Siman 281

It is stated in Gittin (Gittin 45b): A Sefer Torah written by a min – shall be burned, for he certainly intended it for the sake of idolatry. If a star-worshiper wrote it – it shall be sequestered, for regarding him we do not say he wrote it for this sake, but rather because he is not included in the binding, as it is written: "And you shall bind them... and you shall write them" – anyone who is not included in binding is not included in writing. And so we learned in a Baraita: A Sefer Torah, tefillin, and mezuzot, which were written by a slave, a woman, a minor, a Kutite, an informer, an apostate, or a transgressor – are disqualified. For thus the Torah decreed, that anyone who is not included in the binding of tefillin, whether because they were not commanded, or because they cast off from themselves the yoke of the Kingdom of Heaven – they are not included in any writing. Therefore, regarding a mezuzah, even though women are obligated in mezuzah, nevertheless, since they are exempt from tefillin – they are disqualified from writing even that which they are obligated in. And whether they are permitted to sew the parchments in a Sefer Torah, we have explained with the help of Heaven in siman 278, see there. (And according to the Tosafot, an informer and a transgressor are only disqualified by rabbinic law.)

And why regarding all of these did they say only "it shall be hidden," while regarding a min "it shall be burned"? Because all of these are only disqualified by the Torah, but their intention is not for the sake of idol worship. And even regarding an Egyptian, we do not say that his ordinary intention is for stars. But the minim are devoted to stars, and they wrote for their sake; therefore, they require burning. And this refers to the minim who were in the days of our sages, of blessed memory. But now this is not applicable, for they do not believe in stars. Rather, they are those who cast off the yoke of the Kingdom of Heaven, and they are in the category of transgressors, and their writing requires only hiding and not burning. And one must know that the Rambam, and the Tur, and the Shulchan Aruch, and all the poskim who wrote that a min and an apikores who wrote [a sefer Torah] it shall be burned—this refers to the minim who were in the time of the Shas. And now they are not common.

One must be precise with the wording of the Gemara, for it did not say "it shall be sequestered" except regarding that which a star-worshiper wrote, and not regarding all those who are disqualified. It is possible that regarding all those who are disqualified the law is so, only that this baraita was not dealing with this law. And this baraita, because it said "it shall be burned" regarding a min—therefore it said "it shall be sequestered" regarding him. And indeed, the Rambam wrote so in the first chapter, law 13, and this is his wording: A sefer Torah, tefillin, and mezuzot that a min wrote—they shall be burned; if they were written by etc. or a woman or a minor—behold these are disqualified and shall be sequestered etc. Thus far his words.

One must examine closely: why did he require genizah? For the Rambam himself at the beginning of the tenth chapter (Rambam, Laws of Tefillin, Mezuzah, and Sefer Torah 10) wrote, and this is his wording: It follows that there are twenty things, each of which invalidates a Sefer Torah. And if one of them is done—they are like one of the chumashim from which children are taught, and they do not possess the sanctity of a Sefer Torah, and we do not read from them in public, etc. Thus far his words. And he enumerates there those invalidations regarding writing, see there. And behold, he permitted that children may learn from them. If so, why did he require genizah here? And it must be said in truth that his intention when he said "they shall be hidden" (yignozu)—his intention was also this. That is to say: they shall be hidden, and they shall not read from it in public according to the law of a Sefer Torah. And so it is clarified from the language of the Shas in Gittin there, that "genizah" is only the opposite of "reading." (For it says there: Conclude from this that a Sefer Torah that was found etc. we read from it. And it rejects: perhaps it means to hide it, see there. And so it is implied from the Ran there who wrote: If a Kuti wrote it—it shall be hidden, for even though he does not write it for the sake of stars—it is invalid. From that which is taught in the Gemara: A Sefer Torah, tefillin, and mezuzot that were written etc.—are invalid, as it is said: "And you shall bind them" etc. Thus far his words. Behold, "invalid" and "genizah" are one thing. And the primary meaning of the term "genizah" is not to treat them with disrespect, as is proven at the beginning of the chapter "Kol Kitvei," where it is taught: and even those that we do not read from require genizah. And Rashi explained: It is forbidden to leave them in a place of abandonment. Thus far his words. See there, and examine closely and you will find it simple.)

