Siman 448

Chametz of a non-Jew that remained over Pesach is permitted even for eating. An Israelite may purchase it from him and eat it in a place where they eat their bread, or where an Israelite threw a wood chip during its baking, as I wrote in Yoreh Deah siman 112. However, chametz of an Israelite that remained over Pesach is forbidden for benefit by rabbinic decree, and they penalized him because he transgressed "it shall not be seen." Yet even if he nullified the chametz, it is also forbidden for the reason that will be explained in section 6. And even if an Israelite is a transgressor and has cast off the yoke of the commandments from upon himself, and it is not recognizable at all that his chametz originated from the loins of an Israelite, it is forbidden for benefit to all Israelites. And if they sold him the chametz, it is like one who sells to an Israelite, for even though he has sinned, he is an Israelite. Unless he was born of an Israelite who cohabited with a non-Jewish woman, for then the offspring is like her and is not an Israelite at all.

A Jew and a non-Jew who have chametz in partnership and Passover passed over them, and they did not divide it before Passover but divided it after Passover—the portion of the non-Jew is permitted. For regarding rabbinic law, we maintain that there is berirah, and we say the matter has been clarified that this was his portion retroactively. And the portion of the Jew is forbidden. There is one who wishes to say that even the portion of the Jew is permitted, on the grounds that the principle that regarding rabbinic law there is berirah is applied for leniency, and not so that through this there should be a stringency, whereby through this the portion of the Jew would be forbidden. Rather, on the contrary, we say there is no berirah, and perhaps the portion of the Jew is in the hand of the non-Jew, and the portion of the non-Jew is in the hand of the Jew (Sha'agat Aryeh siman 90). And I wonder at this: for is it so that through "no berirah" it becomes a clear permission? For it is still a doubt. And should you say a rabbinic doubt is ruled leniently, nevertheless, whichever way you look at it: half of this is certainly forbidden, and how can we permit both of them through this? And even though regarding rabbinic law we also say two contradictory things, as I wrote above in siman 393 regarding two people who placed an eruv, where for this one we consider it day and for that one night—it is not comparable at all. For there it is two people and two acts. And similarly "two paths," which is so in the Talmud. But here it is two people and one act, and we are judging all of this chametz which contains the Jew's half, and how can we say that it contains nothing of the Jew's?

And so too regarding the chametz of two Jews, where one sold his chametz to a non-Jew and one did not sell, and after Pesach they divided it between them—the one who sold his portion is permitted based on the principle of bereirah, and the one who did not sell his chametz is forbidden (ibid. siman 91). And it is stated in the Yerushalmi (chapter two, halacha 2): A convert who died and his property was plundered, and chametz was found among them that had passed through Pesach—the chametz is permitted, see there. And this is when he died before the time of the prohibition, such that he did not violate "bal yera'eh." But if he died after the time of its prohibition—it is forbidden, since he violated "bal yera'eh." However, one who robs him, and there was chametz in the stolen object, even if he died before the time of its prohibition—the chametz is forbidden to the robber, since it was in his possession anyway when he died, and he acquired this chametz, behold he violated "bal yera'eh." And not only that, but even if the deceased sold all his chametz before Pesach, and had not yet despaired of the chametz in any case—this chametz is not included in the sale, since the chametz was under the hand of the robber, and we maintain that if one robbed and the owners did not despair—neither of them can consecrate it (Bava Kamma 69a). And the same law applies that he cannot sell it.

If a non-Jew brings a gift of chametz to an Israelite on Pesach, and even on the last day of Pesach, he should be careful not to accept it from him. And if he accepted it—it is forbidden for benefit. And he should also be careful that it should not be evident from his actions that he desires it. And then, even if he placed the chametz in the house of the Israelite, even on the first day of Pesach—it is permitted, for he never acquired the chametz, and when he acquires it after Pesach—it is chametz of a non-Jew that passed through Pesach, and it is permitted. And if it is difficult: for if it is not his will—he should not let the non-Jew place the chametz with him. For it can be said that he does not want to arouse the wrath of the non-Jew, who brings him a gift while he spurns his gift. And according to this, in one who brings him chametz so that he should buy it from him—he is certainly obligated not to let him place the chametz in his house. For he can say: I do not need this, and it is not my will that you place the chametz in my house. And if he was a man of violence and he is afraid to protest against him—his law is like a gift. And whether in a gift or in a sale against his will like a man of violence—it is good that he should say with his mouth that "it is not my will that my domain should acquire for me." And if he did not say it—it does not hinder, for certainly it is not comfortable for him to acquire a prohibition (Bava Metzia 96b).

