Bedika to sold areas and should one sell his Chametz on the 13th

 

Does one have to do Bedikas Chametz to areas of Chametz that will be sold to the gentile?[1]

Some Poskim[2] rule one is required to perform a Bedika to all areas on the night of the 14th, even if one plans to sell that area to the gentile on the day of the 14th, prior to the 6th hour.[3] Other Poskim[4] rule it is not necessary to perform a Bedika to any area that one plans to sell to a Gentile the next day.[5] Practically, the custom is to be lenient in this matter and there is thus no obligation to check the rooms that one will sell/rent to the gentile.[6] One is however to emphasize in the sale document to the gentile that the sale includes all the Chametz in the room/house, including Chametz found in the cracks and crevices.[7] Some Poskim[8] conclude that despite the custom, it is nevertheless proper to suspect for the stringent opinion and sell the Chametz on the 13th, as explained next.

Selling the Chametz on the 13th: Those who desire to be stringent and suspect for the former opinion who requires a Bedika to even sold areas, are to sign on a Mechiras Chametz contract that sells the Chametz on the 13th of Nissan, hence exempting them from a Beidka on the night of the 14th according to all.[9] Today, due to this, some Batei Dinim perform the sale on the 13th. Some Poskim[10] however protest against this custom.[11] Practically, The Chabad custom is to be lenient in this matter, following the ruling of the Tzemach Tzedek, and hence we do not perform a sale on the 13th. This is likewise the custom of many Gedolei Yisrael.[12] Nonetheless, some[13] conclude that it is best to at least sign on the Shtar Harsha on the 13th.

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[1] See correspondence between the Tzemach Tzedek O.C. 47 and Divrei Nechemia 35 [printed in Hosafos Shulchan Aruch Admur Page 1372-1376]; M”B 436/32; Kaf Hachaim 436/53; Nitei Gavriel Vol. 1 27/1 [p. 146]; Piskeiy Teshuvos 436/3

The correspondence of the Tzemach Tzedek with the Divrei Nechemia: The Divreiy Nechemya addressed the above question to the Tzemach Tzedek. In his letter he brings the opinions of the Chayeh Adam and other Achronim who rule that it has to be checked, and thus asks why Admur writes in the Siddur that the sale should be done on the 14th, as then one becomes obligated to check, and rather the sale should be done on the 13th. He states various logistics to explain why even if sold on 14th no checking is required the night before, as since he plans to sell the room on the 14th, it’s as if he will destroy all the Chametz on the 14th and thus no checking is required. There is no worry of him forgetting to do the sale, as he certainly will not come to forget to sell the known Chametz, and this will remind him to also sell the unknown Chametz that is in the room. However, he gives counterarguments, and ends indecisively, not wanting to be lenient against the great Achronim. The Tzemach Tzedek in his response writes that he agrees with the logic of the Divreiy Nechemiah, against the Chayeh Adam, as well he adds that the Torah only obligates one to destroy Chametz in his property and thus since he will not be owning the area after the 6th hour, why should there be an obligation to check it the night before, if even Biblically he is not obligated to destroy the Chametz from it. The Takana of checking for Chametz only applies to those areas that one may not own Chametz on when Pesach enters, and thus property that will be sold does not need to be checked. [To note that seemingly there is a clear proof for the ruling and reasoning of the Tzemach Tzedek from 436/21 where Admur rules that when selling one’s home to a gentile, if the gentile will acquire the Chametz before the 6th hour of Erev Pesach, then he does not need to check for it, even though that it will belong to him by the time of Bedikah.] The Divreiy Nechemiah responded to the Tzemach Tzedaks reply with a list of questions and rebuttals on the reasons the Tzemach Tzedek uses to defend not needing to check the rooms on the night of the 14th.

