YESHIVAT HAR ETZION
ISRAEL KOSCHITZKY VIRTUAL BEIT MIDRASH (VBM)
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HALAKHA: A WEEKLY SHIUR IN HALAKHIC TOPICS

Shiur #14: Selling and Exchanging Sefarim
by Rav Yehuda Shaviv
Translated by David Silverberg

I.	Introduction

	A question was posed by a student in the yeshiva: May he exchange a sefer that he already learned, a sefer of one of the Rishonim, for a different sefer, of one of the Acharonim?  Although in truth such a question requires no research or inquiry, as the sale and exchange of sefarim has become widely accepted, nevertheless, once the question was asked and we had to look into the matter, it turned out that this issue is far from clear.  Much room remains for analysis and discussion.  It suffices to merely cite the comments of the Chatam Sofer: "There are no clear grounds for allowing the sale of sefarim, except to support those who study Torah" (Likutei Teshuvot Chatam Sofer, 58).

	In approaching this issue, we must determine the status of sefarim in general as opposed to Sifrei Torah, and deal with the question of whether the invention of the printing press changes this status.  We must also discuss whether the prohibition against selling evolves from the sanctity of holy writings, or from the purely pragmatic concern for the widespread accessibility of sefarim.

	An additional issue involves the nature of this prohibition, whether it applies to the individual, that he is forbidden from selling, or if we should view it as a halakha on the cheftza (the object of the sefer), that its unique status does not allow for its sale.  Yet a third possibility would approach this halakha as based on the relationship between the person and the cheftza; namely, one does not enjoy full legal ownership over a sefer.[1] Furthermore, we must consider the possibility of distinguishing between a community and individuals, and even between different types of individuals, such as between those who earn a living by selling sefarim and those who do so only on occasion.  We will try to touch upon these points in order to answer this question.

II. 	The Prohibition Against Selling a Sefer Torah

	The mishna states at the beginning of the fourth chapter[2] of Masekhet Megilla: 

"The people of the city who sold… coverings [for Sifrei Torah] should purchase [with the money] books [Rashi: Nevi'im and Ketuvim]; [if they sold] books, [they should purchase with the money] a Torah.  But if they sold a Torah, they may not purchase [with that money] books; [if they sold] books, they may not purchase [with that money] coverings [Rashi: because we must always ascend in sanctity, and may not descend]."

	The mishna thus works under the assumption that Sifrei Torah and scrolls of Nevi'im and Ketuvim may be sold.  The money received, however, must be used for the purposes of a higher level of sanctity, given the principle of "ma'alin ba-kodesh ve-ein moridin" (we must always ascend, rather than descend, in sanctity).  The question then arises, what may we do with the moneys received in exchange for a Sefer Torah?  What is holier than a Torah scroll?  This question forms the basis of the Gemara's discussion in Megilla 27a, where it inquired as to whether one may sell an old Sefer Torah and use the funds to purchase a new one.  On the one hand, the Gemara comments, we might forbid doing so since it does not result in an "ascent" of the money to a higher level of sanctity.  On the other hand, the Gemara continues, perhaps we should permit such a sale because there is no higher level to which we can bring this money.  The Gemara thus assumes that one must always earmark the funds for a higher level of sanctity; the question arises concerning the money received for a Sefer Torah, which already possesses the highest level of kedusha.  The Gemara suggests drawing evidence from the mishna's ruling, "But if they sold a Torah, they may not purchase [with that money] books."  By implication, the mishna forbids using the money for the purchase of Nevi'im and Ketuvim, but permits the purchase of another Sefer Torah.  The Gemara then refutes this proof, claiming that the mishna may refer specifically to a case be-di'avad, when a Sefer Torah had been sold; this tells us nothing about whether we would from the outset allow the sale of a Sefer Torah for purposes of buying a new one.  

	The Gemara concludes by citing the ruling of Rabbi Meir[3]: "One may sell a Sefer Torah only to study Torah and marry a woman."[4] The Gemara there also cites a berayta: "A person should not sell a Sefer Torah even if he has no need for it (Rashi: he has another one).  Rabbi Shimon Ben Gamliel went even further - even if one does not have what to eat, and he sells a Sefer Torah or his daughter [as a maidservant], he will not see blessing."

