SALT - Motzaei Shabbat, April 4, 2020

  • Rav David Silverberg
            The Gemara in Masekhet Pesachim (5b) tells that one year, before Pesach, Rava instructed the people of his city, Mechoza, to eliminate from their homes the “chamira di-bnei cheila” – “the soldiers’ chametz.”  Apparently, soldiers were stationed nearby, and the local townspeople provided them with accommodations.  These soldiers kept food in the townspeople’s homes, and this included chameitz.  Rava felt that the people were halakhically required to eliminate this chameitz from their homes before Pesach, to avoid violating the prohibition of possessing chameitz on Pesach (“bal yeira’eh u-val yimatzei”).
           
            On the basis of Rava’s instruction to his community, the Shulchan Arukh (O.C. 440:1) rules that if a gentile entrusted his chameitz to a Jew, and the Jew bears responsibility for this chameitz, the Jew may not keep this chameitz in his possession on Pesach.  Responsibility for the chameitz constitutes a degree of “ownership,” and is thus forbidden on Pesach.  Therefore, just as we may not own chameitz on Pesach, we cannot have on Pesach chameitz for which we bear responsibility.
 
            A number of recent and contemporary poskim addressed the question of whether this halakha is relevant to insurers.  If a grocery store or bakery, for example, has its assets – which obviously include chameitz – insured by a Jewish-owned insurance company, then, seemingly, the Jewish owner of the insurance company is in violation of the halakha forbidding bearing responsibility for chameitz on Pesach.  Even though the company’s owner does not actually own the chameitz, nevertheless, since he has taken responsibility for the chameitz, this qualifies as a form of “ownership” with respect to the prohibition of owning chameitz on Pesach.  And, if the Jewish insurer is, indeed, in violation of this prohibition, then this chameitz becomes forbidden for all after Pesach.  The halakha of “chameitz she-avar alav ha-Pesach” establishes that chameitz which was owned by a Jew during Pesach in violation of halakha may not be consumed or benefitted from in any way by anybody after Pesach.  It would thus appear that if a store has insurance on its merchandise, which includes chameitz, and the insurer is Jewish, then this chameitz is forbidden for all even after Pesach.
 
            Rav Zvi Ryzman, in a thorough article on the subject, notes that this question may likely hinge on a dispute between the Rambam and the Ra’avad regarding the scope of the halakha forbidding taking responsibility for chameitz during Pesach.  The Rambam (Hilkhot Chameitz U-matza 4:4), in presenting this halakha, writes explicitly that this applies even if one is coerced to assume responsibility for the chameitz.  He understood that the people in Mechoza never agreed to this arrangement, whereby they would have to compensate the soldiers if the chameitz stored in their homes was lost or stolen, but it was forced upon them.  Nevertheless, since they were held responsible, they were considered “owners” over the chameitz with the respect to the chameitz prohibition on Pesach.  The Ra’avad, however, disagrees.  He writes that if the people did not accept responsibility for the soldiers’ chameitz, but would be forced by the government to pay compensation if anything happened to it, this arrangement would not be forbidden on Pesach.  The situation in Mechoza, the Ra’avad writes, involved a voluntary arrangement, where the townspeople offered to accommodate the soldiers and agreed to take responsibility for their belongings.  This commitment, the Ra’avad explains, qualifies as “ownership” over the chameitz that is forbidden on Pesach.
           
One approach we can take in understanding the Ra’avad’s position is that in his view, compulsory responsibility does not actually create any sort of association between the individual and the chameitz.  The Ra’avad would say that in the case described by the Rambam, the Jews of Mechoza had no responsibility for the chameitz, because they never accepted responsibility for the chameitz.  If the chameitz was lost and the government then forced them to pay, this would be a case of government unfairly confiscating citizens’ property.  From the Jews’ perspective, they are not responsible for the chameitz, and it is the government that made the decision to seize their money if that chameitz is lost.
 
            However, Rav Ryzman suggests an alternative understanding of the Ra’avad’s view.  Perhaps, the Ra’avad understood that it is not a commitment to compensate for lost chameitz that constitutes “ownership,” but rather a commitment to care for the chameitz.  For the Ra’avad, one is not deemed an “owner” over chameitz by promising to pay its value if it is lost, but only if he takes on the obligation to guard it like a true owner.  In the case of compulsory responsibility, the people never make such a commitment, and so they are not considered the owners over the chameitz.
 
            Conceivably, then, according to the Ra’avad, this halakha would not apply to insurers.  Their commitment, of course, is only to pay the owner the value of the chameitz if it is lost or damaged; they have no responsibility whatsoever to guard it or look after it.  According to this understanding of the Ra’avad, then, the Ra’avad would likely allow insuring chameitz even during Pesach.
 
            However, the Mishna Berura (440:9) writes that Halakha follows the Rambam’s position, that even compulsory responsibility constitutes “ownership” with respect to the chameitz prohibition.  The question thus resurfaces as to whether there is a basis to allow insurers to insure chameitz over Pesach.
 
            We will iy”H continue this discussion tomorrow.