Siman 39 . Which people are fit to write Tefilin and from whom one may purchase them

39:1. (1) Tefilin written by a (non-Jewish) slave, (2) or a woman (3) or a minor, even one who has reached (4) the age of obligatory education in Mitzvos, (5) or a Kuti, (6) or one (a Jew) who is an established transgressor in idol worship, (7) or an informer to gentile prisons, are invalid. This is because it is written (Deuteronomy, Chap. 6, Verse 8) "... and you shall bind them." [this is the source of the Mitzvah of Tefilin - LC] These words come to explain that anyone (8) who is not obligated to bind Tefilin or does not believe in the Mitzvah is not fit to write them.

MB 1: Tefilin - And this same law applies to the writing of Torah scrolls and Mezuzos.

MB 2: Or a woman - And this same law applies to one whose gender is undetermined ("Tumtum") or a hermaphrodite (i.e., one with signs of both male and female gender), since there is concern that they may be women (and therefore unfit to write Tefilin).

MB 3: Or a minor - Since we derive the law about writing Tefilin from Scripture, we require that he must be a full-fledged adult, that is, he has produced two adult hairs after reaching age 13. But if we have a doubt whether he has produced two adult hairs (i.e., we're unable to check), he is unfit to write, unless his beard is full, i.e., there is substantial hair in his beard area, even if the hairs are very small [Sema - Sefer Meiras Eynayim in Choshen Mishpat (one of the four main sections of the Shulchan Aruch), Siman 35], or most of his years have passed [I'm not sure how the latter is determined, though presumably at the time of the Mishnah Brurah it was around age 35] or the signs of functional castration have appeared, and as discussed later in Siman 55, Paragraph 5. And we should severely reprimand those scribes who give youths Tefilin to write, but aren't meticulous about whether or not the youths have developed signs of physical maturity. See above in Siman 32, sub-paragraph 103 what I wrote in the name of the Levush (R. Mordechai Jaffe, late 16th - early 17th cents.) concerning this matter, and see in the Biur Halacha. [In the Biur Halacha the Chofetz Chayim, also author of the Mishnah Brurah, rules that if an 18 year-old wrote Tefilin passages and cannot be checked for two adult hairs, one need not be strict after the fact about the validity of the Tefilin passages.]

MB 4: The age of obligatory education in Mitzvos - In truth even an adult (i.e., a boy over Bar Mitzvah age) may not write Tefilin so long as we do not know if he has produced two adult hairs. However, with an adult, if we checked him after the fact (i.e., after her wrote Tefilin passages) and we find that he has two adult hairs, we assume that he already had them when he wrote the Tefilin [Choshen Mishpat, Siman 35]. This is not so with a minor, since the growth of adult hairs doesn't help.

MB 5: Or a Kuti - That is the correct language, (i.e., Kuti rather than an idol worshipper), since an idol worshipper is in any case unfit because he does not write for the sake of the Mitzvah. [Writing for the sake of the Mitzvah is a requirement. A Kuti is a descendant of the gentiles who settled in the Land of Israel after the exile of the ten tribes. The validity of their subsequent "conversion" to Judaism is disputed by the rabbis of the Mishnah. LC]

MB 6: Or a Jew who is an established transgressor in idol worship - Because through idol worship it is as if he were an established transgressor regarding the entire Torah. The same law applies to an established public Sabbath desecrator. However, an established transgressor in other laws is not regarded as a transgressor in the entire Torah, unless he sins in order to offend. If he transgresses even a single law in order to offend he has the status of a Kuti, as found in Yoreh Deah, Siman 2. Some authorities are stricter and require that Tefilin passages written by a person who sins in order to offend be put into Genizah (place where old Torah scrolls and other unusable sacred writings are stored). [I didn't look in Yoreh Deah to see what the law is for Tefilin passages written by a Kuti, to see how Genizah would be stricter. LC] All of this applies if he is an established transgressor in other laws, but if he sins with Tefilin in that he does not put them on, even if this is not done to offend, he is unfit to write Tefilin passages, since he is not considered one who puts on Tefilin [see SA 39:1 above]. However, if he is an established transgressor with Tefilin only where satisfying some material desire is involved, such as one who pursued his business and failed to put on Tefilin as a result, he is still considered one who puts on Tefilin (and is therefore fit to write Tefilin passages). All of this is after the fact, but before the fact one should not permit such a person to write Torah scrolls, Tefilin, or Mezuzos, since some authorities are stringent here, even when others stand over him and tell him to write for the sake of the Mitzvah, and see the Biur Halacha. [There it is written that with an established transgressor in Tefilin where satisfying material desire is involved, we must be sure that he knows all the laws for writing Tefilin passages.] The Pri Megadim writes that even one who is an established public desecrator of a rabbinic Sabbath prohibition (i.e., a less severe category than one who violates a Torah prohibition), such as Muktzah (moving items not set aside for Sabbath use) and carrying into a Carmelis (rabbinic form of public domain), one should be stringent in any case before the fact not to allow him to write Torah scrolls, Tefilin, or Mezuzos. Even after the fact this requires study (as to the validity of what he wrote).

