Siman 443

It has already been explained in siman 431 that according to the Rambam, one who eats hametz on Erev Pesah after midday violates a negative commandment. The Rosh and the Tur agreed with him, and such is the opinion of the Geonim (Maggid Mishneh, chapter 1). And even though the Ra'avad, and the Ma'or, and the Ittur did not rule accordingly, nevertheless, such is the halakha. And so its prohibition has spread throughout all the dispersions of Israel, that after midday, hametz is prohibited for benefit by Torah law (Beit Yosef). Regarding "bal yera'eh" as well, it is the opinion of the Ra'avad that one does not violate it until the night, but according to the Rambam, one violates "bal yera'eh" from midday, as I have written there. And so Rashi explained explicitly in Bava Kamma (29b), see there.

And because chametz is accessible to every person—men and women, adults and children—our sages, of blessed memory, established a distance to prohibit it even two hours before midday, as will be explained. And they distinguished between the prohibition of eating and the prohibition of benefit: for regarding benefit, they only prohibited it one hour before midday, and regarding eating, they prohibited it two hours before. And the reason for the matter: because between the sixth hour and the seventh hour, error is very common—therefore they prohibited it for benefit. But between the fifth and the seventh—it is impossible to err except on a cloudy day, for when the sun shines, everyone knows and sees that at five the sun is in the east, and at seven it is in the west. Therefore, it is sufficient to prohibit it for eating, and not for benefit (Bach). And this is explained from the sugya of the Gemara (12b), see there. And even the chametz of a non-Jew—it is prohibited to benefit from it. And even chametz by way of a mixture, and even chametz nuksheh—there is one law for this (Chok Yaakov, subsection 3).

Therefore, it is forbidden to eat chametz from the beginning of the fifth hour. And during this entire hour—it is permitted for benefit. One is permitted to sell it to a non-Jew, even a large amount of chametz together that he certainly will not eat before Pesach, for he is not obligated that his chametz be destroyed from the world after he sells it to a non-Jew. And there is no concern that he might sell it to a Jew, for a Jew does not buy chametz during the fifth hour. And even a type of chametz that bears the name of its owner, such as kutach where they say "this is the kutach of so-and-so"—it is also permitted to sell, and we do not fear that they will suspect him of selling it during Pesach. This is according to the opinion of Rashi and the Rambam. However, according to the opinion of the Tosafot at the beginning of the chapter "Kol Sha'ah"—it is forbidden to sell this thirty days before Pesach, see there. However, no posek brought their opinion at all (and the Bach was concerned for this, and the Chacham Tzvi disagrees with him).

And one may, during the fifth hour, feed the chametz to domestic animals, wild beasts, and birds, provided that he stands over them to see that they do not hide any of it, and he must burn what they leave over from it. And even though it is the way of a wild beast to hide food, nevertheless we are not concerned that it will hide it, since he is standing over it. And regarding a domestic animal, even though it is not its way to hide food, nevertheless he is obligated to stand over it (Kessef Mishneh on the Gemara ibid.). And from the beginning of the sixth hour and onwards – they prohibited it even for benefit. And the Tur wrote that if one betrothed a woman with it – she is not betrothed, since they prohibited it for benefit to all of Israel, see there. And this is regarding absolute chametz. But regarding chametz nuksheh, which is rabbinic according to Rashi – it is like Torah chametz. And according to Rabbeinu Tam, since there are two rabbinic factors, the hours being rabbinic and the chametz being rabbinic – we are concerned for the betrothal. And in Even HaEzer siman 58 this was explained, see there.

Our teacher, the Rema, wrote that in an intercalated year, when the day is long, these four hours are according to the matter of the day, and it is permitted to eat chametz until a third of the day. And some say until two hours before midday; thus far his words. That is to say: the "some say" hold that we do not follow a third of the day, but rather they decreed that it is always forbidden to eat chametz two hours before midday. However, the great authorities rejected this, and so is the primary law, that we calculate a third of the day. And there are those who calculate a third of the day from dawn until the emergence of the stars, and there are those who calculate from sunrise until sunset, and such is the halacha according to the decision of the great later authorities (the Gra and the Graz). And so we calculate regarding the time of the recitation of Shema and prayer, as I wrote above in siman 58. And so we instruct as a practical ruling. (As the Gra elaborated on this below in siman 459, and the Graz in his Siddur regarding the time of the recitation of Shema, see there). And the hours are proportional hours, for example, if the day is fifteen hours long—an hour is an hour and a quarter. And so is the calculation always.

