OWNERSHIP OF A SEFER TORAH

QUESTION:

In the city in question there were two congregations, one of which was unable to maintain itself. Most of its members joined the other congregation as individual families. (It was not a formal merger.) These individuals turned over to the larger congregation the various religious articles belonging to the defunct congregation, including some Sefer Torahs. Now a woman who had once belonged to the defunct congregation, but who now belongs to another in another city, demands that one of the Sefer Torahs given to the larger congregation be restored to her. Her reason is that her father had donated this Torah in memory of her mother, and that the members who had now joined the larger congregation had no right to turn this Torah over to it. The Rabbi of the larger congregation suggested that she speak to those members of the now-defunct smaller congregation and ask them for that Sefer Torah. She did so but they did not wish to give it to her. The question is: What rights of ownership does this woman have in this Sefer Torah? (Asked by Rabbi Sidney Ballon, Nassau Community Temple, West Hempstead, New York)

ANSWER:

THE QUESTION involved here has, tragically, become highly relevant these days, due to the fading of our inner cities. The defunct congregation spoken of here may have faded for other causes than the decay of its environment, but the problem involved is the same as the one now widely relevant, namely, who has the right to dispose of the sacred objects of a defunct congregation.

Since there is a claimant in this case (i.e., the daughter of the donor of the Sefer Torah in question) her rights should be considered first of all. In general, the question of the ownership of a Sefer Torah under the circumstances mentioned has come up in various forms rather frequently in the legal literature. By and large the various opinions expressed over the centuries have come to a fairly clear consensus.

On the face of it the situation is completely covered by the rules in the laws of Zedaka in the Shulchan Aruch, Yore Deah 259. There it is stated as a general principle (Section 1) that a donor may change the purpose of the gift, or the recipient of the gift. But this right to change the recipient or the purpose exists only before the gift has come into the hands of the proper officials (Gabaim). If, for example, a donor sets aside money for one charity and still has possession of the money which he has set aside, he may change his gift to any other charitable purpose; but if he has already turned the money over to the officials (in this case, the officers of the synagogue) he or she can no longer change the purpose or the recipients (see Yore Deah 259:1).

By this general rule it would seem obvious that since the Torah was in the possession of the synagogue to which her father had given it, she, her father’s daughter, no longer has the right to give it to any other recipient. Yet it must be stated that this general negation of her rights to change purpose or recipient is in itself weakened by two considerations: First, there is at least one opinion (Israel Rapaport, Mahari Ha-Kohen, Yore Deah #47) that all synagogues are to be of equal status and, therefore, giving to one synagogue after intending to give it to another is not deemed to be, by this one authority, an invalid or non-permitted change. The only question in this case would be whether she still has any rights of ownership at all in this Torah, once it had been given to the synagogue.

The other mitigation of the rule (prohibiting any change after it had been officially received) is the custom mentioned by a number of scholars, that in certain communities it had become an established custom for people to have Sefer Torahs written and to deposit them in the synagogue, remembering always that it is their Sefer Torah, and without at all intending to transfer the ownership to the synagogue. According to this custom, then, the Torah, although used in the synagogue, is deemed to be still the property of its original owners and they can take it, sell it, or give it to somebody else. See this custom of retaining ownership as described in the Responsa Shearis Yoseph by Joseph B. Mordecai, Aldorf, 1767, Responsa #41. He describes this custom of retaining ownership of the Torah and agrees that the owner had the right to sell it for a debt. The other description of such a custom is much older. In the Responsa of Joseph Colon (Ma harik, 1 st edition, # 161, near the end; in later edition, p. 173, column 2) the questioner likewise describes such a custom in which people gave or rather lent the Torah to the synagogue and carefully insisted that they still owned it.

To this situation Joseph Colon (Italy, 15th century) who is one of the prime authorities, gives the following answer which has become, one might say, classic: He says, once the Torah has been used in the synagogue and had the mantle on it, it is sacred and belongs to the sanctuary and cannot be sold or transferred, except by the decision of the officers of the community. In this case, the membership of the congregation, therefore, are the only ones who have the right to transfer the Torah. As for the statement of the questioner to Maharik that they had the custom of retaining ownership of the Torah, he dismisses this argument. He says no custom is valid enough to overturn a law unless it is a widespread custom and one established by scholars (vatikin).

This opinion of Joseph Colon is repeated almost exactly by the sixteenth-century Polish authority, Solomon Luria (Maharshal) in his Responsa, # 15. The case of this questioner is almost precisely the case in this question asked today, namely, the sons of the man gave or loaned the Torah and now are moving to another city and want to give or loan the Torah to the synagogue in this other city. Solomon Luria is even more specific in his answer than Joseph Colon. He says that once the mantle was on the Torah, it can no longer be returned or be sold even if the man who gave it claims he never intended to give it outright. Such a claim would be valid only if before he gave it, he declared formally, in the presence of two witnesses, that he is not giving the Torah as an outright gift, but is merely loaning it to the congregation. If he had not made such a formal declaration previously, then now that the Torah had been used (once the mantle is put upon it) he may never take it back, whatever may have been his unspoken intention. The opinion of these great authorities is repeated by Joseph Caro in his Bes Joseph to the Tur, Yore Deah 259 and also by Joel Sirkes (ibid.). Isserles to Yore Deah (ibid.) comes substantially to the same conclusion.

If, then, it is clear that the donor or his descendants do not have the right of the disposal of this Sefer Torah, who does have the right? The law speaks of “the seven good men of the city” (as we say today, “twelve good men and true”) (sheva tuvey ha-ir, i.e., the officers). Sometimes it speaks of the membership (b’nay ha-ir). In either case, we have the right to assume that those who decided to carry over their congregational life to the congregation which now has the Torah, include what was left of the officers and many of the members. They are the ones (and the only ones) who have the right of disposal of the sacred objects. In fact, they were consulted by the claimant and they decided to give the Torah to your congregation. Their decision is valid. Moreover, their decision is strengthened by the fact that they did not sell the Torah, but gave it to another congregation, thus maintaining its sanctity.

If they had decided to give the Torah to the claim ant, this decision would also have been valid, since she intended to place the Torah in another congregation and thus its sanctity would not be diminished. But they decided otherwise. Perhaps they wanted to avoid the danger that all the other original donors of sacred objects might now claim their gifts and thus the objects would be scattered. They wanted the Torahs of their former congregation to be in the congregation where they now worship. Whatever was their motivation, the decision was theirs to make.

To sum up, the situation is as follows: If there was a well-established custom in the community that people would loan Sefer Torahs to the synagogue with the express intention to keep their ownership of them, such a custom, if established in consultation with learned authorities, might have some validity. But even that is doubtful. Further, if the woman’s father had made a specific declaration that the Torah in question was not given outright to the synagogue, but was only a loan so that it could be read in the services, only then could it now be reclaimed. But since this Torah has now been transferred to the larger congregation by the majority and perhaps also the officers remaining in the now defunct congregation, this transfer is a valid act. The weight of tradition is on the side of the opinion that this Torah may not be removed from the synagogue in which it is now placed.