	It emerges, then, that the prohibition does not evolve from the concern that the individual will be left without a Sefer Torah in his home.  Even if he has no practical need for this Sefer Torah the prohibition nevertheless applies.  Clearly, then, the prohibition results from the inherent sanctity of the Sefer Torah, as the Rambam describes (Hilkhot Sefer Torah 10:2):

"We must treat a valid Sefer Torah with special sanctity and great honor.  It is forbidden for a person to sell a Sefer Torah even if he has nothing to eat[5], even if he has many sefarim and even in order to purchase a new one.  A Sefer Torah is never sold except for two purposes: to learn Torah with the money or to marry a woman with the money - and this is only if he has nothing else to sell."[6]

	Thus, the reason for this prohibition does not relate to the absence of the Sefer Torah from one's home; it applies even if one has other Sefarim available or has the means to purchase a new one.  Rather, the prohibition relates to one's awareness and consciousness.  Selling a Sefer Torah constitutes a grave offense and insult to its sanctity and honor.[7] For good reason, the Rambam introduced this prohibition with the general assertion that we must treat Sifrei Torah with "special sanctity and great honor."  We may suggest that "special sanctity" denotes an objective quality inherent to the object, the Sefer Torah, whereas "great honor" refers to the subjective attitude of the individual, who gives honor to the Sefer.

	The severity of such a sale is manifest in the equation drawn by Rabbi Shimon Ben Gamliel between selling a Sefer Torah and selling one's daughter into servitude; selling a Sefer Torah is viewed with the same gravity as selling one's daughter.[8] 

	In light of all that we have seen, how can we justify the passage in Masekhet Menachot (30a), "One who purchases a Sefer Torah from the marketplace is like one who grabs a mitzva from the market place"?  This indicates the plausibility of purchasing a Sefer Torah, and that doing so had even become common.  Perhaps this Gemara discusses a situation of selling a Sefer Torah for purposes of study or marriage, or deals with a professional sofer who wrote a Sefer Torah specifically with the intent of selling it, in which case selling is clearly permissible.  (See Pesachim 50b; the Gemara there addresses the question of whether scribes will become wealthy through the payment for their work, but clearly such payment is viewed in a positive light.) 

III. 	Applying the Prohibition to Sifrei Kodesh

	The Rosh applies the halakha stated with regard to Sifrei Torah to sifrei kodesh (Torah books) in general:

"… This applies in the earlier generations, when they would write a Sefer Torah and study from it.  But nowadays, when we write a Sefer Torah and place it in synagogues to read from it publicly, there is a mitzvat asei upon everyone among Yisrael who can afford it to write the Chumashim of the Torah, Mishna, Gemara and its commentaries, for he and his children to study from, because the mitzva of writing the Torah is for the purposes of studying from it, as it says [in the context of this mitzva], 'and teach it to Benei Yisrael, place it in their mouths.'  Through the Gemara and commentaries, one will gain proficiency in the explanation of the mitzvot and the laws.  These are, therefore, the sefarim that one is obliged to write and also not to sell, except to learn Torah and marry a woman." (Halakhot Ketanot, Hilkhot Sefer Torah 1)

	Besides extending[9] the mitzva of writing a Sefer Torah to include sefarim of the Oral Law, the Rosh also alludes to a different reason underlying the prohibition against selling a Sefer Torah - that it evolves not from the "extra sanctity and great honor," but rather from the pragmatic concern of the availability of a text for study.[10]

	The practical difference between the two approaches arises in a situation where a person has additional copies of that sefer.  If the prohibition flows from the inherent sanctity of the sefer, then the prohibition remains, as the Rambam emphasizes in his discussion of Sefer Torah.  If, however, the prohibition serves to ensure the availability of texts for study, then seemingly one may sell an extra copy of a sefer.

	We may identify an additional ramification, as well.  If the reason relates to sanctity and honor, then if one sells for a higher purpose, the sale does not infringe upon the sefer's honor or sanctity and would thus be permitted.  But if the halakha evolves from the concern of availability of study texts, then perhaps it would apply even to selling a sefer in order to purchase a more sacred one (such as selling a work of one of the Acharonim in order to purchase a work by a Rishon[11]), since the individual now loses accessibility to the sefer he sells.