The Rambam wrote in the first chapter, law 4: Chametz that remained over Pesach—it is forbidden for benefit forever. And this matter is a penalty from the words of the scribes; because he transgressed "it shall not be seen" and "it shall not be found," they forbade it. And even if he left it through error or under duress, so that a person shall not leave chametz in his possession during Pesach in order to benefit from it after Pesach. Thus far his words, meaning: that even if he left it through error or under duress where he did not transgress "it shall not be seen," for the Merciful One exempts one under duress, nevertheless they established a fence in this also for another reason. And the primary penalty is because he transgressed "it shall not be seen," but because of this they established a fence even if he did not transgress "it shall not be seen," "so that he shall not leave…". And according to this, even if he nullified the chametz and did not transgress "it shall not be seen"—nevertheless, since the sages ordained removal, therefore in any case where he did not remove it, it is forbidden for benefit, for the reason "so that he shall not leave…"

These are the very words of the Tur and Shulchan Aruch, section 5, who wrote: Chametz found in the house of an Israelite after Pesach is forbidden even if he nullified it. Thus far their words, and its source is from the Yerushalmi (ibid.). And the reason says: so that he should not act with artifice to say that he nullified it even though he did not nullify it, as the Tur wrote, see there. And this is also included in the words of the Rambam who wrote: "So that he should not leave...", meaning: that he should not perform some artifice in this to benefit from it after Pesach. And the Rambam previously wrote the reason found in the Gemara (31a) that the penalty is because he transgressed "it shall not be seen," and afterward added the reason of the Yerushalmi. And the Shas and the Yerushalmi do not disagree, as we have explained. And he added: even if he acted inadvertently or was under duress, for this is a greater novelty, for what could he have done? And all the more so when he nullified it but did not remove it. (And it is difficult for me regarding the Yerushalmi: why does it need the reason of artifice? Let it say because he did not act according to the enactment of the sages to remove it. And it appears in my humble opinion that in the Yerushalmi it is written "he declared his chametz ownerless on the thirteenth," see there. And such is the version in the book Or Zarua HaGadol, siman 246, and not like the version of the Rosh in the second chapter, siman 4: "he declared it ownerless on the fourteenth." And according to this, it is not relevant to nullification on the fourteenth, for which they required a search, but rather a complete declaration of ownerlessness before the fourteenth, and it is like a declaration of ownerlessness in the middle of the year, and it correctly requires the reason of artifice. And in the Tur he brought the language of "nullification," and it is not so in the Yerushalmi. And a wondrous thing is found in the Or Zarua there, and this is his wording: It is permitted to declare chametz ownerless at the seventh hour on condition to acquire it after Pesach. And so it is in the Hagahot Ashri there. And he explains there that the Yerushalmi forbids when he did not intend to acquire it after Pesach, but when he intended to acquire it—it is permitted, see there. And it requires great study, for if so, removal is nullified. However, at the end he rejects this from the first chapter of Chullin, see there. Examine it and you will find it easy.)

And know: that even though the reason for the prohibition is because of the penalty for violating "it shall not be seen," nevertheless it is prohibited to all of Israel (Ran there). And even though regarding several penalties they only penalized the transgressor alone, nevertheless regarding chametz, which is a necessity every year, the sages saw that if they did not prohibit the chametz to all of Israel, there could still be some deceptions. And a proof for this, that the prohibition is to all of Israel, is from what they said at the beginning of Chullin: The chametz of transgressors after Pesach is permitted immediately, because they exchange it. And if the prohibition were only to him alone—behold, without exchanging it would be permitted. (And from this the Or Zarua rejected his ruling that we brought: for why do they exchange? Because they do not leave aside that which is permitted and eat that which is prohibited. And if it were permitted to declare it ownerless on the condition of reacquiring it after Pesach—why would they need to commit a transgression? See there.)

