Wednesday, May 22, 2019

May these words of Torah serve as a merit le’iluy nishmat Menachem Mendel ben Harav Yoel David Balk, a”h.

This week we learned Zevachim 114. These are some highlights.

Can a developer build a multi-story apartment building and put a shul on the ground floor?

Our Gemara is utilized by Shu”t Lehoros Nosson (Cheilek Aleph Simanim 8-9) when discussing the issue of building an apartment building with a shul on the ground floor.

A developer in Israel was planning to build an apartment building and sell the apartments to religious families. To make his building more attractive he planned to make a shul on the ground floor. A prospective buyer presented the situation to Shu”t Lehoros Nosson. He asked, “Am I allowed to buy an apartment above the shul? Shulchan Aruch (Orach Chaim Siman 151:12) writes that “You should be careful and not use the attic above a shul for any permanent disrespectful use, such as laying down there to sleep. Other uses also perhaps should not be done there.” Mishnah Berurah (s”k 40) explains the source of the doubt. A shul is called a Mikdash Me’at, a mini Temple. Is it is a miniature of the Azarah or a miniature of the Heichal? The roofs of the Azarah were not consecrated, while the roof of the Heichal was consecrated. Shulchan Aruch is not sure; this is why he suggests that perhaps all activities should not be done atop a shul. For if a shul’s holiness is akin to the holiness of the Azarah, the roof atop it would not be holy and only disrespectful activities should not be done on the roof atop the shul, but if the shul has holiness like the holiness of the Heichal, what is above it is also holy and no secular activities should be performed above it. Taz (s”k 4) adds that people should be very careful with this law. He writes, “In my youth I lived with my family in the holy community of Cracow in my Beis Midrash, which was above a shul. I was punished greatly for this sin. My children died; I attributed it to this sin of disrespecting a shul by living atop it and performing disgraceful activities there.” Magein Avraham (s”k 18) writes that a person who cares for his soul will stay away from this. In light of these sources, our buyer was concerned and asked Shu”t Lehoros Nosson if he too should stay away from purchasing an apartment that would be above the shul.

Shu”t Lehoros Nosson proposes a novel idea. Perhaps in the situation of the Taz, the shul and the apartment belonged to the same person. Maybe in the case of our buyer there would be no problem, for the shul would belong to the developer while the apartment would belong to the buyer, and our Gemara teaches that a man cannot create a prohibition on that which is not his—ein adam oseir davar she’eino shelo. A shul only becomes holy once it is used. Before the shul would be used, our buyer would have already purchased and owned his apartment. The shul would belong to someone else and a person cannot prohibit that which is not his. Our Gemara quotes this law in regard to a sacrifice. It teaches that if an animal was already consecrated as an olah, it belongs to the Mikdash, and a person who worships it or who declares that it should be used for a sacrifice to idolatry would not accomplish anything, ein adam osair davar she’eino shelo. The rule that ein adam osair davar she’eino shelo is quoted by the poskim. See Magein Avraham (Orach Chaim 42:4) and Shach (Yoreh Dei’ah 349:7). Shu”t Lehoros Nosson therefore feels that our man can purchase his apartment, it will be his before the shul gets used, and the shul owners will therefore not be able to create a prohibition upon his apartment. Ultimately, Shu”t Lehoros Nosson makes some more recommendations. Just to be safe, when they begin using the shul they should stipulate that the space does not have the sanctity of Beit Haknesset and the restrictions of a shul. They should declare that the shul is not exclusively a shul—it is an apartment in which they happen to pray but they intend to use it for other purposes as well. They should be careful not to have the bathrooms of the apartments in the floors above the shul directly over the shul. The Taz argues that dirt, filth and excrement above a shul can prevent prayers from ascending. They should also make sure that there is no bedroom directly above the Aron Kodesh. In addition, they should not call the space in which they pray a Beit Knesset; they should merely refer to it as the space in which we pray. These actions should be taken to be extra cautious, but based on the letter of the law, he feels that it is permitted because ein adam osair davar she’eino shelo.

Shu”t Shevet Halevi (Cheilek Hei Siman 18) was also asked this question. He added another argument. The question is about an apartment building in Israel. According to the Shu”t Chatam Sofer (Yoreh Dei’ah Siman 138) there is a mitzvah to build, own and live in homes in Israel. Our buyer is fulfilling a mitzvah by living in his apartment. The Taz was living in Cracow, where there is no mitzvah to buy or live in an apartment. The mitzvah our buyer is fulfilling will protect him. Shu”t Shevet Halevi also states that they should stipulate that the shul does not have the holiness of a Beit Haknesset and they should ensure that the Aron Kodesh is outside of the area under the apartments, but once they do so they should not worry about anything; shomer mitzvah lo yeida davar ra, one who observes a mitzvah will not know any tragedy. There are those who disagree with Shu”t Lehoros Nosson and Shu”t Shevet Halevi. See Shu”t Minchat Yitzchok (Cheilek Bet, Siman 48) and Shu”t BeTzeil Hachochma (Cheilek Bet, Siman 56). They both rule that a developer should not build a building with a shul on the ground floor and apartments above it. They feel that since the Taz attributed the tragedies of his life to living above a shul, no one should live above a shul.

In conclusion, while some are strict, many great poskim utilize the rule of our Gemara to permit a person to buy an apartment in a development in which there will be a shul on the ground floor. (Mesivta)

By Rabbi Zev Reichman

Rabbi Zev Reichman teaches Daf Yomi in his shul, East Hill Synagogue.