	The same would apply vice versa, as well, when selling to buy a sefer of a lower level of kedusha[12].  If the prohibition is based on the issue of kedusha, then we would forbid the sale; if, however, the mitzva of purchasing and the prohibition against selling has to do with the pragmatic concern of accessibility, then we might permit such a sale.  The Peri Megadim (O.C. 153:24) indeed discusses the question of whether one may sell a Sefer Torah in order to purchase Gemarot and halakhic works.[13]

IV. 	Distinguishing Between the Individual and the Community

	The Tur (O.C. 153) draws a distinction between a community, for whom these prohibitions against selling sacred objects[14] apply, to an individual: "Any individual may sell it and do with the money whatever he pleases - even a Sefer Torah."[15] The Bet Yosef there suggests that according to the view of the Rosh, regarding an individual the Gemara only warned that he would "not see blessing"; no prohibition, however, applies.  He then observes that the Rambam clearly implies otherwise.  This issue may very will hinge on the nature of the prohibition.  If we view the halakha as focused on the "cheftza," on the Sefer Torah itself, then the prohibition will always apply.  If, however, the prohibition is directed towards the individual, and especially if it evolves purely out of the pragmatic concern for the availability of Sifrei Torah, then it cannot apply to the individual; what's at stake for him is not a violation, but rather the risk of not "seeing blessing."

	This warning about the absence of blessing most likely refers to the individual's financial status, as Rashi explains there in Megilla, that the individual will not earn any blessing with the money received in exchange for the Sefer Torah.  This concept would then parallel that which we find concerning one who works on days that he ought to devote to other matters, such as Erev Yom Tov, or scribes and their agents who work out of purely financial motives (see Pesachim 50b).  However, no prohibition would apply if one seeks to sell a sefer not for financial profit, but rather for scholastic purposes - to exchange one sefer for another.

	The Shulchan Arukh (O.C. 153:10) cites both views: 

"Some say that an individual with his own [possessions] may sell even a Sefer Torah and do with the money whatever he wishes, so long as it was not designated for public reading.  There are those who forbid [this] unless [the person sells the Sefer] to study Torah or marry a woman."

In presenting the first view, the Mechaber attributes it to "yeish omerim" - literally, "there are those who say."  The second view, by contrast, is that of "yeish mi she-omer" - literally, "there is someone who says."  May we detect in this distinction a preference for the first position?  We might find an answer in Yoreh Dei'a (282:18), where the Mechaber once again cites both views: "An individual who sells his own Sefer Torah or its accessories, there are those ['yeish mi'] who allow using the money, and there are those ['yeish mi'] who forbid doing so."[16] Here he introduces both positions identically.[17]

V. 	Selling Sefarim For Educational Purposes

	Returning to our original question, of whether one may sell other sefarim, it would seem that according to all views this should be allowed.  The Rambam forbids selling a Sefer Torah in any situation, but he never extends the prohibition beyond the specific case of a Sefer Torah; the Rosh, who does extend the prohibition to include sefarim, applies it only to the public, and not to the individual.

	This is indeed the implication of the Bet Yosef (C.M. 248, s.v. ve-im amar nekhasai):

"That which he wrote, that the Rama distinguishes between a Sefer Torah and other sefarim, the Nemukei Yosef wrote this, as well, in the name of the Ritva, and this follows logically, for they said, 'One may not set sell except to study Torah or marry a woman' only with regard to a Sefer Torah; other sefarim, however, are not included [in this prohibition].  And even according to that which the Rosh wrote, cited by our rabbi in Tur Yoreh Dei'a, that nowadays one may not sell books of Scripture, mishna and Gemara, except for purposes of learning Torah or marrying a woman, they are nevertheless less stringent than a Sefer Torah.  Indeed, people commonly sell their sefarim…."

