A Responsum a Day, 6 Tevet: Selling a Shul

I have become attached to the idea of studying responsa on the day they were written, and have started giving a weekly class in that at my local shul. This past Sunday was 6 Tevet, and on the 6th of Tevet 5692 (1931), R. Yechiel Ya’akov Weinberg replied to a question sent to him by the rabbi of the big shul of Oslo. At the time, Oslo had another shul, which had lost its rabbi a year earlier and was in significant enough debt that there was the threat of it being foreclosed on and sold.  Could they instead sell it themselves?

Seridei Esh’s answer is yes, but his process is interesting. First, many of these issues are discussed in Shulchan Aruch Orach Chayyim 153, but Seridei Esh mostly analyzes the question based on commentaries on Shulchan Aruch and the responsa literature.

Selling a Village Shul

As he notes, there is much more room to sell a small town shul than a big city one. If Oslo counts as a small town for these purposes, communal agreement to sell (meaning the sale is done by the ז’ טובי העיר, the seven communal leaders, in the presence of the rest of the town), they are allowed to sell it.

That only effects the removal of the sanctity, so that the building can be used for other purposes. There is an additional problem of ביטול מקום תפילה, nullifying a place of prayer. Baba Batra 3b prohibits destroying one place of prayer until we’ve built another one. Seridei Esh takes for granted that that includes selling it, since it will no longer be used as a place of prayer. Communal consent has no bearing on that issue.

Numbers or Having a Place of Prayer?

There are two ways to understand that Gemara, however. Taz to Shulchan Aruch 152;1 and many other authorities held that the Gemara meant only that the community had to have another readily available place to pray. Since Oslo has the shul of the rabbi asking the question, that’s not an issue. Magen Avraham disagreed; he thought the Gemara meant to rule out reducing the number of prayer venues in the world.

Seridei Esh reviews several opinions, closing with Responsa Ketav Sofer’s conclusion that the majority allow selling a shul, with no explicit reasoning in the rishonim to disallow it. Because of the minority, Ketav Sofer recommended finding other reasons to support the sale, which Seridei Esh now provides.

Halachic Courtesy

Before we see his reasons, I want to note the ethos that Ketav Sofer just evinced, which Seridei Esh himself will emulate. For all that Ketav Sofer found the majority view to permit such sales, he recommended finding additional reasons to allow it. Seridei Esh will come to believe he has such reasons, but will still add a twist, to try to account for Chatam Sofer’s contrary position.

After all that, he will note that Minchat Elazar (the responsa of the Munkatcher Rebbe, who was about fifteen years older than Seridei Esh) disagreed with his position. He closes by telling the rabbi from Oslo that he will check with the Minchat Elazar to see if he can accept these other reasons to sell this shul.

This can seem to some like timidity, which can be a problem, getting in the way of important and necessary developments. But there’s a flip side we might miss, especially since Seridei Esh is not being timid– he is fairly certain he has found ways to sell this shul; his experience of the halachic process, though, is that he cannot simply ignore those who came before him, are of significant stature, and see it differently.

I think it struck me now because I have recently been thinking about arrogance (and hope to write about it soon). We live in a culture where arrogance is seen as the necessary partner of confidence. Seridei Esh and many other rabbinic respondents demonstrate halachic confidence and daring, without a shred of arrogance.

The shul will be sold. Along the way, it’s important to respect giants with whom we disagree, even if they’re a minority, even if we have the right to tread our path without them.

An Unused Shul

His first suggestion is based on the ruling of Mabit 2;28 that even a big city shul can be sold if it is no longer in use. For Mabit, a shul’s falling into disuse (Seridei Esh emphasizes that there’s no reason to require people to use a shul just to keep it going, which contrasts with what I’ve heard and seen, where people desperately try to do just that) means it’s no longer a shul.

In Oslo, if the two communities were to reunite, Mabit would allow selling the second shul, regardless of whether it’s a big city or small town shul. Chatam Sofer agrees that there is no problem with closing the doors of a shul, just tearing it down. All authorities seem also to agree that moving the furniture to a new location is not considered an act of destruction.