(7) Or (an informer) etc. - See in the Be'er Heiteiv, that this is so even if he did it to satisfy a material desire and even if he did it only once.

(8) One who is not obligated etc. - Non-Jewish slaves, women, and Kutis are not commanded to bind Tefilin, and a youth who has reached the age of obligatory education in the Mitzvos is obligated only rabbinically (Beis Yosef, commentary by R. Yosef Karo, author of the Shulchan Aruch, on the Tur, mid-16th cent.), and see the Biur Halacha [which explains that Kutis are never fit to write Tefilin passages]. With all of these categories of people, it does not help even if a fit person stands over them and sees that they write for the sake of the Mitzvah.

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39:2. Anyone who is unfit to write (Tefilin passages) is unfit (9) to engage in any aspect (10) of making Tefilin.

MB 9: One whose left arm has been cut off, even though he is not a binder of Tefilin he is fit to write Tefilin passages, since he is otherwise obligated to put on Tefilin, but is like one whose mouth hurts him and thereby cannot do something. [The analogy to one whose mouth hurts is a little difficult, but the idea is that a person who cannot fulfill a Mitzvah because of a physical disability but who is otherwise obligated in that Mitzvah has a different status from one who is not obligated even without disability.]

[I have condensed the next rather technical MB - LC] MB 10: Of making Tefilin - This refers to working on the body of the Tefilin, such as covering the housings and sewing them, making the letter Shin on the housing, making the knots (in the form of a Yud and a Dalet) and correcting a problem in the writing that would invalidate them. But the production of the parchment can be done by a gentile, a woman, or a minor; a gentile or a minor requires an adult Jew (presumably male) standing over him to ensure that he does it for the sake of Tefilin. As previously explained in 33:4 (and sub-paragraph 23 there), after the fact Tefilin are valid if the housings (but not the straps) were blackened by a gentile or a minor without supervision, while a woman is permitted to blacken either the housings or straps, since she is capable of doing it for the sake of the Mitzvah. A gentile or minor is permitted to blacken the straps or housings if a supervisor ensures that it is done for the sake of the Mitzvah. Scraping off of a sticking between two letters should be done before the fact only by one who is obligated to put on Tefilin, but after the fact we may lenient if it was done by someone else, since this is not considered writing.

Lawton Cooper LX5@nihhfed1.gov

sha-39.3

Siman 39: Those who are fit to write tefillin and to purchase from them (cont.)

39:3. A convert [to Judaism] who returned to his [original] religion due to (11) fear is fit to write tefillin.

MB 11: Fear - that they not kill him. Though he really should have sacrificed his life for belief in G-d, even so he has not left the category of Israelite through this [transgression], since he was compelled. See the Magen Avraham, who wrote that one should not be lenient about this even if in private [this convert] keeps the Torah but is lax in putting on tefillin, because in any case he is not in the category of tying [and we learned above that only those who tie tefillin upon themselves are fit to write tefillin - AB], and even more so if he rejects the entire Torah - unless due to fear for his life he is afraid to keep the Torah even in private [in which case he is not completely at fault, and is even considered to be within the category of those who tie - AB]. See the commentary of the GR"A, who also agrees with the Magen Avraham. The M"A also wrote in the name of the Dagul MeRevavah that even though by a Sefer Torah, a mamzer [= bastard] and a ger toshav [= resident alien] (i.e. who has accepted upon himself the seven Noahide commandments) are unfit to write, as is written in [Shulchan Aruch] Yoreh Deah Siman 281, even so for tefillin and mezuzahs we do not worry [about this requirement]. But all the later authorities agreed that a ger toshav is unfit to write Torah scrolls, tefillin, or mezuzahs, because he does not tie [i.e. is not commanded to put on tefillin, and as above - AB]; see the Biur Halachah.

