Siman 437

One who leases a house to his fellow for the fourteenth and thereafter, meaning: that he leased it to him before the fourteenth, and the lessee already acquired it through one of the modes of acquisition by which the leasing of land is acquired: through money, or a document, or chazakah, or kinyan sudar, and the lessor has already exited the house, but the keys of the house are still in his hand, and the lessee did not enter into the house until after the beginning of the night of the fourteenth, which is when he received the keys. Therefore, the obligation is upon the lessor to search, since the chametz is his; even though he nullified it, and would not violate "bal yera'eh," and also he will not be in the house at all during all the days of Pesach, and also the lessee has already acquired it; nevertheless, since the keys were with him at the beginning of the night of the fourteenth, and also the chametz is his—the obligation of the search devolved upon him, and it is not removed from him by the lessee entering afterward, even on that same night. And the nullification also devolves upon him (the Ha-Geraz). And the lessee also needs to nullify, for he automatically nullifies his chametz as well. But if he delivered the key while it was still day to the lessee—it is upon the lessee to search, and he shall nullify as well. And even though the chametz is not his, nevertheless, when the lessor exited he certainly renounced ownership of it, and automatically it becomes like the chametz of the lessee, and he can nullify it. And this is when he acquired the house. But if he has not yet acquired it—it is of no effect that the key is in his hand. And the obligation devolves upon the lessor, for this is like one who deposited his key in the hand of another, where the obligation is upon the depositor and not upon the depositary. (And the Magen Avraham wrote in subsection 3, that in delivering the key the lessee must search, and nullify as well. And nevertheless the lessor also needs to nullify. And he wrote that it is implied so in Tosafot. And there is no proof at all from Tosafot, as the Chayei Adam wrote. And the Makor Chaim in subsection 3 raised a difficulty: that from this it implies that the chametz becomes the lessee's, but in the Gemara 4a it says that the chametz is the lessor's, see there where he elaborated. And it is not a difficulty at all, for that which it says in the Gemara: "or perhaps it is upon the lessee to search, for the prohibition stands in his domain"—this is its explanation: and he acquired the chametz for this reason, since the lessor renounced ownership of it, and he was pleased with the house—he was pleased with everything that is in it. And this is the intent of Rashi, see there. And even though the essence of the chametz is not his, and perhaps he does not want to acquire it, nevertheless it is called "found in your hand" and he violates "bal yera'eh." And so wrote the Pnei Yehoshua, see there. And this is not related to what we say: generally leasing does not acquire, for that is regarding the house becoming as his own. But for its time it is his house, and we read regarding it "shall not be found in your houses." And see Pnei Yehoshua there, and be precise and you will find it easy.)

And this is regarding one who leases. But one who sells a house to his fellow, and left the house on the thirteenth and closed it, and the buyer acquired it with a complete kinyan, even though the key remained in the hand of the seller at the beginning of the night of the fourteenth—nevertheless, the obligation of the bedikah is not upon the seller, since he has completely removed himself from his house. And the buyer, to whom the body of the house belongs, is obligated to check when he obtains the key (Chok Yaakov, subsection 2). However, if the seller kept the key with him the entire night—it is obvious that he must check, since the buyer is unable to enter the house.

The Tur and the Shulchan Aruch wrote in section 2: One who rents a house from his fellow on the fourteenth, and does not know if it has been searched; if he is in the city, he asks him if he searched it. And if he is not in the city, its presumption is that it is searched, and he nullifies it in his heart and that is sufficient. Thus far his words. And the intention is that he rented it on the morning of the fourteenth. For had he rented it at night, even in the middle of the night, even though the obligation of the search is upon the lessor, as has been explained, and certainly when at the beginning of the night it was entirely in his possession—nevertheless, we would not say that its presumption is that it is searched when he is not here. For perhaps he was not among the diligent, and intended to search at night, and when he rented it and handed over the key, he relied upon the renter. Therefore, without asking, the renter is obligated to search. And therefore Rashi explained that he rented it on the morning of the fourteenth, and so it is in the Or Zarua (siman 245). However, there are those who wrote that even if he rented it at night, since the beginning of the night it was in the hand of the lessor, he certainly searched. Therefore, when the lessor is not present to be asked, we establish it on the presumption that he searched it. And so wrote the Tur in the Remazim, see there (Chayei Adam and the Graz). But from Rashi and the Or Zarua it is explicitly proven as I have written. (And the words of the Taz in subsection 2 are not understood, and see the Pri Megadim.)

