05 Jan THE FORBIDDEN SEFER

Our thirst for Torah has limits. We treat learning as a sanctified activity and therefore restrain our activities to ensure we use appropriate sources and texts. Are there some Torah texts that we must avoid due to their ownership or the materials with which they were made?

I. The Firstborn Torah

In 1840, in a town near Minsk, an unprecedented question arose. In writing a new Torah scroll, the scribe accidentally used a parchment panel made from the hide of a firstborn animal, from which we are forbidden to derive benefit. A Torah scroll has many panels, and only one of them in this scroll was from the forbidden animal, but they did not know which one. Can this Torah scroll be used or must it be buried as a forbidden sefer?

Rav Naftali Tzvi Yehudah Berlin of Volozhin (Netziv; Meishiv Davar 2:74) concludes that benefit from the parchment from a firstborn animal is forbidden at least rabbinically, although according to some opinions biblically. But perhaps you may still learn from a Torah scroll written on forbidden parchment.

The Gemara (Rosh Hashanah 28a) discusses various cases of blowing a shofar that is forbidden to you. For example, a shofar that was used for idolatry or from which you vowed not to derive benefit. In those cases, you fulfill the mitzvah because of the rule: mitzvos are not given for pleasure (lav leihanos nitenu). However, if you vow not to derive benefit from a spring, you may use it as a mikveh (for mitzvah purposes) only during rainy season and not during the summer when you will enjoy cooling off from the heat. Similarly, the Mishnah (Nedarim 35a) says that if you vowed not to receive benefit from someone, he may teach you Oral Torah but not Tanach. Learning Torah from someone is not considered receiving benefit because it is a mitzvah. However, the Gemara (ibid., 36b-37a) explains that you can pay someone to teach you Tanach so if this person teaches you for free, he is saving you the expense, which is considered a benefit. We are not allowed to charge for teaching the Oral Torah, so there is no benefit other than the mitzvah (although today teachers charge for other things, such as their time and other services provided).

Netziv argues that since learning Torah is a mitzvah and mitzvos are not intended for pleasure, you may learn from a book or scroll that contains material from which you are forbidden to receive benefit. This consideration would permit use of the forbidden Torah scroll. A contrary consideration is the obligation to bury items from which everyone is forbidden to receive pleasure, as listed in the Mishnah (Temurah 33b). If so, we should be required to bury this scroll because of its forbidden panel. Netziv argues that a Torah scroll is different. The reason the Sages require burying something from which we are forbidden to receive benefit is so that someone does not accidentally use the item (Avodah Zarah 62b). For other reasons, a Torah scroll cannot be used for anything other than a mitzvah, which is permitted. Therefore, there is no obligation to bury a forbidden Torah scroll.

II. Consecrating the

Forbidden Sefer

However, Netziv adds that this scroll cannot be consecrated (i.e. processed with the proper intent, ibud li-shmah) because nobody has ownership over the forbidden panel. Since this Torah scroll was not properly prepared and sanctified, it cannot be used for communal Torah reading. Netziv concludes that an individual can learn Torah from this scroll but a community cannot use it for the Torah reading.

Rav Yom Tov Lipman Halperin of Bialystok (Responsa Oneg Yom Tov, no. 95) was asked about this Torah scroll. He believes that in this case we can rely on the minority view of Rav Moshe Ga’on that, after the fact, parchment that was not processed with the proper intent can be used in a Torah scroll (quoted in Shach, Yoreh De’ah 271:1). Rav Halperin concludes that this Torah scroll may be used even for communal reading.

III. Enjoying Torah

Rav Tuvia Goldstein (20th cen., US; Responsa Emek Halachah 1:55) challenges these conclusions with the Shulchan Aruch’s ruling (Yoreh De’ah 221:11) that if you vow that your Torah book is forbidden to someone else to receive benefit, that other person is forbidden to learn from that book. Even though learning Torah is a mitzvah, he still may not learn Torah from your book. The standard explanation (e.g. Shach, ad loc., 55) is that, in those days, books were fragile and precious. You would charge for someone to borrow your book to pay for the wear and tear. Therefore, the case is similar to a teacher of Tanach whom you would otherwise pay. Since he saves you the payment, that is a benefit and you may not learn Torah from him. Similarly, if you study from this book you are saving the rental fee, which is a benefit.

However, Rav David Ha-Levi (17th cen., Poland; Taz, Yoreh De’ah, ad loc., 43) offers a different explanation. He explains that the reason you can learn Oral Torah from someone from whom you may not receive benefit is the special law requiring teaching Torah without pay. Torah is different from other mitzvos. Unlike other mitzvos that are not intended to give pleasure, and therefore any pleasure you enjoy is incidental, Torah study is specifically intended to rejoice the heart. Therefore, while other mitzvos are permitted with a forbidden item, Torah study is not except when it falls under the dispensation of teaching without pay. A Torah book, in such circumstances, remains forbidden.

Rav Aryeh Leib Heller (19th cen., Galicia; Ketzos Ha-Choshen 72:34) quotes Rabbeinu Nissim who says that someone who borrows a Torah text is not obligated in damage that is completely beyond his control (ones), even though a borrower (sho’el) usually is. Rav Heller explains that a Sho’el is obligated to pay for such damage because he enjoys benefit from the object he borrowed. Since mitzvos are not intended for pleasure, the borrower does not enjoy benefit and therefore is nothing obligated in damages. Rav Ya’akov Lorberbaum (19th cen., Poland; Nesivos Ha-Mishpat 72:17) disagrees. He cites the above-mentioned comment of the Taz, that Torah study is intended to produce pleasure and therefore the borrower does receive pleasure from the Torah book.

Based on this, Rav Goldstein argues that a Torah scroll with a panel from which it is forbidden to receive benefit should not be used at all, in public or in private. When reading or learning from such a scroll, you are receiving benefit from the pleasure of Torah study. Perhaps Netziv and the others mentioned above reject this view of Taz and instead follow Shach and others.