Shabbat Parashat Vaetchanan| 5765
Control of a Sefer Torah That Was Given to a Beit Knesset - Condensed from Piskei Din Rabbaniim - vol. IV, pp. 201-206
Case: A man bought a sefer Torah in order to give it to a beit knesset to which hisbrother belonged. At the time, it was the only sefer. At some later point, the congregation received another sefer, and the brother also moved out of the area. The donor now wants to take the sefer Torah and present it to his brother’s new community. The beit knesset provided witnesses that the donor gave it as a present. Only one said that the donor stated explicitly that he was giving it on a permanent basis, but all agree that he did not stipulate that it was for a limited time.
Ruling: The Shulchan Aruch (Orach Chayim 154:20) says that that if one can prove that a sefer Torah that is in a beit knesset belonged to his family, he can claim it back from them. The Taz (ad loc.) brings the Maharshal’s opinion, whom he understands to argue, but prefers the Shulchan Aruch’s ruling. There are several other opinions on either side, and several state that it all depends on the local practice [ed. note- we will skip the specifics]. If it is prevalent that possession is given over permanently unless a condition is made to the contrary, then that is the halacha as well. In Israel, where people from many different communities have come together [ed. note- the ruling was rendered within the first fifteen years of the State] it is hard to know what practices the parties were operating with. Therefore, since the sefer Torah is under the beit knesset’s control, the donor cannot extract it without proof.
Furthermore, several witnesses say that the donor used the word matana (present) in describing his donation. It can be demonstrated from several sources, that a matana ispresumed to be permanent unless a stipulation or strong umdana (assumption) applies to the contrary. Although it is logical to link the gift to the donor’s brother, who is no longer a member of the community, that does not prove that the donation was meant to cease upon his departure. It is common for one to give a present to an institution based on a family connection without intending to withdraw the gift when the connection ceases.
The one question that remains is whether the witnesses who are members of the beit knesset can serve as valid witnesses, since they have a personal interest in the case’s outcome. However, it appears that they are valid for two reasons. Firstly, the Shulchan Aruch (Choshen Mishpat 37:22) reports a minhag to accept members of a community as witnesses on community issues. Secondly, now that the beit knesset has two sifrei Torah, they are no longer considered interested parties to the case to the extent that they would be disqualified (Rama, CM 37:19).
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