Siman 154

In the time of the Shas, they used to gather in the city square on a fast day and pray there. Nevertheless, our sages, of blessed memory, said at the beginning of the fourth chapter of Megillah that it possesses no sanctity at all, because it is not a permanent fixture but rather an incidental occurrence. Based on this, the Tur and the Shulchan Aruch wrote that such is the law regarding houses and courtyards where people gather to pray incidentally—they possess no sanctity, see there. Based on this, our teacher, the Beit Yosef, wrote in section 2 that those who rent a house and pray in it—it does not have the law of a beit knesset. Thus far his words. And he was precise in his words to say "it does not have the law of a beit knesset," and he did not write "it possesses no sanctity" as before, for here it is not because of an incidental nature, as they rent it for a period of a year or more. Rather, the reason is that they do not have the power to make it a permanent beit knesset, as the Levush wrote, and this is his wording: For the physical structure is not owned by them, and today or tomorrow the landlord will take it back..., see there. For this reason he wrote that "it does not have the law of a beit knesset," meaning: the sanctity of a beit knesset and the laws of a beit knesset do not apply to it. But nevertheless, it is holy for its time, such that one may not perform a degrading act there. (So it appears in my humble opinion. And the Pri Megadim understood that the reason is because of an incidental nature, and he found difficulty with the words of the Levush, see there. But it is not so. And this is also the intention of the Ri Chaviv cited in the Beit Yosef and in the Taz, subsection 1. Examine carefully and you will find it simple.) (Also, regarding what the Taz and the Ri Chaviv wrote, that they should conduct themselves with cleanliness in the rooms above the place of prayer, according to what the Rema wrote at the end of siman 151—this applies only to a permanent beit knesset. And the Taz wrote there that the prayer does not ascend above when the place above is not clean, see there. And it is a measure of piety, and it is proper to be careful in this.)

We learn in Megillah (26b): The rabbis taught: Accessories of a mitzvah are thrown away after their mitzvah has been performed. Accessories of holiness are sequestered. And these are accessories of a mitzvah: sukkah, lulav, shofar, tzitzit. And this has already been explained above in siman 21, see there. And these are accessories of holiness: cases (a sack or a box) for books, tefillin and mezuzot, and a case for a Sefer Torah, and a pouch for tefillin and their straps. And since it calls the straps "accessories of holiness" and not "holiness" itself, we learn from this that the knot of the hand-tefillin and of the head-tefillin which contain the letters yod and dalet are not complete letters, and are not a halachah received by Moses from Sinai (Tosafot ibid.). And they questioned Rashi, who holds that they are a halachah received by Moses from Sinai, see there. And it must be said according to Rashi that it refers to the entire strap not in the place of the knot. Furthermore: even if it refers to all of it, nevertheless, more than sequestration is impossible. For even a Sefer Torah that has become unfit has no remedy other than sequestration.

The curtain that they hang before the heikhal—there is holiness in them and they must be hidden away. So it is in the Gemara there, and in the Tur and Shulchan Aruch section 3. And in section 6, our teacher, the Rema, wrote that the parokhet which we hang before the aron—it does not have the holiness of an aron, only the holiness of a beit keneset. Thus far his words. And this is not a contradiction, for it is certainly so, as it is only a tashmish of a tashmish. That is to say: the aron serves the Sefer Torah, and the parokhet serves the aron. However, in the Gemara they explained that because in their days they were accustomed to spread the parokhet upon the table and place the Sefer Torah upon it, therefore it is a tashmish kedushah, which is not the case in our time. And it is a wonder regarding the Tur and Shulchan Aruch that they did not explain this. But in any case, their intention is also thus, for so it is explained in the Gemara. (And so wrote the Taz subsection 3, and Magen Avraham subsection 7.)

Books that worms have eaten, or the wrappings of books that have been eaten and are close to rotting—require genizah (Shabbat 90a). And in the language of the Mishnah it is called "book decay," see there. And a chair upon which they place a Sefer Torah, if they sometimes place the Sefer Torah on the chair without a wrapping—the chair has the status of a tashmish kedushah. And if not, it is a tashmish d'tashmish, and it possesses only the kedushah of a beit kenesset. Therefore, the bimah possesses only the kedushah of a beit kenesset, and likewise the table upon which the Sefer Torah is placed, since among us they do not place it without a wrapping—the table possesses only the kedushah of a beit kenesset. And the wrapping is a tashmish kedushah. And likewise the parokhet, and the kapporet, and the poles, and the irons upon which the parokhet is hung—they possess only the kedushah of a beit kenesset. And likewise the steps upon which they ascend to the aron kodesh, and the entire structure therein, and likewise the amud.