And there is reason to doubt if one nullified the chametz, and was unintentional or under duress regarding the removal, whether they penalized in this case as well or not. And it appears in my humble opinion that it is permitted. And a proof for this is from the words of the Tur and Shulchan Aruch, for in section 3 they wrote: even if unintentional or under duress – it is forbidden. And in section 5 they wrote that it is forbidden even though he nullified it. And they did not write the two laws together, that even if unintentional or under duress, and even if he nullified it – learn from this that in such a case it is permitted (and so it appears explicitly from the Chok Yaakov, subsection 20). And there is one who forbids even in such a case (Mekor Chaim, subsection 14), and it is an excessive stringency to be so stringent regarding a rabbinic prohibition. (And regarding what he elaborated in the Biurim, subsection 9, in the explanation of the Yerushalmi, see there, behold according to what he wrote in subsection 6 to explain specifically on the thirteenth – most of the difficulties are removed. And I saw at the end of his words that when he declared it ownerless three days prior – the concern of evasion does not apply. And this is according to the sugya at the end of the fourth chapter of Nedarim, and this is not related to the Yerushalmi, see there. And examine carefully and you will find it simple.)

And I found according to our words in the Tashbetz (Part Two, siman 199), and this is his wording: Reuven stored grain beneath the ground, and on the eve of Pesach he found it soaked in water, and he did not have time to sell it… and if it split—it is forbidden to eat it, but it is permitted to sell it to a non-Jew, for it is only forbidden due to a penalty. And this one we should not penalize, for what could he have done? He is under duress, and he already performed bitul… Thus far his words, and ostensibly he disagrees with the Rambam and all the poskim. And Heaven forbid to say so, rather this is according to our words that with both of them together, with bitul and duress, one certainly should permit it for benefit.

It has already been explained in siman 445, based on the Yerushalmi, that it is forbidden to feed chametz even to ownerless animals or those belonging to others, and similarly after Pesach with chametz that remained over Pesach (Chok Yaakov subsection 24). Our teacher, the Beit Yosef, wrote in section 7: It is forbidden to give one's animal to a non-Jew to feed it during the days of Pesach if he knows that he will feed it barley waste which is chametz. Thus far his words. And there is one who says that specifically when he spoke with him explicitly to give chametz it is forbidden, but in an unspecified case it is permitted, for he acts on his own accord (Chok Yaakov subsection 23 in the name of the Agudah). In my humble opinion, there is no dispute here, for certainly our teacher, the Beit Yosef, also admits that in an unspecified case it is permitted. However, this is when it is not certain that he will feed it chametz, as he has the option to give food that is not chametz, for then even if he gives it chametz, we have no concern. But our teacher, the Beit Yosef, said "if he knows that he will feed...", meaning that there is no doubt in this, for he will certainly feed it chametz; if so, what does an unspecified case avail for this? It is as if it were explicit. And if the non-Jew has an interest in the animal, such as if he gave it to him to raise for half the profit, even if he knows that he feeds it chametz, we have no concern, for he does so for his own benefit (Be'er Heitev subsection 17 in the name of Panim Me'irot siman 10). The same law applies if he is his partner in this animal, and this is as in the laws of labor on Shabbat. However, it seems that in any event the Israelite must cast his benefit into the Dead Sea, so that he does not benefit from chametz. For granted that he does not perform a prohibition, nevertheless even incidental benefit is forbidden regarding chametz (and so wrote the Chok Yaakov subsection 24). And from Terumot chapter eleven (mishnah 9) there is proof for the law that has been explained, see there.