And why, when he is in the city, must they ask him, rather than establishing it upon its chazaqah? For since all year it is held to be chametz, and based on the chazaqah that he presumably checked—you come to remove it from its status of chametz? Therefore, wherever it is possible to clarify, we clarify. And the same law applies if his wife and the members of his household are in the city—they may ask them. And only when there is no one to ask—we establish it upon the chazaqah of being checked. Thus ruled the Rambam, and the Tur, and the Shulchan Aruch. And there are those who ruled stringently (Or Zarua and Hagahot Maimoniyot), but such is not the opinion of the majority of the poskim. (For even though in the Gemara there they simply rejected the words of Rav Nachman bar Yitzchak, nevertheless the halacha is so, and this is regarding a rabbinic matter and we follow the lenient path.)

One who leases a house to his fellow under the presumption that it was searched, such as if he leased it to him on the morning of the fourteenth, or if he explicitly said to him that it was searched, and afterwards it was found that it was not searched – this is not a mistaken transaction. And even though any condition regarding monetary matters is valid, nevertheless here we are witnesses that his intention was not for it to be a hindrance, since it is a matter of a mitzvah. And even if there are minor expenses for this – a person is pleased to perform a mitzvah with his money for a small matter. Therefore, he shall search it himself, or hire someone who will search, and the transaction is valid. And some say that he deducts the fee for the search from him, if he must spend money on this, when he explicitly stipulated that it be searched. For certainly he is pleased to perform a mitzvah, but not to spend expenses on that which he explicitly spoke of. And it is not similar to a mezuzah in Yoreh Deah siman 292, where he does not need to return the money for the mezuzah to him, because the mezuzah itself is worth money. This is not the case here, where the money is lost (Magen Avraham subsection 6). And there is no difference when he leased it, whether on the thirteenth or on the fourteenth. (And in the Gemara there it says only "under the presumption that it was searched." And it could be that this is in an ordinary case. But when he spoke explicitly – it would be a mistaken transaction. However, the Ran wrote there that even if he explicitly stipulated – it would not be a mistaken transaction, and so wrote the Maggid Mishneh in the second chapter).

Everyone is believed regarding the checking for chametz, even women, slaves, and minors. Since the checking for chametz is of rabbinic origin—as according to the Torah a mere nullification is sufficient—the sages believed them. And even though women have credibility even in Torah matters, such as slaughtering, removing prohibited fats, tithes, and challah; nevertheless, regarding the checking for chametz, which is a great exertion, were it not of rabbinic origin, they would not be believed. And in the Yerushalmi it says: women are lazy. (See Tosafot 4b, starting with "They believed him." And perhaps the Yerushalmi is dealing with a case where he did not nullify, and in the Yerushalmi it does not include minors. And the version before us in the Yerushalmi is corrupted, see there in the first chapter, halacha 1).

And even if this house was established as not having been searched, such as if we knew that the owners did not search it, nevertheless these are trusted to say, "We searched it." And everything is for the reason that has been explained. And the minor must have the mental capacity to search. And it is simple that all of this is when he nullified the chametz, for if not so—they are not trusted. And nevertheless, even when he nullified—it is not proper to rely ab initio on the searching of women (Magen Avraham, subsection 8). And nowadays, our women search better, and they dig after even a minute amount of chametz, and they wash and clean all the places, and they are more meticulous than men.