the Wise and Etshalom families
in memory of Rabbi Aaron M. Wise,
whose yahrzeit is 21 Tamuz. Y'hi Zikhro Barukh.
Shiur #09 Kabalat Achrayut (5b - 6a)
Based on shiurim
of Rav Ezra Bick
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.
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
3. Sho'el (borrower, obligated
in all cases of loss including events totally beyond his control - achrayut
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
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
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
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
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
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 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
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.
SOURCES FOR NEXT WEEK'S SHIUR
5b-6a: Kabalat Achrayut
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
2. Rambam, Hilkhot Chametz 4:1-4.
3. R. David 5b, s.v. Keivan.
4. Rosh, sec. 4, "yesh min ha-geonim..."