by R. Gidon Rothstein
19 Adar: R. Ovadya Yosef on Owning Public Mitzvot
For whatever positive motives people donate to the public good, ego can get involved as well. In Shu”t Yabi’a Omer 7;23, dated 19 Adar 5738 (1978), some of that had clearly happened. R. Ovadya Yosef was asked for advice by brothers who had donated a parochet, a covering for the Aron Kodesh (the Holy Ark, but I always think of it as the Ark of the Covenant, because that way I can convince myself that there was some value to the too much time I have spent watching too many movies). They had donated it in memory of their older brother, and were upset at its having been superseded by a more recently donated parochet.
Note that R. Ovadya Yosef was the Sephardic Chief Rabbi of the State of Israel when he answered this question. To me, there’s something remarkable about the temerity of these brothers in asking (and his willingness to answer) such a personal question when he was clearly a very busy man, with many pressing needs of a broader community to attend.
Perhaps he had a personal relationship with them, or they were particularly prominent, but I still find it a remarkable example of his humble willingness to answer questions asked, regardless of how big or small the issue at hand.
A Replaced Parochet
This parochet had been the main one, used in the bigger, nicer Shabbat room for ten years. Others had now donated a newer parochet, which the beit kenesset (saying shul seems wrong for a Sephardic community) had put up instead; after these brothers complained, the beit kenesset’s central committee assigned it to the weekday prayer room, and promised that when this family donated a new one (as they had already promised), the two curtains would be rotated monthly. The brothers weren’t appeased, since they felt their priority should mean that when they gave the new parochet, that it be the only one used in the main beit keneset.
(Incidentally, it’s clear in the responsum that the brothers saw the transfer of their old parochet to the weekday beit kenesset as a demotion, which raises the interesting question of which is more of an honor, having an item used more regularly or by more people? Grant that the sum total of people who would see a parochet during the week was still less than the number who would see it on Shabbat and holidays, it’s still not clear to me which parochet was contributing more to the community’s life.)
An Ownership of Mitzvot
R. Ovadya Yosef concedes from the outset that there is a concept of a chazakah in mitzvot, that someone can acquire the right to be the one to perform a certain mitzvah. Mordechai to Chezkat HaBatim (Baba Batra, Chapter 3, siman) 533 quoted his teacher, Maharam of Rothenburg (the undisputed leader of German Jewry in the late 13th century), who accepted that people can develop ownership rights over the performance of a public ritual.
His example was that if someone had always been the one to buy a certain mitzvah (such as gelilah, rolling up the Torah scroll after it was read) or holding the second Torah on days when two scrolls were taken out to be read, and then could not afford to pay for that anymore, a return to financial footing restores him to the right to be the one honored with that mitzvah.
Maharam extrapolated that from Yoma 12b, which says that if a High Priest was disqualified for some time, when the disqualifying factor goes away, he returns to his role (even though there has been an interim High Priest in the meanwhile, who would presumably like to continue). That is the view of R. Yose, which R. Yochanan later announced was the way to rule.
Tosafot wondered why R. Yochanan would rule on a matter that applies only when the Temple is rebuilt. They answered that it teaches a similar rule about a communal leader, that that person, too, would return to his role when his situation improved.
(To foreshadow a bit: R. Ovadya Yosef notes that some accommodation has to be made for the other person, such as when Rabban Gamliel was replaced as head of the Sanhedrin by R. Elazar b. Azaryah. When he was restored, R. Elazar b. Azaryah was given a week a month to serve as head.)
Seems Like the Brothers Should Win
Makkot 13a tells us that an unwitting murderer, exiled to a city of refuge, returns to whatever positions he had held when he returns home after the death of the High Priest. While R. Yose disagrees, that’s only because he thinks a verse tells him it’s not true and/or because the murderer did something wrong. In general, though, it seems that people in fact acquire rights of ownership when it comes to mitzvot, as Shulchan Aruch rules.
Radvaz notes that we apply the concept of chazakah, presumed ownership, to mitzvot, despite the fact that it requires ata’anah, a claim that setswould say why that person owns it [in the classic case, that would be that a person has no deed anymore, has lived on a property for three years, and claims to have bought it. It’s not squatters’ rights, it’s that the time a person spent living in a place, or using an item, supports the claim to have bought it]. For mitzvot, repeated performance without community objection itself gives that person rights over the performance of that mitzvah.
As is his wont, R. Ovadya Yosef gives a long list of other examples of mitzvot and appointments halachah has assumed become “owned” by a person (or household, in the case of depositing the matzot of an eruv with someone).
Limits on Ownership: Inheritance and Despair
It’s not as clear that a person can pass these rights to his heirs. Sefer Hasidim and Mordechai seem to say such rights are not inheritable, although other sources see it as a matter of local custom, But that is only for inheritance; for the person himself, R. Ovadya Yosef is clear that there is chazaka in mitzvot, that a Jew can acquire some kind of ownership rights over a mitzvah.
What to do when the person has had to give it up and now wants it back is a machloket acharonim, a matter of dispute among later authorities. R. Ovadya Yosef favors the view of Zera Avraham (who was Rishon le-Tziyyon, the antecedent to Sephardic Chief Rabbi, from 1715-1722), that whenever the mitzvah can be shared, the two should share it equally.
Does Use Imply Chazakah?
Rema had an important addendum to this discussion, that when a community makes use of a particular Torah scroll, that only conveys a chazakah to that scroll if there were others available. If this was the only one they had, Magen Avrahamwrote, use does not imply anything, and if another one comes along, the community retains the right to choose, and will rotate the two scrolls (R. Yosef lists many later authorities who agreed).
That hurts the claim of these brothers, since for most of the time of its use, it was the only one available. Now that another one has come along, they should rotate months or weeks with that new parochet. He quotes Shemesh Tzedakah(there are a few by that name, although I suspect he meant the one by R. Samson Morpurgo), who argued that we cannot let communal privileges be grabbed by whoever happens to come first.
Chevra Kaddisha’s Ownership Over the Right to Prepare the Deceased for Burial
Shemesh Tzedakah supported his view by citing Mishpetei Shemuel, who ruled that a chevra kaddisha could not stop others from preparing the deceased for burial, since that is a purest form of kindness. Magen Avraham, however, said that the local custom where he lived was to give that monopoly to the chevra. On the other hand, Eliyah Rabbahreported that when Keli Yakar (also the author of Olelot Ephraim) passed away, his students wanted to prepare his body, arguing that it was a greater honor to him to have his students (representatives of his Torah legacy) do it.
The question came to the Shla”h, who ruled that since the chevra members regularly put aside their other involvements to help the deceased, they have the right to perform the high-profile preparations as well. Unless they chose, of the goodness of their hearts, to let the students do it or be involved in it.
Advice Rather Than Ruling
With the issues laid out, R. Ovadya Yosef counsels the brothers to find a solution that makes everyone happy. As Shu”t Binyamin Ze’ev pointed out, it’s self-defeating to create machloket (here, probably best translated as unnecessary dispute) to secure the right to perform a mitzvah. Better, says R. Yosef, to work out an agreeable compromise, the merits of doing which will outweigh any extra merit they would have secured their brother’s soul by forcing theirparochet to hang more often than the other.
Because peace among Jews is a higher goal than grabbing this or that public observance.