Shulchan Aruch: Chapter 437 - [When] a Person Rents a House to a [Tenant], Upon Whom Does the Obligation to Obliterate Chametz Fall

I.e., the night between the thirteenth and the fourteenth of Nissan.

The Alter Rebbe is alluding to the fact that an agreement is only halachically binding if the parties involved performed a kinyan, i.e., an accepted contractual act. A verbal agreement is not sufficient.

The Alter Rebbe is referring to the transfer of a written document that belongs to the owner to the purchaser (or in this instance, the tenant). See Ketzos HaChoshen and Nesivos HaMishpat (191:1, based on Gittin 20b). By contrast, when one merely signs a contract, without actually acquiring the paper and transferring it to the other party, the document is merely a legal record. Its transfer validates a transaction only because it is customary for merchants to acquire property in such a manner. (This type of acquisition is known as a kinyan situmsa.) See Bava Metzia 74a. See also the Alter Rebbe’s Shulchan Aruch (sec. 448:11); Piskei Din Rabbani’im (Vol. 12, p. 291-2); Imrei Yaakov on the Alter Rebbe’s Choshen Mishpat 13:20.

The Hebrew text uses the term chazakah, which we have translated as “manifestation of ownership.” This term refers to the performance of an act that only the owner of a property would perform. As stated in Kiddushin 26a, Bava Metzia 47a, et al. – and by the Alter Rebbe in his Choshen Mishpat (Hilchos Hefker, subsection 2) – chazakah is one of the means through which real estate is formally acquired.

The word sudar literally means “handkerchief.” One of the means of formalizing a transaction is for a purchaser (or in this instance, the tenant) to give the seller (in this instance, the owner) an article (a handkerchief, for example,) and state the terms of the transaction. When the owner lifts up the article, the transaction is formalized through chalifin, the exchange of articles of value, and the rental agreement becomes valid. See Rambam, Hilchos Mechirah 5:5. See also Rus 4:7.

The Hebrew text uses the term maskir, which literally means, “the one who rented out.” We have translated it as “the landlord” for the sake of brevity.

Pesachim 4a. The rationale is that the landlord is still in possession of the home until he gives the tenant the key. Therefore, the landlord is responsible for searching the property.

In his Kuntreis Acharon (note 1), the Alter Rebbe supports the ruling in the main text that the obligation remains the landlord’s even when the tenant formally acquired the property. There is a difference of opinion regarding this issue among the Rishonim. The Alter Rebbe’s ruling follows the opinion of Rabbeinu Nissim, for that is the opinionRav Yosef Caro follows in his Shulchan Aruch (Orach Chayim 437:1). True, in his Kesef Mishneh (Hilchos Chametz U’Matzah 2:18),Rav Yosef Caro follows the opinion of Tosafos (Pesachim 4a), who maintain that the owner is only responsible to search the rental property when the tenant has yet to formally acquire the property. Nevertheless, in his Shulchan Aruch, Rav Yosef Caro changed his mind and accepted Rabbeinu Nissim’s position. From the fact that Rama and Magen Avraham did not object to Rav Yosef Caro’s ruling in his Shulchan Aruch, it appears that they accepted this opinion as well. The Alter Rebbe mentions that Chok Yaakov 337:2 rules that if the tenant formally acquired the rental rights to the property, he should search the property as a stringency. However, the Alter Rebbe rejects that position.

See sec.431:4, where this is the second reason listed for the obligation to search for chametz.

In sec. 431:4, the Alter Rebbe states that the other reason for the obligation to search for chametz is that one may not be entirely sincere when he declares his chametz ownerless. However in this instance, that reason does not apply. The tenant acquires ownership of everything in the home, including the chametz, for as mentioned in sec. 436:20 and the Kuntreis Acharon (note 3) to that section and later in this subsection, in contrast to a non-Jew, a Jew acquires movable property by virtue of its presence in his home or courtyard, unless he specifically stipulated otherwise. See also sec. 438:11.

A different law applies when property is sold, not merely rented out, as stated in subsection 4, below.

Sec. 434:6-7. Even though – as the Alter Rebbe proceeds to state – the primary responsibility for nullifying the possession of the chametz in the house is the tenant’s, the landlord must also nullify his possession of it for the reasons the Alter Rebbe states here. See the following subsection and the Kuntreis Acharon (note 3, summarized in footnote 16).

