Kabalat Achrayut (5b - 6a)
Dedicated by the Wise and Etshalom families
in memory of Rabbi Aaron M. Wise,
whose yahrzeit is 21 Tamuz. Y'hi Zikhro Barukh.
We will be discussing the prohibition of "lo yera'eh" in regard to chametz of a nokhri which is held by a Jew. We will use this case to determine exactly what is the nature of the relationship prohibited by "lo yera'eh lekha" and "lo yimatzeh." Try and come up with acceptable formulations, taking into account the restriction of "lekha" and the inclusion of "lo yimatzeh."
1. 5b, "Amar mar..." until 6a, "... she-eino matzui be-yadkha."
2. Rambam, Hilkhot Chametz 4:1-4.
3. R. David 5b, s.v. Keivan.
4. Rosh, sec. 4, "yesh min ha-geonim..."
I. Defining the transgression
The gemara on 5b contrasts "lo yera'eh" and "lo yimatzeh." One of the differences is that "lo yera'eh" includes the modifier "lekha," which generally is interpreted in different halakhot to mean that ownership is required. Consequently, the gemara says that one does not transgress if the chametz belonged to a non-Jew or to hekdesh. However, "lo yimatzeh" (shall not be present) is not modified by "lekha," hence the gemara concludes that one is prohibited to receive chametz in trust from a non-Jew. In resolution of this apparent contradiction, the gemara answers, "ha de-kibel aleha achrayut, ha de-lo kibel aleha achrayut." "Achrayut" (responsibility) is a technical term denoting the financial responsibility of a trustee ("shomer") in case of loss of the object. Our goal now is to determine the principle, in light of "lekha" and "lo yimatzeh", which governs the transgression of chametz, as exemplified by kabalat achrayut.
(I am assuming, for the purpose of this shiur, that there is in principle only one transgression, or at least that lo yera'eh and lo yimatzeh have the same scope. R. David, the Ritva, and the Ran discuss this question in the beginning of our sugya)[See also Shiur #7].
Psychological connection vs. Legal responsibility
The gemara (5b) cites a story where the Jewish inhabitants of Mechoza were required to provide for the local billeted troops. Rava tells them that since they are responsible if the provisions are stolen or lost, they must remove the chametz from their houses before Pesach. The Rambam (Chametz u-Matza 4:4) states that even if this responsibility was not legal, but was unwillingly imposed by the troops, being responsible for the chametz de facto is sufficient to result in transgression. R. David rejects this opinion. He states, "Achrayut by force is not achrayut but extortion." (R. David suggests either that the achrayut was by virtue of "dina de-malkhuta" (binding secular state law) or that the citizens had explicitly accepted achrayut). In other words, according to R. David, if there is no legal responsibility, there is no legal relationship with the chametz and no transgression during Pesach.
We are, thus, forced to conclude that the Rambam does not require a legal relationship. Since the Jew is concerned with the welfare of the chametz, in order to avoid financial loss, the chametz is considered to be "matzui." In other words, lo yimatzeh defines a psychological relationship with the chametz, what the Ramban (4b) called "rotzeh be-kiyumo." "Lekha," once we have taken lo yimatzeh into account, is no longer understood as ownership, even of a modified kind. Rather, "lo yera'eh lekha" should be translated as, "it may not be valued by you" (it should not be in your sight, should not occupy your mind).
(This fits in well with the Rambam's explanation of bitul. From Hilkhot Berakhot 11:15 it is clear that according to the Rambam, bitul is a psychological state. Anything of no importance is considered to be batel. If the prohibition is to value the chametz, it makes sense that disregarding it, seeing it as of no consequence, would negate the prohibition).
R. David, who requires legal responsibility over the chametz, interprets "lekha" to require some sort of legal relationship, akin to regular ownership. This is clear from his explanation of the "chiddush" of the story: "Rava is explaining to (the inhabitants of Mechoza) why achrayut is prohibited, for at times (achrayut) causes it TO BE HIS, (for instance) when it is stolen or lost. This may be seen from the comparison to the law of 'davar ha-gorem le-mammon ke-mammon dami,' for the prohibition is only because it is CONSIDERED HIS to some extent." R. David states explicitly that chametz must belong to you for you to transgress; however, since it is written lo yimatzeh, I deduce that a lower level of ownership is sufficient. Achrayut (legal responsibility) is considered his, to some extent, just as R. Shimon's opinion that in all laws which require ownership "davar ha-gorem le-mammon ke-mammon dami" defines achrayut as a form of ownership.
