Shulchan Aruch: Chapter 440 - The Laws [Applying] to Chametz Belonging to a Non-Jew that was Entrusted to a Jew

Shmos 13:7.

See sec. 438:11-12 and 436:17-19, where this issue is discussed in depth.

Shmos 12:19.

The term s’or refers to a leavening agent, most commonly yeast. However, this prohibition also includes chametz, i.e., products or kernels of any of the five types of grain (wheat, spelt, oats, barley, and rye) that have already leavened. See sec. 453:1.

See subsection 9 below.

Until this point, the Alter Rebbe has restated a passage in Pesachim 5b. That source states that due to the association of the two verses, it is derived that one is liable for the possession of chametz even if it is not seen and even when it is not in the person’s home, but nevertheless, still belongs to him. The Alter Rebbe proceeds to explain this law.

See Marei Mekomos VeTziyunim and Divrei Shalom. These two sources question the mention of both the prohibitions against having chametz seen in the person’s domain and possessing chametz. As mentioned in the footnotes to sec. 433:12, Kesef Mishneh (Hilchos Chametz U’Matzah 1:3), states that when the chametz is not apparent, the owner only violates the prohibition of possessing chametz during Pesach, but not the prohibition against having chametz seen in his domain. Seemingly, when the chametz belonging to one person is in another person’s domain, it cannot be seen in the owner’s domain.

Nevertheless, a distinction can be made: When chametz is buried in a storage pit and the like, it is not visible and hence, the opinion of Kesef Mishneh can be accepted. When, however, the chametz is being held by another person, it is as if that person lent the owner of the chametz the place where the chametz is located. Hence, the chametz is considered as visible while still in its owner’s domain.

The owner of the courtyard is also not liable, because the chametz does not belong to him, and it was buried in his courtyard without his knowledge or permission. Nor did the owner of the courtyard ever accept responsibility over the chametz.

In his Kuntreis Acharon (note 1), the Alter Rebbe substantiates his ruling that the owner of the chametz is not liable according to Scriptural Law. The Alter Rebbe explains that according to Scriptural Law, a person is only liable for possessing chametz when the chametz is in his domain. As explained earlier in this subsection, the only reason one is liable when he entrusts his chametz to another person is because halachically, it is considered as if that person lends the owner of the chametz the place where the chametz is being kept. Thus, the chametz is considered to be in its owner’s domain. In contrast, in the instance mentioned here, the owner of the place where the chametz is located is not aware that the chametz is there and has obviously not granted the owner of the chametz that right. Although Turei Zahav 440:4 does not accept this ruling, the majority of halachic authorities do consider it valid.

Pesachim 31b. See also sec. 441:4.

The Alter Rebbe’s words concerning selling chametz that has been buried in another person’s courtyard have puzzled the commentaries (see Tehilah LeDavid, Vol. 3, sec. 31:5), for seemingly, if the chametz that is not in the person’s domain is not considered as being possessed by him to the extent that he is not liable, seemingly, he also would not have the right to sell this chametz. Nevertheless, Imrei Yosher (Vol. 1, sec. 23) substantiates the Alter Rebbe’s ruling, explaining that as long as the person has not divested himself of the ownership of the chametz, he has the right – and therefore, the obligation – to sell it.

See Pesachim 21a; see also sec. 448:29.

See sec. 445:1. Although the person violates the prohibition against possessing chametz (לא ימצא), since the chametz is not present in his domain, he does not violate the prohibition against having chametz seen in his domain (לא יראה) even according to Rabbinic Law (Marei Mekomos VeTziyunim).

In his Kuntreis Acharon (note 2), the Alter Rebbe elaborates in support of his ruling in the main text, that even when a person’s chametz is not located in his domain, he is still liable according to Rabbinic Law, and the chametz is forbidden after Pesach. The Alter Rebbe quotes the rulings of many Rishonim and Acharonim who rule in this manner and supports it by citing Bava Kama 96b, which states that when a Jew steals chametz from another Jew before Pesach and returns it to him after Pesach, the person whose chametz was stolen is forbidden to benefit from it. Since he was the owner during Pesach – even though the chametz was in the thief’s possession – he is penalized and obligated to obliterate it.

The Alter Rebbe also cites an opinion in the Talmud Yerushalmi (Pesachim 2:2), from which it is also apparent that the reason the chametz must be obliterated in the instance mentioned in Bava Kama, is because its owner is considered liable even though he possessed the chametz due to forces beyond his control. However, since the chametz was in the thief’s possession during Pesach, and the thief did not lend the place he stored the chametz to the owner, the chametz did not exist in the owner’s domain during the holiday. Thus, the owner is only liable according to Rabbinic Law.

See sec. 448:1.

The rhetorical question posed by the Alter Rebbe is quoted from Pesachim 5b.