An Israelite who had the chametz of another Israelite in his possession as a deposit—he shall withhold it until the fifth hour, and if its owner does not come, he shall sell it to a non-Jew. And if it is an item for which buyers will not be easily found during the fifth hour, it is permitted to sell it earlier. And even if he is forced to depreciate the price, he shall sell it, since if he does not do so, it will become entirely forbidden. However, if he is able to sell it to a non-Jew who he knows will return it to him after Pesach, according to the manner of our chametz sales, and as will be explained in siman 448—he is obligated to do so, and not to sell it absolutely (Magen Avraham, subsection 4). And this applies even if he could sell it at its equal value, for a person prefers his own property (Machatzit HaShekel).

And if he did not sell it—he is obligated to destroy it at the time of its prohibition, even if he is not liable for the responsibility of the chametz. And even though he does not transgress because of it, nevertheless he should destroy it, so that the depositor does not transgress "bal yera'eh." And even though it is possible that the depositor sold it to a non-Jew in the place where he is, nevertheless a doubt does not override a certainty (Magen Avraham subsection 5). And even though the depositor presumably nullified the chametz, and does not transgress "bal yera'eh," nevertheless since according to the enactment of the sages it is not effective without destruction—he is obligated to destroy it. And the bailee does not need to pay him, for it is upon the owner to worry for his chametz (Chok Yaakov subsection 8 and Even HaOzer). And there is one who obligates the bailee to pay (Magen Avraham ibid.), but it is not the primary view. And even if this was a mashkon in his hand, and he did not sell it and the chametz became prohibited—he can say to him "here is yours before you." And the borrower must pay him his debt, for since he is the owner of the chametz—it is upon him to worry for this (Taz subsection 4, and Chok Yaakov ibid., and see Magen Avraham ibid. who was in doubt about this). And all the more so regarding an ordinary deposit, that when the chametz is present, he can say to him "here is yours before you," even according to the one who holds that the bailee is obligated to pay when he destroyed it (Magen Avraham ibid.). And all this is ex post facto, but initially the bailee is obligated to see to sell it before the time of its prohibition, as has been explained.

Our teacher, the Beit Yosef, wrote in section 3: If they bought anything with chametz after six hours—it is permitted, because chametz does not cause its value to be seized with its prohibition. Thus far his words, and it is not understood: for it is true that according to the Torah, all forbidden benefits do not cause their value to be seized with the prohibition, except for idol worship. However, according to the rabbis, it is indeed forbidden to the owners themselves, who sold it or exchanged it, as Rashi and Tosafot wrote at the beginning of Chullin, see there. And it can be said that his opinion is that chametz is more lenient, because after Pesach its prohibition is only according to the rabbis due to a penalty, it is possible they were not stringent regarding the seizure of value. But in the Tur it is found only when the maidservant bought it without the knowledge of the Israelite, for in this case Rabbeinu Tam instructed to permit it, see there. But when the Israelite bought or exchanged it—they are absolutely forbidden to him, for if not so, we would find a value for chametz on Pesach. And such is the primary ruling in law. And the exchange of an exchange is permitted, and there is no difference whether he exchanged it for money, or for clothing and vessels. And there is one who distinguishes in this (Chok Yaakov), and it is not primary (as the Gr"z wrote in the Kuntres Acharon). And there is one who says that if the non-Jew first pulled the chametz, and afterward gave the money, it is permitted even to the Israelite who sold it to him (Magen Avraham subsection 6); for thus we hold even regarding wine used for idolatry in Yoreh Deah siman 132 for the reason that since he pulled it—he acquired it, and subsequently the money is no longer the value of the exchange of the chametz. And even though regarding wine used for idolatry it is forbidden to him, as I wrote there, nevertheless regarding chametz one should be lenient, for with wine used for idolatry the exchange is forbidden according to the Torah. And despite all this, in this manner it is permitted to everyone. And certainly regarding chametz, where for him it is only a rabbinic prohibition, it is permitted in such a case. (In the Makor Chayim subsection 7 he labored over the words of the Magen Avraham, and I do not know why, for his intention is clear as I wrote. And see Chok Yaakov subsection 9 regarding grain that became chametz during its growth, and Pesach passed over it, that it is permitted; for growth is like an exchange, see there. And see Pri Chadash who decided completely toward leniency regarding the seizure of value, that they are permitted even to the one who exchanges it himself, or to the one who sells them, see there. And it is difficult to say so. However, in a case of great loss, the Gr"z wrote in section 12 that one may rely on this, see there. And especially since such appears to be the opinion of the Beit Yosef. And examine carefully and you will find it simple.)