Mocking the Have Nots

The prohibition of performing Mitzvot in the presence of the dead – “Lo’eg LaRash” / From our website www.theshc.org

The Gemara in Berachot[1] writes that one may not enter a cemetery with Tefillin on their head or a Sefer Torah to read from, as this is a form of mockery of the dead who cannot fulfill Mitzvot. This prohibition also includes studying Torah[2], reciting Keriat Shema[3], praying Amida[4], wearing a Tallit[5] or other forms of outward observance of Mitzvot[6]. According to the Rambam[7], one who recited the Shema in the cemetery (i.e. he was worried that the time would pass) must recite it again when he leaves, an opinion which is followed by Maran in Shulhan Aruch[8].

This would seem to have many implications for those visiting the cemetery. Can they convene in a Minyan and pray Minha? Is it permissible to read Tehillim or say Divre Torah? How about the prevailing Minhag to recite Kaddish at the cemetery, whether at a funeral or when visiting family members?

Reciting Kaddish

As we mentioned, the prevailing custom in all Sephardic communities is to recite the Kaddish at the cemetery near the graves. This would seem to be at odds with this Halacha. Indeed, the Ramban in his work on the laws of mourning, Torat Ha’Adam, specifically writes that the Kaddish should be recited away from the cemetery, quoting many early authorities. This is also the position of the Shach in his commentary to Shulhan Aruch[9].

Nevertheless, Hacham Ovadia Yosef ??"? writes[10] that the custom still stands and is not subject to this prohibition. He bases this on the Gemara in Bava Kamma[11] that writes that after the passing of King Hizkiya, a Yeshiva was established at his grave in his honor. Although the Tosafot[12] comment that this must have been at some distance from the grave – in accordance with the above-mentioned prohibition – however, the Nimuke Yosef[13] cites Ribbi Meir HaLevi who explains that this prohibition does not apply in this case, because the study of Torah was done as a way of showing respect to the deceased, not disrespect. Based on these opinions, as well as the opinion of Mahari Abuhab, Maran in Bet Yosef[14] sanctions the practice of delivering a Shiur or eulogy filled with Divre Torah at the cemetery, since it is also done out of respect to the deceased.

Following this logic, Hacham Ovadia reasons, reciting Kaddish should also be permitted – as it serves as a source of Aliyat Neshama and honor to the deceased. He quotes Ribbi Aharon Modena, in his work Ma’avar Yabok[15], who extols the merits of the Kaddish and the beneficial effects it has for the Neshama, explicitly allowing to recite the Kaddish near the grave. The same can be said for reciting Tehillim or conducting a study in honor of the deceased[16] (it would seem logical, that care should be taken not to disrespect other graves while honoring a specific one).

Prayers for One’s Own Needs

Whereas praying Minha at the cemetery is clearly forbidden according to the above, there is a discussion in the Poskim regarding a community or individual praying for their own needs. The Rama[17] in the laws of Rosh HaShana mentions the custom to gather at the cemetery on Erev Rosh HaShana and pray on behalf of the community (to arouse the merit of the Niftarim before HaKadosh Baruch Hu[18]). The Hida in Mahazik Beracha[19] asks that this seems to be against the Halacha of not doing Mitzvot near the dead.

However, Hacham Ovadia posits that this may still be permitted, drawing a distinction between prayers recited to fulfill one’s personal obligation, such as the daily Tefillot, and prayers which are meant to arouse the merit of the Niftarim, even if they are on behalf of the community. Still, it seems that he is inconclusive on this matter; therefore, one should preferably not pray exclusively for one’s own needs at the graves themselves only outside the fence of the cemetery. Nevertheless, in a place where the Minhag is prevalent to do so, one may follow their Minhag[20]. It would also seem that one may pray for the Aliyat Neshama of the Niftarim alongside their own needs.

Kivre Tzaddikim

This discussion begs the question, how is it permitted to pray at the gravesites of Tzaddikim? Many sites in Eretz Yisrael and elsewhere (Morocco, Poland etc.) even boast fully-operational shuls and Kollelim studying at the gravesites – in apparent contradiction to all of the above. Whereas the study of Torah may be permitted when it is dedicated to the honor of the Niftar, how can we allow the daily Tefillot to take place without being concerned about Lo’eg LaRash?

Although there is a concept of “Tzaddikim b’mitatam keruyim hayyim” – the righteous are considered to be alive even after their passing – this does not seem to override the prohibition of fulfilling Mitzvot near the grave of a Tzaddik, as the Rishonim in Bava Kamma[21] clearly apply this prohibition to the grave of King Hizkiya as well!

One possible explanation can be that we are relying on the fact that the actual body is not buried near the surface. The Netziv in his commentary to the She’iltot[22] suggests that in our days that the body is placed much further beneath the ground than in the times of the Talmud, it would be permitted to fulfill Mitzvot near a Kever. While this position does not seem to be relied upon L’Halacha[23], nevertheless, with regards to ancient tombs, which are generally very deep below the ground, we may allow praying by their side and not consider it to be like praying near a dead person[24]. It would also seem that one can consider the large amount of people praying at all times at a gravesite as a form of honor to the Tzaddik.[25]

Bringing in a Sefer

A common scenario is that of a person bringing a Humash or Gemara into the cemetery with no intention to learn from it. Does this constitute a disregard for the cemetery, as the dead cannot study Torah?

The Noda B’Yehuda[26] was asked about a community that was plagued with troubles and conducted a day of prayer at the Bet Ha’Almin which included the bringing of a Sefer Torah to the event. The inquirer assumed this fell under the parameters of Lo’eg LaRash, as the Gemara in Berachot mentions not entering with a Sefer Torah to the Bet Ha’Almin. However, the Noda B’Yehuda pointed out in his response that the Gemara specifies that the Sefer Torah is brought in to read from. This would indicate that simply bringing in a Sefer, without learning from it, would be allowed.

Nevertheless, the opinion of Maran on this matter is elusive, as he seems to contradict himself in the Kesef Mishne[27] and Shulhan Aruch[28]. The Taz[29] too rules that it is forbidden to bring a Sefer Torah into a cemetery even without the intention to read from it.

If we were to compare all Sefarim to a Sefer Torah, it would seem, that one should preferably refrain from bringing in a Sefer into a cemetery, unless the Sefer is one that is generally also used to pray in honor of the deceased, such as a Siddur or Tehillim, or if it is concealed in a bag.[30]

It is interesting to note, that the Noda B’Yehuda in his answer also analyzes the interpretation of a specific passage in the Zohar[31], which seems to forbid any bringing of a Sefer Torah into the cemetery because of the tremendous arousal that it causes amongst the Neshamot. According to the Noda B’Yehuda, the Zohar only forbids this if the Sefer Torah is missing letters or has extra letters, whereas many other Poskim forbid this altogether[32].

In Conclusion

One may not do any outward Mitzvot in a cemetery or near a dead body, unless they distance themselves four Amot or stand outside the fence. This includes praying, reciting Shema, wearing one’s Tzitzit out and the like. If one is reciting Kaddish, or doing the Mitzvah in honor of the deceased, this would be permitted. Similarly, there is room to be lenient when one is praying on behalf of the community. In ancient Kivre Tzaddikim, the accepted custom is to be lenient with regards to all Mitzvot.

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