This post continues this series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.
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Question: The Chofetz Chaim (Of Blessed Memory) states that a Torah written by a heretic must be burned. At an economic loss of $15,000 upwards, Is it permissible ethically and according to Jewish values to make full disclosure of the defects of such a Torah, and sell it under those conditions to a Conservative or Reform (or any) congregation that is in need of one? It is assumed that the text of the Torah itself is without error or shmad (heretical defect).
To
be honest, I originally had some difficulty with this question when I
first read it. I could not understand exactly what the essence of the
question was. It, in fact, touches upon many different issues and to
approach it correctly, we have to systematically consider them all.
Before proceeding with this analysis, though, I should mention that this directive that such a sefer Torah must be burnt is actually not solely the words of the Chofetz Chaim. This statement is actually found in T.B. Gittin 45b and is presented as the halacha in Rambam, Mishneh Torah, Hilchot Yesodei HaTorah 6:8 and Shulchan Aruch, Yoreh De’ah 281:1.
1 Economic loss in doing a mitzvah
The first issue would seem to be the question of how much financial loss one must suffer in the fulfilment of a mitzvah. While there is actually some halachic discussion on this topic, Rema, Shulchan Aruch, Orach Chaim 656:1 concludes that one must be willing to give up all his/her money to avoid violating a negative command (Lo Ta’aseh) and one must spend up to 20% of his/her wealth to fulfil a positive command (Aseh) and. (See, further, Mishneh Brura in
regard to these percentages referring to wealth and not income.) So it
would seem that pursuant to this opinion, if the directive to burn this sefer Torah (worth $15,000) is deemed to be an Aseh,
if one’s assets are less than $75,000, one would seem to be exempt from
burning it. If, however, the directive is actually a derivative of a Lo Ta’aseh (do not allow this sefer Torah
to continue to exist), the cost is irrelevant; it must be burnt. The
fact is, though, that this analysis is not really an issue in this case.
This sefer Torah must, actually, already be looked upon as valueless. In that this sefer Torah
was written by a heretic, Rambam states that it does not possess any
holiness for the names of God, when written, must be written with proper
intent. As the heretic did not possess this proper intent, these names
cannot be considered to have any holiness and thus this sefer Torah
does not contain any spiritual value. This is also the reason for why,
although there is a general prohibition of destroying the written name
of God, this is not a reason for not burning this sefer Torah. As such, in that the economic value of a sefer Torah would be tied to its utility as a religious item, and this sefer Torah would not possess this utility, we could not see it as worth this $15,000. In the view of the Halacha, it is deemed to have no value – and, in fact, that is why we do burn it. We are thereby declaring that such a sefer Torah, written by a heretic, is deemed to be worthless.
2. Selling such a sefer Torah
Given the above, what one is really considering through this offer of selling this sefer Torah
is whether it is okay to sell something which I consider worthless to
someone who gives it value. While in a regular transaction, this would
not be a problem given full disclosure, it is still clearly one here. In
a regular case, the fact that the vendor considers something to have no
value is not a problem as long as the purchaser knows exactly what
he/she is buying. The purchaser giving the object value gives it value.
In this case, though, this is not the case. In that the very call to
burn such a sefer Torah is to specifically demonstrate that it is worthless, the Halacha
is making the specific point that, even if someone wishes to assign
value to this object, we are to emphatically declare that it is actually
without value. I am being called upon to reject the purchaser’s
perspective that such a sefer Torah has value. The call to burn it is a call to declare it worthless regardless of what others make think.
It
is important to recognize that your point about full disclosure is
inherent within this conclusion as is the assumption that the sefer Torah is without textual error. The issue is its heretical defect. The fact that it was written by a heretic is defined within the Halacha
as a heretical defect – in fact, a major heretical defect to the extent
that one is called upon to destroy it to ensure that no one then gives
it value. I would have to reject the option to sell it to a Conservative
or Reform synagogue for I would then be giving it value.
