8b----------------------------------------8b
1) DIGGING A GRAVE ON CHOL HA'MO'ED
QUESTION: The Mishnah states that we may not dig graves ("Kuchin" and "Kevaros") on Chol ha'Mo'ed, but we may adjust ("Mechanchin") them (widen or lengthen them to fit the size of the Mes being buried there).
The Rishonim ask that this Mishnah contradicts the Gemara in Beitzah (6a) which says that on the second day of Yom Tov (Yom Tov Sheni) we are permitted to bury the dead and do any Melachah necessary for the Mes, such as sew the shrouds and even cut a myrtle branch (to provide a sweet scent). If we are permitted to do everything for a Mes even on Yom Tov Sheni, then certainly we should be permitted to dig a grave on Chol ha'Mo'ed! The prohibition of Melachah on Yom Tov Sheni certainly is not less severe than the prohibition of Melachah on Chol ha'Mo'ed (after all, there is a doubt whether Yom Tov Sheni itself is Yom Tov or Chol ha'Mo'ed). If we are permitted to do any Melachah for the sake of a Mes on Yom Tov Sheni, why does the Mishnah say that we may not dig a grave on Chol ha'Mo'ed?
(One could answer that when the Gemara in Beitzah mentions Yom Tov Sheni, it refers only to the second day of Yom Tov at the end of Pesach or Sukos. That day indeed might not be part of the festival but rather an ordinary weekday, and thus its prohibition of Melachah may be more lenient than the prohibition on Chol ha'Mo'ed. However, the Rishonim point out that this answer is not tenable. The Gemara in Beitzah does not differentiate between Yom Tov Sheni at the beginning of the festival (when it has at least the sanctity of Chol ha'Mo'ed) and Yom Tov Sheni at the end of the festival.)
ANSWERS:
(a) RABEINU CHANANEL, the RIF, and the RAMBAM (Hilchos Yom Tov 8:8) explain that the Mishnah here refers to digging a grave in advance, before its eventual occupant dies. It may not be dug on Chol ha'Mo'ed because it is not needed on Chol ha'Mo'ed. In contrast, if the person has died and needs to be buried, a grave may be dug for him, as the Gemara in Beitzah says.
The BA'AL HA'ME'OR questions this approach. Why does the Mishnah need to teach that one may not dig a grave on Chol ha'Mo'ed which is not needed on that day? One may not do any Melachah on Chol ha'Mo'ed which is not needed until after the festival!
The RA'AVAD asks further that when the Mishnah concludes that one may adjust the size of the grave, it obviously refers to the same situation discussed in the beginning of the Mishnah -- that is, before the person has died. Why is one permitted to adjust the size of the grave if the grave will be used only after Yom Tov?
The RAMBAN (in Milchamos) answers that there actually is a valid reason to permit digging graves on Chol ha'Mo'ed for use after Yom Tov. The Gemara earlier (5a) teaches that one may clean out water pits but may not dig them to begin with on Chol ha'Mo'ed. Since the work is for the benefit of the general public (Tzorchei Rabim), one is permitted to do work even if it is not needed until after Yom Tov. (The Gemara (6a) explains that the reason for this allowance is that workers can be hired for less on Chol ha'Mo'ed, thereby saving the public funds.) Similarly, the Mishnah here permits adjusting graves on Chol ha'Mo'ed for use after Yom Tov because this work is needed for the benefit of the public.
According to the Ramban, why is digging a grave in the first place prohibited? If it is for the sake of Tzorchei Rabim, it should be permitted! The Ramban explains that a grave may not be dug on Chol ha'Mo'ed for the same reason why a water pit may not be dug on Chol ha'Mo'ed but may be cleaned out ("Chotetin" according to the Mishnah, or "Mechanchin" according to the Tosefta in Moed Katan 1:3). Starting a new Melachah on Chol ha'Mo'ed for the sake of Tzorchei Rabim is not permitted. One may only fix things for the sake of Tzorchei Rabim. (The SHITAS RIVAV (nephew of the Ba'al ha'Me'or) gives a similar answer, but he writes that the reason why a grave may not be dug on Chol ha'Mo'ed in the first place is because it is a skilled labor, a "Ma'aseh Uman," while adjusting the size of the grave is a "Ma'aseh Hedyot" which does not require skilled labor.)
(b) RASHI also explains that the Mishnah refers to digging a grave in advance, for use after Yom Tov. Rashi adds, however, that the reason why such a grave may not be dug is that it involves excessive exertion, Tircha Yeseirah. Rashi may understand, like the Ramban, that even if the Melachah is done for the sake of Tzorchei Rabim, a new grave may not be dug because it involves excessive Tircha.
However, the words of RASHI on the Rif and in RASHI KESAV YAD (and as quoted by all of the Rishonim in the name of Rashi) include an additional comment in which Rashi asks the question, why does the Mishnah prohibit digging graves if the Gemara in Beitzah permits any Melachah needed for a Mes? Rashi answers that the Gemara in Beitzah permits only a Melachah that is not a strenuous labor and involves no Tircha. Digging a grave is a strenuous labor and thus is not permitted even for a Mes.
