This Halacha is an excerpt from our Sefer

Buy me here or on Amazon.com

 

Having liability on Chametz that one does not own:^[1]

If one does not own the Chametz but carries liability over the Chametz if anything were to happen to it, such as that if the Chametz were to be damaged or stolen one would have liability to pay for the loss [i.e. insurance company], then it is Biblically forbidden to have such Chametz remain in one’s property over Pesach, whether it is owned by a Jew or a gentile.[2] According to some opinions [and so is how we initially rule], this applies even if one only carries liability in a case of negligence, and even if one will be held liable illegally.[3] [Thus, one may not store a gentile’s Chametz in one’s home unless he explicitly arranges with him to have no liability over it, even due to negligence. If no such arrangement was explicitly made, it may not be stored in one’s home over Pesach.[4]]

Definition of one’s property: The definition of one’s property includes even property that one borrowed.[5] Accordingly, it is Biblically forbidden for the Jew to arrange to leave the insured Chametz in another gentile’s property, if that gentile is not the owner.[6] Furthermore, according to some Poskim [and so is how we initially rule], it is even forbidden to rent an area of one’s property to the gentile owner and have him store the insured Chametz there.[7] It is, however, permitted to have the insured Chametz stored in the gentile owner’s property.[8] Likewise, it is permitted for the gentile owner to arrange to have the insured Chametz placed in another person’s property over Pesach.[9]  

What to do with Chametz that one has liability over:[10] One who has liability over Chametz that is in his property must return the Chametz to the Jewish/gentile owner, or sell the Chametz to another gentile[11] [or remove his liability from it] before the 6^th hour on Erev Pesach. It, however, does not even Biblically help to nullify the Chametz, even before the 6^th hour.[12] If the 6^th hour has already arrived, and one has not done any of the above, then two options remain: 1) Return the Chametz to the gentile owner.[13] 2) Destroy the Chametz, as stated in Halacha 6B. He, however, may no longer sell the Chametz to another gentile once the 6^th hour has arrived, as explained in Halacha 3!

Liability over stored Chametz of a Jew:[14] One who has liability over Chametz of a Jew that is stored in his property Biblically transgresses the owning prohibition, as stated above. One is thus required to verify that the Jewish owner performs Mechiras Chametz before Pesach, thus removing one’s liability, as explained in Q&A below! If one could not verify this then he must sell the Chametz of behalf of the Jew, as explained and Chapter 3 Halacha 14.

 