We might, however, qualify this rule in light of the Chatam Sofer's comments to the Shulchan Arukh (there in Orach Chayim), that all this applies only when one has another Sefer Torah.  If one does not own another Sefer, then the prohibition remains.  This qualification may very well apply to other sefarim, as well.  If the mitzva to purchase Torah books serves the functional purpose of availability of study texts, then the prohibition against selling them should remain in effect so long as one has no alternative.  Only if the individual has additional copies may he sell them.

	The Pele Yo'etz goes even further, claiming that "even if one has books that he does not know how to read, or if he has duplicates, he may not sell except in order to purchase others in their stead."[18] Yet, even this stringent position permits selling a sefer in order to purchase another for one's learning needs.

F. Gradations in the Sanctity of Sefarim

Since the permissibility of selling sefarim in our case is clear, we have no need to deal with the question of gradations of kedusha in works of Torah she-be'al peh.  Nevertheless, as this, too, emanates from our question, it is worthwhile to cite the comments of the Arukh Ha-shulchan in this regard (Y.D. 283:6):

"Certainly all sacred books are holy, but this is a general sanctity; regarding the particular forms of sanctity, one has a level higher than the other, with the Sefer Torah higher than all of them, when it is written with the intention of kedushat Sefer Torah on parchment according to the halakhic provisions.  But regular sefarim such as ours, not to mention the printed sefarim, they have no particular kedusha; rather, they all possess the same level of sanctity.  Also with respect to placing them one on top of another, none has a higher level than another… No distinction exists in this regard between Torah she-bikhtav and Torah she-be'al peh - they are holy, and one may place them one on top of another."

	Similarly, the Steipler Gaon reported that his brother-in-law, the Chazon Ish, did not make a point of refraining from placing sefarim on top of one another.19]

