Rambam In-Depth: Why a Sefer Torah Might Not Count as Yours

Welcome to Rambam In-Depth: Hilchos Zechiyah u’Matana, Perek 11, Halacha 15 (Yud-Alef, Tes-Vav).

You bought it, you paid for it, you own it. So why might your own Sefer Torah not count as your property? The Rambam leaves it as an open question, and the answer turns on one surprising idea.

A shechiv mera, a person who is seriously ill and fears death, says: “My property shall be given to so-and-so.” The Rambam rules that the recipient takes everything: movable property, land, garments, servants, livestock, fowl, tefillin and all other sacred texts. All of it counts as nechasim. But a Sefer Torah is a safek. The Gemara’s question is never resolved, so if the recipient has already taken it, it is not taken away from him.

Why should a Sefer Torah be different from tefillin? Tosafos explains: you are not allowed to sell a Sefer Torah, so even though you own it, it isn’t fully yours. Yet it may be sold to learn Torah or to get married. The Shulchan Aruch rules like the Rambam in Choshen Mishpat, but in Orach Chaim it brings the view of the Rosh and the Mordechai that a private Sefer Torah may be sold, and even lists it first. The Magen Avraham asks why the two rulings differ, and the Chasam Sofer’s answer reframes the whole question: do we go by a person’s ability to sell, or by his likelihood to sell?

🔎 In this video we explore: • Why tefillin and sefarim count as property, but a Sefer Torah is left in doubt • Tosafos: you own it, yet you can’t sell it, so is it really yours? • The exceptions: selling a Sefer Torah to learn Torah, to marry, or (some add) to redeem captives • A public Sefer Torah vs. a private one: the Rosh and the Mordechai • The Magen Avraham’s question: why does the Shulchan Aruch rule two different ways? • The Gemara in Megillah: one who sells a Sefer Torah never sees a siman bracha • The Chasam Sofer’s answer: ability to sell vs. likelihood to sell

💡 Key Insights:

• In Choshen Mishpat, “property” can depend on what a person would realistically do, not only on what he is allowed to do.
• Even those who permit selling a private Sefer Torah agree the seller won’t see a siman bracha, so in practice people don’t sell.
• That’s why the Mechaber’s Choshen Mishpat ruling holds according to every opinion.
• The other side of the safek: since selling is technically possible, maybe it is still his nechasim.

📚 Sources discussed: Rambam, Hilchos Zechiyah u’Matana 11:15; Tosafos, Bava Basra 151a; Shulchan Aruch, Choshen Mishpat 248; Shulchan Aruch, Orach Chaim 153; the Rosh and the Mordechai (cited by the Beis Yosef); Rambam, Hilchos Sefer Torah; Magen Avraham; Gemara, Megillah 27a; Chasam Sofer, Hagahos on Orach Chaim