And a great principle must be known regarding what is called "an accessory of holiness," and what is called "an accessory of an accessory" which possesses only the holiness of a beit din. A thing in which a holy object itself is placed, such as the aron kodesh, or the cloth that they wrap around the Sefer Torah, and the mantle that they dress upon the Sefer Torah or that the Sefer Torah is placed upon without any intervening object. Or if the object is placed upon the Sefer Torah, and even if it is placed upon it only for mere honor, such as in ancient times when they would place thin and beautiful boards upon the scrolls, and they would place a cover of silk or of another material upon the boards; and this is only for mere honor, but nevertheless, ultimately the cover is placed upon the holiness—it is an accessory of holiness, and is forbidden. But the cover that is upon the cover of the boards, which is made only to protect the cover—it is an accessory of an accessory. And so too anything similar to this. And so too the silver and gold apples that they make for a Sefer Torah for adornment, and they place them upon the Sefer Torah—it is an accessory of holiness, as I wrote in Yoreh Deah siman 282. And the wood or bone that they make like a sort of hand, to show the reader the place of the reading of the obligation of the day—they do not possess even the holiness of a beit knesset, for they are neither for adornment nor for a garment but only for a mere sign. And therefore, one may not make this hand from the poles upon which they hang the parokhet, for one may not lower them from their holiness, and the "hand" is considered a descent relative to them. And it appears that this is only if they do not hang the hand upon the Sefer Torah. But for us, who hang it upon the Sefer Torah for adornment, it can be said that it is called "an accessory of holiness" and is greater than the holiness of the poles.

Our teacher, the Rema, wrote in section 1: Some say that it is not called an "aron kodesh" unless it is like a chest that is made only for the honor of the Torah. However, an ark built into the wall that was made for protection is not called "tashmishei kedushah." And all the more so if the books are being ruined in it, it is permitted to remove them from there. Thus far his words. Meaning: and it would only have the status of the sanctity of a beit knesset, for since it was not fit from the outset, the sanctity did not take effect upon it, as this is not a tashmish kedushah but rather a damager of sanctity (Magen Avraham, small subsection 3) and it is like a consecration made in error. And the same law applies to an ark built into a wooden wall, for it is like a mere room (ibid., small subsection 2). And it appears that even if they attached wooden boards with nails inside the hollow of the wall made in the form of an aron kodesh, it is nullified relative to the wall, and it has only the sanctity of a beit knesset. But if they built a type of chest from the outside and inserted the chest into the hollow of the wall, the chest has the status of an aron kodesh, and it is a tashmish kedushah.

The vestibules of the beit knesset—they do not have the status of the sanctity of a beit knesset, even if they pray in them occasionally. However, if they pray there regularly—it possesses the sanctity of a beit knesset. Similarly, a women's beit knesset—it possesses the sanctity of a beit knesset, since the women pray there. And it is a simple matter that the courtyard surrounding the beit knesset, or a garden surrounding the beit knesset, or an orchard or benches surrounding the beit knesset—they possess no sanctity even if they are open to the beit knesset. Nevertheless, they should not use them for a degrading matter. Similarly, it is forbidden to wash the wraps of a Sefer Torah with urine, because of the honor.

All tashmishei kedushah that have worn out or become damaged—one may not burn them, as it is written: "You shall not do so to Hashem your God" (Magen Avraham, subsection 9). And all the more so holy writings, which it is forbidden to burn. And so wrote the Rambam in Sefer HaMitzvot (Negative Commandment 65), that one who destroys holy writings violates a negative commandment. Therefore, a sefer Torah that has worn out, our sages of blessed memory said there that one places it in an earthenware vessel and buries it in the grave of a talmid chacham; even if he only studies Mishnayot and not Gemara—he is called a talmid chacham regarding this matter. And the reason for an earthenware vessel is because it endures for many days. And so too tefillin and mezuzot, and wrappings of a sefer Torah that have worn out—one may make from them shrouds for a met mitzvah, and this is their burial. And "met mitzvah" means a poor person who has no shrouds. And so it appears that the aron and the table that have worn out—it is permitted to make from them a casket for a talmid chacham, for behold, the sanctity of the wrappings is like the sanctity of the aron, and there is no difference between this and that (so it appears to me). And it appears in my humble opinion that also this which they said to bury a worn-out sefer Torah in the ground in an earthenware vessel near the grave of a talmid chacham—it is not an obligation. For certainly if he has a hidden place to store it in his house, in a chest or the like, or in the synagogue—it is much better than in the ground. Rather, if he has no place to store it with honor—they permitted it for him in the ground as I have written. And there is one who wrote that this is specifically an obligation (see Pri Megadim). And it is difficult to say so. (And that which is written in the Shulchan Aruch regarding wrappings "one may..."—it refers also to the sefer Torah mentioned after it. And in Yoreh Deah siman 282, where they prioritized the law of the sefer Torah—they did not write this wording, see there.)

