Continuing Realities

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by R. Gidon Rothstein

RH Tevet: R. Yitzchak Elchanan Spektor on Continuing Realities

The first way to read Ein Yitzchak 1;Orach Chayyim 1, from Rosh Chodesh Tevet of 5639 (1878) is as a responsum by R. Yitzchak Elchanan Spektor about how to make sure a Torah scroll is valid. A closer look shows it’s much more about thehalachic presumption known as chazakah, when we assume which realities continue; it’s in those assumptions that we determine what to do about the Torah scroll.

The Impetuous Young Man

The question started when a nineteen year old had read from a Torah scroll and noticed gaps in the writing. He purchased ink (ordinary ink, not the special kind used for writing Torah scrolls) and fixed what was missing, for about half the Torah [the rest of the responsum has many problems with what he did; let’s pause to remember that he was trying to help].

The rabbi writing R. Spektor saw two main problems. First, they could not be sure the boy/man had reached physical maturity when he did this [halachically, adulthood depends on physical development; we use twelve and thirteen as shorthand for when we expect and assume that has been reached, but there are exceptions. For those who develop later, halachic adulthood arrives later as well]. Second, he wondered about the ink; he knew reasons to think the scroll was ultimately all right, but wanted R. Yitzchak Elchanan’s opinion.

Determining the Man/Boy’s Adulthood

Niddah 48b reports that Rava held that we can assume that a twelve year old girl has developed the physical signs of maturity.Noda BiYehuda allowed relying on that bedi’avad, in situations where an action has already occurred [such as here, where the man has already written on the Torah scroll]. R. Akiva Eiger disagreed, but R. Spektor thinks that the fact that we only know of the problem because the nineteen year old changes it so even R. Akiva Eiger should agree.

His being our source creates a sfek sfeka, a double doubt, as to whether we have to assume we have a problem: first, perhaps the issues with the scroll didn’t rise to the level of invalidating it. That doubt is especially strong, since the scroll had achazakah de-hetera, an established status as valid. To contradict, disrupt, or nullify that, we need strong evidence.

We might think that’s what the young man provided, but his testimony is only relevant if he’s an halachic adult. But if he is, his fixing it by writing over those spots isn’t a problem of a minor writing a Torah scroll.

We might worry that the physical maturity we find now came only later, but that he was not yet an halachic adult when he fixed the Torah. That, too, is an issue of chazakah. R. Spektor notes that Shulchan Aruch Choshen Mishpat 35;1 rules that if authorities waited a long time to check someone’s physical signs of adulthood, but did find them when they checked, we can assume those signs were there by age thirteen, an assumption strong enough to allow extracting money based on his testimony.

Believing Minors

Until now, we’ve discussed this question as if a minor’s testimony cannot be trusted for halachic purposes (so that if this nineteen year old was halachically a minor, we could reject his claims about the problems with the Torah scroll). That’s not quite obvious. mTamid 1;1 speaks of three places in the Beit HaMikdash where priests guarded, and the Bartenura explains that the guards were minors, kohanim under the age of thirteen.

Since the obligation to guard the Temple is derived from verses, how can accept the minors’ assertions they have guarded the premises as they were meant to? Shouldn’t this being a Biblical obligation mean we cannot rely on them?

The answer is that Shach to Yoreh Deah 127;31 notes a Rivash, and R. Spektor adds a Ran, all of whom agree that where the minor has the ability to control a situation, we believe him regarding halachic issues, even in the face of a standing assumption the other way.

In terms of the Temple, that means that since the minor could watch without falling asleep or leaving the job, we can believe he did. But since he couldn’t write a valid Torah, that’s not an issue about which he can testify, supporting R. Spektor’s idea that to believe this nineteen year old that there were problems with the Torah requires us to assume he was an adult, in which case he could also fix those problems.

