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The Prohibition of Bal Yeira’eh and Bal Yimatzei (Part 2 of 3)

  • Rav Moshe Taragin

Can the issur be violated if you don't actually own the chametz?



In last week's shiur (#09), we discussed the parameters of the bal yeira'ehh/bal yimatzei prohibition. Although ownership is NECESSARY, it may not be sufficient. Since the Torah inserts phrases describing the location and visibility of the chametz, one approach suggests that these requirements are prerequisites of the prohibition. In a striking statement, the Ramban claimed that if chametz has been relocated to the physical area of a Gentile, even if the Jewish owner has not relinquished legal ownership, no prohibition applies. In this shiur, we will consider an even more extreme option: can the issur exist even if no ownership is present?


The gemara (6b) actually already raises this possibility. It considers the apparent contradiction between the two pesukim detailing the respective prohibitions. The pasuk of lo yeira'eh conditions the prohibition on the chametz legally belonging to the owner; by qualifying the chametz as “lekha,” the Torah refers to legally owned chametz. Yet the parallel pasuk detailing lo yimatzei does not include a “lekha” qualification. Furthermore, by banning chametz which is yimatzei, it suggests that legal ownership is not required. In resolving this contradiction, the gemara claims that if a Jew accepted achrayut, legal responsibility, for the chametz of a Gentile, he would violate bal yeira'eh and bal yimatzei even if he did not acquire full ownership. What are we to make of this law extending bal yeira'eh and bal yimatzei even to chametz which someone has accepted achrayut for?


Fundamentally, two options present themselves: Perhaps accepting achrayut is a method of acquiring partial LEGAL ownership, which is deemed a sufficient level of OWNERSHIP to constitute a bal yeira'eh bal yimatzei violation. Halakha provides ample precedent in which the acceptance of achrayut is considered partial acquisition of ownership, and this state could suffice to establish ownership which would violate bal yeira’eh and bal yimatzei. Alternatively, accepting achrayut may invite bal yeira'eh and bal yimatzei simply because adopting financial responsibility to watch an item, creates an association between the person and the item. By describing the bal yimatzei issur in non-monetary fashion, the Torah may have been RECALIBRATING the issur. Unlike other halakhic issues that depend upon monetary license, bal yeira'eh and bal yimatzei depend solely upon a person's ASSOCIATION with chametz. Even if his acceptance of achrayut does not convey any legal rights, he still is INVOLVED with the chametz, as its destruction would lead to financial coverage and loss. This “involvement” of a shomer who has accepted acharayut is sufficient to yield a violation of the issur.


Perhaps this question of whether accepting achrayut conveys partial ownership or mere interest and involvement, forms the basis of an interesting dispute between the Rambam and Ra'avad.


After stating the achrayut-based violation of the issur, the gemara (5b) records an episode that took place in the city of Mechuza. The king had ruled that they were forced to billet royal troops and they were delivered food to provide for these soldiers. Rava told the people of the city that they would face bal yeira'eh violations regarding this chametz. Even though the Jews did not legally own this chametz, since they were responsible for it, they would face bal yeira'eh and bal yimatzei. This ruling seems in perfect concert with the previously mentioned ruling that achrayut creates bal yeira'eh concerns.


The Rambam assumed that Rava was not merely recounting a story in line with the gemara's previous halakhic ruling, but was rather STRETCHING the gemara's ruling to a more radical situation. According to the Rambam, the ruling applies even if the Jew did not willfully accept responsibility to watch the chametz or was not declared a watchman by the king (as the simple description of Rava implies). Even if a criminal would unilaterally obligate a Jew to pay for any food that would be ruined, the victimized Jew would violate bal yeira'eh for that chametz. Even though the Jew is not formally considered a shomer – either a halakhic shomer or a legally declared shomer based on the king's decree – he still violates bal yeira'eh. Presumably, the Rambam believes that partial monetary rights are not necessary to create a bal yeira'eh infraction.


This “bullied” Jew is not legally obligated to watch the chametz and does not achieve any halakhic possession of the chametz, but because the loss of chametz would entail financial loss, he is involved or AFFILIATED with the chametz, and hence violates bal yeira'eh. Because the Rambam apparently viewed the achrayut scenario of bal yeira'eh as stemming from mere affiliation, he was willing to extend the scope of achrayut-based bal yeira'eh to situations where no partial monetary rights exist.


