Parsha Mitzvot: Terumah: Nationality of Synagogues
The congregations of a certain city agreed among themselves that anyone who shall immigrate to that city, if he and his father were born in Italy, even though his grandfather had come from Portugal or Castille or Aragon or any other kingdom, must join the congregation of the Italians; but if his father was born in any of the above-mentioned Spanish kingdoms, then even though he himself was born in Italy, he can only go to the congregation which speaks the language of his father’s nativity. And so with regard to the other languages.
Now, at the time when they made this new agreement, the members of the congregation of Aragon protested, saying,” it is not just that one who is known to be and Aragonese, or from any other Spanish kingdom, should go to worship with the Italians, just because he and his father were born in Italy.” ( Evidently two generations in Italy were not enough to make the proud Spaniards give up their Spanish consciousness). Furthermore, they argued that one of the congregations made a private compromise with the Italian congregation before the general agreement, namely, that if there do come from Italy men of Spanish origin who themselves and their fathers were born in Italy, the Italian congregation should not force these immigrants to join it. Because this compromise was allowed them, namely, not to be subjected to the general agreement, they publicly accepted the general agreement because, had they publicly protested, it was obvious that no such agreement among the leaders of the various congregations could be made at all. Teach us, our master, whether the members of the Aragon congregation must now abide by this agreement or not, since they protested against it.
All that passage in the Talmud (Bava Batra 8b) to the effect that the members of the city can impose penalties to enforce their decisions, is quoted by Mordecai in the first chapter of Bava Batra, where he cites the opinion of Rabbeinu Tam and others to the effect that it is only when originally the members of the community had agreed, that the community can enforce its rules upon one who holds back from obeying that. But if they did not all agree from the very beginning, then the community can not coerce anyone who wishes who refuses to do what they wish.
Especially is this true when there is profit for one and loss to the other and if they do not all agree at the time when the agreement is made. Rabbi Joseph Colón discusses this matter at length in his responsa, (Numbers 141 and 148) This, that all must agree initially, applies even when it involves the doing of a mitzvah, and all the more in the case of a separate congregation, which is a community and a court by itself. No other congregations can force it to fulfill the agreement, since they did not feel satisfied with it from the very beginning. So Rabbi David Cohen of Corfu says in section number 14.
Here, in our case, the Aragonese are a congregation and a courtof their own and, besides, they could suffer a loss in this matter, for if one of their tongue who was born in Italy, and his father too had come to the city, and because of this agreement would have to go to the Italian congregation, then consider what they, the Aragonese, stand to lose what he would contribute to charity for the poor of their congregation and money to support the school, and similar mitzvot which are maintained by the congregation in which a man prays. No other congregations have the right to a portion of these gifts.
The Italian congregation would thus have an unfair profit because of this agreement. Now, do not say now, if the Aragonese are not compelled to agree it would be a loss to the Italian congregation, for this immigrant would now join their congregation; for consider that, if it were not for this agreement, he would never think of joining their congregation since he speaks another language, even though he and his father were born in Italy.
Hence, if this agreement were to stand, it would result in benefit to the Italian congregation and loss to the Aragonese congregation. Hence, since the Aragonese congregation was not satisfied with this agreement from the beginning – on the contrary, they protested against it – they cannot be compelled to maintain.
Now, you cannot say that the Italian congregation may sometimes also lose from the agreement. If, for example, some Italian were to come, whose father and he were born, to, in another land, and under the agreement he had to go to the to that other congregation, I must say that this theoretical loss is not comparable to the loss to the Aragonese congregation.
For, if, for example, this Italian, he and his father, were born in Germany, the Aragonese congregation would have no loss and no benefit. The loss and the benefit would be between the Italian and the German congregations. But as for such balanced losses and gains between the Italian congregation and the Aragonese congregation, it is well known that there would never come to this city any Italian family who moved to Aragon, and a man and his father were born there. For there have been no Jews in Aragon for 70 years now and we are confident that no Jew will ever live there anymore. For God, blessed be He, will soon gather the scattered ones of His people Israel into the land of Israel.
The agreement is one-sided. It benefits the Italians more than anyone else. Besides, it was not agreed to in the first place and so it is void
If so, this agreement is void as far as the congregation of Aragon is concerned and there is no power in the hands of other congregations to force them to fulfill it. Therefore, whoever shall come from Italy, even though he and his father were born there, nevertheless, if his family came from Aragon, he is called Aragonese by his language and he shall join the Aragonese congregation as is the custom, that each immigrant goes to the congregation of the people that speak his language, and not to another. So says Moses di Trani (Hamabit, Volume I, #307)