And according to this, I wonder at one of the commentators of the Shulchan Aruch, who inferred from the wording of the Tur, who wrote "it shall be sequestered and one may not read from it," that this is the explanation: and one may not read from it even in private, because there is a doubt that perhaps he wrote it for the stars. And he wrote that even though the Rambam included the two disqualifications as being like chumashim—these disqualifications are not similar to one another. And there are those that require sequestration and one may not read from it even as one does from a chumash. And he further innovated: that any disqualification where the disqualification is not explicitly evident, such as if it was not processed lishmah—it is forbidden to read from it even in private as one does from a mere chumash, lest one read from it in public (Taz, subsection 1). And these are astonishing words, for how can we create decrees from our own minds? And the Rambam wrote regarding all of them "it shall be sequestered." And the intent of the Tur is simple: and one may not read from it in public, and such is the wording of the Rambam in the tenth chapter (Rambam, Laws of Tefillin, Mezuzah, and Sefer Torah 10) as I have written. And so the commentators of the Tur understood. (And also the Nekudot HaKesef disputed him. And regarding what he compared to a doubtful treifah—the Nekudot HaKesef responded well, see there. Furthermore: regarding the public we do not decree, as we say at the beginning of Eruvin: the public reminds one another. And so too in the first chapter of Shabbat regarding reading by the light of a lamp. And according to his words, regarding several disqualified sifrei Torah that stand in the holy ark and their disqualification is not recognizable—we should be concerned that they will read from them. And in truth, it is customary to make a sign, by wrapping the cloth over the mantle. And also in this, even if you are concerned, one should make some sign. But how can we forbid reading from it in private? And regarding what he wrote "perhaps his intent was for the stars"—behold the Shas was not concerned, for we do not hold like Rabbi Eliezer who said the ordinary intent etc., and shall we be concerned? And with what I have written, the inferences of the Yeshuot Yaakov also settle well, see there. Examine it and you will find it easy.)

I have seen great authorities who disagreed whether it is permitted to read from books printed by heretics and apostates, etc., and I did not know the basis for the doubt. For it is known that nowadays there is no idol worship for which we should be concerned about this, but rather mere lawlessness. Certainly regarding a sefer Torah, tefillin, and mezuzot, which require "lishma," and the writing of the Names for the sake of the sanctity of the Name, and they do not do so—it is invalid. However, regarding the printing of books, where there is no prohibition unless they intend it for idol worship, and regarding this it is known to all that there is no concern in our time, therefore it is simple that it is permitted. And such is the custom of the world. (I saw in the name of the Radbaz that he permitted selling an invalid sefer Torah to Karaites. And in my humble opinion, this requires great study.)

If a sefer Torah is found in the possession of a min or in the possession of an idolater, and it is not known if they themselves wrote it or if they took it from an Israelite, the Rambam ruled that in the possession of a min—it shall be hidden away, and in the possession of an idolater—it is kosher. For it is not the way of an idolater to write a sefer Torah, and it is more likely to be attributed to an Israelite having written it (Tosafot ibid.). And the Tur disqualifies it, as we do not attribute it to this, and in the Gemara there is a dispute, see there. And know that regarding tefillin, our teacher, the Beit Yosef, ruled in Orach Chaim at the end of siman 39 (Shulchan Aruch Orach Chaim 39) that if they are found in the possession of an idolater—they are kosher, and he did not bring another opinion. But here he brought two opinions, because regarding tefillin he is certainly not expert enough to make them (Magen Avraham subsection 9). And conversely: regarding tefillin that a min wrote, he brought two opinions, as some say they shall be hidden away, and here he did not bring this opinion because regarding tefillin he presumably does not write them for the sake of idols (ibid. subsection 8). And as it appears now, the idolaters are not expert at all in writing a sefer Torah. Therefore, now it appears in my humble opinion to rule like the Rambam, that if it is found in their possession—it is kosher, for they certainly took or stole it from an Israelite. And see in the following section.