As the Alter Rebbe proceeds to explain, this rule is referring to an instance when the Jew did not accept responsibility for the non-Jew’s chametz. Different laws apply if the Jew accepted such responsibility. See subsections 9-16, below.

The term ger toshav is made up of two words, ger, “one who dwells temporarily” and toshav, “resident”. This term is used to refer to non-Jews living in Eretz Yisrael, because according to Rambam (Hilchos Avodas Kochavim 10:6), a non-Jew may only live in Eretz Yisrael if he accepts the Seven Universal Laws Commanded to Noach and his Descendants in the presence of a Rabbinical Court. See also Rambam, Hilchos Melachim, ch. 8:10-10:12.

The laws applying to a ger toshav only apply in an era when the laws of the Jubilee Year are observed. Therefore, these laws do not apply in the present era.

Although the ger toshav is a free man, he willingly accepts the rulings and authority of the Jews.

Pesachim 5b.

Although the Hebrew states that a Jew should not allow a non-Jew to bring him chametz for safekeeping “on Pesach,” the intent is from the sixth hour on the day before Pesach until the end of the festival. See subsection 8 below.

See subsections 4 and 5 below, which mention this concern.

Note the contrast with the instance discussed at the end of the following subsection. In the situation described here, the non-Jew deposits his chametz and then departs. In the following subsection, the non-Jew remains in the Jew’s home.

Pesachim 6a.

In this subsection, the word “servant” is not used in the halachic sense. Rather, the Alter Rebbe is referring to a domestic worker, i.e. a free man employed as domestic help in the home.

The assumption is that friends and acquaintances are likely to share food, while people who are not familiar with each other are unlikely to do so. See the Shulchan Aruch of Rav Yosef Caro (Yoreh Deah 88:2). Nevertheless, there is a prohibition against a non-Jew eating chametz at the same table at which a Jew is eating his food for the reason the Alter Rebbe proceeds to explain.

Shabbos 13a.

See sec. 431:4, where this concern is mentioned as one of the reasons why it is necessary to search for chametz. This concern applies in many other contexts as well.

In his Kuntreis Acharon (note 3), the Alter Rebbe refers to his ruling in sec. 448:5, which states that if the non-Jew is not a man of force who imposes his will on others, the Jew should refuse to allow him to deposit his chametz on the Jew’s premises.

These laws are also relevant regarding the present practice of selling chametz to a non-Jew although the chametz remains on the Jew’s premises. In such an instance, one must make a distinction so that the articles that are sold are clearly set aside from one’s other possessions. (See also subsection 8 and sec. 451:1.)

The Jew should merely cover the chametz, because erecting a permanent barrier is forbidden on these sacred days. See sec. 315:6.

Pesachim 6a.See also sec. 446:5, which employs the same concept with regard to how a person who discovers chametz on either Shabbos or the festival should proceed.

This section is not extant in the Alter Rebbe’s Shulchan Aruch. See the Shulchan Aruch of Rav Yosef Caro (Orach Chayim 540:1), which deals with the activities forbidden on Chol HaMoed.

See subsections 3 and 5 above, from which this ruling is clearly evident.

Pesachim 6a.

See subsection 5, above.

As will be explained, there are two perspectives regarding whether a Jew is allowed to accept responsibility for a non-Jew’s chametz. The first perspective is explained in the present subsection and in subsections 10-13. The second perspective is explained in subsections 13-15. In subsection 16 and in his Kuntreis Acharon (note 9), the Alter Rebbe states the halachah as it is applied in practice.

The term “forces beyond his control” indicates that the chametz was not lost or stolen as a result of the watchman’s negligence. See the Kuntreis Acharon (note 6), which is explained in footnote 60 below).

There are instances when secular law might hold the Jewish watchman responsible even though Torah Law would not consider him liable for the loss. In such instances, Jews who have been entrusted to watch a non-Jew’s chametz before Pesach must obliterate that chametz before Pesach. For example, Pesachim 5bmentions an instance where the local king deposited rations that contained chametz for his soldiers in the Jews’ homes. Even though the Jews did not accept responsibility for these rations, the king would hold them liable should the rations be lost. Hence, the Jews were obligated to obliterate those rations before Pesach. See the Alter Rebbe’s Shulchan Aruch, Choshen Mishpat, Hilchos Hefker, subsection 3, and Hilchos Gezeilah, subsection 12ff.

Since the owner of the chametz is not Jewish, even if the Jewish watchman is paid for his services, he is not liable if the object is lost or damaged unless he explicitly accepted such responsibility at the time the non-Jew entrusted him with the object. Although a paid watchman is liable when an object is lost or stolen when he is watching another Jew’s property, he is not liable in such an instance when the object was entrusted to him by a non-Jew (Rambam, Hilchos Sechirus 2:1). See also sec. 441:14, which states that if a Jewish watchman would be liable for chametz entrusted to him that was lost or stolen as a result of his negligence, then the Jewish watchman is obligated to obliterate this chametz before Pesach. See also subsection 10 below.

