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 Shabbat Parashat Miketz| 5765P’ninat MishpatControl of Holy Places - Based on B’sha’arei Beit Hadin, vol. II, pp. 345-360
Case: There is an ongoing series of deliberations and decisions regarding control of the operations at one of the prominent sites of kivrei tzaddikim (graves of well-known, righteous people). Instead of summarizing each of the proceedings, we will mention some of the principles that emanate from the series of responses.
Summary of opinions: There are different types of hekdeshot (literally, holy institutions) that are prevalent in Eretz Yisrael. One refers to property acquired on behalf of a certain community of Jews (historically based on their country of origin) to be used for the religious and/or social needs of that group. In regard to such property, there are questions of rights and ownership that need to be addressed according to the regular rules of civil matters.
A second type of hekdeshot is that which pertains to the entire Jewish people. Certainly age-old gravesites of our historic leaders, sages, and righteous do not belong to any one group, allowing them to control the site in order to make money or otherwise benefit from them. The rights that do exist are chezkat aputropsut (guardianship) over the sites. This is not a financial right but is an outgrowth of the concept that when one begins doing a mitzva or holding a position in regard to a mitzva, he is not to be removed without sufficient justification (mishna in Gittin 59; Shulchan Aruch, CM 149). The poskim added that simple justification is not sufficient to remove him, rather there must be significant grounds. It is hard to give exact guidelines for deciding what constitute such grounds, but we can borrow certain ideas from related cases. A guardian for orphans is to be removed when he is suspected of misappropriating their funds (Shulchan Aruch, CM 290:5) or neglecting their needs (Baer Heitev, ad loc.).
The Ministry for Religious Affairs asked to have the present guardians removed for not maintaining the buildings at the site and misappropriating funds. But the former situation stemmed from damages incurred during the War of Independence [the ruling was issued in ’52], and public funds had not been provided to make the necessary repairs. The latter claim had not, as yet, been substantiated. [Other claims are beyond our present scope]. Nevertheless, it is appropriate that the Ministry, with the approval of the Rabbinate, appoint two additional guardians to oversee the site and its operations and to see to it that the conditions at the site improve, according to the dignity befitting the great men who are buried there.There is no reason to accept the demand that the new guardians be of the same ethnic origin as those who are presently guardians. Only their qualifications are important.
A recent, temporary ruling required the forming of a council consisting of a representative of each of the communities that claim control, with a chairman chosen by the local beit din. It also stressed that those running the site should not use it as a means of obtaining funds for institutions unrelated to the operation of the site.
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