GEMARA PESACHIM 5771

Shiur #3: Sokher u-Maskir -

Bedikat Chametz of a Rented House

by Rav Yair Kahn

Translated by Zev Jacobson

            The gemara (Pesachim 4a) records the following question: "Rav Nachman bar Yitzchak asked: If one rents out his house on 14 Nissan, who is responsible to search the premises for chametz?  Does the owner (maskir) have to check as it is his chametz in the house; or does the tenant (sokher) have to check as the chametz is now in his possession?"

            The gemara notes that it is the obligation of the tenant, and not of the owner, to affix a mezuza on a rented house.  This implies that the tenant is responsible for mitzvot relating to a rented property.  Therefore, the gemara suggests that he is also responsible to check the house for chametz, even though the chametz does not belong to him.

            However, the gemara rejects this comparison.  The obligation to affix a mezuza relates specifically to the person who is actually living in the house and this is certainly the sokher.  However, no conclusion can be drawn as to who is obligated to search for chametz in a rented house, and the gemara's question remains unresolved.

I. Sokher or Maskir

            In order to find the solution, the gemara cites a beraita: "If the keys were handed to the tenant before the 14th of Nissan, then it is his responsibility to search for chametz.  If they are only handed over during the 14th, then the owner must search for chametz." [The significance of the possession of the keys will be discussed at greater length further on in the shiur.]  Thus, the gemara's question has now been resolved.

            In order to understand the basis of the gemara's question, and the rationale behind the solution supplied by the beraita, it is essential to investigate the reason for bedikat chametz in general.

            Rashi on the mishna (2a) maintains that a person is obligated to check for chametz before Pesach so that he will not transgress the injunctions against seeing or having chametz in his possession during Pesach (bal yera'eh u-bal yimatzeh).  Accordingly, it is reasonable that the owner of the chametz must check, since only he, as owner of the chametz, is liable.

            In light of this, it is difficult to understand the original dilemma of the gemara.  Obviously, the owner of the house (who also owns the chametz) must check - not the tenant.  Furthermore, why does the gemara conclude that whoever has the keys at the beginning of the 14th must check the house when the obligation to check is dependent solely on ownership of chametz?

            Tosafot (ibid) argue with Rashi, claiming that the obligation to search for chametz applies to a scenario where the owner has already nullified the chametz (bitul) and, thus, there is no possibility of transgressing the injunctions against seeing or owning chametz on Pesach.  Nonetheless, one is still obligated to search for chametz so as to avoid the possibility of finding chametz on Pesach and, perhaps, eating it (issur akhila).

            This, too, is problematic as it seems fairly obvious that the tenant, who is exposed to this danger, should be obligated to check and not the owner of the house.  What, then, is the question of the gemara?  In addition, how can the gemara conclude that the owner must check for chametz if he was in possession of the keys on the 14th. After all, since the tenant is exposed to the danger of finding chametz on Pesach and, perhaps, eating it. Therefore, he should check, and not the owner. There are various solutions to this problem.

A.  The Rashash weaves this argument of Rashi and Tosafot into the gemara as follows: There are two possible reasons to check for chametz before Pesach either -1. to avoid having it in one's possession (bal yera'eh u-bal yimatzeh); or -2. to eliminate the possibility of finding, and perhaps eating it on Pesach (issur akhila).  According to the first reason, the owner is obligated to check; according to the second reason, the tenant is obligated to check. The gemara deliberates over the real reason for bedikat chametz and, consequently, who checks, the owner or the tenant?  [The Kovetz Shiurim and Sefat Emet explain in a similar fashion.] However, both Rashi and Tosafot explain the gemara according to their respective opinions.

B.  We noted that Tosafot explain that the obligation of bedika is due to the danger of eating, a danger to which only the sokher is exposed.  Therefore, they re-interpret the gemara's dilemma: At the beginning of the 14th, the house was still under the responsibility of its owner and he was obligated to search it for chametz.  At that point a personal obligation was established on the owner.  Therefore, it is possible that this personal obligation continues even after he has rented out the house.  Conversely, it makes sense that along with the house, the tenant receives the obligation to check it, seeing that he is now at risk of finding the chametz on Pesach and, perhaps, eating it.  We can sum up the gemara's question as follows: The basic obligation is upon the tenant to check for the chametz.  However, based on a technicality, since the owner has already incurred the obligation, it is possible that he retains this responsibility. (See Rabbeinu Peretz).

C.  Rashi, however, maintains that one does bedika in order to avoid possession of chametz on Pesach (bal yera'eh u-bal yimatzeh) and, therefore, the obligation from the Torah to check is upon the owner of the chametz.  Accordingly, he indicates that our gemara is referring to a scenario where the owner has already nullified his chametz.  Therefore, the obligation to check in this case is based on a rabbinic decree.  It is unclear to the gemara whom the Rabbis obligated to search the house, owner or tenant.

