Siman 441

A non-Jew who lent to an Israelite on his chametz, and he placed the chametz in the possession of the non-Jew, and said to him: "From now it shall be yours if I do not repay you by such-and-such a time," and the time arrived and he did not repay him—it is permitted, even if the time did not arrive until after Pesach; for once the time arrived and he did not repay him, it is acquired to him retroactively, and it is considered the chametz of a non-Jew. But if he did not say to him "from now"—it is forbidden even though the mashkon is in the possession of the non-Jew, because a non-Jew does not acquire a mashkon from an Israelite, and it is like that of an Israelite. And likewise if he said "from now," and it is in the possession of the Israelite—it is also forbidden; since the responsibility is upon the Israelite—it is forbidden even with the chametz of a non-Jew, as I wrote in the previous siman, all the more so in such a case. And likewise if the time arrived, and he repaid him—it is forbidden even with "from now" and it was in the possession of the non-Jew, for since he repaid him, the matter is clarified that the chametz was the Israelite's. But when all three things exist—it is permitted.

The Rambam, of blessed memory, in chapter four, law 5, wrote: An Israelite who pledged his chametz with a non-Jew, if he said to him: "If I do not bring you money from now until such-and-such a day, acquire this chametz from now"—behold, this is in the domain of the non-Jew, and that chametz is permitted after Pesach. And this is provided that the time he set for him was before Pesach. But if he did not say to him "acquire from now"—that chametz is considered as if it were a deposit with the non-Jew, and it is forbidden for benefit after Pesach. Thus far his words, and the Ra'avad and the Tur and most of the poskim disagreed with him. For if the time arrived before Pesach—why do we need "from now"? Even without "from now," the chametz has already been decided for the non-Jew. And one cannot say that it is an asmakhta and he did not acquire it, for anything involving a "if" is an asmakhta, because the Rambam ruled in chapter eleven of the Laws of Sale that regarding a pledge there is no law of asmakhta. Rather, the reasoning of the Rambam is because we hold: a non-Jew does not acquire a pledge from an Israelite (the Maggid Mishneh), and therefore it is still as if it belongs to the Israelite. But when he said to him "from now"—it is like a sale, and "from now" without the arrival of the time before Pesach, since until the time it is still not permitted, the Gemara should have said "when the time arrives it is permitted." And since it says "after Pesach it is permitted"—it implies that it is permitted immediately, and perforce the time arrived before Pesach. And one cannot say that the setting of the time was during Pesach or immediately upon the conclusion of Pesach, for it is not the way of an Israelite to limit a time like this for chametz (ibid.). And the halacha is like most of the poskim, that if the time arrived before Pesach—it is permitted even without "from now." And in the Shulchan Aruch his opinion was not brought at all, see there.

And one should not ask, according to the opinion of most poskim, that even if the time arrived after Pesach and without "from now"—since the Israelite did not redeem it and the pledge was forfeited to the non-Jew, it should be revealed retroactively that the chametz was the non-Jew's during Pesach. For this is not so, as we hold: A creditor collects from this point forward. That is to say: when he collects a field that was encumbered to him for his debt, the field does not belong to him retroactively from the time of the loan, but rather from the arrival of the time. And since this is so, the chametz was automatically the Israelite's during Pesach, and not the non-Jew's. And know that sometimes even if the chametz was in the possession of the Israelite, it is permitted. For example: if he transferred the chametz to the non-Jew through a kinyan or agav karka, and it is not under the responsibility of the Israelite—it is permitted even though it was placed in the hand of the Israelite (Magen Avraham, subsection 1).

Since the primary basis for the permission is from the perspective of "from now," therefore even without the matter of a loan on a pledge, such as if he said to the non-Jew, "If I do not do such-and-such for you by Nisan—the chametz shall be yours from now," and the chametz is in the possession of the non-Jew, and the time arrived and he did not do it—the chametz belongs to the non-Jew, and it is permitted after Pesach. And if it is because of asmachta, it has already been explained in Choshen Mishpat siman 207 that with "from now" there is no asmachta. However, according to the one who holds there that "from now" only helps regarding a pledge, and not regarding other matters—it would again be an asmachta. But the Ra'avad holds that regarding a non-Jew there is no asmachta. And also, since according to their laws it belongs to the non-Jew—we follow them, so that the Jew will not transgress "it shall not be seen," as will be explained in siman 448 (see Magen Avraham subsection 2).

And there is a question regarding this: How do we permit this by means of "from now," even if the time arrived after Pesach? For behold, he is able to redeem it before Pesach, and let us say: Since if he wanted he could have redeemed the chametz, he should transgress "it shall not be seen," just as we say in a similar case regarding dough kneaded on Yom Tov, where one separated challah and the challah became leavened, that he transgresses "it shall not be seen" for the reason: Since if he wanted he could seek a request for its annulment to uproot from it the status of challah, and it would be his. Therefore, even though the challah is not his, and he does not transgress "it shall not be seen," nevertheless since he is able to make it his—he transgresses. And here too: Behold he is able to redeem it, and it would be his, and he would transgress "it shall not be seen." And this will be explained in siman 457. However, it is not comparable, for there he would not lack money by means of this; but here, behold he must pay money to the non-Jew if he redeems the chametz from him, and he does not wish to do so, and therefore we do not say "since he is able to redeem it" regarding a matter that involves a monetary loss (ibid. subsection 3 in the name of the Ran, of blessed memory). Furthermore: Here it is lacking an action, that he must pay the non-Jew and take the chametz to his house, for behold he would not want to leave it in the possession of the non-Jew once he pays him. And regarding a matter that is lacking an action we do not say "since." (And according to the opinion of Rashi 48a we do not say this type of "since" at all, see there.)