We learned in Terumot (ibid.): A kohen who rented a cow from an Israelite, even though its sustenance is his responsibility, he may not feed it karsineh of terumah, see there. Behold it is explained that even though it is with the renter, nevertheless it is considered as if it belongs entirely to the lessor. And according to this, a non-Jew who rented an animal from an Israelite for all the days of Pesach, even though its sustenance is his responsibility—it is forbidden for the Israelite to allow him to feed it chametz, when he knows for certain that he will feed it chametz. And I saw one who permits this, because he does so for his own benefit. For if he did not feed it chametz—he would have to feed it something more expensive than this (Sha'arei Teshuva, subsection 17 in the name of the Pama"). And it appears to me that it is a complete prohibition. For it is well in the previous law, where he gave it to him for half-profit, that the non-Jew has a portion, indeed. For so we learned in Terumot there: A kohen who appraised a cow from an Israelite may feed it karsineh of terumah, but not in the case of a renter. (And an animal that eats chametz permissibly, such as the animal of a non-Jew, or as has been explained—it is permitted to drink the milk on Pesach. And we have already explained this in Yoreh Deah at the end of siman 60, see there. And I saw those who are stringent in this, but it is not the primary view.)

One of the great authorities wrote that even according to our custom, where we sell all the chametz to a non-Jew on Erev Pesach along with the animals, nevertheless, it is forbidden to feed chametz to the animals through a non-Jew. The reason is: since this sale is an evasion, as everyone knows that the non-Jew will return after Pesach and sell it back to the Israelite. Therefore, regarding chametz that remained over Pesach, where the prohibition is rabbinic since everyone nullifies the chametz—the sale is effective. This is not the case regarding giving chametz to an animal, which is a Torah prohibition—it is not effective (Tevu'ot Shor in Bechor Shor on Pesachim). Many disagreed with him, for it is explicit in the Shas that evasion is permitted even regarding a Torah matter, such as evading regarding a firstborn. (See Sha'arei Teshuva subsection 17, and the Mekor Chaim subsection 11. And the Chayei Adam contested him. And so he wrote in the name of the Noda BiYehuda.) Based on this, many are accustomed to feed chametz to their animals on Pesach through a non-Jew by means of this sale.

In my humble opinion, it is clear that it is a complete prohibition, and the words of that great authority are explicit in the Gemara. For his intention was not to say that regarding a Torah prohibition artifice is not effective, but rather this is what he said: Behold, in Shabbat (139b) we say one may practice artifice with a strainer on Yom Tov to hang pomegranates in it, and then he hangs dregs in it. And this is specifically where he hung pomegranates in it. And it asks: What is the difference... practicing artifice...? And it answers there: The matter is not evident..., see there. Behold, there is a distinction between artifice that is evident and that which is not evident. And it further says there: See, Master... sleeping on a ferry, and he said "I intended to sleep." He said to them: Are you speaking of artifice? Artifice is only permitted in rabbinic matters..., see there. And from this it is explained that there is a distinction between one artifice and another artifice. For artifice that is not evident is permitted even in a Torah prohibition. But artifice that is evident is only permitted in rabbinic matters. And behold, our sales of chametz are an artifice that is evident to every person, and therefore that great authority correctly said that in a Torah prohibition it is forbidden. And we have already forbidden in our locale to give chametz to animals through a non-Jew, and we have already mentioned this in Choshen Mishpat siman 241 at the end of section 9. And even if we were to say that this is not called an evident artifice, since the Israelite certainly desires that if the non-Jew pays him according to the purchase price he bought it for that he should take it for himself—this is regarding when the animal is standing with the non-Jew, like the animals standing on the pasture, or if it is in the courtyard of the non-Jew. But when the animal is in the domain of the Israelite—you have no more revealed artifice than this. And it is obvious that there is no permission for this, and it is forbidden to feed it chametz on Pesach.

The Rambam wrote in the fourth chapter, law 6: An Israelite and a non-Jew who were coming on a ship, and the Israelite had chametz in his hand, and the fifth hour arrived – he may sell it to the non-Jew; or give it to him as a gift, and return and buy it from him after Pesach. Provided that he gives it to him as an absolute gift. The Israelite says to the non-Jew: Instead of you buying for a maneh – come and buy for two hundred. Instead of you buying from a non-Jew – come and buy from an Israelite, lest I need it and buy it from you after Pesach… Thus far his words, and this is from the Tosefta and Yerushalmi, chapter two. And so wrote the Tur and the Shulchan Aruch, section 4, and they added, saying: But he shall not sell nor give it to him on condition, and if he did so – he violates "it shall not be seen" and "it shall not be found." Thus far their words.

