Siman 153 Altering the Use of a Beit Knesset and its Contents

  • Rav Asher Meir
The Israel Koschitzky Virtual Beit Midrash

Mishna Berura
Yeshivat Har Etzion


SHIUR #86: Siman 153

 

by Rav Asher Meir

 

 

86: SIMAN 153 - SEIFIM 1-7

 

ALTERING THE USE OF A BEIT KNESSET AND ITS CONTENTS

 

Our siman discusses when a beit knesset - or its components or contents - or any mitzva item belonging to the congregation may be sold; what may be done with the sold item; and what may be done with the proceeds of the sale. The results reflect an interesting interaction between the unique OWNERSHIP aspects of a beit knesset - what we would call the "Choshen Mishpat" side - and the CONSECRATION aspects - what we might call the "Yoreh Deah" side. (Only the last of the twenty-two seifim has anything to do with "Orakh Chaim").

 

The first few simanim exemplify a well-known and general rule of consecration: "maalim bakodesh velo moridim" - "consecration can be augmented but not diminished." This expression appears in numerous contexts in the Talmud: regarding a position of Torah authority (Berakhot 28a and Yoma 20b - Torah teacher, Yoma 12b and elsewhere - Kohen Gadol); number of lights lit on each night of Chanuka (Shabbat 21b); number of verses read by each succeeding oleh (Megilla 21b); and others. This expression does NOT appear in the Talmud regarding the halakhot in the beginning of our siman (which are from the mishna and gemara of the fourth chapter of Megilla) but the Rambam (Tefilla 11:14) points out that they are an example of this principle, as does the MB s.k. 2.

 

The expression leaves unresolved the question of transferring something to an identical level of consecration, and this is discussed in seif 4 and MB and BH.

 

LEVELS OF CONSECRATION

 

Our siman gives several different levels of "consecration" of the beit knesset and its proceeds:

 

1. Money which was collected for the purpose of building a shul but was ultimately not needed to cover the construction costs and was left over, or a building which was designated for a shul but not used for that purpose, has no consecration at all (seifim 5 and 8).

 

2. Once the building is consecrated, the townspeople may sell it but they may only use the money for something of greater sanctity (seif 1).

 

3. If the seven "aldermen" sell the building with the backing of the townspeople, the money may be used for any purpose whatever (seif 7).

 

4. If the beit knesset is used regularly by out-of-towners, then the building may not be sold at all - unless there is a known individual who has been given authority in the matter (seif 7).

 

The first of these levels is simple enough. It is merely an example of the widespread halakhic principle that "hazmana lav milta" - mere designation does not impart sanctity. (Though there is a lack of symmetry between the two examples, since a strict application of the principle should imply that in the case of a collection, even what is NOT left over should be unrestricted. This is discussed in the BH d.h. "ein meshanin)".

 

The second level is also straight forward. It is, as we mentioned, an example of the general principle "maalin bakodesh" - sanctity may only be augmented and not diminished.

 

The fourth level is not surprising in itself, and there are two explanations brought in the Rishonim.

 

a. The first explanation is that in a location frequented by strangers, a stranger is likely to have donated money to the building; we therefore consider him like a member of the shul. Even though town affairs are resolved by majority rule, he is not a town citizen and is not bound by their decision. (Ran, according to his understanding of the Yerushalmi.)

 

b. The second explanation is that the town residents themselves, in the case where strangers are common, presumably dedicated the shul for the use of local and foreign Jews alike, and so this is part of the initial consecration of the structure (Rambam, Rosh).

 

There are important differences between the two explanations. For instance, if we know for sure that no one from out of town gave money the first explanation leads to a leniency.

 

According to both explanations, if we know that strangers began praying only after the shul was in use then there is no problem selling the beit knesset.

 

The Beit Yosef rules according to the second explanation - not surprisingly, since his iron rule of pesak is to decide according to the majority of the Rif, Rambam, and Rosh.

 

IS IT CONSECRATED, OR ISN'T IT?

 

The real problem seems to be with the third level. IF the beit knesset has sanctity (and this sanctity extends to the sale proceeds), then how can the alderman ("tovei ha'ir") get around this sanctity? And if it has NO sanctity, then why do we apply the principle "maalim bakodesh" in level 2?

