(Vol. LXXXV, 1975, pp. 85-87)
QUESTION: Space in the cemetery is becoming scarcer every year. The question has, therefore, arisen whether or not we may bury one coffin above another in the same grave. (Sidney Kluger, Executive Director, Temple Sherith Israel, San Francisco, California)
ANSWER: It is obvious that to open a grave and to put another coffin above the one already there is not desirable, and so most of the scholars who deal with the question say that this should not be done, nevertheless find a reason to permit it after all. For example, the great Chasidic scholar of the last century, Chaim Halberstam in his Divrei Chayim (Yoreh De-a 136), says simply that it should not be done; but then he adds that if it is an established custom in the community to do so, then it should be permitted to continue. Similarly, other scholars dealing with the question indicate that whatever the strict letter of the law may be in that matter, it is a widespread custom in many communities to do so. Thus, for example, see the responsum of Jacob Reischer (died in Metz, 1733) in his Shevut Ya-akov, II:95. It is not surprising, therefore, that when the Shulchan Aruch states the law, it also exhibits this same double attitude. In Yoreh De-a 362.4, the law is given at first bluntly as follows: "We may not bury one coffin above another." But then the law continues "But if there is six handbreadths of earth between the coffins, it is permitted." Thus we might say, the general attitude of the law is ambivalent, namely, that such superimposed burial is not desirable, but it is not forbidden.
It would be desirable to trace the development of the law, especially this ambivalent attitude in it, since the various elements involved may help each congregation to make its decision on the matter. Basically the law involving the distance between one buried body and another is based upon the mishna in Bava Batra VI.8. The discussion there revolves around a cave and how many burial inches may be dug in it, in what direction, and how close to each other. The mishna then is discussed in Bava Batra 101ff, and most later discussions base themselves upon this passage.
The Gaon Hai is cited in the Tur, Yoreh De-a 363, to the effect that each grave is entitled to three handbreadths of earth around it (Tefisat Hakever). Joel Sirkes (Bach to the Tur) explains the fact that some authorities say that there ought to be six handbreadths and some authorities say only three handbreadths intervening as follows: each coffin is entitled to three handbreadths of its own. Hence, between the lower coffin and the upper coffin, there should be six handbreadths (three for each coffin). Even this amount of space is not insisted upon by all authorities. The fullest discussion of the whole matter is by Abraham Danzig in his Chochmat Adam in the section Matzevat Mosheh, #10. He says (on the basis of some text variation) that it may be possible to have the width of only six fingers of earth between the coffins.
The justification for such a small intervening amount of earth came up in connection with the question which arose in the city of Paris in the 17th century. At that time, the Jews of Paris were not permitted to have a cemetery of their own. They buried in some city lots and the question, therefore, of coffin above coffin immediately arose. They asked a question of Aryeh Lev of Metz (18th century). (See the second volume of his Sha-agat Aryeh, Wilna edition, 1873, p. 120, Responsum #17.) He told them that they may bury in this way, but to be sure to have six handbreadths between coffins.
Those who would permit superimposed burial with less than six handbreadths (as Danzig does, requiring only six fingers) base themselves generally upon the statement of Simon ben Gamliel in the mishna cited above, who ends the discussion in the mishna by saying that it all depends on the rockiness of the soil. This is understood to mean that if the soil is firm and would not disperse easily, even less than six handbreadths would be sufficient. So, for example, Zvi Ashkenazi (Chacham Tsevi) in his Responsum #149, is dealing with a situation in the cemetery of Amsterdam where the soil is loose and thin. There he would require even more than six handbreadths. However, Isaac Schmelkes of Lemberg, in his Beit Yitschak, Yoreh De-a 153, says that in Paris they put a slab of stone between the graves and that even if it were only an inch wide, it is sufficient to separate coffins.
In fact, Abraham Danzig cites Torat Chesed, in which the statement is made that all these laws as to how much intervening earth there must be, were based upon the earlier custom of burying the bodies without coffins; but that nowadays when we bury in coffins, we do not need to consider the necessity for intervening earth at all.
In fact we may say that if--as is frequently the custom nowadays in some cemeteries--the coffin itself is enclosed in a cement casing, then the top of the casing of the lower coffin and the bottom of the casing of the upper coffin could fulfill completely the requirement of even the strictest opinion. Moses Feinstein (Igerot Mosheh, Yoreh De-a 234) believes that even with cement intervening, there should be an interval of three to six handbreadths.
Frequently in his discussion of the question, the authority will say that all these laws of intervening earth were meant for the time when we had plenty of room and therefore we could leave sufficient earth between each coffin; but nowadays our land is crowded and so the custom
to bury closely side by side and one above the other has become widespread and must be deemed permissible. See especially the statement of Jacob Reischer of Metz cited heretofore.
To sum up, then: Nowadays cemetery space is becoming scarce. We bury in coffins and sometimes even with cement casing around the coffins. This is to be considered sufficient to fulfill the requirement of the strictest authorities. Yet it must be stated in explaining the double attitude of the law that it would be preferable if we had the space for each coffin to have its own grave.
Solomon B. Freehof
Cemeteries generally are run according to laws and regulations enacted by more than one governing body. These laws and regulations in State codes and association charters, bylaws, or official minutes must be respected.
Responsa Committee (1980)