Introduction
Over the past few years there has been a fair amount of publicity around women writing STAM. In particular, there are several self-described “Sofrot” who claim to be operating within the framework of halacha. This series will go through the major sources in the halachic literature and analyze the various arguments.
The earliest sources that deal with this topic are in the Gemara. In maseches Gitin (45a-b), the Gemara discusses redeeming captives. On the topic of “redeeming,” the Mishna then talks about redeeming stolen Sifrei Torah, tefilin, and mezuzos. The Gemara concludes that we must buy back STAM that is being held for ransom by non-Jews – but only if they are asking a fair price.
Once the STAM is redeemed, the Gemara tries to determine the next step: If the origin of the item is unknown, what do we do with it? In response, the Gemara quotes a statement by Rav Nachman:
אמר רב נחמן נקטינן ספר תורה שכתבו מין ישרף כתבו עובד כוכבים יגנז. נמצא ביד מין יגנז נמצא ביד עובד כוכבים אמרי לה יגנז ואמרי לה קורין בו
… We have a tradition that a Sefer Torah written by a heretic should be burned; [a Sefer Torah] written by a non-Jew [even if he is not an actual idol worshiper] should be buried. [A Sefer Torah] found in the possession of a heretic [assuming we can’t determine who wrote it] should be buried. [With regard to a Sefer Torah] found in the possession of a non-Jew, some say it should be buried [assuming the non-Jew wrote it], and some say that you can read from it [assuming that it was written by a Jew, and subsequently acquired by the non-Jew].
Rav Nachman says that we must burn a Sefer Torah written by a heretic. It is normally forbidden to destroy a Sefer Torah,1 but a Sefer Torah written by a heretic is a special case: Even though it contains the name of G‑d, we assume that every instance of G‑d’s name was written as a reference to a heretical understanding of G‑d. This causes the Sefer Torah itself to become an object of avoda zara, and therefore it must be destroyed.
note: The “min” mentioned in this Gemara may only be referring to the type of heretic that existed at that time. It is unclear if there are any true heretics in the modern era, and therefore it may not be possible for a Sefer Torah to become an object of avoda zara.
The Gemara then challenges the statement of Rav Nachman:
ספר תורה שכתבו עובד כוכבים תני חדא ישרף ותניא אידך יגנז ותניא אידך קורין בו
[With regard to] a Sefer Torah that was written by a non-Jew, a mishna taught that it should be burned, a beraisa taught that it should be buried, and another beraisa taught that we can read from it.
Rav Nachman (an Amora) said above that you should bury a Sefer Torah written by a non-Jew. Now we seem to have a three-way disagreement among Tana’im concerning this halacha. The Gemara resolves the difficulty by explaining the three positions:
לא קשיא, הא דתניא ישרף רבי אליעזר היא דאמר סתם מחשבת עובד כוכבים לעבודת כוכבים
… That which was taught that [the Sefer Torah] should be burned is [the opinion of] Rebbe Eliezer, who says that the unspecified intentions of a non-Jew are [always directed] towards idol worship.
This is from maseches Chulin (38b). The first opinion in the mishna says that if a Jewish butcher slaughters the animal of a non-Jew for the non-Jew to eat, the meat is kosher.2 Rebbe Eliezer argues, saying the meat is not kosher, because he assumes that the non-Jewish owner had unstated intent that the animal should be an idolatrous offering.
Along the same lines, presumably Rebbe Eliezer would argue that when a non-Jew writes a Sefer Torah, he has intent – even if not stated explicitly – towards idolatrous worship. This would mean that the names of G‑d in that Sefer Torah are references to avoda zara and therefore the Sefer must be destroyed.
Temporarily skipping to the third beraisa (we will come back to the second beraisa shortly):
והא דתניא קורין בו האי תנא הוא דתניא לוקחין ספרים מן העובדי כוכבים בכל מקום, ובלבד שיהיו כתובין כהלכתן. ומעשה בעובד כוכבים אחד בצידן שהיה כותב ספרים והתיר רבן שמעון בן גמליאל ליקח ממנו
That which was taught that you can read [from a Sefer Torah written by a non-Jew], is from the beraisa [in the Tosefta in maseches Avoda Zara], which taught that … there was a certain non-Jew in [the town of] Tzidon who wrote [Sifrei Torah], and Rabban Shimon ben Gamliel allowed [the people] to buy [these Sifrei Torah] from him.
The continuation of our Gemara explains the exact circumstances of the story in the Tosefta. In summary, even though this particular sofer was called a “non-Jew,” he was in fact Jewish, and he wrote the Sifrei Torah according to halacha, and that’s why Rabban Shimon ben Gamliel allowed the use of his Sifrei Torah.