And behold, that which he is permitted to sell and to give as a gift before the time of its prohibition—there is no novelty in this at all, and there is no need to inform us of it. For why should he not be permitted to sell and to give? Rather, the novelty is that even though the non-Jew understands that his intention is not because he wants to sell, but rather in order to be saved from the prohibition of chametz, and he understands from the mind of the Israelite that his intention is to buy it back from him after Pesach, and he will presumably give him a profit, and if so, it is nothing more than a mere evasion and should be forbidden—it comes to teach us that nevertheless it is permitted. And this is why they cautioned regarding a gift, that they should give it to him as a complete gift. That is to say: that with a sale where he receives money and performs a kinyan—it is automatically a sale. But a gift where he does not receive money, and it is possible that in his heart he did not intend at all for a complete gift, and he will violate "it shall not be seen"—for this they cautioned that he should intend for a complete gift.

And in the second law he informs us of an even greater point: for whereas in the first law he does not mention to him at all that it is possible that he will buy it back from him after Pesach, but rather they understand on their own according to the matter that this is his intention. And in the second law it informs us that he may even say this to him, and entice him to buy more than his needs, and that he should buy only from him. It is only that he must not tell him absolutely that it must necessarily be so, for this is certainly forbidden. And even though when he says to him: "take for two hundred, take from an Israelite, perhaps I will need it and take it..." — it is also as if explicit, nevertheless it is not truly explicit, and regarding the law it is a valid sale. And according to this, our sale of chametz has a correct foundation from the Tosefta and Yerushalmi and all the poskim.

This is the wording of our teacher, the Beit Yosef, in section 3: Chametz belonging to an Israelite over which Pesach has passed is forbidden for benefit, even if he left it inadvertently or under duress. And if he sold it or gave it to a gentile who is outside of his house before Pesach, even though the Israelite recognizes him and knows that he will not touch it at all, but rather will guard it for him until after Pesach and return and give it to him—it is permitted, provided that he gives it to him as an absolute gift without any condition, or that he sells it to him as an absolute sale for a small amount. But a gift on condition of return is not effective. Thus far his words. And his primary intention is that even if the buyer also understands that this sale is an evasion, and the Israelite only does so in order to be saved from the prohibition of chametz, nevertheless, if the sale is according to Torah law, we have no concern regarding it.

And that which he required "to a koti outside of his house" – the intention is regarding the chametz, that the buyer shall take the chametz outside the house of the Israelite. For if not so, granted that he acquired it from him, nevertheless since the chametz is placed with him – it is like a koti who deposited chametz with an Israelite. And if the Israelite accepted responsibility upon himself – he violates "bal yera'eh." And now when he left the chametz with the Israelite, it appears as if he accepts the chametz with his responsibility (Magen Avraham subsection 4). But according to the law there is no concern, only he should be careful not to accept responsibility (ibid.). And he should also designate a place for him, like a corner and the like, for then he is not required to remove it, as I wrote in siman 445 (Taz subsection 4). And regarding designating a corner for him, it has already been explained there that even with responsibility he does not violate it, see there.

And if the chametz is very much, such that it is impossible to remove it outside of the house – he should sell him the room in which the chametz is placed (Magen Avraham there). And in Choshen Mishpat siman 194 it was explained that a kutei does not acquire land with money according to the opinion of the Rambam, but rather with a document. And even according to the opinion of the Rashbam and the Tosafot that he acquires with money, nevertheless, in a place where they write a document – he does not acquire with money without a document. Therefore, if it is not in his power to write a document – he can stipulate with him that he shall acquire only with money, according to what was explained there. For the reason that he does not acquire with money is because his mind is not resolved without a document, see there. Therefore, when he speaks with him that he should rely on this – behold, his mind is resolved, and it is effective according to all opinions. (And this is the intention of the Magen Avraham there who wrote: he should stipulate with him at the beginning of the purchase, that he transfers it to him with money alone, see there.)

