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Shabbat Parashat Ki Tavo 5773

P'ninat Mishpat: Presumption of Ownership of a Sefer Torah

(based around Shut HaMaharik 70)

[We are starting a new feature in this column. We will look into a classical responsa on a topic related to matters of beit din in a condensed form, spoken though the eyes of the posek, along with very brief biographical information and references to later works who applied the rulings to their times.]

[The Maharik, Rav Yosef Kolon, was born in France in 1420 and served in several rabbinates, primarily in Italy. He died in Padua, Italy in 1480. One of the later Rishonim, he is quoted often by the Beit Yosef, especially from his work of responsa. He was influenced by the author of the Terumat Hadeshen and was the teacher of Rav Ovadia MiBartenura.]

 

I will respond to your request to tell you what to do about a sefer Torah that is under dispute between R. Yisrael and the community. First determine if it is known that the sefer Torah was once owned by R. Yisrael’s father or someone else from whom he inherited. If so, even though the sefer Torah has been found in the community shul for a long time, the community does not have a chazaka (a presumption of ownership awarded to the one in whose possession or last-known ownership it is found) on it. This is because it is normal for a sefer Torah owner to lend it to the community to be read from publicly on a regular basis and stored there until the owner reclaims it.

I understand that you have written that a leader in the community asserts strongly that he heard from a respected person that R. Yisrael’s paternal uncle donated it to the shul. Similarly someone testified that he heard from his saintly mother the same account. However, Rabbi Moshe (Rambam, Eidut 17:1) says that even if one heard the account of many people who are great in wisdom and fear of Hashem that they saw someone commit a sin or borrow money, he may not testify unless he saw the matter himself. This is even more so in a case where the sources are a single witness and that of a woman, whose testimony is not halachically valid even if she is as righteous as our matriarch Sarah.

Furthermore, the witnesses who relay the information are affected by the outcome of their testimony, since they are members of the community. Even if they are willing to divest of their monetary rights, this does not work regarding a sefer Torah because all in the community need it, unless there is another sefer Torah that is as precise and kosher as this one.

Therefore, my brothers, even though I see from your letter that you have the good intention of protecting the money of the religious needs of the community, you must be equally careful to not deprive a poor person of his money. Hashem hates stolen property that is used for religious purposes. Therefore, if he has proof that the sefer Torah belonged to his family and you do not find valid proof that it was donated, return it to him.

 [This responsum is the basis of the Shulchan Aruch, Orach Chayim 153:20 and is cited in a ruling found in Piskei Din Rabbaniim IV, pp. 183-192 regarding one who wants to claim back a sefer Torah which he handed over to a shul with the claim that it was only given for the time that the owner’s brother lived there.]

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