            Apparently, Rashi agrees with Tosafot that there is a rabbinic obligation of bedika to avoid exposure to chametz.  Nevertheless, Rashi interpreted the mishna as referring to the Torah obligated bedika, which applies in a situation where the chametz was not nullified.

            The Ran, however, offered an alternate approach to explain Rashi.  Accordingly, there is an obligation to search for chametz to avoid bal yera'eh u-bal yimatzeh even if the chametz was nullified.  The Ran suggests that perhaps we are concerned that the bitul was not done properly and, therefore bedika is still required to avoid ownership of chametz on Pesach.  According to this point of view it is obvious that the owner of the chametz must do the bedika and the gemara's dilemma is not understood.  [The same problem arises according to the explanation of the Bartenura that bedika is required even after bitul as we are concerned that one may retract his bitul upon finding a tempting piece of chametz (gluska yafa) on Pesach.  It is clear that the responsibility is on the owner to check and not the tenant.]

            Therefore, an alternate explanation of Rashi must be found.  Until now, we have taken for granted that a person can only transgress the injunction against possessing chametz if the chametz actually belongs to him.  The tenant of a rented house does not own the chametz in the house and, therefore, mi-de'oraita cannot be held responsible for its mere presence in the house.  This is based on the Magen Avraham's understanding of Rashi (Orach Chaim 443 : 5), which views bal yera'eh as a function of ownership.

            The Vilna Gaon, however, is of the opinion that, according to Rashi, bal yera'eh is a function of possession.  Therefore, one Jew can transgress the injunction against possessing chametz by having the chametz of another Jew in his property.

            Accordingly, our gemara concludes that the tenant has to search for chametz to avoid the transgression of bal yera'eh u-bal yimatzeh.  Even though the chametz belongs to the owner, it is the responsibility of the tenant to do the bedika.  If, however the owner already became obligated to check, then the responsibility remains his, even after he has rented out the house.  [This is also the understanding of the Pnei Yehoshua.]

D.  It is also possible that both owner and possessor are liable (see Tosafot Rid 6a s.v. Le-meimra).  The gemara therefore has to decide which of the two are obligated to do the bedika.

            The Ran, Maharam Chalawa and Rabbeinu David, on the other extreme, maintain that both components: possession and ownership are required.  Therefore, neither the owner nor the tenant transgress the injunction of bal yera'eh u-bal yimatzeh.  The owner is free from responsibility as the chametz is not in his possession while the tenant is not culpable since he does not own the chametz.

            According to the above, either both the tenant and owner are liable for possession of the chametz, or neither are at fault.  How, then, are we to understand our gemara's original dilemma?  On what basis should either the owner or the tenant be obligated to check for chametz?  [Furthermore, according to the Ran et al., why should anyone have to check for chametz if no-one will be transgressing the law?]

            We must explain, that although both the owner and the tenant have the same halakhic status vis-a-vis the prohibitions of chametz, nevertheless, there is still an independent obligation to search for the chametz.  The gemara is unsure who should be responsible for rendering the house 'chametz-free,' the owner or the tenant.

            Until this point of the shiur, we have used the prohibitions of chametz on Pesach as the criterion to decide who is obligated to do bedika. The one who is in danger of committing a transgression is responsible for checking for chametz. However, it is possible to approach the issue from an entirely different viewpoint.

            The mishna in Bava Metzia [101b] enumerates some of the responsibilities of the landlord - he must fit the doors, bolts and locks to the house, thereby providing the tenant with a house that is habitable. It is possible, that included in his responsibility is the obligation to provide a house that is chametz free and, thus, suitable to be inhabited during Pesach.

            The Meiri [Pesachim 4a] states that if the tenant agreed to check the house for chametz, the owner is freed from his obligation. This applies even if the house is in the possession of the owner when the obligation to check has begun [ie. after nightfall on the 14th]. This supports the contention that the owner does bedika as an obligation to the tenant, and not as a fulfillment of the mitzva of bedika. Therefore, the tenant can forgo his rights and agree to check for chametz himself. Before the 14th, however, there is no need for the house to be chametz free and the owner has no obligation to do bedika.

            Now that we have explained both the question and the answer of the gemara, we will analyze the various factors that are mentioned in the sugya.

II. Transfer of the keys from owner to tenant

            We dealt briefly with this concept at the beginning of the shiur, but further elucidation is required to understand the significance of the owner's transfer of the keys to the tenant.

            According to Rashi, the possession of the house is transferred along with the keys.  In every transaction, there is an action (ma'aseh kinyan) that must be performed.  [For example, moveable objects cannot be acquired merely through the transfer of money.  Some physical action over the object - such as lifting it up - must be performed.]  The act which legally transfers the house from the owner to the tenant is the handing over of the keys.

            Tosafot disagree with Rashi and comment: "Whoever has the keys has access to the house and is, therefore, able to check it for chametz.  You cannot expect one to do bedika if he is unable to enter the house."

            According to Tosafot, the act of transferring the keys has no legal significance.  Rather, it is the resultant possession of the keys that is critical.  The possessor of the keys is the one with the technical possibility of searching the premises.  This pragmatic consideration is the crucial factor, not the legal one.