This section is not extant in the Alter Rebbe’s Shulchan Aruch. See the Shulchan Aruch of Rav Yosef Caro (Choshen Mishpat 260:4), and the gloss of Sifsei Kohen (Choshen Mishpat 260:15).

It could be said that since the chametz is forbidden, the tenant will not desire to acquire it (see sec. 448:3). Nevertheless, the tenant must search for it, as mentioned in the Kuntreis Acharon (note 3) to sec. 436.

Pesachim 4a.

The bracketed addition was made on the basis of the Kuntreis Acharon (note 2), which explains that there is a discussion among some halachic authorities regarding whose responsibility it is to search for chametz when the tenant gives the key back to the landlord. As explained in footnote 7, above, Tosafos maintain that the landlord is only responsible to search the rental property when the tenant has yet to formally acquire the property. In contrast to this, Rabbeinu Nissim maintains that when the tenant has acquired the rights to the property, the responsibility to search devolves on him and that responsibility remains his even if he gave the key back to the landlord. This is the approach followed by the Alter Rebbe.

In his Kuntreis Acharon (note 3), the Alter Rebbe supports his ruling in the main text, that both in this instance and the instance described in subsection 1 above, the landlord and the tenant should both nullify their possession of any chametz existing in the home. The rationale is that the person who conducts the search must nullify his possession of the chametz upon completing the search. Nevertheless, as reflected in the ruling of Magen Avraham 437:3, the other party (i.e., either the landlord or the tenant) should also nullify his possession of the chametz in the home, for each of them share some connection to the chametz, as explained by the Alter Rebbe in the main text.

See subsection 1 and the footnotes there. Halachically, a verbal agreement is not sufficient to transfer the rental rights to a home. Rather, the agreement must be formalized through an accepted contractual act (i.e., an act of kinyan).

See the Kuntreis Acharon (note 1), which is summarized in footnote 2 above.

In the instances mentioned in the previous subsections, the owner retained his rights of ownership over the house. Hence, when the key to the house is in his possession, he is responsible to search for the chametz. In the present instance, by contrast, the owner sold his house, and thus gave up all rights to it. Therefore, he has no further connection to the house. Accordingly, even if the key is still in his possession, the seller has no responsibility to search the house for chametz. See Chok Yaakov 437:2. See also Tzemach Tzedek, Orach Chayim, responsum 45:1.

Even though the seller abandoned the chametz in the house, and obviously divested himself of ownership of it when he sold the house, nevertheless, since the chametz did once belong to him, he must explicitly state that he renounces his ownership of the chametz, as stated in subsection 1.

The Hebrew text uses the term chezkas kasher, which we have translated as, “an accepted presumption that…virtuous.”

See sec. 432:10, where this principle is explained.

See Rama, Yoreh Deah 1:1. See also the Alter Rebbe’s Shulchan Aruch, Yoreh Deah 1:22, and the notes there. See also the Alter Rebbe’s Shulchan Aruch (Yoreh Deah sec.187,and note 22 there), which emphasizes that an assumption is not relied upon when it is possible to verify the details of the situation.

Pesachim 4a. This is acceptable, because according to Scriptural Law, the nullification of one’s possession of chametz is all that is necessary.

See sec. 432:10 and sec. 436:2, which discusses when a minor may be relied upon to search for chametz.

Pesachim 4b. See also sec. 432:10, which discusses why the word of these individuals is accepted.

The Alter Rebbe is referring back to the end of the previous subsection, which states that one may rely on the word of a bondman, minor or woman who state that they searched properly.

The emphasis is on the tenant’s nullification of the possession of chametz, because after acquiring the rights to the house, he is considered the householder and the chametz belongs to him. Although the owner must also nullify his possession of chametz, that is merely a secondary measure, as is evident from the end of subsection 1.

The tenant may either conduct the search himself, or appoint an agent to search in his stead. See sec. 432:10. See also subsection 7 below.

In that source, it is explained that even though the mere suspicion that chametz is present warrants a search according to Scriptural Law, carrying out that search fulfills the person’s obligation to ensure that he does not possess chametz on Pesach. See also the Kuntreis Acharon (note 3) to that section.

Kesubos 72a. See also the Alter Rebbe’s Shulchan Aruch, Yoreh Deah 185:2.

See the Shulchan Aruch of Rav Yosef Caro, Yoreh Deah 1:1.

