9

The Talmud (Bavli, B'rachos 18 amud 1) mentions a prohibition on wearing tzitzis or t'filin, or reading from a Torah scroll, in a cemetery, based on "one who taunts the pauper, that makes him a blasphemer" (Proverbs 17:5).

Based on this, the Shulchan Aruch forbids the following in a cemetery near a grave: wearing tzitzis exposed to view (OC 23, YD 367:4), wearing t'filin exposed to view (OC 45:1, YD 367:2), saying "Sh'ma" (OC 71:7, per Mishna B'rura :15), holding a Torah scroll (YD 282:4, per Shach :6), reciting from the Torah except in honor of the deceased (YD 367:3, Kaf Hachayim OC 23:1), and praying (YD 367:3) even kadish (Shach :3). (As always, consult your rabbi for practical guidance.)

Seemingly, the pauper-taunting is the fulfilling of a mitzva (command), alluding to the fact that he can still do so and the deceased cannot. This logic apparently does not apply to mitzvot done for the benefit of the deceased. For example, burying the body and attendin the funeral are themsleves mitzvot, which are obviously permitted. But the same logic could apply to far more mitzvot than the number listed by the poskim relating to Torah, prayer, tzitzit and tefilin.

Is there a prohibition, then, on fulfilling other commands also, when apparent to onlookers, except in honor of the deceased? For example, if my father and I are near a grave and he asks me for his sweater that I'm holding, so that he may wear it, am I not allowed to pass it to him, because that would be obviously fulfilling the mitzva of honoring my father? If someone begs for charity near a grave, am I not allowed to give? If there's a fall hazard near a grave, am I forbidden from putting a railing up?) If (as I suspect) fulfilling all mitzvos is not prohibited, then why not? What's special about tzitzis, t'filin, reciting Torah and prayers, and holding a Torah scroll? And if fulfilling all mitzvos is in fact prohibited (at least when apparent to onlookers), why doesn't Shulchan Aruch say so as a blanket rule?

8
  • 1
    Interesetingly enough, all(?) of the mitzvot you list are discussed in Sefer Ahavah of Rambam's Mishneh Torah.
    – Joel K
    May 30, 2019 at 11:55
  • All those other Mitzvohs can be done not within 4 Amos. However by burying the dead which is also a mitzvah, and being that I'm within 4 Amos, can I bury the deceased, or is that also "taunting the pauper"!? @msh210
    – Moshe
    May 31, 2019 at 6:05
  • 1
    @Moshe I thought of that but that's in honor of the deceased
    – msh210
    May 31, 2019 at 12:17
  • Or because: if you say that "taunting the dead is always when they're dead", but if he was alive he wouldn't be able to bury himself either way - so we must bury him now and "taunting the dead" doesn't apply to burying the deceased. Or because not burying him a lo saseh and burying him is an aseh and (aseh docha lo saseh) therefore you can to bury him. Or yeah, just kavod the meis. @msh210
    – Moshe
    May 31, 2019 at 19:21
  • 1
    Interesting to note that Chida quotes Sefer Chasidim that tzadikim are considered alive and there is no problem davening next to a grave even not for the honor of the deceased.
    – user6781
    Nov 2, 2023 at 23:15

1 Answer 1

4
+100

Not all mitzvot fall into the category of "taunting the pauper."

The rationale presented in ברכת פרץ, within Parshat Terumah, proposes that only a mitzvah readily identifiable as such would fall under the category of "taunting a pauper." Rabbi Yaakov Kanievsky tries to explain the Medrash Tanchuma, where R. Yannai states: "Any priest who is not a student of the law, it is permitted to eat the offering on his grave." Initially, he aims to clarify the distinction between a student of the law and one who is not, in the context of the taunting issue. However, ultimately, he emphasizes that consuming Terumah near a grave never presents a taunting issue because it's not immediately evident that one is consuming Terumah; it could just as easily be Chulin.

This reasoning finds its foundation in the interpretation found in the Beit Yosef. It suggests that the language used, such as "head tefillin," allows for the permissibility of arm tefillin because it remains concealed from the deceased. This same principle can also be applied to the mitzvah of Kibud av, as affirmed by Rav Yaakov Aaron Skoczylas in his halachic work, Ohel Yaakov, making reference to Beis Matisyahu, Siman 5, and the perspective of Rabbi Nebenzahl. In Beis Matisyahu, he brings supporting evidence from the sugya in Yevamot 6a, which suggests that Kibud av can indeed be observed even in a cemetery. This line of reasoning may also be extended to Tzedakah. For a more comprehensive analysis, one should consult references to יעלת חן, Siman 63, and Beis Matiyahu.

Yaaleh Chayn similarly concludes that Tzedakah, returning a lost object, and honoring one's parents are permissible in the presence of the deceased, albeit with slightly different reasons.

Another distinction could be made based on the halachic responsa found in Sefer Halacha Limoshe, Rabbi Moshe Nyman addresses Pesachim 47b, which seems to suggest that covering blood is allowed in a burial site. He distinguishes between mitzvot that can be fulfilled through another person. Consequently, Tzitzit, Tefillin, and Torah-related activities pose an issue, while covering blood and returning lost objects do not, as the latter can be fulfilled through another. (However, for further insights, one should refer to יעלת חן).

Furthermore, Beis Matisyahu provides a thorough exploration of the unique aspects of each mitzvah mentioned in the Gemara. Importantly, there is no problem with the Shulchan Aruch, as it just references the Gemara.

2
  • 2
    Very nice, but does R Yaakov Kanievsky really write one can eat inside a cemetery (Rema on YD 368:1 writes it is forbidden) ?
    – mbloch
    Nov 6, 2023 at 6:53
  • @mbloch The Tanchuma discusses the permissibility of consuming terumah on the grave of a kohen who is not a talmid chocham. Rabbi Kanievsky provides an explanation of the Tanchuma's distinction between consuming terumah on the grave of a talmid chocham kohen and a non-talmid chocham kohen. However, Rabbi Kanievsky does not address your question about consuming food within a cemetery.
    – user6781
    Nov 7, 2023 at 13:20

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .