Selling Tashmishei Kedusha

Megillah (3:1) | Yehuda Gottlieb | 12 years ago

Chapter three of Masechet Megillah opens by discussing the laws of selling items of kedushah. The Tosefot Yom Tov comments that the placement of these laws in Masechet Megillah is logical, as this masechet deals with the reading of the megillah which shares common themes with the reading of the Sefer Torah, namely, that both readings arise from takkanot neviim(edicts from the Prophets) and they are read in *Beit HaKnesset. * Following on from this theme, the Mishnah begins by discussing the laws of the kedusha of a Beit HaKnesset.

The first Mishna lists a scale of items that may be bought with the proceeds of sale of a tashmish kedusha. The scale of kedusha ascends from a public street (in which prayers are held on fast days), through to a Beit HaKnesset, Teivah, Mitpachot (shrouds of a Torah), Sefarim and finally a Sefer Torah. One may only use the proceeds of sale from a lower ranked item for an item infused with higher kedushah. The basis for this ruling is the concept of “*maalin bekodesh ve’ein moridin” -*one may only ascend in kedushah, and not descend.

There is a machloket haposkim whether not being able to decrease in holiness is a Torah or rabbinic prohibition. The Gemara in Menachos (99a), states a pasuk “et machtot hachataim…v’asu otam rikuay pachim tzipui lemizbeach”  “Even the fire-pans of these men who have sinned at the cost of their lives, and let them be made beaten plates for a covering of the altar” (Bamidbar 17:3) . This source seems to indicate that Bnei Yisrael made use of these fire-pans, which were tashmishei kedushah and proceeded to use them for a higher purpose, namely, a covering for the Mizbeach. The Pnei Yehoshua holds that this prohibition is from the Torah, while the Pri Megaddim seems to hold that the prohibition is rabbinic in nature and the pasuk is an asmachta.  The practical difference between these two opinions arises in the case of doubt. For example, in a case where one is not sure what davar she’bkdushaiwas sold, those that hold that this prohibition is from the Torah would be machmir, while those that maintain it is rabbinic would allow another item of kedusha to be bought. The Shulchan Aruch HaRav(34:9) reconciles the two opinions by stating that there is only a Torah prohibition in decreasing in holiness in relation to those items that are associated with the meilah prohibition (i.e. kedushat hamizbeachor bedek habayit), however for all other items the prohibition is only rabbinic.

Another question that arises is whether one may use the proceeds to buy something with the same level of kedusha. The Beit Yosef (Orach Chayim 153:4) states that there are those that forbid this and those that permit. The Mishnah Berurah explains that those that forbid seem to take the phrase of “maalin bekodesh v’ein moridin”**quite literally – and even though there is no reduction of kedusha in this circumstance, since there is no increase it is prohibitted1.  Those that permit do not take the statement literally, and allow one to not decrease kedusha even though they are not elevating. The Mishnah Berurah does qualify this by saying that this is on a b’dieved as in the first instance one should try and only use the funds for a more holy item.

Interestingly, the Taz mentions that in his days it was quite common for people to sell sefarim, and use the proceeds to purchase other sefarim. The Taz explains that it seems that in those times, when one would purchase sefarim it would be done on condition that it would be his property for the time that he requires its use. Therefore, if he did not need it anymore or found a better one, he would be able to sell the used sefer to fund the purchase. This condition was assumed in the purchase and does not necessarily have to be expressed or clarified.

1 The Mishnah Berurah does note that in a case where there is no option – i.e. the sale of a Sefer Torah, one may certainly use the proceeds to purchase another Sefer Torah.

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