SHIUR #88: Siman 153

by Rav Asher Meir

88.  SIMAN 153 - SEIFIM 16-22

EXCLUDING A SINGLE INDIVIDUAL FROM A PRIVATE BEIT KNESSET

In seif 16 the SA rules that even in a beit knesset belonging to a private individual, the owner cannot decide to exclude one particular person.  This is mentioned in Orchot Chaim as one of the decrees of Rabbeinu Gershom.  The cherem (ban) of Rabbeinu Gershom is familiar to us from the rule forbidding a man to marry two wives without the permission of a hundred Rabbis, from the prohibition of divorcing one's wife without her consent, and from the ban on reading someone else's private mail.  Actually, there were numerous bans.  Many are mentioned in the Beer HaGolah on the Shulchan Arukh, at the end of the section on "nidui vecherem" (Yoreh Deah 334).  The Beer HaGolah refers the reader to the responsa of Maharam Rotenberg where yet others are mentioned.

The MB s.k. 88 suggests one reason for the ban.  He cites the gemara Gittin 57; I suspect he is actually referring to the story on page 55b and 56a there about "Kamtza and Bar Kamtza."  The story is about a man who intends to invite his friend Kamtza to a banquet but through the understandable mistake of the butler, his enemy Bar Kamtza is invited instead.  When the host recognizes the error, he asks Bar Kamtza to leave the banquet.  The latter makes every effort to avoid this mortification, and when unable to do so he becomes an informer to the Romans.  The relation to our halakha is obvious.  (It is also possible that he means Gittin 59 - which is the source for the following halakha, as we will explain).

The BH d.h. "leasra" gives a different reason, from responsa Tashbetz IV:7. 

The Rema rules in accordance with his contemporary, Maharam Padua 85, that the Cherem de-Rabbeinu Gershom can be circumvented by an advance stipulation.  (Practically speaking, the stipulation need not be in advance.  The owner of the shul can first exclude EVERYBODY - this being permitted by Rabbeinu Gershom - and afterwards readmit them on condition.  This was in fact the case in the question posed to the Maharam Padua.)

This ruling certainly seems problematic according to the reasoning of the MB.  How can a stipulation permit a person to humiliate his neighbor?

Even according to the Tashbetz there is room to question this ruling.  The Tashbetz explains that the reason one MAY exclude the ENTIRE congregation is that we may assume that the congregation as a whole will manage to find another place to pray; whereas an individual does not have this option if there is no other shul.  Making an explicit condition does nothing to ameliorate this problem.  However, we could say that since BEFORE the stipulation the enemy has no place to pray anyway, the owner is not really depriving him of anything by excluding him - even though de facto he is removing the congregation's incentive to find a place to pray which would include everybody.

MOVING THE PLACE OF PRAYER FROM ONE PRIVATE HOME TO ANOTHER

The Mahari Kolon responsum 113 forbids moving the congregation's place of prayer from one congregant's house to another, if it is the established custom to pray in the first.  He cites the mishna and gemara in the fifth chapter of Gittin.  In order to permit carrying between houses in one courtyard, the residents must make an "eiruv" - a "mingling" of domains - by placing food from each householder in one dwelling.  The mishna (Gittin 59a) states: An eiruv is placed in an old house because of the ways of peace.

Rashi explains: The residents of a courtyard who are accustomed to put their eiruv in one particular house may not change the place and put it in another house because of the ways of peace.

The gemara asks:

What is the reason (i.e., why should peace be disturbed by moving the eiruv)? If we say because of honor (it is an honor for the eiruv to be in a particular house), we are refuted by the charity box which started at Rav Yehuda's and then was moved to Rabba's and then to Rav Yosef and then to Abaye and then to Rava.  Rather, it is because of suspicion.

(Gittin 60b)

Rashi explains that there is suspicion because people will see that there is no eiruv in the old place and will suspect that the residents are carrying without an eiruv.  If the Mahari Kolon had this in mind, he was worried that people would see that no one is praying in the old house and suspect that the congregation doesn't hold public prayers anymore.