It has already been explained that one may not lower from a stringent holiness to a light holiness. And even regarding equal holiness, if one is permanent and the second is not permanent—it is called "lowering." Therefore, our sages, of blessed memory, said that one may not make a chair for a sefer Torah from a teivah, because in the teivah it stands always, and on the chair it is only during the time of the reading. And if they do not place it on the chair except by means of a cloth—it is forbidden regardless, for its holiness is light as I wrote in section 4. But it is permitted to make a small teivah from a large teivah. And similarly, it is permitted to make a small chair from a large chair, for it is all one holiness and one use. And it is forbidden to make a footstool for a chair from a chair, which is a small chair that stands under the large chair, and it does not have holiness like the large chair, and it appears that it is for the support of the feet. And similarly, it is permitted to make a small curtain from a large curtain, or to make from it a case for a sefer Torah, which is an elevation, understood. But to make from it a case for a Chumash—it is forbidden, for it is a lowering from holiness. And this is regarding the curtain of the time of the Gemara, as I wrote in section 3. But with ours it is permitted, for ours is nothing but a tashmish d'tashmish as I wrote there. And it appears that a tashmish d'tashmish of a stringent holiness—it is permitted to make it a tashmish for a light holiness. And a wrapper of a sefer Torah—it is forbidden to wrap haftarot or Nevi'im and Ketuvim. And a cloth that they spread on the table of the reading—it is forbidden to spread it on the amud (Magen Avraham, subsection 12). And cloths that they spread over the sefer Torah—they can hang them on the walls of the beit knesset. And similarly, silver vessels that they place on the sefer Torah—they can place them on the pillars of the beit knesset (Eliyah Rabbah, subsection 10). And it is permitted to make from a parokhet a cloth for the table that the sefer Torah is placed upon (ibid., subsection 11). And our parokhet is permitted even to make it a cloth for the amud (ibid.). But it is forbidden to make from it a chuppah (ibid.).

Our teachers, the authors of the Shulchan Aruch, wrote in section 8: Regarding the ark and everything made for a Sefer Torah—a condition is effective for them to be used for other purposes, even mundane ones. And it is customary to derive several benefits from sacred objects, such as the wrappings of books, the table in the beit knesset, and the mantles of a Sefer Torah. And they wrote the reason: because since it is the custom and it is impossible to be careful—the heart of the beit din stipulates regarding them from the outset, so that people do not come to a stumbling block. And even though they did not stipulate—it is as if they stipulated. Thus far his words. And even though regarding the beit knesset itself a condition is not effective except in its destruction according to most poskim, as I wrote in siman 153—it is different there, for since they pray there and always say matters of sanctity—it becomes holy against their will. This is not the case with tashmishei kedushah; when we do not designate them at all from the outset for tashmishei kedushah alone—the sanctity of tashmishei kedushah never descended upon them (it seems to me).

However, this matter of "if they did not stipulate, it is as if they stipulated"—it is certainly difficult to say so. And so it is explained in the source of the law in Terumat HaDeshen (siman 273), who was forced to justify the common custom (see Beit Yosef). And in truth, there are things where one must perforce say so, for we see that they place invalid Sifrei Torah in the aron kodesh, and they place sheets there, and according to the law this is forbidden. And perforce one must say that it is as if they stipulated. And so too in places where they make chuppot from a parokhet, and it is a complete prohibition as I have written, and perforce one must say that it is as if they stipulated. And so we have seen that on Simchat Torah when the youths carry flags as is the custom—they tie the flags for them with the wrappings of a sefer Torah, and perforce one must say it is as if they stipulated. But the better way is that at the time of making them they should say explicitly that they are making them on condition, so that it will be fit to use them (Magen Avraham subsection 15). And therefore it is settled regarding what they practice on the day of Hoshana Rabbah, that they take all the Sifrei Torah onto the bimah, and they place a candle in the aron kodesh. And it is a complete prohibition, and they have already cried out against this (Taz subsection 7). And so too regarding that which they place other books in the aron kodesh (ibid. and Magen Avraham subsection 14). And perforce one must say that it is as if they stipulated. (And what the Taz wrote there that an aron made for a temporary time has no sanctity, it is simple. And what the Magen Avraham wrote there regarding the matter of placing a book on top of a book, it was explained in Yoreh Deah siman 282. And what the Magen Avraham cried out regarding bookbinders, who make pages from sacred writings—we have already cried out about this. And there are those who are careful, and there are those who are not careful and it is necessary to rebuke them. And although the Eliyah Rabbah subsection 10 sought a merit in this—he himself admitted that it is difficult, see there. And it is not merely difficult but a complete prohibition.)