 

According to one opinion in the Rishonim (Rambam according to the understanding of the Ran), the answer is that indeed this problematic third level does not exist. When the gemara permits using the money for any purpose at all, it is talking only about left-over money, and this is the same principle as case 1. The case is only brought in the gemara to emphasize that even the left-over money requires the agreement of the entire town in order to be transferred to secular use.

 

However, most Rishonim (including the Rambam himself according to the understanding of the Rivash) do rule that the town together with the alderman may actually suspend the sanctity of the beit knesset and its proceeds. How can they do this?

 

The Ramban asks this question and replies by likening a beit knesset to a "tashmish mitzva" whose use is limited to a particular time period. A "tashmish mitzva" (mitzva utensil) is any object which has been consecrated for the purpose of performing a mitzva, but does not have inherent sanctity. A lulav is a "tashmish mitzva," since it is designated for performing the mitzva of the four species. A sukka is designated for the mitzva of sitting in the sukka. But tefillin or a sefer Torah are a "tashmish kedusha" - utensil of sanctity. Since they must be prepared with a special sanctification, they have inherent sanctity.

 

The Ramban points out that while the sukka, and even the decorations of the sukka, may not be used for any other purpose DURING the holiday, AFTER the holiday they may be used for any purpose whatever. He suggests that once the entire town decides to sell the beit knesset, it is like "after the holiday." While even the townspeople may decide to move the synagogue to a new location, the town as a whole possess the ability to decide that the synagogue has simple ceased to exist.

 

WHO OWNS THE SHUL?

 

There is a very interesting discussion in the Acharonim regarding this question, and it can provide an additional dimension to these halakhot. The question is, to whom does a beit knesset belong? The Ketzot HaChoshen (200:1) leads us on the trail of this question.

 

The Shulchan Arukh, in Choshen Mishpat 200, rules that a person can acquire an object which stands in his property by mere agreement. No act of acquisition is necessary since the buyer's domain (chatzer) is able to "acquire" the object on his behalf.

 

It  follows that a lost object can also be acquired by a person's domain, and no one else can acquire the find. However, the Aguda (a middle Rishon) rules that an object found in a synagogue CAN be acquired by the finder. The reason is that a synagogue is a kind of "hekdesh" - dedicated property - and hekdesh can not effect an acquisition through its domain; an actual act of "kinyan" is required. It follows that the find does NOT belong to the synagogue, and so we say "finders keepers." This ruling is cited by the Magen Avraham after the regular seifim in siman 154.

 

The proof of this rule is that if an ownerless object (such as a lost object) lands into the domain of the mikdash (the archetypal "hekdesh"), someone who uses the object is not guilty of "meila" (forbidden private use of sacred property of the mikdash). The Ketzot first questions this inference, pointing out that there is a difference between the mere OWNERSHIP of the mikdash and the SANCTITY of the mikdash. He suggests that the mikdash's domain does indeed acquire ownership, but that this ownership does not imply sanctity and therefore there is no meila.

 

Of course, the "hekdesh" being discussed in the Aguda is not the same as that of the holy Temple. Any property which is dedicated for a specific mitzva purpose "belongs" to that purpose, and is considered "hekdesh." Anyone who takes the property is "stealing" it, though there is no owner to claim it. Non-profit charitable organizations (in Israel, "amutot") which are legal persons in the eyes of the secular law, correspond very closely to the kind of "hekdesh" under discussion here.

 

In the midst of a long discussion on the merits of the Aguda's inference, the Ketzot concludes that it is moot. A synagogue, says the Ketzot, is not an instance of "hekdesh" at all. Rather, it is an ordinary case of "shutafut" - partnership! The shul BELONGS to its members.

 

As evidence for this, the Ketzot cites the gemara (Nedarim 46b) which says that if a Reuven forbids all of his property to Shimon, Shimon is forbidden even in the use of jointly owned property, and gives as an example a synagogue. Likewise, the Beit Shemuel on Even HaEzer 30:9 rules that a synagogue is like a jointly-owned yard regarding a kinyan on a get. (The Ketzot also cites the Rivash siman 205 in support of his thesis, even though the plain reading of the Rivash seems to contradict it; see the Beit Shemuel for the resolution).