Tosafot explains in the name of Rabbeinu Chananel that people will suspect that the eiruv was moved because the owner stole the food of the eiruv.  According to this reason, we are concerned that people will think that the congregation decided to move the shul because the previous host was an unreliable person.

What if the host really is an unreliable person? According to the second reason we may certainly move the beit knesset, but according to the first reason there is room to weigh the potential damage against the kind of suspicion Rashi mentions.

"CHAZAKA" OF A SEFER TORAH (Seif 20)

The SA, based on the Mahari Kolon 70, rules that the congregation does not obtain chazaka (presumptive ownership) of a Torah scroll merely by virtue of having the scroll in the synagogue premises and use.  The MB 100 adds the surprising restriction that even if there are witnesses that the scroll was acquired by the beit knesset the rule still applies.

Let's provide the "Choshen Mishpat" background to this issue.  In general, every object has a presumptive owner, such that if Reuven is the presumptive owner and Shimon claims that the object is really his, the burden of proof is on Shimon.

The basic rule is that for chattels (moveable property), the presumptive owner is the one who has actual possession.  "Any moveable object in a person's possession is presumed to belong to him." (SA Choshen Mishpat 133:1).  If the previous owner claims that a chattel was stolen or wrongfully detained, he must bring proof.

However, for real estate the opposite is true - the presumptive owner is the last person known to have valid ownership.  "Land remains in the presumptive ownership of its owner.  Land which is known by witnesses to have belonged to Reuven, that it was in his possession even one day, but now it is in the possession of Shimon who possesses it and enjoys the fruits and claims that he acquired it, whereas Reuven objects and says that it is stolen, [Reuven is] believed." (SA CM 140:1.)

In any case, presumptive ownership is only valid if the presumptive owner actually claims that he performed a valid acquisition.  "Any presumption of ownership not accompanied by a claim, carries no presumption of ownership." (SA CM 146:9.) If Shimon is holding on to a watch which definitely belonged to Reuven, Shimon is believed if he asserts that Reuven sold, gave, lent, or rented him the watch.  But without such an assertion his claim is weakened.

It should follow that if a Torah scroll is kept on the shul premises, presumptive ownership should belong to the shul.  Even if everyone knows that the sefer used to belong to Reuven, it should be enough for the beit knesset to CLAIM that Reuven dedicated it - even without bringing evidence of this.

However, there is a salient exception to the basic rule above: "When does this rule apply - to objects which are not customarily lent and rented out.  But objects which are customarily lent and rented, and the plaintiff has witnesses that it was his [sic], and now they saw it in the hands of the current holder, and he [the known owner] says that he lent or rented it out, even if there are no witnesses to how it got to his [the current possessor's] possession, he [the new possessor] is not believed to say, I acquired these." (SA CM 133:5.)

This clarifies the significance of the MB's dilation in s.k. 99 explaining that it is customary to lend out Torah scrolls even without dedicating them.  This gives the Torah scroll the status of "objects which are customarily lent or rented," and Reuven's presumption of ownership is not vitiated.

In order to understand the MB in s.k. 100 who talks about the disqualification of the witnesses, we need to turn to a relevant passage in the gemara.  The context is the gemara's claim that a witness with an interest in the outcome of the case may testify if he takes steps to renounce his interest.

It is taught [in a beraita]: If a community has had a sefer Torah stolen, we can not judge [a suspect] before judges of that community, and we can not take testimony from the citizens of that community.  And if it is [as you say], why can't two of [the townspeople] renounce their interest and sit in judgment? A sefer Torah is different, since it is held to be listened to.  (Unlike a monetary asset where two people could agree to forego their share of the proceeds, here they will enjoy the "proceeds" every time they hear the Torah read).

(Bava Batra 43a)

This ruling is brought down in SA CM 7:12.  However, there is an exception: the Rosh (responsa 3:13) that if there is another Torah scroll in the beit knesset, then in effect the witnesses are not considered to have an interest since either way they will hear the Torah reading.

This is exactly what the MB writes.  Members of the congregation are invalid witnesses to testify that Reuven dedicated the sefer Torah, unless there is another sefer Torah in the shul.