39:4. Tefillin written by (12) an apikorus [= heretic] (13) should be burned, (14) and some say they should be hidden away [i.e. discarded respectfully; what we call putting into Shamos or Geniza -AB].

MB 12: Apikorus - See the Biur Halachah [where he explains that this term here refers to a Jew who worships idols. Tefillin written by a Jew who does not believe in the Torah yet does not worship idols should not be burned but rather hidden away, and he has some doubt whether under some circumstances they might actually be usable - AB].

MB 13: Should be burned - [even] with the Names of G-d written in them, as explained later in Siman 334 Seif 21 (see there), because it is assumed that when he writes [these Names of G-d] he intends [them to refer to] idols.

MB 14: And some say they should be hidden away - because it is not the way of an apikorus to put on tefillin [for the sake of his idol - AB], so he surely wrote it to sell to a Jew, and it is [therefore] possible that he did not intend [the Names of G-d] to refer to idols. The opinion of the Shulchan Aruch is to hold like the first opinion, and therefore he quoted it without the preface ["and some say"]. Likewise is the opinion of the Turei Zahav, the Perishah, and the GR"A in his commentary.

39:5. If [tefillin] are found in the possession of an apikorus and it is not known who wrote them, (15) they should be hidden away.

MB 15: They should be hidden away - because of doubt that maybe he wrote them. But we cannot burn them out of doubt, because it is written [Devarim 12:4] "You shall not do so [i.e. destroy His name - AB] to HaShem your God" [and we do not want to even possibly violate this prohibition].

Assaf Bednarsh (bednarsh@yu1.yu.edu) sha-39.6

Siman 39: Who is Fit to Write Tefilin and to Buy Tefilin From (continued)

39:6 If the Tefilin were found in the possession of a non-Jew and it is not known who wrote them the Tefilin are (16) acceptable.

MB 16: Acceptable - Because the average non-Jew does not know how to write Tefilin and probably a Jew wrote them. This is even more so in our area where the non-Jews don't know how to write and the Shach concludes that even a Sefer Torah is acceptable because the non-Jew must have stolen it.

39:7 One is not to buy Tefilin, Mezuzos and holy books (This refers to Sifrei Torah, I am not sure if this applies to regular printed holy books) from a non-Jew (17) for a (18) lot more than their value so as not to accustom them (make it profitable for them) to steal and rob.

MB 17: For a etc. - But for slightly more than the value [for a half dinar more than the value of Tefilin, and a similar proportion for a Sefer Torah] one is obligated to buy them. Even though a Sefer Torah that is in a non-Jew's possession should be buried, we are still responsible to buy it for slightly greater than the real value in order to bury them and to ensure that the non-Jew does not come to desecrate it. This is obviously true that even if the Sefer Torah has an intrinsic problem we still have to buy it from the non-Jew to bury. However, when a person who believes in other gods wrote it, and it is supposed to be burned, there is no need to buy it.

MB 18: Lot more - Nevertheless one must bargain to try to reach better terms for the sale, but if the non-Jew is not flexible then we can leave it by him. It is explained in the Gemara that one is forbidden to offer an outrageously low price so as not to anger the non-Jew and cause him to treat it with disrespect.

39:8 Tefilin should only be bought (19) from an expert who is knowledgeable in missing (letters) and extra (letters). (This refers to the fact that certain words can be written in different ways, by adding or removing specific letters, and the person writing the Tefilin should know the variations and know when each variation should or should not be used.)

