Shabat Parashat Devarim| 5766
From the works of Hagaon Harav Shaul Yisraeli zt”l - Honor of the Deceased, the Grave, and Reinterring - Part III - Study of a Cadaver; A Grave That is Damaging the Masses - Based on Chavot Binyamin, siman 25
Studying a Cadaver- The Chatam Sofer (YD 336) says that studying a cadaver to gain medical knowledge is a form of receiving benefit from the dead and is permitted only to save a life. This is even without the problems of defiling the dead in cases of dissections. The Chazon Ish (208:7) questions this presumption in regard to seeing alone, which is also not something that one pays for, and therefore, there is no palpable benefit.
The mishna (Nedarim 35b) says that even if Reuven is proscribed from receiving benefit from Shimon, Shimon can teach him certain areas of Torah. The gemara explains that this refers to areas where one is not allowed to charge money to teach. The Ran (ad loc. 37a) explains that the learning itself (beyond saving of tuition) is not a problem because the performance of a mitzva is not halachically categorized as (worldly) benefit.
One can ostensibly infer from the Ran that the acquisition of knowledge in a non-mitzva context counts as benefit. However, the cases are not comparable, as regarding teaching, the teacher actively toils, thus making it considered that he is givingbenefit. In contrast, the cadaver does nothing as the information is accrued. One can suggest a proof from the halacha that while the complete laws of misappropriation from hekdesh (holy assets) do not apply to sight, there is a rabbinic prohibition to enjoy seeing such things (Pesachim 26a). However, one can distinguish that there one benefits from the sight itself, whereas here the sight only brings about knowledge that is helpful elsewhere.
Practically, the Chatam Sofer is correct since one does not see alone, but usually touches and moves the remains. This is similar to the halacha that blowing and thereby hearing a shofar is benefit even though the sound per se is similar to sight. So too, we must distinguish between looking at a cadaver and using it through physical contact.
A Grave That is Damaging the Masses- The gemara (Sanhedrin 44b) says that one may exhume a body from a grave that is damaging the masses. Afterward, the gravesite is tahor (pure) but is forbidden in benefit. Rashi explains that the situation that arose is not capable of removing the Torah prohibition of benefit that existed.
The Shulchan Aruch (Yoreh Deah 363:5) based on the Yerushalmi broadens the discussion. If a roadside grave is causing damage, it can be removed even if it was made with the landowner’s permission, but the site is forbidden in benefit. If the road pre-dated the grave, the area is permitted in benefit. In the latter case, a prohibition cannot be created in a place that is used for the masses (see Shach 364:13). This is so even if the burial was done in a private field, if it was done so that impedes the masses, which is still improper. It follows that even in the case where the masses encroached upon the gravesite and there is now public damage, it is permitted to at least exhume the body. Although the deceased “acquires the right” to stay where it is, that is not qualitatively different from the rights of a live person, who can, at times, be forced to move to prevent damage to the masses (see Bava Batra 24b).
In this regard there is no distinction between an individual grave and a cemetery. The damage involved can include the public’s ability to appropriately develop an area. Of course, any necessary exhuming must be done with the greatest respect for the remains.
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This edition of
Hemdat Yamim is dedicated to the memory of
R’ Meir ben Yechezkel Shraga Brachfeld o.b.m.
Hemdat Yamim is also dedicated by Les & Ethel Sutker of Chicago, Illinois
in loving memory of Max and Mary Sutker and Louis and Lillian Klein,z”l.
May their memory be a blessing!