Shabbat Parashat Ki Tavo 5772
Ask the Rabbi: Making a Trust for a Sefer Torahby Rav Daniel Mann
Question: I inherited a sefer Torah from my father, who had lent it to a shul with certain conditions, especially that it remained his personally. In order to ensure the sefer Torah is properly taken care of, I want to transfer ownership of the sefer to a trust, in which I will retain decision making power during my life, but ultimately trustees will determine what’s best for it. Is the transfer akin to selling a sefer Torah, with all the halachic questions it raises?
Answer: The complicated rules of selling holy objects, with a sefer Torah being most stringent, appear primarily in the context of communal ownership. Regarding a sefer Torah owned by an individual, the Shulchan Aruch (Orach Chayim 153:10) cites two opinions whether he may sell it. While even the lenient opinion forbids doing so if it was given over to the community for their use, the Magen Avraham (ad loc. 22) says that when one explicitly does not want the rules of communal items to take hold or when that is the minhag, it is permitted to sell. One can rely on the lenient opinions in this matter (see Achiezer III:79), but they are not needed for your case for the following reason.
The two problems with selling a holy object do not apply here. One is using the object for something mundane or less holy (e.g., allowing a shul to be turned into something else), and obviously your trustees will make sure it is used as a sefer Torah. The other is using the proceeds for whatever purposes you want, and here you will not be getting any money. The Mishna Berura (153:68), basing himself on the Rama (ibid. 13) says that when one simply gives a sefer Torah as a present, with the sefer Torah continuing to be used as a sefer Torah, there are no limitations.
In truth, the trust you are describing (there are different types of trusts) would probably both halachically and legally be viewed as assigning the sefer Torah to charitable use (hekdesh). Just as someone can take a sefer Torah and donate it to a shul, so can you take one and donate it to a trust, whose trustees will decide who will benefit from it in the future. Doing so not only protects the sefer Torah from an uncertain future, about which you seem to be concerned if you leave it where it is, but also from any reservations you may have about your halachic and/or legal inheritors (after 120 years of good health).
Yet, there is another issue. The Torat Chayim (Sanhedrin 21b, cited by many Acharonim) says that the mitzva of writing a sefer Torah requires continued possession, and it is improper to sell or donate it (fully) because that uproots one’s mitzva. If the trust takes effect during your lifetime, one could argue that the transfer would thus be a problem (if you do not own another sefer Torah). Not all agree with the Torat Chayim. For one, the Seridei Aish (II:77) posits that the consensus accepts the Torat Chayim only in regard to selling a sefer Torah. He views donating it as a way of using the sefer Torah for its proper mitzva use. There is likely a very different reason why uprooting the mitzva is not an issue for you. That is that one does not fulfill the mitzva of writing a sefer Torah by possessing a sefer Torah he inherited (Sanhedrin 21b; Shulchan Aruch, Yoreh Deah 270:1). In other words, if you presently are not fulfilling the mitzva, there is nothing to lose in this regard. However, this point is not unanimous. Igrot Moshe (Orach Chayim I:52) claims that there are two mitzva elements: to write a sefer Torah and to possess one. If one inherits a sefer Torah he fulfills the element of possession, just not of writing, and thus giving away such a Torah robs one of the element of possessing.
In summation, the issues of selling a sefer Torah per se do not apply to the creation of a trust of the type you describe. While one could claim that the founder of the trust uproots his mitzva of owning a sefer Torah in the process, there are ample halachic reasons to counter that claim, and it should not prevent you from doing what you feel is right for the sefer Torah’s future.
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