[Avodah] everyone is a liar

[Chana Luntz]

RDI writes:

> In general, I am not convinced by RZS's position on this issue, in
> metzius if not in din, but I would say you haven't fully made your
> case here.  Even if you read the SA to be allowing moving the grave in
> a case where the builder of the road didn't do his due diligence, it
> does not necessarily imply that l'chatchilah it was okay to build a
> road here.  Perhaps the builder should have checked, and should have
> not built the road here, but now that the road has been built, the
> entire community does not need to bear the trouble and expense of
> correcting the builder's error.

I obviously wasn't clear as I totally agree with this.  That is, I was not
suggesting that it was necessarily OK l'chatchila to build a road here,
assuming we are talking about what is called in the trade, a greenfields
site - ie a totally new construction.  In fact I suspect that RZS is right,
that l'chatchila the planners of the road (probably different from the
builder, the builder signs a construction contract to build what the
planners, ie the public officers, tell him to) should have checked and
should have not  built the road here.

What I was trying to point out is that in any construction, even of a
greenfields site, there are not just two stages (planning and completed
road), but three.  The planning stage, when feasibility studies are carried
out, construction contracts are negotiated etc; the construction stage, when
the land has been acquired by the public, the construction company has gone
in with its diggers/shovels etc, and the stage of a completed road in use.

Even if you do hold that l'chatchila the planners should have checked, and
should not have built a road here, once one gets to stage two, the public is
already liable for considerable expense, both of land purchase and of paying
the construction company, much of which is not recoverable if you then
switch to an alternative site.  If the argument is, as you articulate, that
"the entire community does not need to bear the trouble and expense of
correcting the builder's error" then that applies from stage two, not just
from stage three.  It is only if you believe there is some reason why the
fact that the public is now using the road for the purpose that was intended
(ie that what is needed is a chazaka on public use, not just an established
public ownership and expense) is what triggers the obligation, would you
limit it to stage three.  It is possible to argue this position, but it is
much more difficult to see it in the language of the Shulchan Aruch.

In addition, I was trying to point out that there is a clear differentiation
between a greenfields site and where it is not.  The analogous situation is
where one already has a road, but it is carrying too much traffic and needs
widening.  Any planner is much more constrained in terms of what he can or
cannot do when discussing widening an existing road, rather than choosing a
route for a new road.  And this particular issue does appear to me to be
directly addressed by the meforshim and the Shulchan Aruch.  Because while
it is not clear from the gemora itself whether the grave needs to be found
on the road, (ie where the cohanim would inevitably become tamei if walking
on it), or just next to it, the meforshim all use the word samuch.  Now if
there is a grave that is just samuch to a road, there is always going to be
some solution, whether more or less expensive, to protect the cohanim -
ranging from requiring them to wrap themselves in special boxes or box off
the grave or shift the road a bit or whatever.  And what the Shulchan Aruch
or the meforshim do not say, is that we can only move the grave if we cannot
find a workable solution to protect the cohanim.  If they had, then first we
would have needed to look at potential solutions, and only in the (extremely
rare) cases where one of these was not feasible, would one be allowed to
move the grave.   But the blanket statement of the Shulchan Aruch is that if
there is a grave samuch to a road, even if the grave was there first, then
it can be moved.  Ie without requiring the public to go to any more trouble
and expense than is involved in moving the grave and reburying.

> --
> Daniel M. Israel
> dmi1 at cornell.edu

Regards

Chana