Question: When remodeling an old mikvah, may a community destroy the old mikvah before building a new mikvah?

Short Answer: A community may not destroy an old mikvah before building a new mikvah. It is unclear whether it is still forbidden when there is another mikvah in the community available for use, which could accommodate any overflow.

Explanation:

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I. Destroying a Shul

The Gemara (Bava Basra 3b) rules that a shul may not be destroyed before the new shul is built. The Gemara provides two reasons for this rule: (i) If the old shul is destroyed before the new shul is built, it is possible that some “ones” (unforeseen circumstance) will occur and the new shul will not be built and the community will be bereft of any shul; (ii) Very practically, if the old shul is destroyed before the new shul is built, the community will not have anywhere to daven in the interim.

The Gemara (ibid) suggests a ramification between these two reasons: when the neighborhood has other shuls and thus there are available options for the members of the destroyed shul to pray while their new shul is being built. According to the first reason – “ones” – it is still forbidden in this case to destroy the old shul before building the new shul, because we are afraid that a new shul will never be built. According to the second reason – nowhere to daven – it is permitted in this case to destroy the old shul before building the new shul, as the members will daven at the other neighborhood shuls in the interim.

The Gemara continues that even where the money for the new shul is already collected and prepared, the old shul may not be destroyed before the new shul is built (even according to the reason of “ones”), as there is still the chance that the money needs to be used for other important expenditures such as pidyon sh’vuyim (freeing a captive).

 

II. Magen Avraham vs. Taz

The Shulchan Aruch (Orach Chayim 152:1) codifies the above-mentioned Gemara and rules that an old shul may not be destroyed before the new shul is built. The Shulchan Aruch gives the reason of “ones” – perhaps the new shul will never be built due to unforeseen circumstances. The Mishnah B’rurah (4) adds that it is prohibited even where the money for the new shul is already collected, as the money will possibly be needed for other important expenditures and no new shul will ever be built.

But what about if there is an already existing other shul (or shuls!) in the neighborhood? The Magen Avraham (Orach Chayim 152:1) rules that it is still forbidden to destroy the old shul first, as the Shulchan Aruch was clear that we follow the reasoning of “ones” and thus the existence of other shuls is irrelevant. We are concerned that the new shul will never be rebuilt and thus the community destroyed a shul without ever building any new shul, thereby defiling the old shul.

The Taz (ibid), however, has a different interpretation based on the Ran. The Ran understands that even according to the reasoning of “ones,” it is permitted to destroy an old shul before building a new shul where there are other permanent shuls in the neighborhood. The entire discussion in the Gemara is where there are only temporary shuls in the neighborhood. But, since we are not at all concerned of the new shul never being built, as long as there are permanent shuls in the neighborhood, we are not concerned for anything. The people will have a permanent place to daven no matter how long it takes for the new shul to be built.

Accordingly, the Taz permits a community with multiple shuls to destroy an old shul even before the new shul is built.

The Mishnah B’rurah (Orach Chayim 152:5) cites the machlokes between the Magen Avraham and the Taz without weighing in, but in the Biur Halachah, he concludes that as long as the other permanent shuls have enough space, a community may be lenient, like the ruling of the Taz, and destroy the old shul before building the new shul, especially because this is only a Rabbinic prohibition.

Notably, Tz’dakah U’Mishpat (13, n. 22) queries whether the Mishnah B’rurah would still rule leniently where there are other neighborhood shuls, but it is uncomfortable for the members of the old shul to daven in these shuls, either because of hashkafah/nusach or because of physical proximity.

 

III. Application to Mikvah

The Imrei Yosher (Rabbi Meir Arik, 2:201:1) was asked whether a neighborhood with only one old mikvah may destroy the mikvah and build a new one. Rabbi Arik ruled that it is absolutely forbidden. He cites the above Gemara about destroying a shul and notes that by a shul, the community always has the option to daven in a house, and yet, it is still forbidden to destroy a shul before building a new shul. A mikvah is certainly stricter, as there is a potential for “kareis” punishment and stoppage of procreation without a mikvah. Additionally, “new” mikvaos have many halachic problems. He concludes that even if the vast majority is in favor of the destruction, it is forbidden to destroy the old mikvah before the building of the new one, if even one person is against the plan, because it is the property of the entire community.

The Helmetzer Rav (Rav Chananya Yom Tov Lipa Deutsch zt”l), who was a major force in building mikvaos in America in the latter half of the 20th century, asked a similar question to two g’dolim – Rav Moshe Feinstein zt”l and the Minchas Yitzchak – in 1964.

Rav Moshe responded (Igros Moshe, Yoreh Dei’ah 2:91) that it is forbidden to sell an old mikvah before building a new mikvah, as a community may not even go one night without a mikvah. Rav Moshe compares mikvah to the case of selling/destroying an old shul and notes that selling a mikvah is stricter than a shul. A community without a mikvah will cause the violation of kareis and will prevent procreation.

The Minchas Yitzchak (5:83) likewise ruled that it is forbidden for a community to destroy an old mikvah before building a new one. Indeed, as we previously discussed (see Article # 1), building a mikvah takes precedence to building a shul, so certainly a mikvah must follow the same rules as a shul, that it is forbidden to destroy an old mikvah before building a new one. See also sefer Mikveh Mayim (Rav Yirmiyahu Katz, 3, p. 13), Tz’dakah U’Mishpat (13, n. 18), and Siach Yitzchak (1:423).

Interestingly, the Meir Oz (Orach Chayim 152:1) wonders whether a mikvah is automatically stricter than a shul. Perhaps it is just the opposite – because a mikvah is a community necessity more than a shul (because you can always daven in someone’s home), there is more pressure to build the new one and thus it is highly unlikely that the new one will not be built. Accordingly, perhaps an old mikvah may be destroyed before the new mikvah is built.

 

IV. Two Mikvaos in Town

This author is unsure whether the stringency of Rav Moshe and the Minchas Yitzchak – that you cannot destroy an old mikvah before building the new one – applies even where there is another mikvah in town (which can accommodate any overflow from the destruction of the old mikvah). Presumably, based on the Mishnah B’rurah (above) by a shul, it would be permitted to destroy the old mikvah before building a new mikvah in this situation. The trickier question, based on the Tz’dakah U’Mishpat (above), is when it is “uncomfortable” for the community to use the other mikvah in town, either because of distance or size. Would the community still be permitted to destroy the old mikvah before building a new one, as there is still another mikvah available (albeit, uncomfortably) in the neighborhood?

Next Week’s Topic: May women insist that the sole community mikvah be used only for women at night and that men not use the mikvah during the day?


Rabbi Ephraim Glatt, Esq. is Assistant to the Rabbi at the Young Israel of Kew Gardens Hills and a practicing litigation attorney. Questions? Comments? Email: This email address is being protected from spambots. You need JavaScript enabled to view it. 

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