Shabbat Parashat Noach | 5768
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Question: May a shul sell sifrei Torah that are too heavy for an aging membership?
Answer: Generally, it is permitted to sell a holy object and use the proceeds to buy something of higher kedusha but not to buy something of lesser kedusha (Megilla 26a). The gemara (ibid. 27a) asks whether one may sell a sefer Torah in order to buy another one. (Note that a sefer Torah is the highest level of kedusha.) The gemara does not come to a conclusion, and most Rishonim assume that one should not l’chatchila make the sale if there is a choice (see Beit Yosef, Orach Chayim 153). Although the Shulchan Aruch in one place (OC 153:4) is inconclusive, in another (Yoreh Deah 270:1) it appears unequivocal: “One may not sell [a sefer Torah] even if he has many sifrei Torah (Rama- even if has barely enough to eat) and it is forbidden even to sell an old one in order to buy a new one” (see Shach, ad loc.).
However, there are likely solutions in cases where one has a sefer Torah that is not being put to good use. According to the first opinion in the Shulchan Aruch (OC 153:10) an individual may sell his sefer Torah. This is because if one owns personally (as opposed to communal ownership) a holy article, he, from the outset, reserves the right to transfer ownership elsewhere and use the proceeds as he sees fit. The source for this proposition is from the power of the zayin tovei ha’ir b’ma’amad anshei ha’ir (the public leadership with the knowledge of the public) to sell such items and use their proceeds for anything (Megilla 26b; see Nimukei Yosef, ad loc.). According to the lenient position, when the gemara said one may not sell a sefer Torah, it was referring to a case where the individual gave it over for public use, in which case he loses sole authority to sell it.
On the other hand, the Shulchan Aruch similarly cites an opinion that a private owner may not sell a sefer Torah. The pertinent question in your case is whether the strict opinion at least allows the public leadership to sell a communal sefer Torah (Eliyahu Rabba 153:22) or whether it forbids this too (Magen Avraham 153:23). The primary sources (especially, the Rivash 285, based on the Rambam, Sefer Torah 10:2) indicate that those who do not allow an individual to sell do not allow the leadership either. The source discussing leadership’s power in this regard is in reference to a shul. In comparison, a sefer Torah has an advantage and a disadvantage. On one hand, the sefer’s buyer will almost inevitably be using it for the purpose of Torah (why else would one invest in a Torah scroll). A shul, on the other hand, is a building that might be used for mundane purposes. On the other hand, it is possible that since the Torah’s kedusha is intrinsic and of the highest degree, it is always disrespectful to use it to procure funds (Aruch Hashulchan, OC 153:8).
There are various opinions among more recent poskim as to whether one can allow the sale of a private sefer Torah and, similarly, a public one by the leadership. Many refer to a minhag to be lenient on the matter (see Magen Avraham 153:22, Achiezer III, 79), which may be attributable to people’s intention when they acquire the sefer Torah in the first place. When the Torah has mistakes in it, there is more room for leniency (Ba’er Heitev 153:19).
Under certain circumstances, there is broad agreement that one may sell. One is when there is an acute need for funds to enable one to learn Torah or to marry (Megilla 27a). Also, if one does not sell the sefer Torah but lends it to another shul, it is permitted (Rama, OC 153:11). Thus, while one should not fake lending it and get money for it (Rivash, ibid.) the shul in question can lend the bigger sifrei Torah to shuls with younger membership in exchange for loaned smaller sifrei Torah. If such an arrangement is unfeasible, a sale would be a possibility but one which might not be viewed favorably (see Mishna Berura 153:60).
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