It is explained in the Gemara and in the poskim that the community is obligated to purchase a sefer Torah found in the possession of an idolater, but they should only pay him its value and a little more. However, if he requests much more than its value—they should leave it with him and not purchase it, so that he will not have a desire to steal a sefer Torah and become enriched. Nevertheless, one should not tell him to give it for too cheap, lest he become angry and cast it into a place where it will be lost. And so too, if the Canaanites were established as those who plunder and rob sifrei Torah from Israel—all agree that it is permitted to read from them in public, for they certainly plundered them from Israel. And so too in places where they do not know how to write—we also hang the assumption that they took them from Israel (Shach, subsection 5), as I wrote in the previous section. And know that even if he requests much more than its value—they should not immediately leave it in his hand. Rather, they speak with him at length with soft words, perhaps he will agree to sell it for its worth or a little more. And when he does not agree—they should leave him and he may go (Taz, subsection 2). And a convert who returned to his previous ways due to fear—is fit to write a sefer Torah. And it appears that this is specifically when he observes the religion of our holy Torah in private, but if he does not observe it—he is disqualified.

One who wrote a sefer Torah, and afterwards we saw regarding him that he is a min, certainly according to the core law it could be said that only now has his status been compromised, and until now he was under the presumption of fitness. However, regarding these wicked people, it is very close to saying that from before there was filth in his heart. And particularly in this breached generation, where due to our many sins faith has weakened, and the scribes have multiplied like locusts. And in one city we knew, to our hearts' sorrow, hundreds of scribes, and most of them are not God-fearing at all. And from there the scab has spread to all the cities of our country; they cheapen the price greatly, and they take empty youths who do not have a moisture of fear of Heaven to learn, and they sell tefillin and mezuzot for small coins, because they write several every day. And it is clear that they do not sanctify the Names, and their actions are mundane and not holy. And we do not have the means with which to disqualify them, for it is a matter entrusted to the heart. And anyone whom the fear of Hashem has touched his heart—he should not buy tefillin and mezuzot except from a known scribe who is God-fearing, and likewise regarding the writing of a sefer Torah.

A deaf-mute and an imbecile are certainly disqualified, for they are not included in "and you shall bind them." Likewise a tumtum and an androgynos, who are a doubtfully a woman. A tumtum who was operated upon and found to be a male is fit. A minor is disqualified until he brings two hairs after thirteen years. We do not rely on years without an examination, for regarding a Torah matter we do not say there is a presumption that he brought signs when he reached his years, and they must examine him after thirteen years and one day. However, post facto, it is possible to qualify it with difficulty when they did not examine him and he left, and to rely on the presumption. And if it is clear that he did not bring signs—then he is a minor until twenty years if he brought signs of a saris. And if he did not bring them—he is a minor until the majority of his years, as is explained in the Rambam, chapter two of Ishut, and in Even HaEzer siman 155. (See the Derisha, who wondered about the Tur, the Rif, and the Rosh, for they omitted this baraita that a slave, a woman, and a minor are disqualified. Because of this, he wished to say that they do not hold of this law, see there. And his words are astonishing: for the Rif and the Rosh wrote this baraita in its form in the laws of tefillin, see there. And also the Tur relied on what he wrote there in Orach Chaim, for Orach Chaim precedes Yoreh Deah, and he relied on what he wrote there.)

And know that our teacher, the Beit Yosef, wrote in section 4 (Shulchan Aruch Yoreh Deah 281, 4): A sefer Torah that a mamzer wrote – some disqualify it. And the same law applies to a ger toshav. Thus far his words. And behold, a ger toshav is certainly disqualified as he is not included in "and you shall bind them," but why should a mamzer be disqualified? For he is a complete Israelite and is obligated in all the mitzvot in the Torah. And they labored over this: some wrote because when he writes "a mamzer shall not enter the congregation of Hashem" – he will not sanctify the Name. And it is difficult: who told us this? And furthermore, let it be valid in the rest of the verses. And furthermore: what reasons were said regarding this? And all of them are insufficient. And in the Mordechai he brought this from Masechet Soferim, chapter one. And before us it is not written there "mamzer" but rather "moser." And in my humble opinion, it seems clear that an error fell into this word, that from the samekh a mem was made, and from the vav a zayin. And nevertheless, in practice it is difficult to be lenient, because this was brought in the Shulchan Aruch. And it requires further study.

