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Shabbat Parashat Toldot | 5771

Pninat Mishpat: Control of a Sefer Torah Given by a Deceased Man to a Beit Knesset

(condensed from Shurat Hadin, vol. II, pp. 238-241)

Case: The plaintiff’s (=pl) father presented a beit knesset (=def) in Israel with a sefer Torah he brought with him from Germany in 1939, as matters became dangerous there. Pl said that his father told him several times that he only lent it to def and now, after his father’s death, he wants to take the sefer Torah back. Def says that while no one remembers what was said decades ago, they have been working all along under the assumption that the Torah was donated. This is because when a sefer Torah is lent, the owner has to pay for insurance, periodic repairs, etc., which pl admits he and his father have not done.

 

Ruling: The Shulchan Aruch (Orach Chayim 153:20) says that if it is known that a sefer Torah belonged to someone’s father but it is now in the possession of a beit knesset, we do not say that the beit knesset has control unless there is evidence. The Beit Yosef explains that this is because it is normal for one who owns a sefer Torah to leave it in the possession of a beit knesset. The Taz (ad loc.) cites those who argue because he who gave the sefer Torah should have ensured that he had proof that he loaned it on condition that he could take it back. However, the Taz accepts the Maharik’s opinion. The Aruch Hashulchan (OC 153:43) says that there is no machloket, and it depends if we knew for sure that it was his father’s sefer Torah. The Mishna Berura (153:43) says that only if we know that it was originally given on loan would the beit knesset have to bring proof, but if it was given without specific stipulation we assume that it was bequeathed to the beit knesset permanently. Therefore, in this case, where it was not established that the Torah was given on loan and this is strengthened by the fact that expenses were not paid, def has the upper hand and pl must provide evidence.

One could advance an argument based on Rav Akiva Eiger’s (Yoreh Deah 270) opinion that one who owns only one sefer Torah should not donate it to a beit knesset, because in so doing he uproots his mitzva to own a sefer Torah. According to that, we could say that we are to assume that pl’s father did not donate it. However, in this case, there are proofs [beyond our scope] that pl’s father did not acquire ownership of the sefer Torah from the beit knesset in Germany but received permission from them to transfer it to Eretz Yisrael. In that case, all he had was tovat hana’ah (the power to make decisions about who would benefit from the object). The Shach and Netivot Hamishpat (end of Choshen Mishpat 276) rule that one is not able to inherit tovat hana’ah from his parent.

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