3. Use by a Conservative or Reform synagogue
There are also other issues. We must ask: why would a Conservative or Reform synagogue be willing to purchase this sefer Torah if the Halacha
defines it as unacceptable? There are two possible approaches in
answering this question. One is that they do not feel bound by this law –
a difference between Conservative and Reform Judaism being in why they
feel a certain law (as defined within Orthodoxy) is no longer binding or
valid. (Many do not recognize that the distinctions in the branches of
Judaism are not simply reflections of differences in behaviour and
practice. There are major theological distinctions between the branches
that are often overlooked, I believe, under the false impression that
greater knowledge of these differences will only foster friction and
disunity within the Jewish People. I actually believe just the opposite –
that greater knowledge of these theological differences will actually
improve unity for discussion will then be based on knowledge and
recognition of honest, different perspectives. See my Adjective and Non-adjective Jews on the Nishma website at www.nishma.org.
I also believe that this is one of the important values of this
website, Jewish Values Online, for this promotes intelligent dialogue
within real parameters.)
So, returning to our issue, in this case, the Conservative or Reform synagogue may be interested in purchasing this sefer Torah
because they feel that, even though it was written by a heretic, it is
still valid. If this is so, though, the question of whether it is
permissible to sell such a scroll to them would be similar to a question
of whether I could give a follower of Reform Judaism something
non-kosher to eat given that this movement does not believe that these
general laws of kashrut are presently binding. The answer to this question is clearly no – and the same rule would apply to selling them this sefer Torah even given the difference in their view of the law.
Before
continuing on this issue, though, it may first be important to
highlight the even potentially further sensitive nature of this issue.
The other reason that these non-Orthodox synagogues may be willing to
purchase this sefer Torah is because, while they may agree that
one should not use a scroll written by a heretic, they may not deem the
person who wrote this sefer Torah under discussion to be such a
person. The fact is that someone who, today, generally abides by the
theological perspectives of the Conservative or Reform movement would,
most likely, be defined as a heretic from an Orthodox perspective. So
the case may even be that someone affiliated with this Conservative or
Reform synagogue wrote this sefer Torah and they now wish to
purchase it from the Orthodox synagogue which possesses it. The Orthodox
synagogue which owns it, though, upon finding out that it was written
by this person, now believes they have to burn it. (While there may be
some question today of whether they actually have to burn it, they
clearly have to ensure that it is no longer used.) They cannot sell it
to these other synagogues. For our investigation of this issue, it is
thus important for us to also briefly touch upon the issue of tolerance
and mutual respect between the branches.
When
the intolerance of one faith perspective for another is generally
witnessed, what is usually encountered is not only a presentation that
the other is incorrect in his/her belief but also a judgemental
statement that the other thereby deserves punishment. What we
effectively find is a response to the idea and a response to the person.
What we find within the Halacha, though, is an adamant separation of the two. As with any system which believes itself to be true, Halacha,
by definition, must also perceive other systems, which offer a
different perception of reality, to be wrong. As such, in situations
such as this one, Halacha demands that one approach such a situation solely within the perspective of its system. If it declares this sefer Torah
unable to be used, this is deemed to be an objective conclusion that
must be applied universally, notwithstanding that another may not share
this conclusion. In terms of the object, Halacha demands its adherents, in their behaviour, to maintain its standard as objectively correct.
In terms of a person, Halacha,
though, also takes a distinct stand of extensive tolerance. Just
because one comes to a conclusion that, from the perspective of Halacha,
is incorrect, does not mean that the one arriving at this conclusion is
to be necessarily judged negatively because of it. The conclusion not
to sell this sefer Torah to the Conservative or Reform
synagogue, thus, should not be seen as a judgemental statement
condemning these individuals negatively. Even the declaration that the
one who wrote this scroll is a heretic is not to be seen in a
judgemental way. This is simply the reality. Since the person did not
have the thoughts about God which the Halacha deems to be
correct, the scroll is deemed to thereby have no value. As to the
scribe’s status in the eyes of God, only God knows that and it is
emphatically not for us to judge. Not selling such a sefer Torah to a Conservative or Reform synagogue is simply a statement about the sefer Torah and not about the people.
So, in conclusion, in answer to your question, one would not be permitted to sell such a sefer Torah
to another congregation. One must take the loss (although there may be a
question today whether one would have to burn such a scroll or just
bury it).
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