Summary: It is forbidden for a Jew to have any form of liability [even due to negligence] over Chametz during Pesach, if the Chametz is being kept in property that is owned, rented, or borrowed, by the Jew. It is permitted for the Chametz to be stored in the property of the gentile owner, or another property that the gentile owner arranged for it to be stored in.   Practical Application-Q&A A gentile acquaintance asked me to hold his Chametz for him in my home over Pesach until he returns from a trip, may I do so? No, unless one explicitly arranges with him that he is not to be held liable for loss and damages even if he is negligent in guarding the Chametz.   If one is storing the Chametz of a gentile in his home, and he did not relinquish liability, does it help for him to perform Mechiras Chametz through a Rav to avoid the prohibition? No. The Mechira only helps to remove one’s personal ownership over Chametz, and does not remove any liability that one may have on the Chametz of someone else. Thus, one must relinquish any liability from the Chametz in order to be allowed to store it in his home, even if he performs Mechiras Chametz. However, if one explicitly includes in the Mechira that he is also selling the gentile’s Chametz that he has liability over, then seemingly the sale is valid, and his liability ceases to exist.[15] However, in such a case, he must pay the gentile back for the Chametz sold.   Do we retain liability over Chametz that remains in our home and was sold to the gentile through Mechiras Chametz?[16] Allowing the Chametz to remain in one’s home after the sale does not make it into a Pikadon, and does not make one liable for damages, even due to negligence, unless the gentile stipulated otherwise.[17] [Thus, by a normal Mechiras Chametz sale in which the sold Chametz remains in one’s home, the Jewish homeowner does not carry liability.] Nonetheless, since it appears as if the Jew has accepted to store the gentiles Chametz in his home and has thus accepted liability, therefore, the custom is to include as part of the sale transaction, the renting of the rooms in which the sold Chametz is found, as now the Chametz is no longer in our property.[18] [Some Poskim[19], however, rule that in today’s form of Mechiras Chametz, there is some form of liability that the Jew has for the Chametz that was sold to the gentile and to counteract this issue, part of the sale transaction must include renting the rooms in which the Chametz is found in the gentile, as although we remain liable, the Chametz is not in our property.[20] However, according to the stringent opinion above who forbids to leave the insured Chametz even in a room rented to the gentile, this does not help.]   May a Jewish insurance company insure Chametz over Pesach?[21] It is permitted for Jewish owned insurance company to insure Chametz products over Pesach so long as they have no involvement in where the Chametz is stored, and the Chametz being insured is stored either in an area owned by the owner, or in an area prearranged by the owner, without any interaction of the insurance company. Thus, a Jewish owned insurance company may continue to insure the Chametz of a company, or supermarket, if the Chametz is kept in the warehouses of the company/supermarket. This applies whether the owner of the Chametz is Jewish or gentile, and even if the Jewish owner does not plan to sell his Chametz before Pesach.[22]   May a Jewish storage company hold Chametz over Pesach? A Jewish owned storage company may not allow any Chametz products to remain within their storage if they provide any type of insurance to the items found in the storage. This includes even if they only have liability in a case of negligence. [Some storage companies may be defined as a Shomer Sachar, and are hence automatically Halachically held fully liable for the items found in the storage.[23]] The only option they have is to sell their company [and its insurance coverage] to a gentile over Pesach. Alternatively, they are to make a legal arrangement that they are not held legally responsible for liability of the items in the storage, even due to negligence, and all the liability is rather provided by an external insurance company, of which the clients pay on their own. [It, however, does not help to contract an external insurance company to insure the Chametz, if legally the storage owners are also able to be held liable, such as if they were negligent in guarding the Chametz.] A final option would be to stipulate in the contract that the storage company’s liability, even in case of negligence, is limited to only non-food items, and thus have Chametz items automatically excluded from any and all forms of liability.   May a Jewish shipping company ship Chametz over Pesach? This matter poses several Halachic issues, which include liability over the Chametz and doing business on Pesach with Chametz.[24] The best option they have to avoid all these issues, is to sell their company [and its insurance coverage] to a gentile over Pesach.   May a Jew deliver a Chametz package for a gentile on Pesach? If the Jew will be held liable if he is negligent and causes loss or damage to the product, it is Biblically forbidden for him to deliver it. This is aside for other prohibitions involved as explained in Halacha 11 in Q&A!   Purchasing Chametz before Pesach and leaving it in the Jewish owned store to pick up after Pesach: It is forbidden for one to purchase a Chametz product before Pesach from a Jewish owned store, and have it set aside for pick up after Pesach even if one performs Mechiras Chametz, if the Jewish storeowner retains liability over the Chametz. Thus, one should not purchase duty free alcohol in a store prior to Pesach and leave it in the store to pick up after Pesach by one’s return trip, if the store retains liability over the Chametz alcohol if damages occur. This applies even if one includes the alcohol in Mechiras Chametz. Under normal circumstances, however, the Mechiras Chametz removes liability from the owner of the property in which the Chametz is stored, as explained above. See Chapter 17 Halacha 2!

_____________________________________________________________________

[1] Admur 440:1 and 9-17

[2] Admur 440:1 and 9-17

If the Chametz belongs to a Jew: If this Chametz belongs to a Jew, then both the owner, and the Jew who is storing it in his property with liability transgress the Biblical prohibition of Baal Yiraeh Ubaal Yimatzeh. [Admur 440:1] Thus, it is possible for two people to transgress the owning prohibition on the same Chametz, just as if they are partners in the ownership.

[3] Background and Other opinions-The definition of liability: Some Poskim [Rambam Chametz 4:3] rule that one is only considered to have liability if he is legally responsible for loss and theft even if there was lack of negligence. However, if he is only responsible for loss and theft which are result of negligence, then he is not considered to have liability on the Chametz, and he may thus leave it in his house over Pesach by placing a Mechitza in front of it. [Admur 440:9] This applies even if he knows the gentile will illegally hold him liable for loss and theft even if he was not negligent. [Admur 440:10] Thus, if a legal acquisition was not made to enact this liability, such as the signing of a document or the making of an acquisition with the owner, or through other legal manners of that country, then he is not considered to have liability. [Admur 440:9-10] Other Poskim [Rashi], however, rule that if one has any type of liability over the Chametz, even if it is limited to only cases of negligence, and even if he is not legally liable but knows that the owner will illegally force him to pay for loss and damages, then it is Biblically forbidden to be in one’s home over Pesach. [Admur 440:13] Practically, one is to be stringent like the latter opinion even in a case of illegal liability, or legal liability only over negligence, and return the Chametz back to the gentile owner, or sell the Chametz to another gentile [or remove his liability from it] before the 6^th hour on Erev Pesach. If the 6^th hour has already arrived, and one has not done any of the above, then he is to return the Chametz to the gentile owner. If the owner is not around, then one may be lenient like the first opinion and not destroy the Chametz. Likewise, one may be lenient to benefit from this Chametz after Pesach. [Admur 440:16] 