 

Where does the Shulchan Arukh stand on this dispute? In Yoreh Deah 324:1 he rules like the passage in Nedarim that each member of the beit knesset can forbid its use to others. In our siman, seif 15, he rules exactly opposite! See MB s.k. 87 for the resolution.

 

At first glance, it seems that this distinction holds the key to understanding the two reasons for preventing the sale of a beit knesset frequented by foreigners (level 4 above).

 

IF we were to view the synagogue as a kind of "hekdesh", like the Aguda, then it would be irrelevant who gave money for the building. In order to know who has power to determine its sanctity, we would want to know what the designated purpose of the hekdesh was. This corresponds to the approach of the Rambam and the Rosh.

 

But if on the contrary we view the synagogue as a partnership, then the first question we will ask ourselves is, who are the partners? Perhaps someone from out of town is among them. We will inescapably end up with the approach of the Ran!

 

The rule that the sanctity of the beit knesset can be made to lapse by decision of the townspeople, and the explanation of the Ramban, accords with both approaches. After all, if a charitable organization buys sukka decorations, it is clear that they may be used after sukkot for other purposes. In this case the townspeople are merely acting as the trustees of the charity.

 

The fact that the proceeds can be used even "to drink beer" (as the gemara puts it) seems to support the approach of the Ketzot, since otherwise we would expect that the money would have to go towards charitable purposes. But even this is not decisive. Perhaps we view the synagogue as belonging to a special charity fund for the general welfare of the town. The money can not be appropriated by any individual, but having a celebration for the town as a whole would certainly seem to be a legitimate use of the money.

 

WHAT IS THE RULING OF THE SA AND MB?

 

This is a very facile explanation of the rule of a "central beit knesset," but it needs some refining. We already pointed out that in Yoreh Deah the SA seems to agree that a beit knesset is a partnership, yet here he rules like the Rambam and the Rosh who explain that there is a "hekdesh" problem. This raises two questions: If the beit knesset is a partnership, why ISN'T the SA worried about out of town partners? And why IS he worried about the intended use of the structure?

 

The first question is easily answered. Not every person who gives money to the building fund needs automatically become a member. We could say that a shul is a partnership - but that only local people are partners. This approach has a parallel precedent in the ruling of the Ravia.

 

The Ravia, explaining the Beit Yosef, adopts the basic approach of the Ran - an "international" shul can't be sold because strangers are partners.. Yet the Ravia rules that even if we know for sure that an out-of-town person gave money for a LOCAL beit knesset, the townspeople can sell it. We assume that in this case the stranger gave the money to be used according to the discretion of the town. This ruling is adopted by the Rema (seif 7).

 

By the same token, we can say that according to the SA strangers give money according to the discretion of the town even in a CENTRAL beit knesset.

 

The second question is also easily answered. The shul does indeed belong to its members - but it is nonetheless dedicated and consecrated for a particular purpose. An individual can also obligate himself through a vow to allow his property to be used for some mitzvah. This "Yoreh Deah" obligation (laws of vows - nedarim - are found in Yoreh Deah) creates a "Choshen Mishpat" claim, and the beneficiary of the mitzvah can go to Beit Din to enforce the vow. At any rate, the one vowing can certainly not renege on his pledge.

 

According to this approach, the conclusion is: a synagogue is both a partnership and a kind of hekdesh. It BELONGS to the townspeople, but the partners themselves have dedicated it in a kind of vow for a mitzva purpose. The problem of an out-of-town donor, as explained by the Ran, is a THEORETICAL difficulty, but PRACTICALLY we say that such donors do not intend to become partners. The problem of dedication remains.

 

The MB discusses this question in s.k. 33. At first he mentions the approach of the Rambam and Rosh, which is the conclusion of the Beit Yosef, as he points out in the Shaar haTziyun. In line with this, the MB doesn't mention that the stranger gave money to the shul, only that he customarily prays there. Yet towards the end of this seif katan, the MB DOES condition the sale on the fact that "others did not aid them" - seemingly adopting the approach of the Ran!

 

One resolution is that which I suggested above. BOTH approaches are correct, and the problem of the Ran CAN arise. However, PRACTICALLY speaking the Ran's approach is not a problem, because it is almost always true that "others did not aid them" to the extent of becoming partners. Since the problem COULD arise, the MB felt obligated to mention it. (See Shaar HaTziyun 31 which goes PARTIALLY in this direction.)