” and what is the meaning of “Your pious ones”? Is it not so that the term “Your pious ones” is referring to literally, Your pious ones, those who had always feared G-d; whereas “Your servants” is referring to those who had initially been liable to receive punishment for their sins, but once they were killed, they are called “Your servants”? This indicates that a transgressor who was executed achieves atonement even without repentance.

Therefore, the Holocaust kedoshim achieved kapara in their death despite not having been given a proper Jewish burial.

Summary

There is a positive mitzva to bury the deceased in the ground and not in a coffin. According to most poskim, there is an additional negative commandment to not leave the dead without burial. However, if the intention of postponing burial is for the honor of the deceased, it is permitted. According to the Ramban there is an extra prohibition to cause impurity in Eretz Yisroel. In addition, there is a tradition mentioned in the Gemara of unknown source that prohibits leaving an unburied corpse in Yerushalayim, even in order to show him honor.

The obligation to bury the dead, in addition to being a positive and negative commandment, is also a mitzva under the umbrella mitzvas of Gemilus Chessed and following G-d’s ways.

Burial has various reasons – allowing people to observe a corpse’s decay is a disgrace to his G-dly image in which he was created; and to achieve atonement. The faster the body is decayed; the faster atonement is achieved. Therefore, everything should be done to not retard the body’s decay.

Above-ground burial projects involve numerous halachic problems – the burial and atonement status. Halacha here is different for every kind of building. L’chatchila one should do everything to prevent burial in this sort of arrangement, but retrospectively, a rabbi should be consulted.

One who cremates a Jewish body forfeits the mitzva of burial and robs the deceased of his atonement, a theft he can never return. Human ashes, should be buried since they may contain a slight remnant of bone and because the prospect of a slight disgrace to the human G-dly image may carry a measure of atonement. However, it is debated among the poskim if one who requested cremation deserves a burial at all.

 

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