Seridei Esh’s one hesitation is that Magen Avraham understood there to be a prohibition to reduce the number of prayer venues in the world; he suggests, though, that that is only when the prayer venue is destroyed. If it is, at first, left fallow, it has not been permanently destroyed and could, theoretically, be returned to use.

Once it is no longer used, though, it can be sold, since we’re not removing a place of prayer from the world (it is hard for me to imagine Magen Avraham would have agreed to this two-step process—if he thinks we may not sell a shul, he would seem to think we can’t abandon it either, even if there’s a pre-existing shul where we can daven).

And It Helps the Community

Seridei Esh knows of those who share some of these hesitations, citing sources that denigrate those who stop people from building new shuls, which should apply even more so to abandoning old ones. Rivash, one of those, does note that communities with particular needs would be permitted to prohibit building new shuls (if a community struggles to sustain one shul, e.g., Rivash would agree that they can prohibit people from starting a breakaway).

In this case, it’s even better, because the abandonment of the old shul will strengthen the whole community, including those who used to patronize that shul. Whereas now they do not have a rabbi, and therefore no one to encourage them to better observance (including, especially, daily attendance at services), they will now have the rabbi of Oslo as their rabbi.

In addition, Judaism prefers bigger communities, applying Mishlei 14;28’s view that ברוב עם הדרת מלך, a larger nation is the king’s glory. All other things being equal (and they never are), we should prefer to be part of a larger community; in Oslo in 1931, that’s clearly true, since the smaller community cannot provide important Jewish services, including rabbinic leadership.

Sadly, today many of us do not realize the importance of rabbinic leadership, would not feel the void in our lives if we did not have a rabbinic leader regularly bringing Jewish issues to our attention. Nor do we always recognize that larger communities offer greater glory to God, despite their also often bringing more complications to those communities.

All that having been said, Chatam Sofer still opposed selling such a shul, based on Peri Megaidim’s view that any place where many people pray has a higher level of sanctity, which does not go away by virtue of their stopping to pray there. For that, Seridei Esh recommends using part of the proceeds for the kinds of higher purposes that justify selling even shuls that are still in use, such as to pay for refurbishing a Torah scroll, or helping a poor orphan marry.

Is Oslo a Big City?

As I mentioned at the beginning, and Seridei Esh does now, his reasoning so far applied to small town shuls. One of the complicating factors in a big city shul is securing the stakeholders’ consent, since such shuls often have donors from outside the city, iwho would need to be consulted before any sale could be conducted (note that donors gain some rights in the shul). One answer to that is Mabit 153, who already said that if a shul is no longer used, we can assume all donors would agree to its sale, since there’s no point in holding on to an empty shul.

More significant is that big city shuls are assumed to be at the service of the entire world, since travelers passing through expect to find a shul there.  Seridei Esh argues that that is too broad a definition. In his view, halachah only meant that in places where people tend to come on extended business trips (like Hong Kong today), and rely on the shul being there when they come back.  He doesn’t discuss why the other shul couldn’t replace that need, but he doesn’t need to, because he denies that Oslo has that business reality. It has travelers, but not those who come for a few months at a time.

The upshot being that the little shul could rejoin the big shul, take out the furniture, let the old shul fall into disuse, and then sell it, using some of the proceeds for a higher purpose. As long as Minchat Elazar agreed.

But it’s not only the upshot—along the way, we are reminded of the issues of sanctity of a shul, that that sanctity is not irrevocable and, once revoked, the shul returns to being just a building; issues of having venues for prayer in the world, and whether we can intentionally reduce the number those; issues of whether a shul is a local property or belongs to the world Jewish community; and, finally, issues of when we care about others’ opinions, not because we worry they are right, but because we respect them too much to ignore them.

It’s not always about the conclusion, it’s often about the way we got there.

About the Author
Rabbi Dr. Gidon Rothstein has served in the community rabbinate and in educational roles at the high school and adult level. He is an author of Jewish fiction and non-fiction, most recently "We're Missing the Point: What's Wrong with the Orthodox Jewish Community and How to Fix It." He lives in Bronx, NY with his wife and three children.