Are all mitzvos forbidden near a grave? If not, why not? If yes, why not say so?

Question

The Talmud (Bavli, B'rachos 18 amud 1) mentions a prohibition on wearing tzitzis or t'filin, or reading from a Torah scroll, in a cemetery, based on "one who taunts the pauper, that makes him a blasphemer" (Proverbs 17:5).

Based on this, the Shulchan Aruch forbids the following in a cemetery near a grave: wearing tzitzis exposed to view (OC 23, YD 367:4), wearing t'filin exposed to view (OC 45:1, YD 367:2), saying "Sh'ma" (OC 71:7, per Mishna B'rura :15), holding a Torah scroll (YD 282:4, per Shach :6), reciting from the Torah except in honor of the deceased (YD 367:3, Kaf Hachayim OC 23:1), and praying (YD 367:3) even kadish (Shach :3). (As always, consult your rabbi for practical guidance.)

Seemingly, the pauper-taunting is the fulfilling of a mitzva (command), alluding to the fact that he can still do so and the deceased cannot. This logic apparently does not apply to mitzvot done for the benefit of the deceased. For example, burying the body and attendin the funeral are themsleves mitzvot, which are obviously permitted. But the same logic could apply to far more mitzvot than the number listed by the poskim relating to Torah, prayer, tzitzit and tefilin.

Is there a prohibition, then, on fulfilling other commands also, when apparent to onlookers, except in honor of the deceased? For example, if my father and I are near a grave and he asks me for his sweater that I'm holding, so that he may wear it, am I not allowed to pass it to him, because that would be obviously fulfilling the mitzva of honoring my father? If someone begs for charity near a grave, am I not allowed to give? If there's a fall hazard near a grave, am I forbidden from putting a railing up?) If (as I suspect) fulfilling all mitzvos is not prohibited, then why not? What's special about tzitzis, t'filin, reciting Torah and prayers, and holding a Torah scroll? And if fulfilling all mitzvos is in fact prohibited (at least when apparent to onlookers), why doesn't Shulchan Aruch say so as a blanket rule?

Answer 1

Not all mitzvot fall into the category of "taunting the pauper."

The rationale presented in ברכת פרץ, within Parshat Terumah, proposes that only a mitzvah readily identifiable as such would fall under the category of "taunting a pauper." Rabbi Yaakov Kanievsky tries to explain the Medrash Tanchuma, where R. Yannai states: "Any priest who is not a student of the law, it is permitted to eat the offering on his grave." Initially, he aims to clarify the distinction between a student of the law and one who is not, in the context of the taunting issue. However, ultimately, he emphasizes that consuming Terumah near a grave never presents a taunting issue because it's not immediately evident that one is consuming Terumah; it could just as easily be Chulin.

This reasoning finds its foundation in the interpretation found in the Beit Yosef. It suggests that the language used, such as "head tefillin," allows for the permissibility of arm tefillin because it remains concealed from the deceased. This same principle can also be applied to the mitzvah of Kibud av, as affirmed by Rav Yaakov Aaron Skoczylas in his halachic work, Ohel Yaakov, making reference to Beis Matisyahu, Siman 5, and the perspective of Rabbi Nebenzahl. In Beis Matisyahu, he brings supporting evidence from the sugya in Yevamot 6a, which suggests that Kibud av can indeed be observed even in a cemetery. This line of reasoning may also be extended to Tzedakah. For a more comprehensive analysis, one should consult references to יעלת חן, Siman 63, and Beis Matiyahu.

Yaaleh Chayn similarly concludes that Tzedakah, returning a lost object, and honoring one's parents are permissible in the presence of the deceased, albeit with slightly different reasons.

Another distinction could be made based on the halachic responsa found in Sefer Halacha Limoshe, Rabbi Moshe Nyman addresses Pesachim 47b, which seems to suggest that covering blood is allowed in a burial site. He distinguishes between mitzvot that can be fulfilled through another person. Consequently, Tzitzit, Tefillin, and Torah-related activities pose an issue, while covering blood and returning lost objects do not, as the latter can be fulfilled through another. (However, for further insights, one should refer to יעלת חן).

Furthermore, Beis Matisyahu provides a thorough exploration of the unique aspects of each mitzvah mentioned in the Gemara. Importantly, there is no problem with the Shulchan Aruch, as it just references the Gemara.