Rabbinic Issues Allow For Greater Leniencies

Part of the calculus is the level of severity of the obligations involved. We are more stringent in establishing the validity of items of mitzvah of Torah origin than of Rabbinic, and R. Spektor points out that almost all Torah readings are assumed to be Rabbinically obligated. The central exception is Parshat Zachor, reading about the obligation to destroy Amalek. [There’s more to be said on that, since not all authorities assume the obligation to remember that we have to destroy Amalek must be read from a Torah scroll].

The one Biblically mandated reading does not force us to see the question of the validity of the Torah scroll at the higher standard, R. Spektor argues. Since almost every time we consider this Torah scroll, we’re wondering whether we can fulfill a Rabbinic obligation, we can deal with it in those terms. Once we decide that it is valid, we don’t have to reopen the question for Zachor [or Parah, he writes, which raises the question of whether it, too, is of Biblical origin, an issue we don’t have space to discuss]. 

The Ink

Aside from adulthood, we have to wonder about the ink the boy used. Despite debate, R. Spektor thinks it likely that any ink he’d have gotten from the store had the minimal ingredients named in Shulchan Aruch. However, Magen Avraham thought we should try to fulfill the standards of Rosh, who included another ingredient [I think Gum Arabic] this ink likely didn’t have.

To solve that problem, R. Spektor recommends writing over the places the boy fixed this Torah with new, clearly acceptable ink. This isn’t so simple, because Rambam rejected writing on top of writing; fortunately, Rambam thought the ingredients of common ink were sufficient. Either way, then, the Torah will be ok—either the boy’s ink was usable (Rambam) or writing on top of writing works (Rosh). We’ll have covered all our bases.

Back To Chazakah

One last aspect of this case—which also revolves around which realities we assume in halachah–was that this boy wasn’t positive he remembered all the places he had fixed (for us to write over; we don’t want to rewrite the whole Torah because a) it would take a lot of time, and b) we get into trouble with Rambam, who objected to writing over writing).

R. Yitzchak Elchanan says he doesn’t think we have to worry about it, because the Torah has an overall status of validity (from back before this boy found problems with it). In addition, there is an idea of kan nimtza kan hayah, if we check the Torah now and its letters are well-formed, we can assume those have always been like that. [This is despite believing that some letters had been a problem; R. Spektor is saying the rules of chazakah, for the scroll in general and each letter in particular, allow us to assume that what looks good now has always been so.]

While another strategy would be to erase and rewrite all the questionable letters, some might be in unerasable Names of Hashem, so R. Spektor prefers his original idea, to have a certified scribe write over the letters in question with a clearly valid ink. And to do this long enough before Parshat Zachor that the question will be of a Rabbinic nature. Once it’s done, the Torah can also be used for the Biblical readings of Zachor and Parah.

Chazakot That Stick, and Those That Don’t

In a brief second letter, R. Spektor mostly addresses how we can continue to assume this Torah has a chezkat kashrut, a presumption of validity, when we’ve found three or more errors in it.

Usually, once we’ve found three problems with an item, we assume there are more. For example, married couples are required to assume that if the wife has menstruated three times at a certain time or interval, that she will do so again. Even though, before that point arrives, she has a chezkat heter, a presumption that she is permitted to live with her husband, once that vesetcomes, the couple has to assume that she will menstruate, and needs proof she did not before they can resume marital relations.

R. Spektor points out, however, that that’s a Rabbinic rule; the chezkat heter works somewhat, just that Chazal decided to be extra careful in a case that has ramifications for karet issues (the husband and wife living together), whereas we here are dealing with an issur aseh, a prohibition that stems from an obligation [the obligation to read from a valid scroll implies a prohibition against reading from an invalid one; such implied prohibitions are called issur aseh].

The writers of The Odd Couple made famous the dictum that when you assume, you make… well, you can look it up, but it derides our assumption-making ability. The case of our Torah scroll remindd us that we have to make assumptions in life. It’s making the right ones, in the right ways, that let us know how to handle this case, of a boy who might be a man fixing a Torah scroll that might or might not be valid.

It’s the right assumptions that led R. Yitzchak Elechanan Spektor to the solution to the problem.

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