Siman 153 Excluding a Single Individual from a Private Beit Knesset
Mishna Berura
Yeshivat Har Etzion
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.