Definition of negligence: Negligence here refers to that one was negligent in the guarding of the Chametz, and thus allowed it to get stolen or damaged. However, if one will be held liable for physically damaging the Chametz, such as eating it or destroying it, this is not called liability at all, as every person is held liable for damaging anyone’s objects, and this is called paying for damages rather than insurance. [See Admur 440:10 in gloss]

[4] The reason: As according to some opinions, one automatically carries liability due to negligence when an item is stored in one’s property [i.e. Shomer Chinam], even if the item belongs to a gentile. [Shach C.M. 66:126 and 301:3 according to Rambam Sechirus 2:3] Accordingly, one may not agree to store the Chametz of a gentile in one’s property unless he negates any liability of loss and damage. [Admur 441:14; 440:13 “But to guard for free”; Kuntrus Achron 440:13]

[5] See Admur 440:14

[6] Admur 440:12-16

Background-If the Chametz was brought to a gentile’s property: If a Jew stored the Chametz of a gentile in his property, and accepted liability over it, then if he later moves the Chametz back into the property of the gentile owner, he does not transgress owning it even Rabbinically. [Admur 440:15] If, however, he moved the Chametz into another gentile’s property, then if that gentile did not accept liability, according to all the Jew Biblically transgresses owning the Chametz even though it is no longer in his property. [Admur 440:12] The reason for this is because such property is considered borrowed to him. [See Admur 440:14] Furthermore, even if the Jew never brought the Chametz into his property, but simply arranged for it to go from the owner’s property to the property of another gentile [or Jew], then according to all he Biblically transgresses the owning prohibition, if the person storing the Chametz did not accept liability. [See Admur 440:14 that the property where he arranged for the Chametz to be stored is considered borrowed to him, and is thus considered his; See Kuntrus Achron 440:5] If, however the gentile did accept liability, then according to some Poskim it does not need to be destroyed being that it is not in his property. [Admur 440:12] Other Poskim, however, rule that it must be destroyed even in such a case [as this is still considered “Bateichem”, being that he has ability to move the Chametz around as he sees fit]. [Admur 440:13; See Kuntrus Achron 440:5] Practically, one is to be stringent like the latter opinion and return the Chametz back to the gentile owner, or sell the Chametz to another gentile [or remove his liability from it] before the 6^th hour on Erev Pesach. If the 6^th hour has already arrived, and one has not done any of the above, then he is to return the Chametz to the gentile owner. If the owner is not around, then one may be lenient like the first opinion and not destroy the Chametz. Likewise, one may be lenient to benefit from this Chametz after Pesach. [Admur 440:16]

[7] Admur 440:13 “And even if he rented him a room”; Rambam, as explained in Kuntrus Achron 440:8

Background and other opinions-Designating an area for the gentile’s Chametz: If one designates a corner of the home on behalf of the gentile for him to store his Chametz, then it is disputed amongst Poskim whether it may remain there during Pesach even if the Jew has liability over it. Some Poskim rule it is permitted for the Jew to tell the gentile owner that a specific area of his home has been designated to store the Chametz, and then have the gentile bring his Chametz to that designated area, and have it remain there throughout Pesach even though he has accepted liability, so long as he places a Mechitza of ten Tefach in front of the Chametz. Alternatively, the Jew can bring the Chametz to that area, if the gentile owner is supervising him do so. [Admur 440:11] Other Poskim, however, rule that even if one gives the gentile a designated spot, and even if he rents him an entire room, one is Biblically obligated to destroy it. If he has liability over it. [Admur 440:13; See Kuntrus Achron 440:5 that there is no Kinyan for renting or lending to a gentile] Practically, one is to be stringent like the latter opinion and return the Chametz back to the gentile owner, or sell the Chametz to another gentile [or remove his liability from it] before the 6^th hour on Erev Pesach. If the 6^th hour has already arrived, and one has not done any of the above, then he is to return the Chametz to the gentile owner. If the owner is not around, then one may be lenient like the first opinion and not destroy the Chametz. Likewise, one may be lenient to benefit from this Chametz after Pesach. [Admur 440:16] The above leniency, however, only applies if the Chametz remains in the designated area. If, however, one moved the Chametz out of the designated area, then according to all he Biblically transgresses owning it, and must either destroy it or return it back to the area designated to the gentile. [Admur 440:12]

