May a body be buried in an over ground structure [i.e. Mausoleums; Kevurat “Komot”; Rama, Sanhedrin cave burials]?

This article is an excerpt from our Sefer

May a body be buried in an over ground structure [i.e. Mausoleums; Kevurat “Komot”; Rama, Sanhedrin cave burials]?[1]

Background: In today’s times, various Chevra Kadisha’s and municipalities in search of space have introduced alternative burial methods which differ from the accustomed ground burial within a field. These methods include building a platform of several stories, similar to a multi deck parking lot, and burying the dead in these platforms. This allows the ground space to be utilized as much as possible. This form of burial is known as Kevurat Rama. Others build a structure on the ground which includes several decks of shelves which house the bodies. This form of burial is known as mausoleums, or Kevurat Komot, or Sanhedrin. The question that rises regarding the above forms of burial is as to whether they are valid according to Halacha. The question is whether they fulfill the requirement for the body to buried within earth, and not simply left in a casket. In truth, these new forms of burial do have a precedent. In the times of the Sanhedrin it was customary to bury within caves. Shelves were carved out within the cave and bodies were entered inside of these shelves. This burial form was known as Kuchin. These forms of cave burial dating to the Tananaic period can be seen today in various areas, especially the old cemetery of Tzefat and in the Jerusalem neighborhood of Sanhedria. Thus, seemingly, the newly introduced forms of burial have the precedent of Halacha to be relied upon. However, in truth, a careful analysis shows that despite the good will to compare the modern burials to the alternative burial method used by the Sanhedrin, there is a major difference between the original Komot burial of the Sanhedrin and that which is used today. The Sanhedrin burial was were done in a cave underground, and hence fully fulfilled the requirement of being buried within the earth of the ground. The new burial structures, however, are built above ground and are then filled with earth, hence attempting to give it the status of underground. Can such a structure which is in truth over ground be considered underground and within the earth just because it is covered with earth? Practically, this matter is debated amongst the Poskim of today as will be explained next.

The ruling:[2] Many Poskim[3] rule that the above ground structures used for burial in some cemeteries and Chevra Kadisha’s is invalid and it is considered as if the body was never buried.[4] Some Poskim[5], however, defend the use of this form of burial, claiming that it has Halachic basis. Practically, one is required to be stringent and do all in his power that his deceased relative receives a traditional ground burial and not a burial within a built structure.

The position of the Israeli Rabbanut: The position of the Israeli Rabbanut for many years was to invalidate the above ground structure burials. Nonetheless, the current ruling of the Israeli Rabbanut, and its directive to the Chevra Kadisha’s, does permit certain forms of over ground burial, under various Halachic arguments that they deem acceptable. This has created a major obstacle for those who desire to follow the majority of Poskim who invalidate such a burial, as the national insurance [Bituach Leumi] does not provide free ground burials in overly urbanized cities [i.e. Tel Aviv, Jerusalem], and paying for a ground burial privately can cost thousands, and up to tens of thousands of dollars. Practically, one is to do all in his power that his deceased relative receives a ground burial and is not to suffice with a burial of Komot or Rama. One is to do so even if the cost of the ground burial is exorbitant. There are various cities and villages which sell ground burial plots and the full range of prices and locations are to be weighed.

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[1] See Kuntrus Komos of Rav Akselrud

[2] See Migdal Tzufim [Akselrod] 6:74

[3] Beis Yitzchak Y.D. 161 [unlike his previous Teshuvah 160]“Burying in a walled building does not fulfill the Mitzvah of burial”; Igros Moshe Y.D. 3:142-143 [unlike 3:144 where he permits] “It is a great prohibition to burry in over ground Kuchim called Mausoleums, as the burial must be within the actual ground and one who does so transgresses the Biblical command of burial…It is thus obvious that one is obligated to publicize this prohibition that no Jew may be buried in these buildings due to transgressing two grave prohibitions of a negative and positive command each and every day, in addition to the grave sin of causing pain to the souls of the dead”; Minchas Yitzchak 10:122 “There is no doubt that the burial must be within the ground, and not within material that was removed from the ground and then attached”; Divrei Yatziv Likkutim 133 p. 153; Rav Mashash and Rav Yisraeli in Chavas Binyamon 1:24 required that the Komot be fully covered with earth from all sides to be considered underground; Rav Elyashiv, printed in Piskeiy Tehsuvos Y.D. 64, ruled it is forbidden to change the traditional method of burial; Rav Wozner ruled that the Komot are seemingly contradictory to the simple Halachic requirement; Badatz Eida Hachariedis including the Raavad, Rav Moshe Shturnbuch; Rav Meir Bransdofer ruled it is not considered a burial and one who was buried in such a way is to be exhumed and reburied within the ground; Many Rabbanei America from previous generation, brought in Kuntrus Migdal Tzufim ibid

[4] The reason: As a) The burial must take place underground, within the natural earth, and building an over ground structure and covering it with earth does not suffice. Being that this burial is invalid, one who does so transgresses the positive and negative command to bury the body. [Igros Moshe ibid; Minchas Yitzchak ibid; See the Sugya of Tolshu Ulibasof Chibru and if this is considered part of the ground: Bava Basra 66b] b) Even if burying within a mound of earth over ground is valid, the grave must be surrounded by earth from all sides; c) Even if one were to hold that the burial ground is not required to be surrounded by earth on all sides, in some of the over ground burial structures, there is no earth at all, and it is a cement building. D) It delays the decomposition of the body, and thus delays the atonement of the soul. [Igros Moshe ibid] e) One should not change from the normal burial method used throughout all generations. [Rav Elyashiv ibid] f) Burying with a shelf of a wall is like the ways of the gentiles and transgresses Chukos Hagoyim. [Kol Bo-Greenwald]

[5] Implication of Michaber 364:1 “Kever Shel Binyan”; Implication of Rashi Sanhedrin 47b “It refers to a building used for graves which was built over ground”; Beis Yitzchak Y.D. 160-3 [unlike his next Teshuvah 161] that if one attached the earth to the ground, its valid; Igros Moshe 3:144 [unlike 3:142-143] based on Rashi Sanhedrin 47b “Since the building is made of stone and cement and is attached to the ground, seemingly it does not transgress the prohibition against delaying burial, although it is not considered a proper burial”; Rav Moshe Shaul Klein from the Beis Din of Rav Wozner ruled in 5764 in the name of Rav Wozner that the Komot burial is valid [Rav Wozner later retracted from his ruling in 5771]; Rav Yaakov Roza, head of the Chevra Kadisha

The reason: As they bury the body in actual earth or material which has the same Halachic status as earth, such as cement, and this earth is attached to the actual ground, and we rule that Talshu Ulibasof Chibru is viewed as attached.

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