The reference to a kinyan sudar is somewhat problematic. Although as explained in the footnotes to sec. 437:1, a kinyan sudar is one of the means of formalizing a financial agreement between Jews, such an act is not effective with regard to agreements with non-Jews. See Kuntreis Acharon (note 5), and Kuntreis Acharon (note 3) to sec. 441, where this issue is discussed.

The Alter Rebbe’s ruling is based on a Talmudic passage in Pesachim 5b. In this passage, the Sages note that the verse, “S’or shall not be found in your homes” implies that one is even liable for chametz in his home that belongs to others. However, the verse, “Chametz of yours shall not be seen,” seems to indicate that one is only liable for his own chametz. Our Sages resolve this apparent contradiction by explaining that one is liable for chametz that belongs to others over which he accepts responsibility.

Pesachim 5b-6a. This source explains that even though we do not generally consider an object that causes a person other than the owner to incur financial liability as belonging to that person, with regard to the laws of Pesach, such an object is considered as his own. See also the Kuntreis Acharon to sec. 246 (note 3).

This ruling represents the perspective of Rambam (Hilchos Sechirus 2:3). It is not accepted by all authorities. The Alter Rebbe discusses this matter in his Kuntreis Acharon (note 6, summarized in footnote 60).

See the Kuntreis Acharon (note 2) to sec. 443, where the Alter Rebbe discusses this rationale in depth.

I.e., the discussion regarding the Jewish watchman’s liability should something happen to the non-Jew’s chametz he is watching, if he accepted responsibility for it.

Pesachim 6a. As will be mentioned in subsection 13 below, there are authorities who differ with this ruling and maintain that if the Jew accepted responsibility for the non-Jew’s chametz, he is obligated to obliterate it even when he designated a place for it.

See Rambam (Hilchos Sechirus 2:8), which states that merely making such a statement does not constitute the acceptance of any responsibility for an entrusted article. As the Alter Rebbe proceeds to explain however, in this instance, the Jew implicitly accepted responsibility for the chametz entrusted with him. See also the Shulchan Aruch of Rav Yosef Caro, Choshen Mishpat 291:2, 5.

In his Kuntreis Acharon (note 4), the Alter Rebbe explains the ruling in the main text: that the Jew is freed of liability only when he designates a place for the chametz in the presence of the non-Jew. There are authorities who maintain that even when a Jew accepts responsibility for a non-Jew’s chametz, as long as he erects a partition in front of it, as explained in subsection 5, it is as if he designated a place for it. Hence, he is not liable for it.

In this Kuntreis Acharon, the Alter Rebbe cites the authorities who do not accept the abovementioned leniency, highlighting the ruling of Bach (Orach Chayim 440). Bach maintains that the fundamental reason for the leniency freeing the Jew from liability for the non-Jew’s chametz stored in his home, is that the non-Jew agreed to the Jew’s designation of a specific place as his. If, by contrast, the Jew accepted responsibility for the non-Jew’s chametz, and then merely erected a barrier in front of it without the non-Jew’s knowledge that this place is designated as his, the Jew is still obligated to obliterate the non-Jew’s chametz. Although there are authorities who rule more leniently (see Turei Zahav 440:2), most halachic authorities accept the stringency mentioned by the Alter Rebbe.

As will be explained (see Kuntreis Acharon, note 5, explained in footnote 54 below), by designating a specific place for the non-Jew’s chametz, the Jew made an implicit commitment not to move it. Hence, the leniencies mentioned here apply.

Pesachim 6a.

See subsection 5, above.

See subsection 1, above.

The Jew is not liable because the non-Jew’s chametz is in an area that was specifically designated for the non-Jew, as explained in the previous subsection.

If the Jew returns the chametz to its original place, he is not liable even if he does not inform the non-Jew that the chametz was moved and then returned to its original place. See Tehilah LeDavid, Vol. 3, sec. 31:11.

In his Kuntreis Acharon (note 5), the Alter Rebbe explains that the stringency in the main text is based on the ruling of Rama (Orach Chayim 440:1), which is accepted by the later authorities. Even after the fact, it is forbidden for the Jew to entrust the non-Jew’s chametz to another non-Jew. True, Rabbeinu Tam rules that if a Jew designates a place for the non-Jew’s chametz, he is not obligated to obliterate it. Although this ruling is accepted after the fact (see subsection 16 below), even Rabbeinu Tam would agree that if the Jew moved the chametz from its place and then entrusted the chametz to a non-Jew, the Jew is obligated to obliterate it. The rationale is that since the Jew is the one who entrusted the chametz to the non-Jewish watchman, he has the right to take the chametz back from the non-Jewish watchman and place it elsewhere. Accordingly, this chametz is halachically considered as belonging to the Jew. In contrast, when the Jew designates a place for the non-Jew to deposit his chametz, that place is given over to the non-Jew.