And it is not specifically the sale of the room, for the law is the same if he leases him the room or the place where the chametz is placed, as a lease of land is also acquired with money, as is explained there. And particularly if the place where the chametz is placed does not belong to the Israelite, but is rather held by him through a lease—behold, he cannot sell it, but rather he leases it to him with every right and power of attorney that he possesses. And similarly, if there are non-Jewish workers in the business—he leases the workers to him so that they will be on the account of the buyer, meaning that they are his workers and not the workers of the Israelite. And the leasing of workers and contractors requires neither a kinyan nor a deed, but rather merely a verbal statement, as I wrote in Choshen Mishpat at the beginning of siman 331. And even though it was explained there regarding a homeowner who hires workers, and here the Israelite leases the workers to the non-Jew, nevertheless it is all one: for to the workers there is no difference whether their wages will be paid by this one or that one. And we do not say "behold, there is no agency for a gentile," and how shall the workers be the agents of the buyer? However, we have already explained in Choshen Mishpat siman 188 that a worker becomes like the employer, a gentile for an Israelite, and an Israelite for a gentile. And certainly a non-Jew for one another, for even regarding agency there is an opinion that they become agents for one another, as I wrote there. And we also explained there that agency for pay is like a worker. And similarly, if there are horses and animals engaged in the business—he must sell the horses and animals to the non-Jew for a price of such and such.

And how does he acquire the chametz? Behold, the opinion of Rashi, of blessed memory, is known: that one acquires movable property with money and not with meshikhah. And the opinion of our teacher Tam, of blessed memory, is that it is specifically with meshikhah and not with money, and thus most poskim have relied. And the Rambam in the first chapter of Zekhiyah ruled that one acquires both with money and with meshikhah, see there. And in Choshen Mishpat siman 194 section 10, we explained that there are some among the great authorities who hold that according to all opinions, if it is impossible to perform a kinyan of meshikhah – one acquires with money, see there. Behold, according to this, he receives a perutah from the buyer and transfers the chametz to him. However, one should not rely on this alone. And behold, meshikhah is impossible with a large amount of chametz, and he can transfer it to him with kinyan sudar. That is, the non-Jew who is buying shall give him the sudar, and he shall hold the sudar in his hand. And we have already explained there that kinyan sudar is effective for a gentile. And our teacher Tam did this in practice (Tosafot Kiddushin 3a). And that which is written in Ruth regarding kinyan sudar, "and this was the custom in Israel" – the intention is that they were accustomed to acquire with this kinyan, see there. However, since he leases to him the place where the chametz is placed, as has been explained – he can transfer the chametz to him with the kinyan of movable property agav land, for we explained there in section 11 that it is effective for a non-Jew, unlike one of the great authorities who doubted this, see there. And also the non-Jew acquires the chametz when he leased the place by the law of chatzer, for he has kinyan chatzer, as I wrote there in section 12; even though one of the great authorities doubted this, nevertheless it is effective. And this is the opinion of the great Rishonim, as I wrote there. And it is good to perform all the kinyanim: kinyan of money, and kinyan sudar, and kinyan agav, and kinyan chatzer. And among us, we also write a bill of sale. And even though movable property is not transferred by a deed, nevertheless we have already explained there in siman 209 section 16 that since merchants are accustomed to write contracts for the sale of merchandise, and with this deed he obligates himself, and it is an obligation upon the person, and a person's legal status is like land. Furthermore: since the custom is such – it is a situmta and he has acquired, as I wrote in siman 201. And further reasons were explained there. And so too the horses and the animals – their acquisition is like the acquisition of movable property.

And know that the kinyan kesef is the down payment that he receives from the buyer for the chametz, and the entire acquisition that is called "aufgab" or "zadatok," and the money for all the chametz, and the rest of the things—he records for him as a loan, for kinyan kesef does not require that he give all the money but rather a portion, and that he give the down payment as the beginning of payment, as we explained in Choshen Mishpat siman 190. And there is one of the great authorities who said that a portion of the money is not effective, and he ordained that the buyer should establish an arev kablan for the money. But we have already explained there in section 3 that there is no concern in this, and all our teachers, the Rishonim and the Acharonim, hold that a portion of the money effects the kinyan, see there. Nevertheless, it is good to also make an arev kablan, and so we are accustomed. And one should also do the "hand-schlag," which is the custom of the merchants. (And know that what I wrote regarding kinyan chatzer is impossible in a sale of much chametz, for we require that the courtyard be guarded for his benefit or that he be standing beside it, as I wrote in Choshen Mishpat siman 200, see there.)

