Tuesday, March 27, 2007

bedikas chameitz (I)

The first Mishna in Pesachim discusses the mitzvah derabbanan to do bedikas chameitz. Rashi writes that teh reason for the obligation of bedika is lest one violate “bal yera’eh u’bal yimatzey”, the prohibitions against ownsing chameitz. Tosfos disagrees, citing the gemara that even if one does bedika, one is still required to do bittul, declaring chameitz ownerless and like dust [bl”n more on how bittul works later], which effectively eliminates any possibility of violating bal yera’eh. The reason for bedika, says Tosfos, is not bal yera'eh, but lest one find chameitz and come to eat it during the chag.

Two issues that are consequential to the dispute: 1) whether one must do a bedika after Pesach if one forgot to do one before Pesach – there is no longer a risk of bal yera’eh, but there is still a risk of eating chameitz she-avar alav haPesach; 2) whether one must do a bedika for chameitz noksha, which according to many Rishonim cannot be eaten, but is not subject to bal yera’eh.

The Aruch haShulchan (633:12) writes that although the common practice is to do bedika in a shule or bais medrash, one should not recite a bracha or say bittul afterwards. If the reason for bedika is bal yera'eh, then there should in fact be no obligation of bedika at all as no one person is the formal owner of the shule and its chameitz; although we do bedika because of the reason of Tosfos, the bracha should not be recited m'safeik. Additionally, since only the owner of chameitz has the power to do bittul, the bittul of the gabai or shamash has no effect.

The gemara (4a) raises a question regarding someone who rents an apartment on 14 Nissan - does the obligation of bedika rest on the landlord who possesses the chameitz, or on the tenant who now possesses the dwelling? R’ Elchanan Wasserman points out that the gemara’s question may hinge on the dispute regarding the reason for bedika. If the reason for bedika is to avoid bal yera’eh, then the obligation of bedika should rest upon the owner of the chameitz. However, if the reason for bedika is lest one come to eat chameitz, then the obligation of bedika should rest upon the person using the dwelling, regardless of whether he is the formal owner of the chameitz or not.

What still needs explaining is why Rashi was concerned with the whole issue of bal yera’eh, if, as Tosfos points out, bittul removes the whole problem. Stay tuned…

8 comments:

  1. I am not sure I understand the sevara of Aruch Hashulhan here. True, no individual owns the hametz in the synagogue or Bet Midrash, but it belongs to the community, or perhaps the Board of Directors (Tovei Ha-Ir). Is there a special gezerat hakatuv that hametz shel tzibbur is exempt from bal yeraeh? This would be new to me.

    When I accompanied my rebbe in High School to perform bediqah in our building each year, we always said a beracha beforehand and bittul afterward.

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  2. And, BTW, welcome back. We missed you yesterday.

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  3. Thanks for the welcome back - I haven't been feeling well and needed a break.
    The AhS compares beit knesset to a bayis shel hefker because there is no one specific owner; he uses the term 'ba'alim meyuchadim'. I assumed he understood 7 tuvei ha'ir to function like the board of governers of a corporation rather than private partnership. Are we sure that corporate ownership (as opposed to shutfus) is chayav in bedika? My guess from the AhS is that it is not.
    I am wondering however, whether using a corporate model is correct. The Mishna in Nedarim 48 seems to suggest that property of 'olei bavel' is like hefker because it is owned by all of klal yisrael; a shule in a specific city is considered owned b'shutfus by the residents of that city.
    Fortunately for me I am neither the gabai, shamash, or Rabbi or a shule, so the issue is theoretical - it is definitely a chiddush that needs to be thought about. Not sure whether it is accepted l'ma'aseh, especially if the more popular Mishna Berura disagrees (I have not yet checked).

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  4. If memory serves, the Gemara does distinguish, for example with regard to Negaim, between synagogues that are in a metropolitan city and local congregations, indicating that the latter are owned by the community while the former belong to "Everyone". Still, it is not clear to me that there is no din of bal yeraeh on the community.

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  5. When I said "community", I meant even in the sense of "kulei alma".

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  6. You have a concept of tzibur that transcends shutfus, e.g. RYBS had a chiddush that nidvas tzibur is a different type of entity than a nidvas shutfin because the entity of tzibur is greater than a multi-person shutfus. And in the sugya in nedarim the ran does use the term hefker by the property of olei regalim which is still owned in theory by the collective unit of all of klal yisrael. I don't think the AhS is far-fetched, but it would be nice to have a clear ra'aya one way or the other.

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  7. I don't know if this helps, but I would draw an analogy to the choshem mishpat world - a shor shel shutfin which is mazik would make each partner individually chayav. What if the shor is owned by a corporate entity? In American law the corporate entity shields each owner from individual liability - is there a similar concept in halacha (I don't know enough C.M. to answer)? Hu hadin with respect to chameitz.

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  8. anon12:50 PM

    IIRC, the gemara in the third perek discussing being mafrish chalah, which then can rise and turn in chometz, brings in the concept that it is mamon ha-shevet and that chometz is not subject to bal yeraeh.

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