MB 19: From an Expert - But not from someone who is not an expert even if the purchaser intends to check the Tefilin, because he may get lazy because it is a big effort to remove the stitches and restitch the Tefilin. Obviously, someone that is an established scribe for the public is considered an expert. It is permitted to buy a Mezuzah or the sections of the Tefilin (the written sections of the Tefilin without the cases) from someone who is not an expert on the condition that he check them after he buys them.

Binyamin Rudman sha-39.9

Siman 39. Hilchot Tefillin - Who is Allowed to Write Tefillin and From Whom May They Be Bought (cont'd)

39:9. (20) If one bought [tefillin] from someone who is not an expert, one must (21) check them. If one bought 100 pieces, he can check three pieces; two for the head and one for the hand or two for the hand and one for the head; if they are kosher then this man is now considered reliable [chazaka] and they are all kosher (22) and the others do not need to be checked. If he bought them in groups, it is assumed that each group is from a different person and therefore he must check from each group 2 for the head and 1 for the hand or 2 for the hand and 1 for the head. One who sells tefillin and says that they belonged to a (23) great scholar, (24) he is believed (25) and they need not be checked.

MB 20: If one bought - after the fact or in the case that there is no expert in the city.

MB 21: Check them - for missing or added letters, and also to check if the shape of the letters are correct, as written in siman 36 seif 1. We don't have to worry whether they were written for the sake of tefillin, because this is something that everyone knows how to do.

MB 22: And the others do not - This is in the case that he claims that he himself wrote them, or that he bought them all from one person. We assume that the person he bought them from wrote them himself since they are in one group, as was written by the Perisha.

MB 23: Great - it seems that the same is true if he said that he bought them from an expert [in writing tefillin].

MB 24: He is believed - since one witness is believed in such cases [issurin - cases relating to forbidden items]. The Magen Avraham wrote that at least we need to recognize him as having an established record of honesty, see Yoreh De'ah siman 119 seif 2 in the Rama. [Siman 119 deals with someone who we suspect that doesn't keep certain laws, if one can eat by him. The particular seif deals in a case where the person eats kosher but sells non-kosher food. The mechaber says that one can eat such a person's cooking, and the Rama adds that a person who does an aveira to fulfill an urge is not considered suspect. - AB] And according to what is written there we see that if we saw him wearing the tefillin himself then he is believed in any case, because we don't suspect him to do an aveira - see there in the Shach, note #1. [The Shach brings a disagreement about a person we know nothing about, do we consider him suspect until we definitely know that he is all right or not? I understand that the Shach claims that in the case of a shochet one needs to know for certain that he is all right but in other cases we don't suspect him without a reason. - AB]

MB 25: and they need not be checked - because we assume that a learned man would not have something leave his possession that was not kosher.

39:10. Tefillin that were considered kosher do not (26) ever need to be checked. If one only puts them on (27) periodically then they need to be checked once in seven years. {Rama: and if he doesn't have someone that can check and sew them back up (28) he can put them on without checking. (Beit Yoseph in the name of Orchot Chaim)}.

MB 26: ever - so long as the outside leather is whole, their status does not change and they are considered kosher and we don't fear that a letter was erased or that a hole appeared in the parchment. However one should still check them because they sometimes get ruined because of sweat. If the outside leather became torn or they were soaked in water they need to be checked immediately since the writing might have been erased or ruined. In any case where tefillin need to be checked, but there is no one who can check and re-sew them, then one should put them on without a bracha, since we can't assume that they are still in their previous established state of being kosher in such a case. The Chayei Adam wrote that the same is true [like the case where they were soaked] if the tefillin were in a damp place, and each case should be considered individually.

MB 27: periodically - because we fear that they became moldy; therefore one should check his tefillin twice every seven years.

MB 28: he can put them on - and as for the bracha it can be understood from the Chayei Adam that one needs to make a bracha; the reason is because we have no clear reason to think that they were damaged, as opposed to the case where they were soaked in water or that the outside leather was damaged as mentioned above. Practically speaking it is not clear [if one needs to make a bracha]. One who finds tefillin thrown in the geniza [where old holy books and such were placed, in order to be later buried] without straps and open, we must assume that there is something wrong with them that we cannot see [e.g. they weren't written in order or were written by a child]. However if they were found properly placed in a bag there is no reason to assume that they are not kosher.