Many Rishonim point out that Rashi seems to contradict himself. Since Rashi first explains that a grave may not be dug on Chol ha'Mo'ed because of Tircha Yeseirah, why does he need to add that the Mishnah refers to digging a grave for a person who has not yet died? Rashi should explain simply that even if the Mes is present, the grave may not be dug because it is a Tircha Yeseirah! Conversely, if Rashi maintains that the Mishnah refers to digging a grave for a person who has not yet died, then why does he ask a question from the Gemara in Beitzah which permits Melachah for the burial of a person who has already died? (ROSH)
The answer to the first question seems to be as follows. Rashi apparently is bothered by the plural form of the words in the Mishnah, "Kuchin u'Kevaros." If the Mishnah refers to digging a grave for someone who has already died, why does it mention multiple graves? Rashi understands from the plural form of these words that the Mishnah refers to the practice of digging many graves in advance.
To answer the second question (why does Rashi question the Mishnah from the Gemara in Beitzah if the Mishnah refers to digging a grave for someone who has not yet died), the ROSH explains that the Gemara in Beitzah implies that one is permitted to do Melachah for the sake of the Mes anytime on Yom Tov Sheni, even near the end of the day when it is clear that the burial will not take place until the following day (after the festival is over). Hence, the Gemara there implies that one may do Melachah for a Mes even when it is needed for only after the festival.
The MAHARSHAL (in YAM SHEL SHLOMO, cited by the KORBAN NESANEL #90) rejects the answer of the Rosh because Rashi still should not have had a question from the Gemara in Beitzah. The reason why the Gemara there permits Melachah done in preparation for the burial of a Mes even when the burial will occur only after Yom Tov is because the person is already dead and it is not proper to delay his burial. In contrast, when the person has not yet died (as in the case of the Mishnah here) there is no reason to permit Melachah, as no delay of the burial is involved. (See Korban Nesanel there.)
Perhaps Rashi understands the Sugya like the Ramban cited by the Rosh (in (a) above). The Ramban explains that one may not dig a grave even for Tzorchei Rabim because of the excessive Tircha involved. Rashi maintains that just as Melachah for Tzorchei Rabim which will be needed after Yom Tov is prohibited because of the Tircha, so, too, digging a grave for the need of a single Mes on Chol ha'Mo'ed itself is prohibited because of Tircha.
(However, Rashi in Beitzah (6a, DH d'Ika) clearly states that on Yom Tov Sheni one is permitted to dig a grave even for the need of an individual Mes who has already died. Perhaps Rashi there means that one is permitted to adjust the size of the grave ("Mechanchin"), or perhaps he is referring to the last day of Yom Tov, on which there is reason to be more lenient than Chol ha'Mo'ed, as mentioned above.)
(c) The RA'AVAD (Hilchos Yom Tov 8:4, and as cited by the ROSH) asserts that although Melachah for any of the needs of a Mes is permitted, digging a grave on Chol ha'Mo'ed is prohibited because a temporary interment may be used instead. The Mishnah permits making a "Nivreches" (a simple hole in the ground, like the modern-day burial plot), which the Ra'avad explains is a temporary grave. After Yom Tov, the Mes may be moved into a more respectful, permanent grave. The "Nivreches" involves no form of construction, and therefore it is a less severe form of Melachah on Chol ha'Mo'ed. (See also Ba'al ha'Me'or in the name of "some who say.")
The Rosh rejects this opinion. He claims that placing the Mes in a temporary grave on Chol ha'Mo'ed and then moving the Mes after the festival is a disgrace to the Mes and is not an option.
(d) The BA'AL HA'ME'OR writes that the Mishnah's prohibition against building a grave applies only when the Mes is not present in the graveyard. If, however, the Mes is present at the time the grave is made, then it is permitted, as the end of the Mishnah says with regard to building a coffin.
Other Rishonim reject this approach. The Mishnah implies that the presence of the Mes permits only the building of a coffin but not the building of a grave. (That is, building a grave is prohibited even in the presence of the Mes, and adjusting the size of a grave is permitted even not in the presence of the Mes.) The reason why the Mes must be present in order to permit building a coffin is because a wooden box is usually not used for burial but for other purposes (such as for storage). Therefore, in order to prevent suspicion that one is building a box for storage or other purposes, the Mes must be present (RAMBAN).
The RITVA writes that building a coffin is not permitted unless the Mes is present (in contrast to other Melachos done for a Mes which are permitted even when the Mes is not present) because it is preferable not to bury a Mes in a coffin but rather to inter the body directly in the ground.
HALACHAH: The Halachah follows the ruling of the Rif and the Rambam (in (a) above). On Yom Tov Sheni one is permitted even to dig a grave for someone who has already died (MISHNAH BERURAH OC 547:24).
The SHA'AR HA'TZIYUN points out that this would be permitted even according to the Ra'avad (in (c) above) who prohibits building a "Kuch" or a "Kever" for a Mes but permits building a "Nivreches," which is similar to the graves dug today. (The difference between the construction of graves in the times of the Mishnah and Gemara and in modern times is that in ancient times, a Kever was not a mere ditch dug in the ground as it is today. Rather, it was chiseled into the side of a cave. The cave was usually beneath the ground, although often it was in the side of a hill, mound, or mountain. There was often an open area in the center of the cave, and in the walls of the cave surrounding the open area smaller coves were chiseled, into each of which a body would be placed. It entailed much more work than digging a small ditch in the ground, since it usually involved digging into solid rock and fortifying the structure so that it would not cave in.)