(In the printed versions of R. David, the last few words quoted above are "bi-khlal lashon le-shum inyan." It should read, "bi-khlal she-lo le-shum inyan," which is how I translated it above. The printed version is meaningless, and my correction is explicitly supported by the statement of R. David on 6a which I shall quote below).
In summary, the Rambam requires a psychological relationship of concern or value in respect to the chametz; R. David requires ownership, and achrayut is a weak but sufficient level of ownership.
II. The Level of Achrayut
The next question we must ask is what is the actual extent of achrayut. Halakha recognizes three levels of the achrayut of a shomer:
1. Shomer-chinam (unpaid trustee, obligated only if he is negligent - achrayut peshiya).
2. Shomer-sakhar (paid trustee, obligated if the object was stolen or lost - achrayut geneiva va-aveida).
3. Sho'el (borrower, obligated in all cases of loss including events totally beyond his control - achrayut ones).
Rishonim disagree what level of achrayut is necessary to result in the prohibition of chametz. R. David states that one transgresses only if he accepted the achrayut of shomer-sakhar. Responsibility for negligence is not sufficient. The Ritva claims that even responsibility for negligence is sufficient to transgress lo yimatzeh. A third opinion is found in Tosafot (Shevuot 44a s.v. Shomer), who requires full responsibility including ones; any less degree of achrayut is permitted.
It is tempting to analyze this controversy using the same "chakira" as above. If all that is required is a psychological interest in the chametz, then achrayut peshiya is sufficient. The shomer has to be concerned and has to watch over the object. If achrayut geneiva va-aveida is necessary, then apparently a measure of ownership is required. Geneiva and aveida have an "ones" quality - while they are avoidable, they do not result from outright negligence on the part of the shomer. If the chametz is stolen, the shomer is responsible not because he was negligent, but because the object is his responsibility, comparable to "davar ha-gorem le-mammon." This, in fact, is the argument of R. David (found in the continuation of the sugya on 6a). Arguing against the opinion that achrayut peshiya of a shomer chinam is sufficient, he states, "it must be shomer sakhar, for the cause of liability ("chiyuv"; i.e., transgression) is that it is CONSIDERED HIS, AS I WROTE ABOVE; hence, shomer chinam who is liable only for negligence is not included, for there is no aspect by which it can be considered his in any way." (R. David is quoting himself - "as I wrote above." This is the source of the textual emendation I mentioned before).
However, applying this logic to the Rambam will result in self-contradiction. We have already demonstrated that the Rambam maintains that "lo yimatzeh" and "lekha" together mean psychological interest in the welfare of the chametz. The Rambam, however, agrees with R. David that achrayut geneiva va-aveida is necessary to transgress lo yimatzeh. By the argument advanced in the previous paragraph, we should accordingly conclude that the Rambam requires a measure of legal ownership, contradicting our previous conclusion.
The answer is that there is a basic difference between the responsibility of a shomer-chinam to avoid negligence and that of a shomer-sakhar who must indemnify the owner in cases of theft or loss (aveida). A shomer-chinam pays BECAUSE he was negligent. A shomer-sakhar, however, pays because he has responsibility for the object. Even according to the definition of "rotzeh be-kiyumo," showing a positive psychological interest in the object, the Rambam apparently argues that a shomer-chinam has no interest in the continued existence of the object, but only in his avoiding negligence. Achrayut means that the object per se is dear to you. Responsibility for geneiva and aveida implies that you have an interest in the object itself. It is true that in cases of "ones" there is no liability, but that is because "ones rachmana patrei" (the Torah absolves responsibility where there are extraneous circumstances). If there is any negligence at all, as in geneiva va-aveida, the shomer is liable not FOR his negligence, but because he has accepted responsibility over the object.
This is especially clear according to the Rambam's own famous opinion that "poshe'a ke-mazik" (negligence belongs to the category of torts, causing damage, rather than to the category of shomer; Hilkhot Sekhirut 2:3). Shomer is an obligation of responsibility, negligence is one of damage. If I break your window, I will have to pay, but this cannot be said to create a positive interest on my part in your window. Negligence, even though it does not involve a positive action on the part of the shomer, is nonetheless legally considered to be an act directed against the object. Hence, we may conclude that a shomer-chinam has no positive interest in the object itself, whereas a shomer-sakhar does.
R. David, of course, disagrees with this logic. In the second passage quoted above, he argues that achrayut shomer-sakhar is necessary because the transgression is based on "shelo," an attenuated concept of ownership. Were the transgression to be one of psychological interest, R. David would have understood that achrayut shomer-chinam is sufficient.
