04 Jan KOHEN UNDER A TREE

I. The Cemetery in Lvov 

A kohen is obligated to protect his sanctity from the impurity of a dead body. Part of this obligation requires him to avoid being under the same roof as a dead body. In 1620, a question arose about this fairly straightforward rule. Rav Koppel Katz, a young rabbi, was new to Lvov. On Rosh Hashanah eve, the Jews of Lvov gathered at the city’s cemetery. Rav Katz insisted that the kohanim stand far back, away from the trees, but they refused because the recently decreased rabbi of Lvov, the famous Rav Yehoshua Falk (author of Perishah and Sema), was a kohen and would stand under the trees in the cemetery. Rav Katz suggested that perhaps in the time of Rav Falk (who passed away six years earlier), the trees’ branches did not cover any graves. Regardless, he said, the law is clear. In order to convince all the kohanim, Rav Katz published a responsum on the subject explaining the relevant laws (published in Responsa Eisan Ha-Ezrachi 4b). The Mishnah (Ohalos 8:2) says that these bring and stop tumah (and therefore serve as roofs): “…interlaced boughs and protruding stones as long as they are cable of sustaining thin plasterwork, the words of R. Meir. But the Sages say a medium plasterwork. What are interlaced boughs? A tree which casts shade over the ground.” Rav Katz quotes a disagreement between Rambam and Ra’avad (Mishneh Torah, Hilchos Tumas Meis 13:2) on how to understand this disagreement. According to Rambam, the issue is the sturdiness of the branches. According to Ra’avad, the question is how far apart the branches are. Either way, argues Rav Katz, according to both Rambam and Ra’avad, the trees in the Lvov cemetery serve as a roof over the graves. 

II. A Lenient Approach 

Rav Katz circulated this responsum and a leading Torah scholar in Lvov, Rav Avraham Rappaport (author of Responsa Eisan Ha-Ezrachi), disagreed in a responsum written as a reply. Rav Rappaport (Responsa Eisan Ha-Ezrachi, ibid.) says that the trees always covered graves and yet Rav Falk stood under them. Additionally, Rav Falk told the kohanim that they could go further into the cemetery, up to a specific stone that marks where the actual burial grounds begin. Rav Rappaport explains that Ra’avad allows for distance between branches. According to Ra’avad, even if branches are somewhat apart, if together they can sustain medium plasterwork then they serve as a roof. However, Rambam does not allow for any distance between branches. If they don’t connect or overlap, then branches serve as separate roofs if they are strong enough to hold medium plasterwork. Therefore, according to Rambam there is no problem standing under a tree if the branch you are under does not cover a grave. Even if the same tree has branches covering graves, as long as the kohen is under branches that do not cover graves then he is fine. Rav Rappaport argues that Rambam is correct, which would allow for leniency in this case. Additionally, Rav Rappaport argues that leaves do not serve as part of a roof. The previous Mishnah (Ohalos 8:1) says that donkey’s vegetables serve as a roof for impurity. But a later Mishnah (ibid., 5) says that vegetables in general do not serve as a roof for impurity. Rambam, in his Mishnah commentary (ad loc.), explains that vegetables do not last long and therefore do not serve as a roof. Only vegetables that last a full year (like those a donkey eats) can serve as a roof. Therefore, argues Rav Rappaport, the leaves on a tree that fall each year do not constitute a roof for impurity. You have to look at the branches themselves and not the leaves. Since the branches of the trees in the Lvov cemetery are not even a tefach wide, the minimum width for a roof, there is no problem for a kohen to stand under those trees. Rav Rappaport gave this written exchange to his relative through marriage, his mechutan, Rav Yom Tov Lippmann Heller (author of Tosefos Yom Tov), and asked for his thoughts. Rav Heller (Responsa Eisan Ha-Ezrachi, ibid.) argues that we follow Ra’avad, and not Rambam. However, he agrees with Rappaport that leaves do not qualify for a roof regarding impurity. This allows for great leniency. He cautions, though, that we have to look at a branch at its widest point (usually where it emerges from the trunk). If the branch is a tefach wide and a tefach long at any point, then the entire branch constitutes a roof. A kohen has to be careful not to stand under such a branch if it also covers a grave. 

III. Modern Practice 

In general, Rav Rappport and Rav Heller would allow a kohen to stand under a tree that is at the edge of a cemetery because the tree’s branches that point away from the cemetery do not cover any graves. Rav Katz would not allow this if the branches (and leaves) around the tree are fairly close and strong. Some later authorities discuss this general problem and reach a strict conclusion. Rav Elazar Fleckeles (19th cen., Czech; Teshuvah Me-Ahavah 1:89) rules that trees generally pose a problem as roofs for impurity — without mentioning the leniency of discounting leaves. He also says that his teacher, Rav Yechezkel Landau (18th cen., Czech; author of Noda BiYehudah), was asked about this problem many times and always instructed them to cut down the branches. Rav David Tzvi Hoffmann (Melamed Le-Ho’il, Yoreh De’ah 133) discusses a case in which the deceased are transported by trains that leave the station on a path covered by trees. He was asked whether a kohen may walk with the train as it leaves the station. Rav Hoffmann finds a number of avenues for leniency that together (but not necessarily individually) lead him to permit. One of his reasons is the lenient view above regarding leaves. Rav Yitzchak Weiss (Minchas Yitzchak 4:31:4) similarly rules strictly on the issue of a kohen standing under a tree that hangs over a grave but includes the lenient view together with others in order to combine them into a lenient ruling on a related, more complex question. In general, I believe common practice is for a kohen to avoid standing under any branches of a tree that covers a grave in any direction.