[2] Chayeh Adam 119/8; Makor Chaim 436/4; Divreiy Nechemia 35 in his question to the Tzemach Tzedek leans to be stringent [brought in Hosafos Shulchan Aruch Admur Page 1372-1376]; Kitzur SHU”A 111/6; Halef Lecha Shlomo 392; Avnei Tzedek 53; Devar Moshe Tinyana 98/22; Techeiles Mordechai 121;

If one will be leaving his home before the night of the 14th: Niteiy Gavriel 27/4 writes that if one will be leaving his house before the 14th then according to all there is no need to check the house before leaving if he plans to sell it to a gentile. Vetzaruch Iyun why all agree in this case, as according to the Mekor Chayim there is still suspicion that one may not find a gentile to sell it to, and thus it makes no difference when the person leaves the house.

[3] The reason: Being that the sale will only take place the next day, it ends up that on the night of Bedikas Chametz the rooms still belong to the Jew. Therefore, one is obligated to check the rooms that will be sold the next day to make sure that there is no Chametz in them. [Makor Chaim ibid; Chayeh Adam ibid; See Divrei Nechemia ibid] Alternatively, the reason why we require it to be checked is because we suspect that perhaps one will not find a gentile to sell it to. [Makor Chaim ibid]

[4] Tzemach Tzedek 47; Chasam Sofer O.C. 131; Binyan Olam 20; Ashel Avraham Butchach 433 and in Mahadurah Tinyana; Shaareiy Tzedek 75; Zecher Yehosef 143; Divrei Chen 45; Beir Yaakov 436/19; Orchos Rabbeinu 2/69 that so directed the Chazon Ish

[5] The reason: As the obligation of Bedika was only established towards one’s property, and anything that one will not be owned by Pesach is not considered one’s property on the night of the 14th. [Tzemach Tzedek ibid] As since one will not transgress Baal Yiraeh on the Chametz sold, therefore he does not need to check for it. [Chasam Sofer] Alternatively, the sale itself fulfills the Mitzvah of Tashbisu. This is no different than the Chametz one may save to eat and burn on the day of the 14th. [Binyan Olam ibid, brought in M”B and Kaf Hachaim ibid] We do not suspect that the Jew will forget to sell it is because the gentile who will benefit from the deal will remind him, as well as that every time the person sees the room, it reminds him that he must sell it. [Tzemach Tzedek ibid]

[6] Tzemach Tzedek ibid “So is the widespread custom”; Divrei Nechemia ibid that custom is to be lenient; Misgeres Hashulchan on Kitzur SHU”A 111/6 “People are not careful in this”; Ashel Avraham of Butchach ibid; Daas Kedoshim 433/3; Sdei Chemed Mareches Chameitz Umatzah 5/4; Or Yisrael 436/3; Madanei Shmuel 111/13; Kinyan Torah 3/53; 6/26; Nitei Gavriel 27/1 footnote 4; Piskeiy Teshuvos ibid

[7] M”B ibid; Kaf Hachaim ibid; This wording is included in the Shtar of the Alter Rebbe in his Shulchan Aruch “And included in all the above is also included in the sale the pieces of Chametz that are found in all these areas.” So was also included even more specifically in the Shtar Mechira of the Rebbe to the Rav.

[8] M”B ibid “Although one is not to protest against those who are lenient, nevertheless, one who sells on the 13th is doing the better act”; Kaf Hachaim ibid “It is best…”; Nitei Gavriel ibid

[9] M”B ibid “Although one is not to protest against those who are lenient, nevertheless, one who sells on the 13th is doing the better act”; Kaf Hachaim ibid “It is best…”; Nitei Gavriel ibid

[10] Teshuvos Vehanhagos 2/220; See Piskeiy Teshuvos ibid footnote 20

[11] The reason: As by doing such a sale one enters his entire Bedika into question, as if his entire home and all Chametz is already sold to the gentile on the 13th, how can he check for Chametz with a blessing on the 14th, and seemingly his blessing is in vain. [ibid]

[12] Kinyan Torah ibid; Piskeiy Teshuvos ibid

[13] Divrei Nechemia ibid; Kinyan Torah ibid; See also Tzemach Tzedek ibid “And in addition majority of the people sell their Chametz through the power of attorney do so on the 13th, and certainly he is not suspected to forget to sell it to the gentile.”

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