It is a simple matter that the chametz must be placed in a location that the buyer can enter on his own (Taz, subsection 4, and Magen Avraham, subsection 4). For if he cannot enter, and the key remains in the hand of the Israelite—it is nothing but a mere evasion. Therefore, they wrote that the delivery of the key is required (ibid. and Bach), and thus was the custom in previous generations. However, now this is impossible in any manner, as is known. Especially since the primary parts of our chametz are brandy and beer, and they are under the supervision of the government, and it is impossible to deliver it into the hand of another. But in truth, this is no hindrance at all, for it is specifically when one acts intentionally in this way to hide the key from him. Furthermore: according to their laws, he can take possession of it even without the delivery of the key (Chok Yaakov and Ba'er Heitev, subsection 8). Furthermore, the great authorities wrote that the concern is only for the time of the sale, but afterwards, if he closed it or placed a seal—it is permitted (Chok Yaakov, subsection 14, and Mekor Chaim, subsection 8), only that it is not proper to do so. But if he acts without intent against the buyer—certainly there is no concern, for the delivery of the key is not a kinyan. And we are accustomed to command in this manner, to say to the non-Jew to whom he sold the chametz, or to the non-Jew in his house who is occupied with the business, and he is considered like the worker of the buyer as I have written: "See that the key is placed here or there, and at any time you wish to take the chametz—take the key from here, and go and take it, and return the key to this place so that it will not be lost." And in the place where the chametz is placed, there should be some vessels and some objects that he needs during the days of Pesach. And when the non-Jew goes—he or one of the members of his household should also go there to take some vessel or some object, and automatically the non-Jew will not steal. But it is forbidden to speak with him regarding the matter of the chametz.

And that which our teacher, the Beit Yosef, wrote, that a gift on condition of return is not effective regarding chametz—the reason is not known, for in every place we hold that a gift on condition of return is a gift. And the Levush wrote indeed that this is only a mere stringency, see there (and so wrote the Beit Yosef, and the Magen Avraham subsection 5 in the name of Terumat HaDeshen). And according to this, post facto we have no concern with it (Eliyah Rabbah subsection 11). And there are those who wrote that it is forbidden by the letter of the law, for the reason that as long as the condition is pending—it is like a deposit. And before the fulfillment of the condition, he has already transgressed "it shall not be seen." And therefore, even though when the condition is fulfilled it is revealed retroactively that it belonged to the non-Jew, nevertheless he has already transgressed (ibid. in the name of Radbaz). And it is not understood at all, for in several laws regarding chametz we say "it is revealed..." (ibid.). And there are those who wished to press and sustain the words (see Mekor Chaim subsection 6), and it is not so.

And what appears according to my humble opinion: Behold, the source of this law is in the Hagahot Maimoniyot (chapter six of the Laws of Shabbat, letter bet). And he inferred this from the Tosefta that we brought in section 14 regarding an Israelite and a non-Jew who were coming on a ship…, provided that he gives it as an absolute gift. And he inferred from this that a gift on condition that it be returned is not effective. And he wondered about this: Behold, everywhere else it is effective? And he wrote that perhaps it is because of the stringency of Pesah, see there. And therefore I say that the Rambam and the Tur, who brought the Tosefta according to its wording, it appears that they did not infer this at all. For the intention is an absolute gift without artifice. However, if one must infer thus, one can say the reason is simple: for in every gift on condition that it be returned, the recipient takes the gift into his hand, and afterwards returns it. But here, where they are on a ship, and he does not move the chametz from its place—therefore, if he gives it as an absolute gift it is a gift, but on condition that it be returned, there is neither a gift, nor a condition, nor a return here, but merely empty words, for he does not take it and he does not return it. And so it appears to me in truth for the halacha: when he takes the chametz to his house, it is certainly effective. But when he does not take it to his house, like our sales, a gift on condition that it be returned is not effective for the reason that I have written. However, in practice, even if he takes it to his house, since the earlier authorities said that because of the stringency of chametz one should be stringent—we must not deviate from their words.

