And the question arises, with whom is justice? (Photo: ShutterStock)
Voila! Judaism in cooperation with the teaching house of the Halacha Chabad Institute in a fascinating weekly column - and this week: Should the rabbi, or the synagogue treasurer, bear the cost of a Torah scroll that was sold by mistake, or do they have the right to sell any Torah scroll found in the Holy Ark in the synagogue even without the donor's permission?
Background:
The subject of our story is a Torah scroll that was in the Holy Ark in a synagogue in Haifa for over half a century. This book, which survived the Holocaust, arrived in Israel from the United States around the year 400, and was sent from there by Shimon's cousin, the plaintiff, to the plaintiff's parents. Shimon, who was himself a young man at the time, went to Haifa Port to receive the book and brought it to his parents' home. The book was loaned to the neighborhood synagogue after about a week.
After the plaintiff got married, he moved to another area and his visits to the aforementioned synagogue were reduced. After his parents died, he came to the synagogue only for the anniversary.
Over the years, the book became obsolete, and about twenty years ago, in 000, the plaintiff made a thorough correction to it by a mere scribe who "upgraded" the old Torah scroll. At the end of the work, Shimon organized a large and festive Torah scroll.
About three years ago, on the day of the annual memorial service, Shimon arrived at the synagogue after visiting his parents' graves. When he asked to show one of his associates the ancient book, he discovered to his surprise that the book was gone.
After investigations and demands, the heads of the community replied that apparently one of the members of the synagogue committee sold it to a merchant of religious objects named Tuvia, after receiving the approval of the local rabbi to do so, due to the wear and tear of the book and lack of knowledge about its owner ("his name will be forgotten"). He was later informed that there was a Torah scroll in Lakewood, USA, similar to his book, and apparently it was his family's original book that was sold to the community there.
Shimon sued the representatives of the community and the rabbi and merchant to the court, together with all the documents attesting to the immigration of the book from abroad by his parents, as well as a report from the renovation of the book and pictures from the celebration that took place at the time, and the representation of the entire family in this lawsuit, etc., and demanded three things:
a. that the Torah scroll be returned to him. B. If it is impossible to return the original book as is, it demands its value, which in his opinion is NIS 30,000. C. In addition, he is demanding compensation for emotional distress in the amount of NIS <>,<> because of the sorrow and hardship caused to him as a result of this affair.
According to counsel for the defendants, this claim should be dismissed out of hand, since the book does not belong to the plaintiff but to the synagogue. According to him, everything done for him was done beyond the law. It is also claimed that there is no evidence that the book ever belonged to him or his family. The book was brought to Israel with his help or with the help of his family, but his ownership of the book has not been proven. In addition, they claim that the rabbi and the merchant are not responsible for what happened, but only the synagogue association (without a specific person).
The facts prove that the Torah scroll was not given as a complete gift (Photo: ShutterStock)
And the question arises, with whom is justice: Is Shimon indeed the owner of the Torah scroll and should not be sold without his permission and therefore obligated to return it to him as it was or to compensate him fairly for what was done, or is it the property of the synagogue only?
Short answer: Shimon is the owner of the book, and the synagogue association must make sure to return the original book to him or pay him its value. There is no room for payment of compensation for emotional distress.
Answer: When a person claims to have received or bought property, and it is not clear whether it was given to him with permission, the rule is that "the heir and the taker are claimed," and the same applies to the recipient of a gift. In other words, even though it is known that the object in front of us came from another person who is not clear whether he actually had possession, we assume that the previous person in possession was the authorized possessor.
In this case, it turned out that the plaintiff is authorized to negotiate his father's assets, and his father is the "taker" of the Torah scroll from his relative, who sent him the Torah scroll from the United States. Therefore, we can assume, as long as it is not proven otherwise (and it is doubtful whether it will be possible to prove otherwise) that the Torah scroll was given with permission and right to the plaintiff's late father. (By the way, the plaintiff's ownership cannot be proved by the conduct of the defendants who acted to return the book to the plaintiffs, in order to settle the emotional dispute, but as stated, there is no need for this.)
There are also no grounds to sue the rabbi, since it is agreed that the rabbi was not a partner in the sale of the book. Even if the rabbi ordered the book to be sold, since, according to his claim, he did not mean this Torah scroll, the rule is that "there is no messenger to speak transgression," especially here that he did not send it for this purpose, and he is not responsible at all for the mistake made in the Torah scroll in question.
In addition, when the plaintiff (and his father) deposited the Torah scroll in the synagogue (and if we accept their claim that they lent the Torah scroll to the synagogue), then the loan agreement is between the lender and the synagogue association, and not between them and one rabbi or another (certainly not with the current rabbi who was not serving at the time). Therefore, the law and the matters that will be discussed regarding the Torah scroll will be discussed between them and the association, and there are no grounds to sue the rabbi.
And here it has already been ruled in halacha that a Torah scroll given by a donor to the community remains the donor's, and even if the synagogue and its people bought him a coat or renovated it at their expense, etc. - it still belongs to the donor who can do with it as he pleases. However, it is not usually found that a person keeps a Seth in his home, so it is placed in the synagogue for the public to read, but this is not the same as giving it as a gift to the synagogue.
In addition, the facts prove that the Torah scroll was not given as a complete gift: a statement by the defendants that the Torah scroll belonged to the plaintiff and was in his possession, as well as in the renovation carried out by the plaintiff, therefore the conclusion is that the book was and remains in the possession of the giver, and the synagogue must return the book to him or compensate him for its value, but compensation for emotional distress and the like should not be given.
Sources: B. B. (23 and more, and cf. Shach Chom Seb, S. K. 16), Responsa O'H K.N.G. S.C. (according to the Mahariq), Rama and N.K. Shem, Responsa and Rama Yod R.N.T. S.B. and N.K. ibid., in Responsa Agrot Moshe (Lifestyle, Part I, Mark 52), Answering rulings on the Mishnah Brora O.H.C.G. Ayesh
N.B. This section does not constitute a halachic ruling and should be addressed to the rabbi or the teaching house on a case-by-case basis. Written by Rabbi Yitzhak Eitan Mizrahi, Halacha Chabad Institute. Comments: publish@smslarav.co.il
David Berger, in collaboration with Shova Israel
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