To review where we are holding so far: There are three contradictory statements about a Sefer Torah written by a non-Jew: The first opinion – that the Sefer must be burned – is the rejected minority opinion of Rebbe Eliezer. The third opinion – that the Sefer can be used – is the decision of Rabban Shimon Ben Gamliel in a specific incident, so we can’t apply his ruling to other cases.
Returning to the part of the Gemara that was skipped – the opinion that the Sefer should be buried:
הא דתניא יגנז האי תנא הוא דתני רב המנונא בריה דרבא מפשרוניא: ספר תורה תפלין ומזוזות שכתבן מין ומסור עובד כוכבים ועבד אשה וקטן וכותי, וישראל מומר פסולין, שנאמר ״וקשרתם, וכתבתם״ – כל שישנו בקשירה ישנו בכתיבה וכל שאינו בקשירה אינו בכתיבה
… Rav Hamnuna, the son of Rava from Pashronya, taught: A Sefer Torah, tefilin, or mezuzos that were written by a heretic, or an informer, a non-Jew, or a slave, a woman, or a minor, or a Samaritan, or a Jewish apostate, are invalid; because it says [in the Torah]: “וקשרתם, וכתבתם”. [We derive from this, that] anyone who is included in [the mitzva of] tying [tefilin] is included among those who can write [STAM]; but anyone who is not included in [the mitzva of] tying [tefilin] is not included among those who can write [STAM].
Rav Hamnuna (an Amora) quotes an anonymous Tana, who confirms the position of Rav Nachman: That a Sefer Torah written by a non-Jew is invalid, just like Sifrei Torah written by the others in this list (women, children, Samaritans, etc.).
This halacha is derived from a “hekesh” (juxtaposition), which is a drasha connecting two words in the Torah based on their proximity to each other.3 The relevant text is at the end of parshas Va’eschanan:
וקשרתם לאות על ידך והיו לטטפת בין עיניך׃ וכתבתם על מזוזת ביתך ובשעריך׃
The Torah tells us to tie tefilin on our hand and head; and to write mezuzos and put them on our doorposts.
Because of the proximity of “tying” and “writing” in these pesukim, the beraisa learns that in order to be eligible to write STAM, you must be included in the mitzva to tie tefilin.
The Gemara has two criteria for being included in the mitzva of tefilin:
You have to be among those who the Torah obligates to put on tefilin.
And, you cannot be among those who have excluded themselves from the mitzva of tefilin.
Being obligated in the mitzva of tefilin excludes non-Jews and Samaritans (who are considered non-Jews). It also excludes minors because they are not yet obligated in mitzvos, and it excludes women and slaves who are not obligated in most time-bound positive mitzvos.4
The second criteria for exclusion, being among those who exclude themselves from the mitzva of tefilin, covers heretics and apostates – who have given up their connection to the Torah, as well as informants – who have removed themselves from the Jewish people, and in doing so, also lose their connection with the Torah.
Another version of this beraisa appears in the Gemara in maseches Menachos. The Gemara in Menachos (42a-b) discusses the process of creating objects used for mitzvos (i.e., sukah, tzitzis, tefilin, etc.). With regard to the creation of tefilin, the Gemara says:
תני רב חיננא בריה דרבא מפשרניא, ספר תורה תפילין ומזוזות שכתבן צדוקי כותי עובד כוכבים עבד אשה וקטן מומר – פסולין. שנאמר: ״וקשרתם, וכתבתם״ – כל שישנו בקשירה ישנו בכתיבה כל שאינו בקשירה אינו בכתיבה
Rav Chinina, the son of Rava from Pashranya, taught: A Sefer Torah, tefilin, or mezuzos that were written by a Sadducee, a Samaritan, a non-Jew, a slave, a woman, or a minor, [or] an apostate, are invalid; because it says [in the Torah]: “וקשרתם, וכתבתם”. [We derive from this, that] anyone who is included in [the mitzva of] tying [tefilin] is included among those who can write [STAM]; but anyone who is not included in [the mitzva of] tying [tefilin] is not included among those who can write [STAM].
This version of the beraisa has some minor differences when compared to the version in Gitin, but for our purposes it is essentially the same.
We now have two gemaros – in Gitin and in Menachos – that list women among the people not eligible to write STAM. This would seem to be the end of the discussion, but there is another version of this list in maseches Sofrim, which will be the topic of the next post.
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There is a prohibition to erase G‑d’s name based on the pesukim in parshas Re’eh: It says ואבדתם את שמם מן המקום ההוא – which is the mitzva to destroy avoda zara, and continues לא תעשון כן לה׳ א-להיכם – that it is forbidden to erase the name of G‑d. ↩
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Assuming the shechita was done according to halacha. ↩
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Hekesh is one of the strongest types of drashos, and – according to some opinions – it carries the same weight as if it was explicitly written into the text of the Torah. ↩
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Tefilin is time-bound because it is not worn at night or on Shabbos or Yom Tov. ↩