Genesis:  35:22 – And it came to pass when Israel sojourned in that land, that Reuben went and lay with Bilhah, his father’s concubine, and Israel heard [of it], and so, the sons of Jacob were twelve.

Gemora Shabbat – 55b – Rabbi Shmuel bar Nachmani said in the name of Rabbi Yonatan: Anyone who says that Reuven sinned is completed in totally mistaken. This is shown in the verse itself when it states that the sons of Jacob were twelve. This phrase means that the brothers were all equal to each other.

Torah Temimah Colloquial Translation on Note #16:

Regarding the apparent contradiction of Rabbi Shmuel bar Nachmani statement and the plain meaning of the verse, I already commented in the previous note.

Further, the phrase “is completely mistaken” informs us that one who says that Reuben sinned makes an error. However, there is no prohibition or punishment for making such a statement.

Even though we have a general principle that “one who tells over the very intimate matters of a scholar will suffer purgatory”, one must say that this does not apply to Reuben since the Torah itself does not cover up it up. Rather the Torah describes the event in a manner that would indicate a sin. Also, there is an opinion that there was an actual sin. Therefore, Rabbi Shmuel says only that one is mistaken in explaining this matter, but nothing more than that.

[On a separate matter], it is appropriate to comment on verse 20 where it states that Jacob built a monument to mark Rachel’s grave. Yet in the Gemora, in Moed Katan 5a, there is an extensive discussion regarding whether marking graves is a rabbinic decree or whether its source is from the Torah. It is astounding that in the discussion this verse is not mentioned showing that in the Torah, Jacob built a monument at Rachel’s grave. Further, in Midrash Rabba, this monument is explicitly described as a marker.

Nor would it be accurate to say that we do not learn halachos from the Torah prior to the Giving at Mount Sinai. We already know that we derive many matters from the conduct of our forefathers [Abraham, Isaac and Jacob]. For example, we derive the times for prayer, the seven days of mourning and various other matters. The difficulty is further emphasized by the fact that in Gemora Nidda 57a, the conclusion is reached that marking graves is actually a rabbinic law. There also it does not mention our verse.

A possible answer is that in these sections of the Gemora, the sages are trying to find the source of marking graves not only in the case where there is a burial of a complete, known person, but also even where there is just a limb or a single bone.  This would include a situation where it is not known who the dead person was. Even in such a case, the law is that a marker should be put up in order to mark the place and for people to avoid ritual impurity. The source for this law is not from our verse. [The rabbis concluded that this law is a rabbinic decree.] Indeed we find that this whole section of the Gemora deals with ritual impurity.]  Consequently, it makes sense that the rabbis found a source for this law from the verse in Ezekiel 39:15: “And when they that pass through shall pass and see a human bone, they shall build a sign next to it until the buriers bury it in the Valley of Hamon Gog.“ This verse would apply even to a single bone. See also what is explained in the verse in Exodus 18:20 “…and you shall make known to them the way they shall go…”

See also what it says in Jerusalem Talmud Tractate Shekalim 2:5 where is states as follows: “Rabbi Shimon Ben Gamliel said ‘one does not build a monuments for righteous people because their deeds are their remembrance.’”  Apparently this contradicts the verse where Jacob built a monument for Rachel. Further we find that, in fact, we do build monuments for righteous people who have died. See also Midrash Rabba where this same general principle of not building monuments for the righteous is mentioned. Also there it does not address this apparent contradiction. Some have written that this general principle was only the opinion of an individual person and we do not follow this ruling.

In my opinion, however, we don’t need to state that perhaps it is only a single person’s opinion. Rather, it is possible that the intent of this general principle is to state that if the intent of the monument is so that people will remember the name of the righteous person and his greatness, then truly there is not need for such a monument. It is the righteous person’s words and deeds that are their memorial. If, however, the intent of the memorial is for those who are still alive so that they will know the place of his[/her] physical burial so that they may go there to says prayers at a propitious time or so that they may go there to ask for forgiveness from him/her for any wrong that they may have done to him/her. This would be similar to what is written in Tractate Chagiga 22b: “Rabbi Yehoshua went and prostrated himself at the graves of the House of Shammai and said, I crave your pardon, bones of Beth Shammai. If your unexplained teachings are so [excellent], how much more so the explained teachings.’”  In the intent of marking the grave is for these types of purposes, certainly this is done. Thus, we can understand why Jacob built a monument for Rachel. Jacob saw through the divine spirit that in the future travelers on the way to exile would pass through the place where she was buried so Jacob built a memorial there so that they would see it and pray there.

 The important distinction is whether the memorial is being built for the deceased person or for the living.  Therefore, one can say that one who commands [in his will, etc.] that no monument be erected for him, then this distinction would be pertinent. If the monument is, essentially, for the deceased person then one would have to comply with his command that no monument be built.

This is similar to the teaching in Tractate Sanhedrin 46b where it discusses the situation of one who has commanded that there be no eulogy. There, in the discussion, it mentions that if the purpose of the eulogy is for the deceased person, then one must comply with his command.  If, on the other hand, the eulogy is for the sake of the living, then then there is no obligation to comply.

So too we find a case where the inheritors would be called upon to pay for something for the honor of the deceased.  Let us say, for example, the deceased was not so profoundly righteous that his deeds by themselves would be ample honor for him. This person set forth in his will that the family should erect some monument in his memory.  If this monument is for his personal honor, his benefit,  the inheritors must pay for it, as they must give honor to their father.  If, however, the deceased’s request was for the family’s benefit–so that they would easily recognize his burial place–they may counter that they do not need a monument.  Perhaps they can easily find the spot, or perhaps they do not intend to visit the burial place.  In any event since the expense would be for their own benefit, they may refuse to build a monument.

Translator’s  Note: In this long note, I appreciated the observation in the beginning taking a lenient view of one who says that Reuben did, in fact, sin. The second part of this note reflects the Torah Temimah’s determination to understand and clearly explain questions that he has faced on sections in the Gemora. Thank you to Rabbi Chanoch Slatin for helping me on the part I was stuck on!