Last week Am Yisrael suffered a tremendous loss with the passing of Maran HaRav Ovadia Yosef, zt”l. The greatest tribute we can give to such an outstanding talmid chacham is to repeat and share his Torah. The following article is based on a responsa of his in Yabia Omer (vol. II, C.M. #7). May this learning be l’iluy nishmaso.
At the beginning of Maseches Pesachim, Moshe decided to join the Daf Yomi shiur in his shul. He had limited yeshiva background, but other participants in the shiur had succeeded in learning the Daf despite this.
As he didn’t have a large Shas and his eyesight wasn’t great, Moshe asked his neighbor, Shlomo, if he could borrow a large Gemara Pesachim.
Shlomo took his Gemara out of the bookcase. “It’s practically brand new,” he said. “It’s almost never been used.”
Four months later, at the conclusion of Maseches Pesachim, Moshe invited Shlomo to join the siyum celebration. At the siyum, Moshe returned the Gemara to Shlomo. “Thank you very much for allowing me use of your Gemara,” he said emotionally.
Shlomo looked at the Gemara. After four months of daily use, it looked worn. The corners were no longer sharp, but rounded; the pages had fingerprints and smudges; the gold-colored lettering on the cover was faded in a few places; and some pages were creased.
“I’m glad you used my Gemara,” Moshe said. “But I loaned you a sefer that looked brand new, and it’s now damaged. I’d like you to buy a new volume to replace this.”
Shlomo looked at him, surprised. “When you lent me the Gemara, what did you expect? That I should leave it on the bookshelf?” he asked. “When you use a sefer on a regular basis, there is an expected degree of wear and tear!”
“I didn’t expect it back brand new,” said Shlomo. “But you could have been more careful. You didn’t have to lean on it or hold the pages between your fingers; you could have covered the sefer so the lettering wouldn’t have gotten worn and the corners wouldn’t get banged. This is far from what I gave you. It’s hard to believe that this happened from using the Gemara forty-five minutes a day!”
“It wasn’t just forty-five minutes,” said Moshe. “I reviewed the Gemara each day after the shiur and also learned with my son on Shabbos. I wanted to understand it well and delved into the Gemara. If you want, Rabbi Dayan is scheduled to speak soon; we can ask him afterward.”
When Rabbi Dayan finished speaking, they approached him. “I loaned my Gemara to Shlomo to learn the Daf,” said Moshe. “I gave it to him almost brand new, but he used it extensively and now it’s worn. Was he entitled to use it so much or does he have to buy a new Gemara, in similar condition to what he received?”
“Rav Ovadia Yosef addresses this question,” replied Rabbi Dayan. “He rules that one who borrows a Gemara is allowed to use it extensively. He is not liable for wear and tear, as this is included within meisa meichamas melacha, damage ensuing from typical use.” (C.M. 340:1)
“What is this based on?” asked Shlomo.
“The Mishnah [B.M. 29b] teaches that one who finds a Sefer Torah should read from it occasionally, to air it out,” answered Rabbi Dayan. “However, he may learn only parts that he is already familiar with, which don’t require intensive touching and rolling. He may not learn a new portion, though, since that requires extensive handling. The Gemara adds that a similar halacha applies to one who borrows a Sefer Torah.”
“That sounds against your ruling,” noted Moshe. “A person who borrows a Sefer should not use it in an extensive manner!”
“Although it seems so at first glance, many Rishonim differentiate between a Sefer Torah and other sefarim, such as Gemaras,” explained Rabbi Dayan. “A Sefer Torah is intended primarily for reading, so there is a difference between reviewing a known portion, which requires almost no handling, and studying a new section. However, regarding Gemara, the more a person learns, the more he delves! In fact, when a person learns something new he generally stays on the page, whereas when he reviews the maseches he is more likely to flip from one part of it to another.
“Thus, there is no difference between learning a new portion and reviewing something familiar. When you loaned the Gemara, you were aware that it would entail handling.”
“Is this halacha cited in the Shulchan Aruch?” asked Shlomo.
“The SM”A [267:28] cites it from the Maggid Mishneh,” concluded Rabbi Dayan. “There is a question regarding the text of the SM”A and the Maggid Mishneh, but Rav Ovadia proves from the primary sources and the version of the Beis Yosef that this is the intended halacha. Thus, as long as Moshe used the Gemara properly, smudges and creases are fair.”
About the Author: Rabbi Meir Orlian is a faculty member of the Business Halacha Institute, headed by HaRav Chaim Kohn, a noted dayan. To receive BHI’s free newsletter, Business Weekly, send an e-mail to firstname.lastname@example.org. For questions regarding business halacha issues, or to bring a BHI lecturer to your business or shul, call the confidential hotline at 877-845-8455 or e-mail email@example.com.
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