(Tosafot in Shevuot, who requires that there be achrayut ones, is now clear. He agrees with R. David that achrayut equals ownership; however, if the object does not have the same monetary value for the shomer that it has for the owner, namely that any loss will be his loss, it cannot be considered to be "shelo," even in the case of chametz).
The Ritva, on the other hand, who accepts even achrayut shomer-chinam, argues that any psychological interest - the fact that one is concerned about the chametz - is enough to create the transgression. Even negligence, which requires one to show concern for the chametz as though it were yours, is therefore sufficient.
III. Yiched lo bayit
"Yiched lo bayit eino tzarikh leva'er." (6a) Rashi explains that this is a case where he has accepted no achrayut at all, only allowing the nokhri to place the chametz physically in his house without taking any responsibility for it. R. David deduces from this that Rashi accepts the position that even achrayut shomer-chinam is sufficient for lo yimatzeh, since the negation of "yiched lo bayit," which is a specific stipulation on his part, is a case where the chametz was accepted in trust without any stipulation. If there was no explicit acceptance of higher level achrayut on the part of the Jew, he would be no more than a shomer-chinam, and nonetheless violate lo yimatzeh.
Tosafot explain that this beraita is referring to a case where there was kabalat achrayut; nonetheless, if he placed the chametz in a special location, reserved for the chametz, there is no transgression. It is considered to be in the domain of the nokhri, and therefore even though there was achrayut, it is not included in lo yimatzeh. The Spanish Rishonim agree with this explanation. There is, however, a difference between Tosafot and the Spanish version.
Tosafot maintains that yiched lo bayit only works because the chametz actually belongs to the nokhri. The connection to the Jew is only because of achrayut. If, however, one were to place the chametz of a Jew in the house of a nokhri, it would not remove the prohibition. (Check to make sure you see that this is indeed the position of Tosafot. The Tosafot R. Peretz and Tosafot Rid state it explicitly). The Tosafot are differentiating between the chametz of a nokhri with achrayut of a Jew, which must also be in the house of the Jew for the prohibition to apply, and the chametz of a Jew, which is included in the prohibition no matter where it is located. It is clear that Tosafot do not require geographic location per se as a necessary requirement of the prohibition. Rather, physical proximity is a factor in "yimatzeh." The simplest way to explain this would be if yimatzeh meant psychological concern. Ownership is not itself a requirement of yimatzeh, but ownership is a cause of psychological concern. If the chametz belongs to you, then it is "in your mind" no matter where it is. If, on the other hand, your connection to the chametz is only because you are responsible for it, then if the chametz is physically under your immediate control; i.e., in your house, the legal responsibility creates the necessary measure of psychological interest. If, however, the chametz is in the house of the owner, then even though loss of the chametz will result in an obligation to reimburse him, in the meantime there is not a sufficient measure of psychological concern to result in transgression. (Out of sight, out of mind).
[One can suggest that according to Tosafot, there are two independent transgressions: "Bal yeraeh lecha" prohibits the ownership of chametz. Yiched lo bayit does not play a role regarding chametz which one actually owns. "Bal yimatzeh" on the other hand prohibits having chametz on one's property, even though it is not actually owned (achrayut of course is required). Regarding this prohibition "bateichem" - in your house - is a basic condition. Therefore, in a case of yiched lo bayit, where the chametz is not considered on one's property the prohibition is not violated. Accordingly, yiched lo bayit is effective only regarding chametz on which one only accepted achrayut, but does not actually own. See Tosafot Rid. Editor's note.]
R. David and the other Spanish Rishonim maintain that one does not transgress the prohibition even for chametz of a Jew if it has been removed to the house of a nokhri. The Ramban Al HaTorah (Shemot 12:19) discovered a Mekhilta which appears to derive from "bateikhem" that the chametz must not only be yours ("lekha") but also in your possession. This is an independent restriction, not based on lekha and yimatzeh. Since R. David holds that achrayut is a form of ownership, as we saw, it would have been difficult for him to distinguish between chametz of a Jew and chametz of a nokhri with achrayut. Instead, he uses "yiched lo bayit" not to somehow weaken the achrayut, but as an independent factor which allows the continued existence of the chametz despite the achrayut (= ownership).