See the Alter Rebbe’s Kuntreis Acharon (note 1) to Yoreh Deah, op. cit., which explains that a woman’s word is accepted regarding the removal of forbidden fats and the sciatic nerve although that also involves much exertion. The difference between the situations is that with regard to the forbidden fats, the place where they are located is well-known and the women are familiar with the process of removing them. In such an instance, it is not said that women will not exert themselves and remove the prohibited substances.

With regard to chametz, by contrast, the problem is that the presence of chametz is not known. The Alter Rebbe explains that our Sages’ concern was that after making a cursory search, the women would assume that there is no chametz and would not trouble themselves to search in all the cracks and holes in the floor, as is required.

Talmud Yerushalmi, Pesachim 1:1.

Indeed, even when one is only obligated to search according to Rabbinic Law, the Sages emphasized that it is preferable that adult men conduct the search. See the end of sec. 432:10.

Pesachim 4b.

See subsection 1 above.

The Alter Rebbe is teaching that in this situation the obligation to search the house becomes the tenant’s. The tenant is not searching merely to free the landlord of his responsibility to search based on the principle of mutual responsibility. See sec. 436:3.

Pesachim, loc. cit. The Alter Rebbe mentions this principle several times in his Shulchan Aruch. See parallels in sec. 14:9, sec. 586:5, sec. 637:9, and sec. 649:3. See also Choshen Mishpat, Hilchos Metziah U’Fikadon, subsection 27; Choshen Mishpat, Hilchos She’ilah U’Sechirus VaChasimah, subsection 4.

I.e., we assume that subsequently, a new factor arose that motivated the tenant to renege on his agreement to rent the house.

The Alter Rebbe is referring to sec. 14:4, where he states that a person who borrowed a four-cornered garment is not obligated to place tzitzis on it. The Alter Rebbe explains that this ruling is derived from Devarim 22:12: “You shall make yourself braided threads on the four corners of your garment”. From the wording of the verse, we learn that, “[the commandment applies only to] ‘yourgarment,’ but not to a garment belonging to others.” However, as stated in sec. 14:6, when a person lends a friend his tallis, it is assumed that he is giving it to him as a present on the condition that it must be returned to him. Hence, the borrower is obligated to recite a blessing on the tallis because the tallis belongs to him at the time he puts it on. Moreover, as stated in sec. 14:9, “it is permitted to put on a tallis belonging to a friend without his knowledge,” and recite a blessing over it. The rationale is that it is assumed that the owner would consent to lend the tallis to the other person, because “a person is pleased when a mitzvah is performed with his property.”

In his Kuntreis Acharon (note 4), the Alter Rebbe discusses this ruling, noting that the Rishonim debate which of the two positions mentioned in the main text is accepted. Indeed, in sec. 14:9, the Alter Rebbe states explicitly, “a person is pleased when a mitzvah is performed with his property if it does not involve a loss.” Nevertheless, although it is forbidden to borrow a person’s property for the sake of performing a mitzvah if doing so will cause the owner a loss, a court should not award the person who suffered the loss redress. The rationale is that, as the Alter Rebbe proceeds to state in the main text, the one who caused the loss can always claim, “I am certain [the halachah follows] the first opinion.” See the following footnote, which explains this concept.

The Hebrew text uses the words kim li, which means, “I am certain”. The halachic authorities mention the principle of kim li, “I am certain,” in several places, including Rama (Even HaEzer 52:4 and163:2). The intent is that when there is an unresolved difference of opinion among the halachic authorities regarding a point of monetary law, a defendant may refuse to pay a claim against him, arguing, “I am certain the halachah follows the opinion that supports my position.”

To explain this argument: Since the money is in the defendant’s possession, we follow the principle that a person who seeks to expropriate money from a colleague must prove the validity of his claim. In an instance where the halachic issue has not been resolved, the plaintiff cannot do so, since the defendant can always claim kim li, “I am certain the halachah follows the opinion that supports my position.” Hence, the defendant is not required to pay. See Sifsei Kohen, Choshen Mishpat 25:17; Chasam Sofer, Choshen Mishpat, responsum 95. See also the sources cited in K’nesses HaGedolah and Pischei Teshuvah to the Shulchan Aruch of Rav Yosef Caro, Choshen Mishpat, sec. 25.

To apply these concepts to the issue at hand: Although the tenant has a halachic basis for his claim for reimbursement, the landlord also has a halachic basis for his claim that he is not required to pay the expenses incurred by the tenant when searching the home. Since the issue has not been resolved, the court does not have the authority to expropriate the money from the landlord, for the landlord can claim kim li.