It has already been explained in siman 127, regarding the laws of credibility in matters of prohibitions, that a single witness is trusted to permit and to prohibit in a matter where neither a prohibition nor a permission has been established, even in a matter that is not in his power. And in any case where it is in his power—he is trusted even where a status was established. And even in a matter that is not in his power and a status of permission was established, but they said in the presence of the owner, "You knew your wine is prohibited," and the like, and the householder remained silent—he is trusted by reason of silence being like an admission. And it was also explained that silence is like an admission only in a situation where the owner should have known, but in a situation where he could not have known—his silence is no proof at all, see there. And it was also explained that in a case of contradiction, a single witness is nothing.

And according to this, if one came and said to the scribe, "The sefer Torah that you wrote, or the tefillin, or the mezuzah, is pasul," and the scribe remained silent—he is believed based on the principle that silence is like an admission. But if he came and said to the homeowner, "The sefer Torah, or the tefillin, and the mezuzah, that such-and-such a scribe wrote for you is pasul"—it is nothing even when he remained silent, for it is not upon him to know, and silence is like an admission does not apply to him. And if the scribe contradicts him—it is obvious that he is not believed, even if it had been in his power to disqualify them, such as if he were a worker for him, for in a case of contradiction a single witness is not believed. And if the scribe is not before us, and he says to the homeowner that they are pasul, if it was in his power—he is believed even if it is not currently in his power, if he said it to him the first time he saw him, as I wrote there. And if it is not in his power—he is not believed at all, since they were established in a status of kashrut (so it appears to me), and this is regarding another man when he says "pasul."

But regarding the scribe himself who disqualifies the sefer Torah that he wrote, our teacher, the Beit Yosef, wrote in section 5 (Shulchan Aruch Yoreh Deah 281:5): A sefer Torah about which the scribe said after it left his hand, "I did not write the Azkarot for their sake" – he is not believed to disqualify it. However, he is believed to lose all his wages. And why is he not believed to disqualify it? Perhaps he only intended to cause a loss to the buyer or to the one who hired him, and he imagines that he only loses the wages for the Azkarot through this statement. Therefore, if he said, "In this sefer Torah, I did not process the skins for their sake" – since he is believed to lose his wages, he is believed to disqualify it. For everyone knows that if the skins are not processed for their sake, he has no wages at all. Thus far his words. And consequently, the same law applies if he said that he did not write the entire Torah for the sake of the sanctity of a sefer Torah, as is understood. And if he said this while it was still in his hand – he is believed in every case (Tur). But when it is not in his hand – he is not believed, even if it had already been in his hand, for the reason that a craftsman does not damage his own craft, and he acts properly but lies (Bach). And only in a case where he knows that he has a loss, for then he is believed since he causes a loss to himself, as is explained in Gittin (Gittin 54b). And when he is mistaken regarding the loss – he is not believed, as I have written. Therefore, if he performed the work for free – he is not believed in every case. (Shach subsection 9. And above in siman 127 many detailed laws were explained regarding the matter of credibility.)

Our teacher, the Rema, wrote: However, like the wage for five books in general he is obligated to pay him, for in any case it is no worse than five books. Thus far his words. And one should not ask: if so, why did we say that he is believed because he loses his wage, for does he not take the wage of five books? For this is no question, as the payments are not of the same value at all, and it is a great loss between five books and a Sefer Torah. And from his words there is clear proof for what I wrote in section 5, that it is permitted to study from it, see there. And know that nowadays it seems to me that he does not need to give him the wage of five books, for we do not study from books written as a scroll, but rather from printed books. And it requires genizah. (See Pitchei Teshuva subsection 12, what he wrote in the name of the Shevut Yaakov that if he sold it to another—he is not believed, see there. And for me, it requires further study. And be precise and you will find it easy.)