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Shabbat Parashat Va'eira| 5765
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Question: On a day that we read from two sifrei Torah, the chazzan took the second sefer as the first. The gabbai discovered this only when the Torah was opened up on the bima. Should we have rolled the Torah to the right place for the first reading (it was a significant distance in the sefer) or have covered up the sefer and replaced it with the correct sefer for the first reading?
Answer: Remember this rule. Among the trickiest halachot to decide are those where there is a conflict between competing halachic preferences. While halacha requires us to act in manner a and in manner b, how do we know how to act in cases where a and b are mutually exclusive? One either has to find earlier sources that deal with the conflicting coincidence of the two issues or to decide (intuitively or otherwise) which issue should have precedence.
There is a rule that one should not roll the sefer Torah to the right place while the congregation waits because of the congregation’s honor (Yoma 70a). For this reason, the Kohen Gadol would read the maftir on Yom Kippur by heart and not roll the sefer from Acharei Mot to Pinchas. Nowadays, we do roll the sefer Torah when there is a need, with the assumption that the congregation is willing to pass on its honor under the circumstances (Magen Avraham 144:7). Another rule found in that gemara is that one should not do anything that might imply that a sefer Torah is pasul when indeed it is not. For that reason, they did not have a second sefer on hand for the Kohen Gadol to switch to (see there why we can use multiple sifrei Torah).
While we have found no discussions among the Rishonim on a case where we have to choose between rolling a sefer Torah and casting aspersions on it, Acharonim do discuss it. The common case is where the person who has peticha (opens up the aron and takes out the sefarim) gives the chazzan the wrong sefer. In the siddur of Rav Yaakov Emden, two opinions are brought. Rav Moshe Feinstein (Igrot Moshe, OC II, 37) says that it is hard to determine which factor takes precedence but says that if the congregation is willing to forgo its honor, the sefer Torah should be kept out and rolled. He continues, in classic form, to say that if someone (not necessarily the rabbi) already gave instructions to return the sefer Torah and there is fear that overruling him will cause dispute or embarrassment, then it is like a situation that the congregation does not withdraw its right to honor, and we return the sefer.
Our situation is different in two ways. First of all, it is necessary to roll two sifrei Torah, which takes longer and increases the chance of disruptive discussion among congregants. More fundamentally, there should be no disgrace or aspersions on the sefer Torah we would “pass up.” After all, it will soon get its turn to be used as the second sefer. This is probably the rationale of the Sha’arei Ephrayim (a 19th century work on the laws of kriat hatorah), who says that if one opens the sefer for maftir instead of that for Bereishit on Simchat Torah, he should close it and switch sefarim (8:67) rather than roll it. The Biur Halacha (on 684:3) concurs with this analysis.
Another halachic factor which is all but ignored in the Acharonim’s treatment of this question is the concept, “ein ma’avirin al hamitzvot” (we don’t pass over mitzvot) or, in this case, the sefer Torah to be used for a mitzva. One reason that it might not apply is that the fact that one person’s mistake to take out the wrong sefer should not bind the whole congregation to suffer (see Har Tzvi, OC 83). Whatever the reason, though, the consensus is that in the case of switching two sifrei Torah that will both be used, we opt to switch the sefarim rather than roll.
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