Charles, may he rest in peace, was a leading community member, who back in the 1970s dedicated a Sefer Torah to his local synagogue. Upon his passing, his two sons built a new synagogue in memory of their beloved father, and they requested of their local synagogue to return to them their father’s Sefer Torah. They explained that their father never intended to give the Sefer Torah to the shul as a gift. As heirs of their father’s estate, they wished to reclaim the deposited Sefer Torah and transfer it to the new synagogue dedicated in honor of their father. The shul’s committee objected to returning the Sefer Torah, insisting that it was the shul’s property. They reasoned that Charles, a”h, donated it over forty years ago, and although he was a regular congregant, he never once mentioned his intent to one day remove it from the shul. Furthermore, Charles passed on nearly two years ago and this was the first time his sons were requesting the Sefer Torah. The sons counterclaimed that the simple reason why they or their father never mentioned their ownership rights was because it was obvious to them all along that the Sefer Torah was their private property.
Do the sons have the right to transfer the Sefer Torah to another shul? Who is the rightful owner of the Sefer Torah? How should the Bet Din rule and why?
According to the ruling of the Shulhan Aruch, one who dedicates a Sefer Torah to a synagogue is entitled to repossess it at any given time. However, the logic behind this ruling is subject to multiple explanations, making the terms and requirements before taking back a Sefer Torah a matter of halachic dispute.
Numerous leading halachic authorities rule that it is evident that the owner of the Sefer Torah did not permanently give it to the synagogue at the time of its dedication. For if one does so he consequently forfeits his mitzvah of writing a Sefer Torah. This view maintains that the fulfillment of the mitzvah of writing a Sefer Torah is contingent on its eternal ownership. Other halachic authorities differ, explaining that one maintains the mitzvah and perhaps enhances it by permanently donating it to an entire congregation. Providing that the donor along with the rest of the members of the congregation have access to reading from it, the donor clearly does not forfeit his mitzvah once the Sefer Torah has been donated. Hence, according to this latter opinion, unless stipulated otherwise, we assume the donor intended to give the Sefer Torah permanently to the synagogue’s congregation.
Some leading halachic authorities reason that a Sefer Torah is unlike any other item dedicated to a synagogue. While one who donates vessels or ornaments to a synagogue clearly intends to permanently give them to the congregation, when dedicating a Sefer Torahit is unnecessary to do so. Bringing vessels, ornaments, and decorations to a synagogue is not considered a mitzvah unless they become the permanent property of the synagogue. Since these items have no inherent holiness, it is impossible for one to achieve a mitzvah unless it becomes the synagogue’s permanent property. In contrast, a Sefer Torah, which possesses the greatest level of inherent holiness, need not be donated in order to achieve a mitzvah. The owner has achieved a mitzvah by the mere writing of the scrolls and is not required to give the Sefer Torah to a congregation. Therefore, according to this view, one may recall his Sefer Torah from a synagogue even decades after its dedication.
Finally, some halachic authorities explain that since customarily one only intends on depositing the Sefer Torah to the synagogue for safekeeping, he is entitled to repossess it. However, other opinions differ and require a clearly stipulated condition at the time of the Sefer Torah dedication, that it is not the property of the synagogue and that the owner is only depositing it with the synagogue for safekeeping.
The above conflicting opinions are all in explanation of the words of the Shulhan Aruch. Since in most instances the physical possession of the Sefer Torah is in the synagogue, they seemingly have the upper hand and may withhold the Sefer Torah unless proven that the donor stipulated from the onset that he only deposited it for safekeeping. Nevertheless, a Bet Din will do its best to settle the matter peacefully, since many halachic authorities award the donor to recall his Sefer Torah from the synagogue.
VERDICT Peace, for the Torah’s Sake
Upon verification that no evidence existed that Charles formally stipulated that he only deposited the Sefer Torah with the synagogue, our Bet Din chose to resolve the matter peacefully. We explained to Charles’ two sons and to the committee that the matter is a complex halachic dispute between leading halachic authorities and requested of them to provide a solution. The committee expressed their need for the additional Sefer Torah in order to meet the growing needs of the congregation, though they insinuated that they are willing to be flexible to accept a different Sefer Torah in exchange. Charles’ sons actually liked the idea and agreed to dedicate yet another Sefer Torah in memory of their father, upon receiving their father’s personal Sefer Torah in exchange.