Notes:
1. The Or Samei'ach brings a beautiful proof in this regard from the comments of the Yerushalmi in Masekhet Nedarim 5:5.  (The Or Samei'ach's discussion is cited in the Achiezer, 3:79, and was written on a postcard appended to the letter of the one asking this particular question addressed in the Achiezer.  Incidentally, we should note a textual error there; the proof is drawn not from "the beginning of the chapter 'Ha-shutfin,'" as appears in the text, but rather from halakha 5.)  The Yerushalmi there cites a ruling invalidating kiddushin performed with a Sefer Torah, seemingly establishing the lack of monetary ownership over a Sefer Torah.  The Achiezer, however, proceeds to refute this proof.
2. This is how the chapters are arranged in the Talmud Bavli, where our mishna appears on page 25b.  The books of mishnayot and Talmud Yerushalmi arrange this chapter as the third chapter of Masekhet Megilla.
3. Rabbi Meir was a sofer (scribe), as we know from Eruvin 13a, Sota 20a, and elsewhere.
4. The Gemara does not resolve the original question of whether the sale is permitted for purposes of buying another Sefer Torah, and the Rishonim debate the final ruling.  According to the Rif and the Rosh, one may not sell a Sefer Torah in order to purchase another, whereas the Rashba's comments on the mishna imply that le-khatechila one may.  From the Rashba's remarks on the Gemara (27), it appears that the entire problem arises only with regard to Sifrei Torah, due to the particularly intense level of kedusha associated with them.  This prohibition would not apply to other sefarim, which are of a lower level of sanctity.  The concerns of Torah study and marriage as factors that suspend a prohibition arise elsewhere, as well, regarding the prohibition of leaving Eretz Yisrael.  See Rambam, Hilkhot Melakhim 5:9.  It seems that when dealing with a matter affecting one's entire existence, such as dwelling in the land or having books of Torah in his possession, then only those concerns that likewise make his life complete - such as Torah study and marriage - can override the "life" latent within one's location or a piece of parchment.
5. The Gemara expresses wonder over this assertion, that one may not sell a Sefer Torah even if he cannot afford to buy food.  The Yerushalmi at the end of Bikkurim writes explicitly that one may sell a Sefer Torah to support himself, drawing evidence from the permission to sell for purposes of Torah study and marriage.  All the more so, the Yerushalmi, reasons, one may sell it to afford food.  The Bavli also implies that no actual prohibition exists, as it mentions only that who does sell "will not see blessing."  The Kessef Mishneh suggests that this point is subject to a dispute in the Yerushalmi and the Rambam follows the stringent view.  Even this view, however, applies only when one can afford limited food rations.  Needless to say, however, if one's situation has reached the point of actual piku'ach nefesh (danger to life), the prohibition against selling a Sefer Torah is suspended.
6. Notice that as opposed to the Gemara's formulation, which expresses this halakha as a recommendation or warning - "lo yimkor adam" ("a person should not sell"), the Rambam formulates this as an outright prohibition.
7. The prohibition against the sale of a given item expresses its inherent kedusha, similar to the halakha stated regarding "chermat kohanim": "All cherem that a person consecrates to God from any of his possessions… shall not be sold… All cherem is the holiest of the holy to God" (Vayikra 27:28).  The mishna at the beginning of Masekhet Ma'aser Sheni states that one may not sell ma'aser sheni, and the Yerushalmi attributes this prohibition to the sanctity associated with ma'aser sheni.  Tosefot in Pesachim 75b cite from the Rashba that this prohibition evolves from the concern of "bizayon mitzva" (degrading the mitzva).  See the comments of the Aderet in this context, in "Zehav Sheva," appended to his edition of the Tosefot Ha-rashba.
Selling an object of special, incalculable worth is viewed as a degradation of that object; this explains the harsh sentence of one who kidnaps and sells a human being (Shemot 21:16).
8. Perhaps underlying this comparison is the image of the Torah as the Almighty's "daughter," a metaphor employed in several contexts by Chazal; see, for example, the Midrashim towards the beginning of Parashat Teruma.
9. We say "expand" because, as the Bet Yosef writes in Yoreh Dei'a 270, even according to the Rosh the mitzva to write a Sefer Torah remains.  See also Sha'agat Aryeh, 36.
10. See Otzar Ha-geonim to Sanhedrin 21b, in the footnote of the editor (Rabbi Dr. C.T. Taubes), who cites Rabbenu Yerucham as quoting this passage from the Rosh and adding that the Geonim similarly espoused this position.  The editor claims that the Geonic source for this ruling is unknown.  He suggests that this perhaps emerges from the simple fact that neither the Behag nor Rav Sa'adya Gaon list the obligation of writing a Sefer Torah as one of the six hundred and thirteen mitzvot (as opposed to the Rambam, who lists it as the eighteenth mitzvat asei in his counting).  Apparently, they viewed this requirement as a derivative of the mitzva to study Torah.  This reinforces our conclusion, that the primary reason behind this halakha involves the practical concern for the availability of learning material.
11. Later we will discuss if the works of the Rishonim indeed possess a greater level of kedusha than those of the Acharonim.
