The Rema’s opinion on the order of the writing of the parchment for the Tephillim

Jacob de David Fidanque

26 Nissan 5535/26 April 1775

Peri Eẓ Ḥaim, Vol. 7, simán 10 (pg 73)

Question:

The Rema states in the Laws of Tephillim, simán 32:1: “They must be written in this order, that is the order they appear in the Torah and if [the scribe] deviates from this order [the tephillin] are invalid. Ideally the arm-tephillin should be written before the head-tephillin.” However, upon searching for a source for this commentary, it was not found in the Talmud. If the tephillim are written in opposition to this commentary, are they valid?

Response:

Jacob Fidanque begins his response by citing the Jerusalem Talmud, chapter 1 of tractate Megillah, where it states that tephillin and mezuzoth are written on one skin (y.Megillah 10b). He then argues that the holiness of the Sepher Torah is above the tephillin and mezuzoth and that there is no mention of the order in which the latter have to be written. 

Next, Fidanque cites the commentary of Ḥakham Yehoshua Benveniste (c. 1590 – c. 1668), physician and rabbi at Constantinople in 1660. Fidanque states that none of the poseqim deviate from Benveniste’s commentary on this issue. 

After careful investigation, Fidanque then states that there are three reasonings that contradict Benveniste’s commentary. The first is that the head-tephilah is written on four parchments. The second is that the scribe writes the text according to the order in which they appear in the Torah, without skipping verses. The third is that the first two texts [qadesh li and we-hayah ki] have a specific order, but the latter two do not matter which is written first [shema’ and we-hayah im shamo’a]. 

Next, Fidanque gives the sources for the three reasonings: Rabbenu Yeḥiel (d. 1268 Paris) in Sefer Miẓwoth Qatan, Laws of Tephillin; The Mordekhay (c. 1250–1298). This is interesting because both of these sources are of the Franco-German Jewish traditions. 

Jacob Fidanque then cites the responsum of Solomon ben Simon Duran [Rashbash] (1400-1467), simán 632, where it states the the order of that the scribe writes the the texts on the parchments must be in the correct order, otherwise they are invalid. Fidanque then clarifies that Duran’s responsum agrees with the Rambam, referring specifically to the arm-tephillah. 

Then, Fidanque cites Rabbenu Tam, another Franco-German Jewish rabbi, stating that the tephillin must be written in the same order as they appear within the Torah. Next, Fidanque cites the Tur, who agrees with Rabbenu Tam and the Rema. In other words, according to these legal opinions, there is no difference between the arm-tephillah and the head-tephillah, in regards to the order in which their texts must be written. 

Fidanque then cites legal decisions from the geonim which deviate from the previous legal opinions: Hai Gaon and Sherira Gaon. These two change the order of the last two parchments for the head-tephillah (we-hayah ki and shema'…).

After this entire discussion, Fidanque then cites the Rambam and states that he does not say anything about the order of the writing, only about the four parchments for the head and one parchment for the arm tephillin (Mishneh Torah, Laws of Tephillin 3:17). Fidanque argues that the Rambam codifies the order in which the parchments must be written, i.e. as they appear in the Torah. As such, the Rambam does not deviate from the aforementioned poseqim. Fidanque concludes that the Rambam does not distinguish between the head and arm tephillin, concerning the order of the parchments. 

Fidanque then cites the Kessef Mishneh, which cites the Jerusalem Talmud (y.Megillah 10b), i.e. that one must write the tephillin and mezuzoth according to the order in which the appear in the Torah. 

The conclusion is that the arm-tephillah is written before the head-tephillah out of custom.

This responsum is interesting in that it deviates from the style of others, where the classical Sephardic approach is implemented. Here, the Rambam and the Geonim are only mentioned after various Ashkenazi sources. The author juxtaposes the apparent contradictions, but reconciles them with the Rambam at the end. It is very interesting in this case that the halakhah is established in accordance to the Jerusalem Talmud and not the Babylonian Talmud. 

In comparing Jacob Fidanque's other responsa, one can see that he either changed his style of analysis between 1775 and 1778, or that he was familiar with the Sepharadi and Ashkenazi approaches to halakhah. In later responsa, Fidanque begins with an analysis of the relevant sugya from the Gemara, then cites the Rambam, Rif, and the Geonim. In this responsum, he builds from his response by analyzing commentaries of commentaries, to then finally reconcile the Rambam with the original premise. Perhaps the nature of this question requires pilpul in discovering the source for the Rema's legal opinion, rendering the Sephardic iyun method disadvantageous. Overall, in comparing this responsum with others within the Peri Eẓ Ḥaim anthology, one can infer that the Talmud Torah Eẓ Ḥaim approach to jurisprudence is not strictly Andalusian but a synthesis of Provençal, Franco-German, Aragonese, and Andalusian styles of learning.