And all this is post facto. However, initially it is certainly forbidden to borrow from a non-Jew on the security of chametz and set the time for after Pesach, saying to him, "If I do not repay you by such-and-such a time, it shall be yours from now," for during Pesach the chametz still stands suspended as if in his possession. However, if he set the time before Pesach, and a cause arose and it extended until after Pesach—he is not obligated to exert himself to redeem it before Pesach. But when he sets a time initially for after Pesach—he is certainly obligated to exert himself initially to redeem it and to remove it (Kessef Mishneh in the Taz, subsection 2). And one should not ask: Behold, regarding an ordinary mashkon, the lender does not accept responsibility for unavoidable accidents, as I wrote in Choshen Mishpat at the beginning of siman 72. If so, regarding unavoidable accidents, the chametz still stands in the possession of the Israelite, and if so, should he not transgress "bal yera'eh" because of the responsibility? For this is not a question: Granted that there is responsibility, nevertheless, the chametz is in the hand of the non-Jew and is considered like his. And it has already been explained in the previous siman that accepting responsibility in the house of a non-Jew for the chametz of a non-Jew—is permitted (Magen Avraham, subsection 3).

If one borrowed from a non-Jew on his chametz and did not say "from now" – he is obligated to see to its redemption before Pesach and to remove it, so that he does not transgress "it shall not be seen." And if he did not do so – the chametz is forbidden for benefit, for no person is permitted to purchase it after Pesach from the non-Jew, and he has transgressed "it shall not be seen." And he suffers no loss, for the non-Jew receives it for his debt, but perhaps he is obligated to redeem it and cast it into the river or burn it, and pay the non-Jew with money. For if not so, he is paying his debt from forbidden benefits (ibid.). And perhaps since it happens of its own accord, and he performs no action in this – it is impossible to obligate him in this. And in the Yerushalmi (chapter two, halacha 2) it is explained that even in a case where he transgresses "it shall not be seen" – nevertheless, we do not compel him to lose money through this, see there (cited in Chok Yaakov siman 440 subsection 4, see there).

An Israelite who lent to a non-Jew on his chametz, and the non-Jew gave the chametz as a mashkon into the hand of the Israelite, and said to him, "If I do not repay you by such-and-such a time, this chametz shall be acquired by you from now"; even if the chametz was not under the responsibility of the Israelite at all, and even if the time did not arrive until after Pesach, nevertheless, if the time arrived and he did not repay him—behold, this chametz is forbidden for benefit, for the matter has been clarified that this chametz belonged to the Israelite retroactively. And even if it was lying in the house of the non-Jew all the days of Pesach, such as if the Israelite went back and deposited it with him, for it is like the chametz of an Israelite that he deposited with a non-Jew, which is forbidden for benefit. But if he did not say to him "from now," and the responsibility for the chametz is not upon him—it is permitted, for we hold: an Israelite from a non-Jew and a non-Jew from an Israelite—does not acquire a mashkon (Magen Avraham subsection 6). And even if it appears from the intent of the non-Jew that his intention is to abandon the chametz with him, nevertheless, he does not transgress regarding it as long as he did not sell it to him explicitly. But an Israelite who gives chametz as a mashkon into the hand of his fellow Israelite, the bailee—transgresses "bal yera'eh," for an Israelite from an Israelite acquires a mashkon (ibid.). And the depositor also transgresses "bal yera'eh."

And know: there is one who says regarding this case of "from now" that was explained, that the chametz is forbidden for benefit, nevertheless during Pesach he is not obligated to destroy it, for it is still in the domain of the non-Jew; for perhaps he will redeem it since the time is after Pesach (ibid. subsection 4). And there are those who disagree on this, and they hold that he is obligated to destroy it (Taz subsection 3, and Chok Yaakov subsection 7), because afterward when it remains with him—he has retroactively violated "it shall not be seen." And nevertheless, if he transgressed and did not destroy it, and the non-Jew came during Pesach to redeem it—it is permitted to receive the money from him, and to allow him to take the chametz. And not that he should give him the chametz with his hands, for this is forbidden, but rather he shall take it on his own. And this is not considered profiting from forbidden benefit, for since he redeems it—it turns out that it never belonged to the Israelite (Magen Avraham ibid. and Chok Yaakov).

And if he did not pull it into the hand of the Israelite before Pesach, and the chametz was resting in the house of the non-Jew, but he had encumbered it such that if he does not pay by a certain time the chametz is his, and the time is after Pesach, and he did not pay him—it is permitted for the Israelite to take the chametz, even though he said to him "from now." For since he did not pull the chametz to himself, it turns out that his acquisition is only through the money of the loan, and we hold that an Israelite from a non-Jew and a non-Jew from an Israelite—their acquisition is only through meshikhah, as I have written in Choshen Mishpat siman 194 (the Gra"z).

However, according to the method of Rashi brought in Yoreh Deah siman 320, that his acquisition is only through money—he would violate "bal yera'eh." Indeed, most of the poskim do not hold accordingly, as is explained there. Therefore, according to what will be explained in siman 448, that in a case of pressing need we rely in the sale of chametz on the method of Rashi that he acquires through money, see there. Therefore, it seems to me that if regarding this man himself who sold his chametz to a non-Jew with money, a non-Jew mortgaged his chametz to him, that if he does not repay him after Pesach the chametz shall be his—it is forbidden to take it. For how can we rule regarding him two contradictory rulings: that here he acquires through money, and here he does not acquire through money? And it is a simple matter that if the time arrived before Pesach and he did not repay him, even if the chametz was placed in the house of the non-Jew—the chametz belongs to the Israelite, and he violates "bal yera'eh," and it is forbidden for benefit.