12. We speak here from the perspective of the seller.  As far as the Sefer itself is concerned, it stands to reason that it does not lose its sanctity, insofar as it continues to serve as a Sefer Torah for the buyer, who will treat it with kedushat Sefer Torah.  In this respect, the issue of selling a Sefer Torah differs from the sale of the other items mentioned in the mishna in Megilla.  The other items - such as the table used for Torah reading, the Torah coverings, etc. - lend themselves to mundane use, as well, whereas a Sefer Torah will retain its kedusha even after it is sold.  The lowering of level of kedusha, therefore, occurs only with respect to the seller, who might use the money for an item of a lower level of sanctity.
13. The Chayei Adam (end of kelal 31) writes that if a person cannot afford both a Sefer Torah and other works, such as Gemarot and books of halakha, he may give preference to the latter.
14. The Tur there qualifies the prohibition, that the sale may be performed by the seven community leaders in the presence of the town's population.
15. The Tur mentions this in Yoreh Dei'a (282), as well: "My master and father, the Rosh z"l, wrote: Therefore, an individual who sold his Sefer Torah may use the money, as this resembles a sale by the seven community leaders."  (The Bach there notes that the Rambam appears to disagree and forbids an individual from using the money received for a Sefer Torah for mundane purposes.)  There, however, one can understand the Tur as referring to a case of be-di'eved, unlike the implication in Orach Chayim.
16. See "Yad Malakhi," Kelalei Ha-Shulchan Arukh, 13.  See also Peri Megadim, O.C. 153.
17. Contrast these passages with the Shulchan Arukh's unequivocal remarks in Yoreh Dei'a, beginning of 270: "There is a mitzva asei for every man among Israel to write for himself a Sefer Torah… He may not sell it, even if he has many Sifrei Torah… But to study Torah or marry a woman, he may sell it, if he has nothing else to sell."  The Pitchei Teshuva (282:16) cites the "Yad Haketana" as explaining that there, in Y.D. 270, the Shulchan Arukh refers to someone who wrote a Sefer Torah, either personally or through a scribe, whereas in the other contexts he deals with a case of someone who purchased a Sefer Torah.  We might also draw a distinction between someone who owns other Sefarim and one who does not.  Such a distinction would follow the approach of the Chatam Sofer (in O.C. 153).  The Mishna Berura (153:62) suggests that in Y.D. the Mechaber refers to one who dedicates a Sefer Torah to a community for public reading.
See also the teshuva of the Achiezer, cited in note 1, that one should not object to those who allow individuals to sell Sifrei Torah.
For more on the inconsistency in the Shulchan Arukh's rulings, see the comments of the editor of the Chiddushei Ha-Rashba to Megilla, Chayim Zalman Dimitrovsky (note 64).
18. Pele Yo'etz, entry "Sefer."  His comments there point to the issue of the sefer's honor as the basis for this prohibition.  See the work, "She'eilat Chemdat Tzvi" (by Rav M.D. Walner, vol. 4, 41) which presents a lengthy discussion on these issues.  He argues that sefarim nowadays may have an even more stringent status than Sifrei Torah, as we need sefarim today for all our studying.  He therefore raises the possibility that even those who permit an individual to sell a Sefer Torah would not allow him to sell other sefarim.
By contrast, the Halakhot Ketanot (by the Mahari Chagiz), amidst his discussion of the issue of taking Sifrei Torah from Israel to the Diaspora, distinguishes between different types of sefarim.  He suggests that the only works of Torah she-be'al peh to which we afford the status of Sefer Torah are Gemarot and Midrashim - the works of Chazal themselves.  "But poskim and commentaries," he writes, "where each one builds a stage for himself - I am inclined to say that these are not included."
It would seem that here we once again confront the basic question as to whether the prohibition results from the inherent kedusha of the sefarim, in which case we may distinguish between different sefarim, or from the practical need for learning materials, in which case no such distinction may be entertained.
Rabbi Yossef Molkho, in his "Shulchan Gavoha" (Y.D. 209:13), writes that after the invention of the printing press, there is a mitzva to buy printed sefarim, "however, they do not have a stringent level of kedusha like a Sefer Torah that would forbid one from selling them except to study Torah or marry a woman.  Rather, one may sell [them] and purchase with their money either sefarim or other items."
We should note that he makes these comments in the context of the Rosh's position, according to which it seems likely that the prohibition to sell evolves not from the kedusha, but rather from the practical concern, which, logically, should then render the prohibition applicable even to printed sefarim.  (We must also note that his remark in this context, "The printing press had already come into existence before the time of the Rosh," is clearly erroneous.  Towards the end of his comments he addresses a citation quoted in the name of the Bet Yosef, and he writes that he did not find that citation in the Bet Yosef.  Indeed, this quote is not found in the Bet Yosef on Orach Chayim, but it does appear in Choshen Mishpat 248.)  See also the teshuva of former Israeli Chief Rabbi Yitzchak Eizik Ha-levi Herzog, in "Heikhal Yitzchak," O.C. 17.  See also the brief survey of Rabbi Y.Z. Kahana in his work, "Mechkarim Be-sifrut Ha-teshuvot" (Jerusalem, 5733), pp.267-269.
19. The Steipler himself, however, was stringent in this regard, as reported by Rabbi A. Horvitz in his work, "Orchot Rabbenu" (a book about the customs and practices of the Steipler Gaon).
The basis for this stringency is likely a passage in the Sefer Chasidim, cited by the "Bet Lechem Yehuda" there in Yoreh Dei'a: "One may not place Nevi'im or Ketuvim on top of Chumashim, nor books of Talmud on works of Scripture."