In this week's parsha, Yaakov Avinu commands his children to bury him in the Meoras Hamachpela. He gives them very specific details as to the location of the Meoras Hamachpela, and of those who were previously buried there.
The Netziv questions Yaakov Avinu's intentions in giving such specific details. Didn't his children already know where their grandparents were buried and where it is located? The Netziv explains that Yaakov Avinu's intention was to convey to his children, and future generations, what to insist upon regarding matters relating to burial. By describing the location of Meoras Hamachpela, Yaakov was essentially teaching his children that they should make the effort to be buried in a holy place.
So too, by emphasizing the Meoras Hamachpela is a place that Avrohom Avinu actually purchased, he was teaching them that it is important to be buried in a place that one owns, and not a place given to one as a gift. Finally, by reminding his children who is buried in the Meoras Hamachpela, Yaakov was teaching his children that one should be buried near one's parents and forbearers.(AUDIO VERSION HERE)
Purchasing a "Karkah" or Burial Plot
By: Rav Yehonassan Sasportas
Owning the Grave
The custom of buying a burial plot before one's demise is encouraged by many Poskim[1] as being a desirable practice. The purpose of doing so is to ensure that the eternal resting place of the deceased will be his own. The Chasam Sofer[2] writes that the custom is that the Chevra Kadishacharges a sum of money, depending on the buyer's means, for the grave and it is not lent out or given away. He does mention elsewhere (CH. M. 70) however, that it is not proper for the Chevra Kadisha to charge unreasonable prices for burial, and certain limits should be set. This custom is traced back to as early as Avraham Avinu. We find that after the land of Eretz Yisroel was considered his by walking its length and breadth, and the Me'aras Hamachpelah was paid for in full, he still found it necessary to perform a public Kinyan in front of all the children of Ches before burying Sarah. Many derive from this incident that the burial plot must be purchased and not received as a present,[3] and that a family member may acquire the land on behalf of the deceased as well[4].
Another Source
We find an additional source for this practice in the Gemara. Chazal[5] say regarding Elazar Hacohen's burial in his son Pinchas' property, that the land must have been obtained as an inheritance, and not by means of a purchase. The reason for this is because a purchase would inevitably return to its original owner by Yovel, causing the Tzaddik[6] to be buried in a plot that is not his own. This is considered by the Gemara as being a Genay, a dishonor to the Tzaddik. Similarly, we find that the Yerushalmi[7] says that although it is disgraceful for the deceased to be displaced from one grave to another, one may do so if the second one has an advantage by belonging to the deceased, because it is more pleasing to be laid to rest in one's own property.
Purchased by a Family Member
As mentioned earlier, this purpose is equally accomplished when a family member purchases the land, as the Or Zaruah[8] infers from Elazar being buried in his son Pinchas' land. The understanding behind this however needs some clarification. Why is there a difference between being buried in a family owned grave as opposed to one owned by strangers, if both do not belong to the actual deceased? The Machane Chaim[9] suggests that a person's emotions after death are similar to his feelings during his lifetime. Therefore, the same way one enjoys spending time with family and acquaintances, as opposed to being with total strangers, during his lifetime, he feels the same regarding his resting place after death.
Can a Dead Person Own?
We may however suggest an alternative approach to resolve this difficulty, but first, two questions must be raised. We know that a deceased person is unable to own possessions, causing him to relinquish any claim of ownership on his belongings upon his death. We must therefore understand the purpose of owning one's grave, if all one's assets are surrendered after his passing. Furthermore, the Gemara in Bava Kanna[10] says that one of Yehoshua's decrees upon entering Eretz Yisroel was that a Meis Mitzvah, one who unexpectedly passes away without having any relatives to tend to his body, is Koneh Mekomo, he acquires the place he was found lying on, and is buried there regardless of the owner's consent. The question is that if that burial itself effects an ownership on the lot, what would be the purpose of buying and paying for it first. We can therefore conclude from the above indications that the underlying idea behind owning one's burial plot is not that it should belong to the deceased. Instead, the purpose is that the deceased should not be laid to rest in a plot that he doesn't have a legal right to, and will therefore be unwelcome by the owner. As mentioned earlier, if Pinchas' property would have returned to its original owner, Elazar's body would remain in a stranger's land against his will, and this is the concept of Genay that the Gemara is referring to. We therefore understand why a relative may also purchase the land, and why the intrinsic ownership that the deceased has on his grave is not sufficient.
Moving the Mes
Additional scenarios where this Halachah applies would be in a case that the cemetery was annexed by the government, or unfortunate victims of anti-Semitism were buried in a strange land. The Maharam Shick[11] and Chasam Sofer[12] rule that since they are buried in a plot that is not theirs, they can be displaced to a family owned grave.
[1] Such as the Shiltey Giborim (Sanh. Ch. 6)
[2] Y.D. 331
[3] See Ha'amek Davar Bereishis 49, 30
[4] Tzofnas Paaneach
[5] Bava Basra 112
[6] Elazar Hacohen
[7] Quoted in Tosfos, Moed Katan 13A
[8] 75
[9] O.C. 3, Givas Pinchas
[10] 81
[11] YD 3, 353
[12] YD 334
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