And one may bring a proof for the ruling of our teachers from the Yerushalmi Megillah (chapter three, halacha 1), which says there: Rabbi Yirmeyah went to Gavalana; he saw them placing a spindle inside the aron (placing an object in the holy aron). He came and asked Rabbi Ami. He said to him: I say that for this purpose they stipulated upon it from the beginning. Thus far his words. And certainly it was not known that they had stipulated, for if it were known, Rabbi Yirmeyah would not have wondered at this. Rather, Rabbi Ami said to him that since they conducted themselves so, presumably their intention from the beginning was for this. And even though they did not stipulate—it is as if they stipulated. It is further stated there: All vessels of the beit knesset are like the beit knesset, such as a bench and a chair..., see there. And behold, our eyes see that they borrow benches and tables of the beit knesset and lamps for a house of celebration, and behold, it is a complete prohibition. Rather, certainly one must say that it is as if they stipulated from the outset, since the custom is so.

And behold, our teacher, the Beit Yosef, wrote in section 10: Those who are accustomed to placing the crowns of a Sefer Torah on the head of the reader at the conclusion of the Torah—one does not protest against them. But those who place them on the heads of ordinary bridegrooms—one protests against them. Thus far his words. And it is simple that if they stipulated explicitly, it is permitted. Rather, he says that regarding placing it on the head of the reader, we assume they stipulated for this, since it is for the honor of the Torah. But for the heads of ordinary bridegrooms, which are the needs of a commoner, we assume they did not stipulate (Magen Avraham, subsection 16). However, from the Yerushalmi that we cited, it is proven that if the custom is such, we say that they stipulated even for the needs of a commoner, for there they placed the object of a commoner in the Aron Kodesh. And so it is explained from the widespread custom, that they borrow the vessels of the synagogue for houses of celebration, as I have written.

He further wrote in section 9: Those who donate a Sefer Torah and place mantles in the beit din—it is permitted to use them for each and every scroll, for they were sanctified with this intent. However, those who place them in their home and afterwards sanctify them, since it was made with the intent of that specific scroll and was used for that scroll, it is forbidden to place it on another Sefer Torah. And there are those who permit it, and such is the custom now because the heart of the beit din stipulates for them to act thus. Thus far his words. And such is the common custom, that they take the cover and the mantle sometimes for this scroll and sometimes for another scroll; for the intent of the donor is also thus, and he is not particular if they place it on another Sefer Torah, and from the outset he sanctified it upon this condition.

In Yoreh Deah siman 139 it was explained that candles of idols that the attendant extinguished—their prohibition is nullified and they are permitted for a commoner. However, for a matter of mitzvah it is repulsive, and it is forbidden. Therefore, if their attendant sold them or gave them to an Israelite—it is forbidden to light them in the beit knesset. Similarly, a complete transgressor who worships idols or desecrates Shabbat publicly, who gave wax or candles to the beit knesset—it is forbidden to light them, as it is similar to a sacrifice that we do not accept from him (Magen Avraham subsection 18). Nevertheless, some say that a house in which idols were worshipped—it is permitted afterward to pray inside it, for that which is attached is different. And even though a house is detached and ultimately attached, which is like detached regarding idols, nevertheless, since they did not worship the essence of the house—one should be lenient with such an attached object (ibid. subsection 17). And it is obvious that when it was previously a beit knesset and afterward they placed idols in it, that it does not become forbidden even while it is there, since it comes into the boundary of the beit knesset (ibid.). Similarly, a mouse that was found in the oil of the beit knesset, if it is repulsive—it is forbidden to light it in the beit knesset because of "present it now to your governor." And even when it is permitted to a commoner, such as when there is sixty against the mouse. And some say that if there is sixty and it is permitted to a commoner—it is also permitted to light with it in the beit knesset (Taz subsection 10). And so it is explained in Torat HaBayit of the Rashba (see Magen Avraham subsection 19), that since there is sixty—it is not repulsive. (And anything of idols—it is forbidden to use in the beit knesset, and in any matter of mitzvah.)

