Writing a Sefer Torah
In Parashat Vayelekh the Torah instructs, "Ve-atem kitvu lakhem et ha-shira ha-zot" – introducing a mitzva to write a sefer Torah. According to most positions (and implied by several gemarot, as well), this mitzva devolves on each and every individual. This shiur will explore the nature of this mitzva.
A provocative gemara in Menachot (30) claims, "One who purchases a Sefer Torah from the market is as if he grabbed a mitzva from the market. If he actually writes it, it is considered as if he received the Torah from Har Sinai." This gemara would seem to indicate that the mitzva can legally be performed through purchase, even if the Torah was not specifically written on his behalf. The gemara views purchasing rather than writing or repairing a sefer Torah as an inferior manner of performing the mitzva, but still considered a mitzva (see especially Rashi and Tosafot to Menachot). Hence, we infer that the essence of the mitzva involves owning a sefer Torah, not writing one for oneself or appointing a shaliach to act on one's behalf. A person who purchases from the market presumably did not authorize the sofer as his shaliach acting on his behalf while writing the sefer Torah. Evidently, merely achieving ownership is sufficient. Even though the Torah employs the verb 'kitvu,' implying a personal responsibility to actually write, the mitzva can equally be performed by purchasing. The word 'kitvu' is probably employed to assert that the mitzva consists of owning a sefer which was written according to halakhic specifications and not just a reproduced text.
By contrast, the Nimukei Yosef suggests that purchasing a Torah is insufficient and does not fulfill the mitzva. Though this reading runs against the simple reading of the Gemara in Menachot it is supported by a second gemara in Sanhedrin (21b). The mishna there discusses the special mitzva for a king to write a second sefer Torah (beyond the first sefer which every individual is obligated to write). Rava adds to the mishna that even one who inherited a sefer Torah from his father should still write his own sefer. Though the gemara questions whether this rule (requiring personal authorship) should apply to regular people or only to a king, it ultimately concludes that even regular individuals must personally write their own sefer Torah and not rely upon an inherited sefer. The simple reading of this gemara suggests the exact opposite of the gemara's implication in Menachot: the mitzva consists of writing, not owning. If owning were sufficient why can't a person fulfill his obligation through an inherited sefer? This indeed is the ruling of the Rema in Yoreh De'ah (270), that a mere purchase is insufficient to fulfill the mitzva.
In truth, we might still define the mitzva as owning a sefer and reconcile the gemara in Sanhedrin which states that inheritance is insufficient. As opposed to someone who actively purchases a sefer Torah (as per the gemara in Menachot), an heir plays no active role in acquiring his sefer. Through a purchase, he has still taken action to perform the mitzva - even if not the highest form of the mitzva. By contrast, an inheritor, as he is completely passive, has not executed the mitzva.
An interesting Ramban in Masekhet Sukka might affirm an actual mitzva to write a sefer Torah. On first glance, Rava's disqualification of an inherited sefer Torah stems from the term 'lakhem' – 'write for yourselves' - suggesting the requirement of a personal sefer Torah. This phrase can certainly be interpreted in a variety of ways. For example, we might defend our aforementioned distinction between inherited sifrei Torah and purchased ones. The former are not considered 'lakhem' since no effort or initiative was displayed in the process of acquisition. By contrast, a purchased sefer Torah might indeed qualify as 'lakhem' - and satisfy Rava's criterion.
From a Ramban in Sukka, however, it appears that Rava derived his halakha from a completely different source. The Ramban discusses the preparation of mitzva items (tefillin, tzizit, etc.) and questions whether they must be manufactured with specific 'consciousness' (lishma). The Ramban claims that a sefer Torah must be written lishma (with intent to fulfill the mitzva of writing a sefer Torah) since the Torah writes 'kitvu lakhem,' and we interpret 'le-sheim chovatkhem' – with intent to fulfill your mitzva. The Ramban then questions this interpretation: After all, didn't Rava in Sanhedrin utilize this phrase of 'lakhem' for a different purpose – to imply that a person must write his own sefer Torah and not rely upon inheritances? How could the same word generate two different halakhot? The Ramban answers that Rava's halakha is in fact derived from the word 'kitvu,' suggesting a personal writing. The word 'lakhem' can still be employed to derive a separate derasha requiring machshava lishma during the manufacture process. To summarize: the Ramban claims that Rava's insistence on writing and not inheriting a sefer Torah stems from the word 'kitvu' (and not from the word 'lakhem'). This suggests that at the root of Rava's halakha is his belief that the mitzva consists of actually writing - as implied by the word kitvu; hence, inheriting a Torah is insufficient. Had Rava insisted on writing so that the sefer Torah should be one's own, rather than inherited from a father, he might have derived the halakha from the word lakhem – a word which describes the relationship between the person and the sefer and the degree to which the sefer is designated as his.
If we do accept the Ramban's view as well as the simple reading of Sanhedrin, we would conclude that ownership is not SUFFICIENT for the mitzva (and that, indeed, purchasing would not fulfill the obligation). This view does not reject ownership as a criterion; it merely asserts that ownership is insufficient. Possibly, the mitzva can be fulfilled only by both writing as well as owning. This prompts the famous position of the Torat Chayim that a person should not dedicate his sefer Torah to hekdesh, since by alleviating ownership he has discontinued his mitzva. Ownership, though not sufficient, is still a necessary condition to the mitzva. By contrast, Reb Akiva Eiger, in his commentary to Shulchan Arukh (270), cites in the name of the Pardes Dovid that even though a sefer Torah is sold the mitzva continues because the mitzva consists solely through the act of manufacture.
For example, the Ramban himself might require ownership ALONG WITH actual writing. In his sefer, Torat Ha-adam (beginning of the discussion of keriya), the Ramban claims that the halakha of tearing keriya upon witnessing a sefer Torah which is destroyed stems from the fact that the mitzva is now being canceled. Even though the mitzva was already performed when writing (and seemingly, according to the Ramban, a person must write or authorize his shaliach to write), the mitzva must be sustained by the presence of the sefer Torah. Though the Ramban requires the durability of the Torah as a precondition to the mitzva, it is not clear whether he would also require ownership. What would happen if the Torah were sold but remained intact? As no keriya is required upon witnessing the sale, it is likely that the mitzva is not discontinued.