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Pesachim 4

1) BAL YERA'EH AND BAL YIMATZEI BEFORE PESACH

OPINIONS: RASHI (DH Bein l'Rebbi Meir) says that the Isurim of Bal Yera'eh and Bal Yimatzei apply beginning from the end of the sixth hour of the day before Pesach. Actually, the question of whether Bal Yera'eh and Bal Yimatzei apply before Pesach is a subject of dispute among the Rishonim.

(a) According to RASHI (here and in Bava Kama 29b, DH m'Sheish), the RAMBAM (Hilchos Chametz u'Matzah 3:8) and SEFER HA'CHINUCH (end of Mitzvah #9), the Isurim of Bal Yera'eh and Bal Yimatzei apply even before Pesach begins, from the sixth hour. A person not only transgresses the Mitzvas Aseh of "Tashbisu" ("destroy Chametz from your houses"), but he also transgresses the Lo Ta'aseh of Bal Yera'eh and Bal Yimatzei for owning Chametz after that hour. This is also the implication of the Yerushalmi (Pesachim 5:4), as the MINCHAS CHINUCH points out (11:1).

(b) However, the RA'AVAD (Hilchos Chametz u'Matzah 3:8) says that the Isurim of Bal Yera'eh and Bal Yimatzei do not apply until the Yom Tov starts. All the verses that mention Bal Yera'eh and Bal Yimatzei say "Shiv'as Yamim" ("seven days"), referring only to the actual days of the festival of Pesach, and not to the day before Pesach. (TOSFOS YOM TOV (5:4) points out that from Rashi later on in Pesachim (63a, DH Chayav) it would seem that Rashi himself is switching sides and taking the side of the Ra'avad, that a person does not transgress Bal Yera'eh and Bal Yimatzei until Pesach actually starts, in contrast to what he says here.)

OPINIONS: The Gemara tells us that one who is renting a house must do Bedikas Chametz only if, by the fourteenth of Nisan, he had taken possession of the keys to the house. If he is not given the key, it is the owner's responsibility to do Bedikas Chametz. Why is that?

(a) RASHI here and the RASHBAM (Bava Basra 53a, DH v'Hashta) explain that handing over keys is a type of a Kinyan, a binding acquisition. When it comes to renting, a person can acquire the field in a lease by merely receiving the key. Since handing the keys over is whay accomplishes the act of Kinyan, whoever has the key to the house is required to do the Bedikah.

(b) TOSFOS, RABEINU DAVID (in his first explanation), and the RITVA explain that the person renting the house does not acquire the lease by merely receiving the key. Nevertheless, if he has *either* made a real Kinyan on the house, *or* if he does not have a Kinyan on the house but he has received the key to the house, he is obligated to do the Bedikah. The reason for this is that once the owner gave away the key, he simply is unable to do the Bedikah since he cannot get into the house. Therefore, if the tenant either has possession of the house or has the key to it, he must do the Bedikah. (If he owns it he must do the Bedikah because he could demand the key, and if he has the key he must do the Bedikah because the owner is unable to do the Bedikah without the key to the house.)

(c) RABEINU CHANANEL, the RAN, TOSFOS RABEINU PERETZ, and RABEINU DAVID (in his second explanation) explain that the tenant must do the Bedikah only if he has both the key to the house in his hand *and* he has made a Kinyan. Either one of those by itself is not sufficient to obligate him to do the Bedikah.

HALACHAH: The SHULCHAN ARUCH (OC 437:1) cites the third opinion above, that a tenant only has to do a Bedikah if he has both a Kinyan and the keys. Otherwise, the owner must do the Bedikah. The MISHNAH BERURAH (437:2) adds that it is preferable to be satisfy the requirements of opinion (b) as well, in a case where the owner did only one of the two -- either he gave the key to the tenant without making a Kinyan, or he made a Kinyan without giving the key. Therefore, in such a case the tenant should assign the owner to be his Shaliach to do the Bedikah to satisfy the opinions that the tenant must perform the Bedikah in his own right.

4b

QUESTION: The Gemara attempts to prove that every house, come the fourteenth of Pesach, has a Chazakah that it was checked for Chametz (Chezkas Baduk). To prove this, the Gemara cites a Beraisa that says that even women, servants, and children are entrusted to testify that a particular house was checked for Chametz. Since the testimony of these individuals is normally not valid, it must be that the house is b'Chezkas Baduk.

How does this prove that every house is b'Chezkas Baduk? If it is really b'Chezkas Baduk, why do we need the testimony of the women and children? Even if they say nothing, one does not have to do Bedikas Chametz because the house is assumed to have been checked already! What, then, is the purpose of their testimony if there is a Chazakah that the house is checked?

ANSWERS:

(a) TOSFOS (DH Lav) says that a house which is b'Chezkas Baduk does not need to be checked only when the owner is not in town and it is not possible to ask him whether or not he did the Bedikah. If the owner is in town, though, one may not rely on the Chazakah, but one must ask the owner if he did the Bedikah. The Beraisa is teaching that if a woman or child says that the house was checked, then the owner does not have to be asked, for in such a case the testimony of the woman or child combined with the Chezkas Baduk is sufficient proof that the house was certainly checked.

(b) TOSFOS suggests further that the Beraisa may mean that we can rely on the women or children in a case of "Peh she'Asar Hu ha'Peh she'Hitir," such as if women or children came and said that a particular house was not checked for Chametz, but they add that they themselves checked it. If there is no Chezkas Baduk, then they are certainly not trusted to say that they checked it. If there *is* a Chezkas Baduk, then they are believed to say that they checked the house, because even if they would not have said anything, we would have assumed that the house was checked (because of the Chazakah). Now that they said that it was not checked, but that they checked it, we can trust them because of "Peh she'Asar."