I did not want to include this in the previous post so as to not confuse things, but one further point from the Noda b'Yehudah is worth mentioning. Based on his chiddush (see previous post) that the chiyuv of bi’ur chameitz is a chovas hagavra incumbent only upon the owner of chameitz, the Noda b’Yehudah writes that if someone failed to do bi’ur chameitz and dies on Erev Pesach, his/her children can wait and acquire and benefit from that chameitz after Pesach. The owner of the chameitz, not his/her children, is responsible to fulfill tashbisu. Since chameitz cannot be acquired during Pesach, the laws of inheritance do not cause the chameitz to pass to the children on Yom Tov and they violate no issur. The chameitz is not prohibited because of chameitz she’avar alav haPesach because chameiz she’avar alav haPesach is a knas on the owner of chameitz for violating the din d’oraysa of bal yera’eh. The issur of bal yera’eh takes effect only at nightfall of 14 Nisan, at which point the owner of the chameitz was already dead.
The only catch is that chameitz is in effect considered hefker until after Pesach when the yorshim can acquire it. In theory, anyone else can be zocheh in the chameitz as well.
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Did you ever do a post on Yerushas Chometz on Pesach Before?
ReplyDeleteAlso where is the Mareh Makom for Yerushas Chometz on Pesach?
THANKS
Thanks for reminding me that I did:
ReplyDeletehttp://divreichaim.blogspot.com/2006/03/chameitz-shavar-alav-hapesach.html
The Noda b"Yehudah is M.K. # 15.
I think there is a Ktzos on this but I did not get a chance to look it up. Too much to do, too little time!
You have a reader (albeit anonymous) that remembers a piece you did two years ago???? Yow! I thought I had to put in pictures and videos to achieve that.
ReplyDeleteLook at Yeshiva World If you think the case is far fetched very similar.
ReplyDeleteUnusual Chometz Alert For Lakewood Residents
ReplyDeleteApril 21, 2008
granola.jpgResidents living in Lakewood should be aware of the following unusual Chometz alert. Apparently, the local Shop-Rite supermarket, has chosen to send out a promotion to all of their loyal Lakewood customers: Granola Bars, which are Chometz.
The promotion arrived in the mail to many residents on Erev Yom Tov, and many others received it on Yom Tov.
Should you see it in your mailbox, please contact your Rov as what should be done with it before picking it up.
(Yitzchok Lewis - YWN)
I dont understand it and some of the Acrnoyms but its on the topic maybe you can explain I think its your brother in law?
ReplyDeleteThe Noda b'Yehuda MK OC 20 writes that if someone who has neither sold nor been mevatel his chometz dies Erev Pesach after Chatzos, the heirs are not required to be meva'er that chometz, and that chometz is muttar after Pesach, as chometz achar Shesh is not mammon that can be bequeathed. See also MT 65.
The Mekor Chaim OC 448:9 cites the NbY and writes that he himself
disagrees, positing that any case in which, were the substance not chometz it would have been mammono, the principle of "Shnei devartim einam b'reshuu shel Odom v'asa'al he'Kasuv ke'illu hein b'reshuso" kicks in,and, since were it mammono of the deceased then yerusha would pertain, it
applies vis a vis issur chometz as well and the heirs must be meva'er the chometz.
The Chok Ya''akov 435:2 agrees with the NbY. The Mikro'ei Kodesh Pesach 59 cites the Maharal Diskin concurring with the MC.
The Hararei Kodesh there 59:9 notes a contradiction, seemingly, between this NbY and the NbY MK #19 that uses a similar approach to that of the MC to explain the Rambam Chometz u'Matzo Perek 1, who rules that if one purchases chometz on Pesach than that person receives Malkos. The question is, of course, that one cannot acquire Issurei Hano'oh. The NbY himself
answers that since vis a vis Bal Yeiro'eh the Torah regards chometz as his as regards the issur, it is also mammon vis a vis zehiyah.