Mechiras Chametz in today’s times: Vetzaruch Iyun based on the above, how today we allow our Chametz that we sell to remain in our homes, if we have liability of negligence. Some Poskim rule that it is for this reason that we rent them the room of the Chametz [so writes Admur in Shtar], as although we remain liable, the Chametz is not in our property. [Makor Chaim 448:9; See Seder Mechiras Chametz Levin p. 162] However, according to the stringent opinion above who forbids to leave the insured Chametz even in a room rented to the gentile, this does not help. However, in truth we carry no liability, even of negligence, as the gentile is storing his Chametz in his room, and we never agreed to accept liability. See Q&A for the sources on this matter!

[8] Admur 440:14-15

The reason: As the verse states “Lo Yimatzeh Bivateichem”, thus teaching us the one who has liability over Chametz only transgresses its ownership if it is within his property. One does not need to destroy the Chametz even Rabbinically, being that the actual Chametz is not his. [Admur ibid]

If the Chametz never entered one’s property: If one never entered the Chametz into his property, but rather gave it to a gentile [who accepted liability], then he does not need to destroy the Chametz. [Admur 440:14]

[9] Admur 440:14

The reason: As in such a case, the gentile who is storing the Chametz has not lended the area to the Jewish person who has liability, but rather to the gentile owner who has asked for the Chametz to be stored by him. [Admur ibid]

[10] Admur 440:16

[11] See Kuntrus Achron 440:11 as to how the sale is valid if the actual Chametz does not belong to him

[12] Admur in gloss on Kuntrus Achron 440:11

The reason: As the Chametz is not his to nullify.

[13] Admur ibid and 440:12 that after the 6^th hour he can return the Chametz to the area designated to the gentile owner; By doing so one escapes transgressing the owning prohibition on Chametz that he has liability on, as explained in Halacha 5C, that the prohibition of liability only applies if the Chametz is in one’s property. The novelty here is that this method is valid anytime throughout Pesach, and one is not required to destroy the Chametz, as is the law by classical Chametz that one owns, in which case it must be destroyed after the 6^th hour of the day!

[14] Admur 443:6-7

[15] See Admur 440:16 who permits selling the Chametz to another gentile in order to escape ownership due to liability, perhaps here too, if one includes in the Mechira any Chametz that he has liability over, then he no longer transgresses. To note that some Batei Dinim include in their Shtar Mechira that it includes also any Chametz that they have liability over. [See Piskeiy Teshuvos 440 footnote 13]

[16] See Seder Mechiras Chametz Levin p. 162

[17] Admur 448:7; M”A 448:4; Taz 448:4; Bach 448

[18] See Admur 448:7 “Nevertheless, if possible it is proper for the gentile to remove the Chametz from the property of the Jew before Pesach as otherwise it appears as if the Jew has accepted to store the gentiles Chametz in his home and has thus accepted liability of damage over it.”

[19] Makor Chaim 448:9; See however Sheiris Yehuda 8, brought in Shaar Hakolel 18 who counters this claim; Seder Mechiras Chametz Levin p. 162

[20] Makor Chaim 448:9

[21] Shearim Hametzuyanim Behalacha 114:29; Piskeiy Teshuvos 440:2

[22] As although Jewish owner is obligated to sell his Chametz to a gentile before Pesach, this does not cause another Jew who has liability on the Chametz to transgress, if the Chametz is not in his property. However, see Piskeiy Teshuvos ibid that the custom is for the insurance companies to sell the Chametz under their liability when they perform Mechiras Chametz, as is detailed in the Mechira document. Vetzaruch Iyun as for what purpose this is done, however, perhaps it’s done as a form of Zachin Leadam Shelo Befanav, to save a Jewish owner from transgression.

[23] See Michaber C.M. 303:2 and Shach C.M. 301:3 that according to the Rambam this applies even by the Chametz of a gentile regarding liability for negligence, and so rules Admur 441:14, 440:13 and Kuntrus Achron 440:6 to suspect for this opinion Lechatchila.

[24] See Halacha 11 regarding doing business with Chametz, and Q&A regarding delivering Chametz

Bookmark