By law, it is forbidden to read by the light of a synagogue lamp except for sacred matters and not mundane matters. And all the more so, one may not light a commoner's lamp from a synagogue lamp. There is one who says that these words apply while they are burning for their mitzvah. However, when it is necessary to extinguish them—it is permitted. Our teacher, the Rema, wrote in section 14, and this is his wording: However, it is not the custom to be careful in this, and they light from them a lamp that is for a great need. And it is also possible that the intent of the beit din stipulates this. And so too in all matters where they were accustomed to be lenient, in such matters perhaps it is for this reason. Thus far his words. And they wrote that this which they were accustomed to light a lamp on Saturday night to go to one's home—they consider this a matter of mitzvah (Taz, small subsection 11). And there is one who wrote to distinguish between one who vowed a lamp to the synagogue, where it is forbidden to light from it a lamp for havdalah, and when the treasurer buys lamps, for in this we say the heart of the beit din stipulates and it is permitted (Magen Avraham, end of small subsection 20). And the lamps standing before the Menorah—it is certainly forbidden (ibid.), and all the more so with the lamps before the amud. And know that nowadays they are not careful in this at all. And they read letters before the lamps that are before the Menorah and before the amud, and they light from it to smoke tobacco and all needs of a commoner, even though they are not for a great need at all. And it must be said: since they have accustomed so, everyone when he gives lamps—he gives with this intent, that a commoner may use it. And no man takes it to heart in our times to be careful in this, and happy is he who is careful in this. And a lamp of havdalah has no holiness in it (ibid.).

Our teacher, the Beit Yosef, wrote in section 15: Residents of a city who purchased a sefer Torah, and stipulated that if one leaves the city the remaining ones shall give him his portion, and the books increased in value; if one of them leaves – they give him only what he gave. Thus far his words. And even though in all partnerships if there were such a stipulation they would be required to pay him according to the current value, yet in this case we say that presumably there was no intention to perform an appraisal then, but rather they stipulated for a known amount as to how much he gave then. And for this reason, the law is the same if they decreased in value, they must pay dearly as before. However, there is another reason: that the matter is cast in doubt as to how their intention was, and since the book certainly remains with them, and he needs to extract money from them – they can say: "Bring proof that our intention was to pay according to the current market price." And according to this, even if it decreased in value – they only need to give him according to the current market price, because they can say to him the opposite: "Bring proof that our intention was to pay you according to the market price that was then." And the burden of proof is on the one who seeks to extract from his fellow (Levush according to Teshuvot Maimoni Mishpatim siman 12). And according to this, if the stipulation was that he would give them their money and take the sefer Torah – he is called the muhzak. And even if he later consented that he would take the money and the sefer Torah would remain with them – they are not called muhzakim for this reason, since it is in his power to remove them (Magen Avraham subsection 23).

There is one who wrote that if one found an object in the courtyard of a beit knesset, he has acquired it. And we do not say that the courtyard should acquire it for the hekdesh, for a courtyard acquires by the mechanism of "hand," and there is no "hand" for hekdesh (ibid. in the name of the Agudah). And it requires further study: for we hold in Choshen Mishpat that the hekdesh of nowadays—whether for the poor, or for a beit knesset, or for a Sefer Torah—does not have the law of hekdesh but rather the law of a commoner; see there. However, the opinion of Rav Hai Gaon in the book Mekach U'Memkar regarding "speech to the Most High is as delivery to a commoner" is that our hekdesh also has the law of the hekdesh of the Temple repair. And we brought his words in Choshen Mishpat at the end of siman 66; see there. However, regardless of this, the finder has acquired it, as it is a place where the public is frequently present, for one who finds there, it belongs to him, as I wrote in Choshen Mishpat siman 260; see there. (And it requires further study why they required the reason that there is no "hand" for hekdesh. And it requires further study.) And the Rashba ruled in a responsum that one who donates an object to a beit knesset or for another matter of a mitzvah may write his name upon it (ibid.). But it is better that every mitzvah be performed by the public than by an individual. And the individual who obstructs and does not want others to have a portion in the mitzvah will be punished (Sefer Chasidim). And there is one who ruled that when they sell mitzvot, and one gives a little and the second gives much, and the second retracted—the first is obligated to accept it according to the price he gave (Tzemach Tzedek). But the custom is not so (Magen Avraham ibid.). And even though in hekdesh it was so, as we learned in the seventh chapter of Arachin, one does not learn the laws of tzedakah from hekdesh (Panim Me'irot).