CRYPTS AS FAMILY BURIAL PLACES

QUESTION:

A man proposes to buy a group of crypts in a large mausoleum (in the Jewish cemetery) and to consider these crypts hereafter as the family burial place. His father died more than a decade ago and was buried in the earth [in that cemetery?] The man asks permission to disinter the body of his father in order to include him in the proposed group of family crypts. Does this plan accord with the traditional law? (From Louis J. Free-hof, San Francisco, California.)

ANSWER:

THE PROPOSAL outlined in the question raises a number of difficulties and borders upon a number of pro-hibitions in Jewish traditional law. It would be best therefore to deal rather systematically with the whole question of family plots, disinterment and mausoleum crypts. The Talmud ( J . Moed Katan, II:4) makes it quite clear that there is a basic objection in Jewish law and tradition to disinterring any body after it has been buried. The Talmudic phrase is: “We may not disinter the dead to move it from an honored place to another honored place, nor from a mean place (bazui) to another mean place, nor from a mean place to a more honored place, and certainly not from an honored place to a mean place.” This general prohibition is quoted precisely as law in the Shulchan Aruch, Yoreh Deah 363.

The reasons for this prohibition of disinterment are reflected in (and based upon) an incident in the Talmud (in Bava Batra 154a and 155a). A young man had sold some family property and then died. The relatives contended that he was too young for the sale to have been legal (he had to be at least twenty). They wanted to disinter the young man’s body so as to determine by physical examination whether he was old enough to have made the sale legally. Rabbi Akiva refused permission for the disinterment. The phrase which he used in his prohibition became the classic phrase in Jewish law with regard to this matter. He said, referring to the dead boy: “You are not permitted to see [or to reveal] his ugliness” (lenavlo) which is explained to mean not to subject the dead to shame by revealing the disintegration of the body. This prohibition, nivul, is the only prohibition which is actually Talmudic. Later, other reasons for the prohibitions were added. One was cherdat hadin, “fear of judgment,” which implies the mystic idea that the disturbance of the grave was a preliminary to some punishment of the dead. At all events, it troubled the dead to be disturbed. This is connected with what the ghost of Samuel said to the witch of Endor (I Samuel, 28:15) : “Why didst thou disturb me to bring me up?” In addition, a later prohibition was based on bizayon, “shame,” which meant that the other dead in the cemetery are shamed by the fact that this one body is being removed to a finer place. The accumulation of these prohibitions on the top of the Talmudic one of nivul indicates that the law was rooted in deep popular feeling which sought for additional reasons to prohibit disinterment.

Considering all these prohibitions, it might seem surprising that in actuality bodies were disinterred. Clearly the general law and the widespread sentiment against disinterment often came up against situations which compelled setting aside the law and the senti-ment. In fact, in the Yerushalmi itself, the source of the law, an exception is immediately mentioned, namely, that a body may be removed to rebury the man in his own property, which was always considered preferable. The Shulchan Aruch (Yoreh Deah 363) adds (from various older sources) other reasons why a body may be disinterred, as follows: (a) in order to bury the person in the land of Israel; (b) if this first burial was conditional on the intention of reburying the body elsewhere; (c) if the body is now buried in an unsafe place where bodies may be disturbed, etc. These vari-ous exceptions all receive more detailed discussion in the responsa literature.

The most important of the exceptions permitting disinterment is the one mentioned in the Yerushalmi itself, namely, to bury a person in his “own property,” which usually meant the property of his family and therefore is, in effect, the permission to disinter in order to bury the man in his family burial place. That the family burial place is the most desirable of all places for burial has its roots in Scripture itself. When Jacob was in Egypt, he asked his sons not to bury him there, but says: “I shall rest with my fathers” (Genesis 47:30). When Barzilai, who had helped David in his time of trouble, was invited by David to leave his village and settle in a comfortable residence in Jerusalem, the old man refused and said: “I will die in my own city near the grave of my father and mother” (II Samu-el 19:38). When King Saul died, Scripture says they took him and buried him in the grave of Kish, his father (II Samuel 21:14).

The legal literature has a great deal of discussion dealing with variations of the question of what constitutes a family burial place: Does it have to already contain the body of the father before it can be so described? Suppose only the mother is buried there, or brothers are buried there—is that already a family burial place to which bodies may be transferred after disinterment? More modern is the question which comes up frequent ly nowadays: If a man buys a new lot, may his intention to make this into a family burial plot be sufficient reason to disinter parents for reburial there? On this last question, authorities are divided and the various opinions can be found marshaled in Greenwald’s Kol Bo Al Avelut, p. 234 ff. It is sufficient for our purpose to say that this modern practice of buying an entirely new burial place with the intention of its becoming a family burial place has sufficient support that permission may be granted for the necessary disinterment.

The question asked here, however, has this additional difficulty, that the proposed family burial place is not in the ground, but in a mausoleum. This raises the question of the opposition of modern Orthodox authorities to mausoleum burials altogether. Most of the laws involved are discussed in Reform Jewish Practice, Vol. I, p. 123ff., where it is mentioned that in Palestine, in ancient times, all the burials were in rockhewn caves, with separate caves for each family and niches dug in the rock for each body, equivalent to a modern mausoleum (see the reference there). To those references may be added the large quotation from Hai Gaon given by Jacob ben Asher in the Tur (Yoreh Deah 363) which describes the rock and cave burial of Palestine. Therefore while it is not the modern Orthodox preference, burial in a mausoleum is basically permis-sible in Jewish law.

The fact that the father had been buried for over a decade makes it more rather than less permissible that the body be disinterred. The great Galician authority of the last generation, Shalom Mordecai Schwadron (see his responsa Maharsham, III, 343) permits the disinterment for removal into a family plot of a woman who had been buried thirteen years previously. In fact, most of the objections to disinterment are voided after the flesh has gone and only the bones remain (also, Noda Bihuda, I, Yoreh Deah 89, and Maharam Schick, Yoreh Deah 354, at the end of the responsum). Schwadron quotes Solomon Luria (Maharshal) who adds another element of permissiveness when he says that those who are buried in a closed coffin may be moved, since the Talmudic objection of nivul (seeing the decay) is thereby avoided.

To sum up: The general objections to disinterment are set aside in case the disinterment is for reburial in a family plot. A new plot is not considered a family plot by some authorities but is so considered by others. Mausoleum burial was the original form of burial and cannot basically be prohibited (especially if a sprinkling of earth is put into the coffin). The disinterment is in any event less objectionable, since there would be nothing but bones left by this time and the body is in a closed coffin. It would therefore be justified (though it would be a rather liberal decision) to give permission for the carrying out of the intention described in the question.