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Beit Midrash Series Bemare Habazak - Rabbis Questions

Chapter 319

Donating a Sefer Torah to a Shul

People who own sifrei Torah often lend them to a shul. Is there any reason they cannot donate them (which can get them a tax credit)?
Rabbi Daniel MannTevet 24 5779
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Question: People who own sifrei Torah often lend them to a shul. Is there any reason they cannot donate them (which can get them a tax credit)?
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Answer: The 613th mitzva in the Torah is, "Write for you (plural) this song," which refers to the Torah (see the Rambam’s formulation of Chazal’s derivation – Sefer Torah 7:1). Not many people fulfill the mitzva of writing a sefer Torah, which is either very difficult and time-consuming (to do oneself) or expensive (to hire a sofer). There are two almost opposite justifications for why not. The Sha’agat Aryeh (36) and Chatam Sofer (Shut Orach Chayim 52) say that we anyway cannot assume that a sefer Torah will be valid since there are certain words that even Chazal were not sure how to spell. The Rosh (Sefer Torah 1) views the mitzva much less formalistically – the idea is to have text material for Torah study, and therefore having a good library of Torah sefarim is a better way to fulfill the mitzva than having a sefer Torah which is used "only" for laining. You are asking about someone who wants to fulfill the mitzva in the classical way but would prefer to give it to a shul, where it is used these days, rather than keep it in his home.

There is a chakira that is critical to answer your question. Is the mitzva to write a sefer Torah or to have a sefer Torah? The pasuk refers to writing, but maybe that is just the description of how one gets a sefer Torah (note that the Torah also says to write mezuzot on one’s doorposts, yet we fulfill the mitzva not by writing one but by attaching the text).

Rava says that if one inherits a sefer Torah, he does not fulfill the mitzva and must write one anyway (Sanhedrin 21b). That sounds like the mitzva is to write. A different gemara (Menachot 30a) says that one who buys a sefer Torah is like one who "grabs a mitzva from the marketplace." Rashi says that this means that he fulfills the mitzva in a not optimal way. In contrast, the Rama (Yoreh Deah 270:1) says that one does not fulfill the mitzva. The Beit Halevi (I:6) reads the Rambam (ibid.) like the Rama, and explains that Rashi understands that the two gemarot above argue on each other.

Thus, there seem to be formidable opinions on both side of the chakira. Should we claim that if the mitzva is to write the sefer Torah, it does not make a difference what happens afterward? The gemara (Megilla 27a) says that it is forbidden to sell a sefer Torah (except under specific circumstances). However, the issue there is apparently not because it will leave one without a sefer Torah (Rashi ad loc. says the gemara is referring even to a case where he has another sefer), but rather that it is a disgrace to sell a sefer Torah (see Aruch Hashulchan, YD 270:14). Indeed, your idea of donating to a shul does not have that problem.

However, it is possible that the above chakira is one-sided. In other words, it is a question whether ownership is enough to fulfill the mitzva, as it might be necessary that one’s sefer Torah is one that he wrote or was written on his behalf (see formulation of Sha’agat Aryeh 36). But, argues the Torat Chaim (Sanhedrin 21b), everyone agrees that if one no longer owns his former sefer Torah, including if he donated it to a shul, the mitzva to "write it" ceases to be fulfilled and he is obligated anew. On the other hand, the Pitchei Teshuva (YD 270:3), after citing this opinion, cites other opinions that even if one writes and then donates and perhaps even if he loses his sefer Torah, he has fulfilled the mitzva.

In summary, there is value to writing a sefer Torah even if one will then donate (preferably to a shul that can use it). If one can only afford doing so if he gets a tax break for a donation, this can be a good move. It is not clear, though, whether he will still be in fulfillment of the mitzva of writing a sefer Torah. If he will give it away, it is critical that he commissioned the writing (at least the end of the sefer – see Menachot 30a). After all, if he bought and then donated, he is lacking according to both sides of the chakira.
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