The Rosh (4) quotes a controversy concerning the opposite case. A Jew entrusts his chametz to a nokhri (with kabalat achrayut). The Geonim wrote that the Jew is freed of obligation. Although they based this on the Mekhilta, it is clear from the proviso that the nokhri accept achrayut (as mentioned in the Rosh) that this decision is not based on the LOCATION of the chametz. The juxtaposition of this section in the Rosh to the gemara on 5b makes it clear that the Rosh understood this position to be based on an inversion of the law of kabalat achrayut. If achrayut of a Jew for chametz of a nokhri is prohibited, then achrayut of a nokhri for chametz of a Jew is permitted. Now - if achrayut is a form of ownership, this is clearly unfounded. Achrayut may be considered ownership (shelo), but ownership - real ownership - is surely considered ownership. There is no contradiction in concluding that the chametz belongs in some respect to both of them. If, on the other hand, achrayut works as a psychological connection, then it is possible to argue that since if the chametz is in my achrayut, I am concerned enough about it for it to be considered "matzui" to me, so too, if it is in the nokhri's achrayut, I am freed from worry and concern, since he has to look out for it, and will indemnify me for any loss.
The Rosh quotes R. Yona as disagreeing. R. Yona argues that the chametz, even though it is physically in the house of the nokhri (the trustee), is "bi-reshut ha-mafkid," in the "domain" (possession) of the Jew. R. Yona brings a proof for his position from a gemara in Bava Kama (76a) which states that if hekdesh is stolen from a man's house, even though he was obligated with achrayut, there is no obligation to pay "kefel" (double payment), since the pasuk says, "ve-gunav mi-beit ha-ish," which excludes "beit hekdesh." In other words, even though the man has achrayut, an animal of hekdesh is considered to be in the possession of hekdesh.
The Rosh agrees with the conclusion of R. Yona but does not accept his proof offering an alternate explanation. The Rosh says that the house of a trustee is considered to be leased (literally "lent") to the owner for the purpose of the guarding of the object. Hence, it is actually in the house of the Jew.
The difference between R. Yona and the Rosh can be explained as follows: R. Yona does not require actual location of the chametz in the house of the Jew. The chametz has to be in his possession; i.e., under his control. The word "reshut" can have two different meanings in halakhic usage. Sometimes it refers to the geographic domain or location, as in Shabbat - reshut hayachid and reshut harabim. R. Yona here is claiming that it refers to what is in your effective possession, under your control. In this sense, chametz that is sitting in the street is also in your "reshut." Being in the house of a shomer is also in your reshut, since the shomer is not opposing the control of the owner - on the contrary, he represents that control. This derives not from bateikhem as an independent requirement, but from a proper understanding of lo yimatzeh. If someone, who is working for me and following my instructions, takes the chametz to his house to watch over it, it has not been removed from my control. The chametz is "matzui." His proof is from the fact that the hekdesh is considered "in the house of hekdesh," even though it is physically located in someone else's house. Apparently, possession and control is an acceptable explanation of the PHRASE "in your house;" hence, chametz is "matzui be-vateikhem" if it is the house of a trustee working for you. The Rosh, on the other hand, requires that chametz be actually in a location owned by you. Having seen the Mekhilta, he understands it in the manner of the Ramban and R. David to require, independently of matzui and lekha, physical location within the property of the Jew. The fact that a trustee is not opposing the CONTROL of the owner is a good argument only if we are interested in maintaining a level of ownership. However, once we add an additional requirement of location, the control of the owner is not sufficient. The Rosh therefore posits a more extreme - and more controversial - thesis: that the owner has a measure of ownership (lease) in the house of the trustee. The house has been transferred to his possession for the purpose (and only for that purpose) of the guarding of the object. Once this is accepted, then the chametz not only belongs to the Jew, but is physically in his house as well.
(Read the Tosafot Rid, s.v. U-limeimra. The Tosafot Rid explicitly holds the position I attributed to R. Yona, including the use of the phrase "reshut" in the sense of control. Try and find the crucial phrases in the Tosafot Rid. Now CAREFULLY read the Rambam [4,2] and try to decide what is his opinion concerning chametz entrusted to a nokhri).
In order to transgress bal yera'eh and bal yimatze, the Rambam requires a psychological relationship of concern or value in respect to the chametz; R. David requires ownership, and achrayut is a weak but sufficient level of ownership.
According to the Ritva, even a shomer chinam transgresses bal yera'eh and bal yimatzeh as any psychological interest - the fact that one is concerned about the chametz - is enough to create the transgression..
According to R. David and the Rambam, only a shomer sakhar transgresses these prohibitions but not a shomer chinam. Furthermore, if a Jew places his own chametz in the house of a nokhri, he is not liable.
We explained that according to the Rambam a shomer-chinam pays because he was negligent. A shomer-sakhar, however, pays because he has responsibility for the object.
According to the Tosafot, only one with full responsibility (including chiyuv ones) over the chametz is liable. Furthermore, if the Jew owns the chametz, the prohibition is not removed by placing it in the house of a nokhri.