THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
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1) HALACHAH: SITTING ON A GRAVESTONE
OPINIONS: The Gemara says that if a person builds a gravestone over a grave,
the stone becomes Asur b'Hana'ah. Can we learn from here that it is
prohibited to sit or lean on a gravestone in a graveyard?
(a) The TUR (beginning of YD 364) cites RABEINU YESHAYAH who, based on our
Gemara, prohibits using a gravestone. The BEIS YOSEF cites the HAGAHOS
ASHIRI in the name of the OR ZARU'A (Moed Katan 3:79) who writes that some
prohibit sitting and leaning on a gravestone for this reason.
HALACHAH: Both opinions are cited by the REMA (YD 364:1). Accordingly, in a
place where it is not the accepted practice to sit on gravestones, there may
be reason to be stringent (since the second reason for leniency does not
apply). In addition, there is another reason to prohibit sitting on a
gravestone. The Gemara in Megilah (29a) prohibits letting animals graze in a
graveyard or acting lightheadedly in a graveyard. The MORDECHAI in Megilah
there asks why should it be prohibited to graze animals there; the Isur
Hana'ah only prohibits deriving benefit from the grave itself, and not from
the whole graveyard. Moreover, even the grave itself becomes Asur only when
one builds a structure in which he places the Mes. The dirt of the grave
itself does not become Asur. The Mordechai answers that the Isur in the
Gemara in Moed Katan is not because of the Isur Hana'ah, but because of the
disgrace to the dead involved in grazing animals there.
(b) However, the Tur cites his father, the ROSH, who permits using
gravestones today, since they are not part of the grave but merely a marker
for the grave. Apparently, in the times of the Gemara the gravestones were
part of the grave itself, and not merely markers above the grave.
This is also the opinion of the RASHBA (in a Teshuvah cited by the BEDEK
HA'BAYIS) and the OR ZARU'A (Hilchos Aveilus 423), who write that today's
gravestones are simply erected to give honor to the dead, but they are not
The Rashba there and RABEINU YERUCHAM cited by the BACH give another reason
to permit sitting on gravestones. They write that it was customary for
people to sit on gravestones. Consequently, when the gravestone was erected,
it was considered as though it was done with an explicit condition
permitting people to sit or lean on it.
The Acharonim (YAD ELIYAHU, cited by PISCHEI TESHUVAH YD 364:2) write that
the concern for disgrace to the dead also prohibits a person from sitting or
standing over a gravestone. (Leaning on a gravestone might not be considered
2) THE DEFINITION OF "HAZMANAH"
QUESTION: Abaye and Rava argue regarding "Hazmanah Milsa Hi." Abaye
maintains that designating an object ("Hazmanah") for a purpose which would
make it Asur b'Hana'ah (prohibited to derive personal benefit from it) is
effective, and even before the object is actually used for that purpose it
is Asur b'Hana'ah. The Halachah follows the ruling of Rava, who maintains
that "Hazmanah Lav Milsa Hi" -- designating an object for a certain purpose
does *not* make it prohibited until it has actually been used. However, even
according to Rava, Hazmanah does cause the object to become Asur when the
object is used for the purpose for which it was designated, while using the
object *without* having designated it for that purpose does *not* make the
object Asur b'Hana'ah (and one may derive personal benefit from the object
when it is not being used).
What type of act constitutes Hazmanah (according to Abaye, to make it Asur
b'Hana'ah without using it, and according to Rava, to make it Asur b'Hana'ah
after it has been used)? From the wording of the Gemara's initial statement
("ha'Oreg Beged l'Mes"), it seems that it is not enough to designate the
object for that purpose verbally, but rather some action must be done to
make the object fit for use. The Gemara mentions "ha'Oreg Beged," "one who
weaves a garment for a dead person," and it does not merely mention a person
who "designates" a garment. This is also implied by the Gemara's proof from
the case of a person who builds a Nefesh, a gravestone. The Gemara attempts
to support the opinion of Abaye from the Beraisa that says that if one adds
a new row of stones to the gravestone, it becomes Asur. This implies that
simply designating the preexisting stone for the Mes would not prohibit it,
according to Abaye.
On the other hand, other indications in the Gemara imply that it does
suffice as Hazmanah merely to designate the object for use verbally. The
Gemara attempts to bring proof for Abaye's opinion from the Mishnah (Kelim
28:5) which discusses a case of a kerchief ("Kipah") that was designated for
use as a cover for a Sefer Torah. Once the Kipah has been designated for use
for the Sefer Torah, it becomes Tahor. The word "Nasnaso" implies that it
was merely designated, but not changed physically. Also, the Gemara (end of
48a) implies that, according to Abaye, if parents throw clothing onto the
corpse of their child, the clothing would become Asur even though no change
has been made to the clothing!
What is the correct way to understand what constitutes Hazmanah?
(a) The RAMBAN cited by the RAN rules that it suffices to designate an
object verbally, or even in one's mind, for a Mes or for another use of
Kedushah. When the Gemara discusses "one who weaves a garment" it is merely
giving a common case. The same Halachah would apply, though, when a person
verbally designates an object for a Mes. In the case of the gravestone, too,
the Beraisa could have said that the person designated the gravestone for a
Mes. However, adding a row will be considered Hazmanah even if he does not
verbally designate it to be used exclusively for the Mes.
(b) TOSFOS (48a, DH Nesano la'Sefer) concludes that Hazmanah is accomplished
not only through verbal designation, but through a combination of verbally
designating *and* taking the object in one's hand while verbally designating
it. This is why the Gemara says that a person must add another level of
stone to the gravestone in order to make a Hazmanah, since he cannot pick up
in his hand the stones that are already there. When the Gemara discusses
"one who weaves a garment" for a Mes, it does not mean that it must be woven
for that purpose, but rather the Gemara is teaching that even though the
garment has been woven, Rava still says it is not Hazmanah.
(c) The RAN explains that it is not enough to simply verbally designate and
pick up the object, but rather one must perform a minimal action to show
that he is designating it for that purpose, such as transferring the object
to a different person's domain in order to designate it for its purpose.
Therefore, if a person simply announces that he wants the garment to be used
for a Mes, it will not be Hazmanah unless he either weaves the garment or
places it on a Mes. In the case of the clothing that was thrown on the Mes,
it is considered an action of transferring the clothing to a different
domain the moment it is thrown (even before it lands). In the case of the
"Kipah" which was designated to be used as a cover for a Sefer Torah, the
Mishnah means not only that it was designated, but that it was given
("Nasnaso") to the Gizbar in charge of the Sifrei Torah for the purpose of
being used as a cover for a Sefer Torah.
According to all of these opinions, the same form of Hazmanah should be
required according to Rava in order to prohibit the object once it has been
designated *and* used.