Voss Iz Der Chilluk z'vishen (between) Yerusha and Kinyan?What derech/derachim have you employed to reach that chilluk?RCPS himself responds that the NbY may hold that chometz, even after asa'an
he'kasuv b'reshuso, is still not mammon at all, since it is issurei hano'oh [not a davar pashut if you recall the famous Marcheshes - and the somewhat less famous Bigdei Sheish - on the topic], therefore a kinyan on the chometz may be possible, but yerusha is not - because one may make a kinyan
limited in scope to the issur, but yerusha is only relevant to mammon that is his vis a vis true ownership, as it is based on the zechus of the yorshim, and yorshim can only have a zechus insomething of substantive value, as opposed to the non-substantive ownership vis a vis the issur of Bal Yeiro'eh: On that, yerusha takes no effect, and, therefore, the yorshim are exempt from the Chiyuv of Bi'ur.Seems quite similar to what our own RGS wrote:I don't know how to classify this. I think I heard it from a Brisker,but it does not seem Brisker to me.The machlokes is what it means by "asa'an hakasuv ke'ilu hen birshuso".The gemara notes that a person cannot have ba'alus on something that is assur behana'ah but, if that is the case, how is it ever possible to be over on bal yimatzeh? According to theNesivos, the gemara answers that despite the general rule that a person can not have ba'alus on something assur behana'ah, the Torah here made an exception so that one can be over on bal yimatzeh.Therefore, the deceased owned the chametz and itfell biyerushah.According to the NbY, this is not an exception to the general rule.Rather, the issur is such that one does not have to have actual ba'alus in order to be over. It only has to be "ke'ilu" one has ba'alus. Therefore,the deceased did not own the chametz and it never fell biyerushah.I agree that this does not sound Brisk. It seems to me R' Chaim Telzer:What is the geder of the kinyan in chometz that the kasuv ascribes to you: is it a "zechus" or a "chov": A zechus would imply an ownership, which would make yerusha possible; a chov, only the limited right that RCPS and
RGS assert is non-inheritable.
RSG, OTOH:The Ran Pesachim 1a asks several questions about how can bitul make something hefker. He asserts this chiddush is limited to Pesach.Therefore, he posits "giluy daas" prevents chametz which is anyway assur
>b'hanaah from returning to one's "rshus" to violate bal yirah.
Accordingly, a voluntary purchase shows interest in chametz to create an issur. Yrushah however does not demonstrate interest in chametz which is anyway assur b'hanaah.
proposes a Brisker chilluk: Two dinim *in* the asa'an he'kasuv.
R' Micha, as always, is our Telzer:
> "Ba'alus", and similarly "reshus", have to do with control over the
> object. Note the literal translations of the words: one means "master"
> and the other "has permission".
> Which is why an issur removes ba'alus. Becuase if hana'ah is assur,
> then in what sense is one a ba'al, or does one have reshus to do with
> it as he pleases?
> Yerushah is of ba'alus, not ownership.
> KHB is the statement that even though he can't control the object, it's
> still assur for him to possess.
> (Does the use of a statement about mezuzah to resolve a question about
> chameitz make this a Poilisher teirutz?)
And, no, the use of Mezuzah does not make it *Hungarian* - as the yesod is
a common one, not one extrapolated from Mezuzah to Chometz.
But, I would like to refine this one a tad, based on the Chinuch Mitzva 400
(those of you without a Chinuch can check the Bigdei Sheish siman 37): The
principle of Mishmush. The Chinuch there reads like a Sha'arei Yosher!
Mishmush is the inherent right of a yoreish in the property of his morish
*before* the morish's death. Without Mishmush, there is no yerusha, and
while asa'an he'kasuv applies to the morish, it does not apply to the
yoreish - in distinction to outright acquisition via kinyan. Thus, bereft
of his zechus in the chometz, he inherits nothing and has no chiyuv bi'ur.
To round things out:
Rogatchover: By shelichus yad the Rogatchover distinguishes between the
chomer (substance) and tzura (form, in the philosophical sense) - thus
explaining how you can be chayav accordingto Beis Shammai b'amira b'almah.
Thus, by chometz (I think he might say this explicitly), the Rogatchover
would hold that you of course do not have a substantive kinyan, but the
"going through the motions" of acquisition is the tzura of a kinyan - and
that is the mechayev. by yerusha, of course, you lack even the tzura of a
kinyan.
Poilish:
Based, again, on a real Poilish source, the Gr"i Perlow on the Rasag 3:46,
who says Yerusha is a "Parasha" = a chiyuv and mitzva on Beis Din, not on
the individual. Thus, yerusha cannot be mechayeiv the individual in Bal
Yeiro'eh - as opposed, of course, to a direct acquisition, where one
transgresses the personal lav personally (see BS ibid.).
Which leads to the Hungarian answer:
To truly be yoreish require Bereira ("He'achin she'chalku lekuchos hen") -
so it is never mvurar who has a chiyuv Bi'ur, so there is none.
And the Sefardi one:
Perhaps the NbY does contradict himself and we pasken like one of his
conclusions and not the other!
T believe the N"B explains the Rambam in Perek Aleph to mean that since the Torah puts the chametz into your reshus for purposes of bal yera'eh, the Rambam says you can be zoche in chametz on Pesach (if a ma'aseh kinyan was done) BUT ONLY FOR THE PURPOSE OF BEING ZOCHEH TO BE OIVER ON BAL YERA'EH - NOT FOR GENERAL PURPOSES OF ZECHIYAH SUCH AS YERUSHAH. Byyerushah, no ma'aseh kinyan was done, the ba'alus came memaila, so the yorshim are not oiver on bal yera'eh. I think this is peshat in #19. What do you think? email me at afarsimon@hotmail.com Thanks!
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