            Tosafot continue: "Nevertheless, possession of the keys is only significant if one plans to take control of the house and acquire it.  [One who is merely safe-keeping keys to a house on the 14th is not obligated to check for chametz, since the owner is actually in full control of the house.  The guardian is only watching the keys.]

            The Ran agrees with Tosafot that the significance of the keys is pragmatic and not legal.  However, while Tosafot obligate the possessor of the keys, even where the kinyan was not yet effected, the Ran requires both kinyan and technical control.  Accordingly, possession of the keys obligates the tenant only if the kinyan was previously affected.

            According to Tosafot, the gemara is dealing with a scenario where the house was rented out on the 14th (sometime after the obligation to check had begun).  Yet, if the keys were handed over to the tenant before the 14th, he is obligated to do the bedika and not the owner.  From this, it is clear that possession of the keys, although lacking legal kinyan, is enough to obligate one to check the house for chametz.  [Transfer of the keys is not a ma'aseh kinyan itself.]  This is consistent with Tosafot's opinion that the obligation of bedika is not a function of bal yera'eh u-bal yimatzeh.  Therefore, the legal title is not critical.

            According to the Ran, the gemara is dealing with a scenario where the house was rented out before the 14th - occupation beginning, however, only on the 14th itself.  The gemara concludes that only if the keys are handed to the tenant before the 14th then he is obligated to check for chametz.  From this, it is clear that not only must the tenant be in possession of the keys before he becomes obligated to do bedika.  He must have the legal status of a tenant as well.

Summary

            In this shiur we discussed who is obligated to search a rented house for chametz before Pesach, the owner or the tenant, based on the underlying reasons for doing bedikat chametz in general.

            According to Tosafot, bedika is done to avoid finding and, perhaps, eating chametz on Pesach [issur akhila]. The gemara's question, however relates to a case where the owner alreay incurred the obligation of bedika since he was still in possession of the house at the beginning of the 14th; perhaps he retains this obligation even though it is the tenant who is faced with the problem on Pesach.

            According to Rashi, bedika is done to avoid the possession of chametz on Pesach [bal yera'eh u-bal yematzeh]. There are two ways to understand the question of our gemara on the basis of this opinion:

1.  The gemara relates to a case where the owner already nullified his chametz and there is only a Rabbinic obligation to check. Who did the Rabbi's obligate: the tenant or the owner?

2.   The tenant is liable for having chametz in his possession on Pesach, even though it does not belong to him, and is, therefore responsible to do bedika. However, since the obligation to check began before the house was transferred, it is possible that the owner will have to check. [This is based on the Vilna Gaon's understanding of Rashi.]

            According to the Rashash, the gemara is unsure whether the purpose of bedika is to avoid possession of the chametz, or to avoid eating it, and therefore, questions who is obligated to check, owner or tenant.

            According to Tosfot Rid, both the tenant and the owner face the problem of possession of chametz on Pesach: the tenant, because the chametz is in his possession; and the owner, because the chametz belongs to him. Since both are liable, who is responsible to check?

            According to the Ran, Rabbeinu David and the Maharam Chalawa, one is only liable for chametz if it both belongs to him and is in his possession. Nevertheless, there is seemingly a Rabbinic decree to render the house chametz free even though neither the owner nor the tenant are in danger of committing a transgression.

            We raised the possibility, based on the mishna in Bava Metzia and the Meiri, that the owner may be liable to check for chametz as an obligation to the tenant.

            We then explored the significance of the transfer of the keys. According to Rashi, handing over the keys effects transferal of ownership of the house, thereby determining who is responsible to do the bedika.

            According to Tosafot, possession of the keys gives one access to the house and, thereby, the ability and the responsibility to check for chametz.

            According to the Ran, handing over the key does not transfer ownership of the house it does grant access to the house [this is in agreement with Tosafot]. Nevertheless, only one who has both ownership of the house and access to it, is obligated to do bedika.

Sources for next week's shiur:

1.  Pesachim 4a "Ba'u minei mi-Rav Nachman bar Yitzchak ... (4b) himnuhu Rabanan be-derabanan."

2.  Ketubot 72a Mishna and gemara "Ma'khilato she-eino me'ussar ... tiken li et ha-issa ve-azil shaylei ve-ishtakach shikra."

3.  Yerushalmi Pesachim 1:1 (page 2b) "Ha-kol ne'emanim al bi'ur chametz ... kol she-hu kol she-hu."  Penei Moshe and Korban Ha-eida there.

4.  Tosafot Pesachim 4b s.v. Himnuhu Rabanan be-derabanan "... Mipnei she-nashim atzlaniyot hen."  Rabbeinu David Pesachim 4b s.v. Himnuhu "... De-bekhol duchta amrinan nashim ve-avadim u-ktanim."  Ritva Ketubot 72a s.v. U-meshamashto Nidda "Yesh medakdekin ... de-oraita lo mehemna."