An incident occurred regarding Reuven, who sold his chametz to a non-Jew along with the room according to the law, and Shimon had chametz and did not sell it to the non-Jew, but rather placed his chametz in this room, and imagined in his mind that through this he fulfilled his obligation. And they ruled that his chametz is forbidden for benefit. And it is simple that even if he had said to Reuven, "I have placed my chametz in your room" – it is of no avail unless he made him an agent to sell, or transferred the chametz to him as a gift. But a mere statement – is nothing (see Chok Yaakov, subsection 15).

And behold, our sales of chametz, as has been practiced for many generations before us, are thus: that all the owners of the chametz sign their names on an authorization. And they write: We, the undersigned, give power and permission to Rabbi so-and-so to sell our chametz, all types of chametz. And they list in detail all the types, such as wheat bread, and barley bread, and wheat flour, and likewise all types of beverages in detail. And likewise other types of chametz, such as vinegar and yeast... and we, the undersigned, authorize the aforementioned Rabbi to sell at whatever price seems right in his eyes. And we are not believed to say, "I sent you to improve my situation and not to worsen it." And likewise to sell and to lease the places where the chametz is placed. And likewise to sell our animals and horses at a price which seems right in his eyes. And likewise we give permission to lease our mills and likewise the courtyard, with every right and power. And all the workers engaged in our businesses shall be at the expense of the buyer, and we have no connection to them. And likewise all types of chametz that we shall yet purchase until the fourteenth of the month of Nisan this year, until the tenth hour – we give him power and permission to sell them. And they sign their names.

And one should not ask: How is it possible to appoint an agent for something that he does not currently possess? For it is explained in Nazir (12b) that anything which is impossible to perform oneself is impossible to perform through an agent. However, chametz is different, for since it is not in the possession of a person, but rather the Torah made it as if it were in his possession to violate "it shall not be seen" through a disclosure of intent—it is sufficient. And he can appoint an agent both to sell and to nullify even regarding chametz that is not yet in his possession (Mekor Chaim at the end of siman 434, see there). And we have been accustomed to add because of this that they write that they accept upon themselves by curse and oath not to nullify the agency, and that they will consent to whatever he does. And if so, against their will they are compelled by the oath to fulfill the agency, and it is as if they perform the agency on the eve of Pesach at the tenth hour, for an agent can act not in his presence. And the Rav makes a bill of sale with the non-Jew who buys, and calculates for him all the types that he sells to him, each type at such and such a price, or according to what is sold in the market here in such and such a city. And even though the buyer does not know the measurement—it does not hinder, for we hold that if he pulled and did not measure—he has acquired. And he receives from the buyer a down payment that is called "auf-gab" or "zadatak." And it is proper to receive enough so that there will be a perutah for each of the signatories. And the money—he establishes against him as a loan until after Pesach. And the buyer appoints a guarantor for himself. And the Rav speaks with the buyer and explains the matter to him, and performs with him a kinyan kesef and kinyan sudar, and also a deed and "hand-schlag." And he leases to him all the places where the chametz is placed, and through them he shall acquire the chametz. And so too with animals and horses—he transfers to him the places where they stand, and through them the animals and horses shall be acquired. For to strengthen the matter we perform many kinyanim. And so too he leases to him the businesses in detail, this one for such and such, and this one for such and such. And each one, whatever he can add—he should add, but this is the essence of the sale practiced among us. And after Pesach he returns and buys from him. And it is correct to buy from him back immediately after havdalah on the last day of Pesach, so that the homeowners do not open their businesses before the buying back. And see Aruch HaShulchan Orach Chaim siman 450 section 15. (And we act with the buyer only according to our laws. And see Bava Metzia 71b and Bava Kamma 113a. And there is no concern in this, see Chatam Sofer Orach Chaim siman 111. And be precise and you will find it easy.)