      Yet another debate which may emerge from this question pertains to the LEVEL of achrayut required to transgress bal yeira'eh. Two comments of Tosafot in Shas (Shavuot 44 and Bava Metzia 82) claim that only a sho'el, who is assigned comprehensive responsibility, would violate bal yeira'eh. Presumably, Tosafot claim that achrayut-based bal yeira'eh stems from the partial ownership title achieved by the shomer. The shomer who would most likely acquire legal title over the watched item is the sho'el, who (1) is entitled to use the item and (2) pays remuneration even for accidents. These two elements are typical to owners, and by assuming them, the sho'el demonstrates/creates a partial owner status. Other shomrim, who assume much less liability, may not achieve any monetary title and therefore do not violate bal yeira'eh.


In contrast, the Rosh cites the position of the Geonim that even a shomer chinam who assumes very limited title – obligated to pay only for acts of gross negligence – would violate bal yeira'eh. Presumably, the Geonim would concur with the Rambam that legal title isn’t necessary to violate bal yeira'eh. As long as some association exists with the chametz, the issur has been transgressed. Although a shomer chinam's extremely limited liability does not confer any partial ownership, the shomer is still involved and affiliated with the chametz.


It should be noted that Rambam himself, along with the majority of Rishonim, disagree with the Geonim, but they DO NOT require the full scale liability of the sho'el. They claim that any shomer assuming the liability scale of a shomer sachar – who pays for gross negligence as well as theft and loss – would violate bal yeira'eh. One way to explain this position is that the limited financial coverage of a shomer chinam is insufficient to create the association necessary for bal yeira'eh. (This resonates particularly well according to a well-known position of the Rambam, which significantly qualifies the gross-negligence liability of a shomer chinam).


Yet a final case which might help decipher the nature of the achrayut-based bal yeira'eh is an converse situation – when a Gentile assumes achrayut for a Jew's chametz. Would the halakha also be inverted? If assumption of achrayut by a Jew establishes bal yeira'eh, would assumption of achrayut by a Gentile exempt bal yeira'eh?


Presumably, if achrayut-assumption by a Jew grants partial ownership and therefore enables bal yeira'eh, the achrayut-assumption of a Gentile should not exonerate the Jew of bal yeira'eh. Although the Gentile, through his acaharayut assumption, may achieve SOME PARTIAL OWNERSHIP status, the Jew is the ACTUAL AND LEGAL OWNER and would still violate bal yeira'eh. However, if bal yeira'eh is not measured monetarily but by the level of association, perhaps the association is determined SOLELY by culpability. If the Jew assumes financial culpability, HE IS involved and violates bal yeira'eh; if the Gentile assumes financial responsibility, he is considered involved AND NOT THE Jew, and no bal yeira'eh is violated. The Rosh (commentary to Pesachim 6a) cites a position of the Geonim that if a Gentile BOTH accepts achrayut as well as positions the chametz in his house, the Jew is exempt from bal yeira'eh. This may be indicative that these Geonim viewed bal yeira'eh based on affiliation with the chametz and not partial monetary title that achrayut assumption grants the watchman.


The option of bal yeira'eh violation without formal ownership is already asserted by the Ramban (Pesachim 6) in a seminal statement. The Ramban questions the entire concept of bal yeira'eh: Halakha rules that any substance which is assur be-hana'ah (can't be eaten or benefited from) is not considered the monetary possession of a person. Halakhic ownership is not abstract, but based on utility. Hence, if something cannot be utilized because it is forbidden, the ownership is disqualified. This rule has multiple consequences, such as the inability to employ issurei hana'ah to marry a woman. Since marriage is enacted by the delivery of money, issurei hana'ah cannot be employed, as the husband effectively does not own that item or, at the very least, cannot transfer ownership. Based on this principle, how can a person ever violate the prohibition of bal yeira’eh? Chametz, by definition, is not halakhically considered in his possession.


The Ramban’s question pertains even to STANDARD situations in which the person actually owns the chametz. Since chametz is assur be-hana’ah, the person’s ownership is nullified, and he therefore can never violate bal yeira’eh! The Ramban's answer is fundamental. He writes that, indeed, no legal ownership exists, since no utility is allowed. However, the “owner” of the item must express whether he agrees with the halakhically imposed issur of chametz. If he does (by proclaiming bittul), he does not violate the issur. However, if he doesn’t burn or announce bittul upon the chametz, he demonstrates that HE IS INTERESTED in the chametz, even though the Torah has nullified his ownership. Despite the absence of any legal title, he violates bal yeira'eh based on his interest and affiliation (demonstrated by the lack of physical removal and the lack of verbal bittul).


This represents a paradigmatic case of bal yeira'eh despite no legal title. In a sense, EVERY case of bal yeira'eh – even the classic type of chametz – entails a violation despite the lack of legal title simply because the person is interested and aligned with the chametz.