True, the non-Jew did not perform an act of kinyan to formally acquire the place where the chametz is deposited, and thus the Jew has the right to retract the agreement. Nevertheless, since the Jew gave the non-Jew the right to have his chametz placed there, as long as the chametz is left in that place, it is not considered to be in the domain of the Jew. There is no need for the non-Jew to formally acquire that place. When, by contrast, the Jew retracted his agreement by moving the chametz from this place and gave the chametz to another non-Jew to watch, the chametz is considered to be in the Jew’s domain.

This ruling is not accepted by all authorities. See subsections 14 and 15 below.

The Alter Rebbe is borrowing an expression used frequently in the Torah, e.g., Bereishis 31:14, Devarim 10:9, 12:12, et al.

Since the second non-Jew accepted all the responsibility the Jew had originally accepted, it no longer matters whether the Jew designated a place for the chametz or not, because whatever connection the Jewish watchman had to the chametz has been transferred to the non-Jewish watchman.

The Alter Rebbe is referring to the rulings in subsections 9-12.

Moreover, even if he did not explicitly say that he accepted this responsibility, as long as he willingly accepted his role as a watchman, he is liable for theft or loss due to his negligence. Hence, as the Alter Rebbe proceeds to explain, the Jewish watchman is obligated to obliterate this chametz. See sec. 441:14.

In his Kuntreis Acharon (note 6), the Alter Rebbe clarifies this ruling, and explains when a Jew is considered to have accepted responsibility for a non-Jew’s cha- metz according to the more stringent opinion mentioned in this subsection. One point raised by the Alter Rebbe is that the laws regarding the responsibilities of a watchman apply to Jews who watch objects for Jews, but not to Jews who watch objects for non-Jews. Thus, if a Jew acts as an unpaid watchman for a non-Jew without explicitly accepting responsibility in the instance of negligence, he has no responsibility for the item he is watching for the non-Jew. Accordingly, in the instance mentioned in this subsection, the unpaid Jewish watchman is not responsible for the non-Jew’s chametz, should it be stolen or lost due to the watchman’s negligence. Hence, the Jewish watchman should not be obligated to obliterate the non-Jew’s chametz. Indeed, Chok Yaakov (440:1, 14) rules in this manner.

The Alter Rebbe acknowledges the fundamental basis of this logic, and states that he accepts it with regard to the responsibility for theft or loss due to forces beyond his control incumbent on a paid watchman. (See subsection 9 above; see also sec. 441:9). When a paid Jewish watchman watches chametz for a non-Jew, the initial preference is for him to either return the chametz to the non-Jewish owner or to sell the chametz to another non-Jew before the onset of the sixth hour on the day before Pesach. However, if the Jewish watchman did not do so, then after the fact, he does not have to obliterate the chametz despite having accepted some responsibility for it. See sections 9 and 16. Nevertheless, the Alter Rebbe states that with regard to an unpaid watchman, it is proper to rule stringently as an initial preference. Therefore, the Jewish watchman should initially try to return the entrusted chametz or obliterate it before the onset of the sixth hour on the day before Pesach.

This approach is based on the ruling of Sifsei Kohen (Choshen Mishpat 301:3), who rules that even if an unpaid watchman does not explicitly accept responsibility for his negligence, he is obligated to make restitution should a loss occur due to his negligence. The rationale is that a watchman who is negligent is considered equivalent to one who intentionally destroyed the article.

In his Kuntreis Acharon (note 7), the Alter Rebbe explains the source for the ruling in the main text, that even when the Jew did not accept any responsibility for the chametz, he is obligated to obliterate it if the non-Jew is a man of force who will compel the Jewish watchman to make restitution if the chametz was lost or stolen as a result of the Jew’s negligence. The ruling follows the approach of Rambam, who writes(Hilchos Chametz U’Matzah 4:4):

[The following laws apply when a] non-Jewish man of force entrusts his chametz to a Jew: If the Jew knows that if it is lost or stolen, [the non-Jew] will obligate him to pay for it – forcing and compelling him to pay even though he did not accept responsibility – he is obligated to destroy it. It is considered as though [the chametz] were his, for the non-Jew holds him responsible for it.

Although Rambam is apparently speaking about an instance where the Jew accepted responsibility for negligence, Rabbeinu Asher (Pesachim 1:4) applies the same principle even to a watchman who does not accept any responsibility at all for the items he is watching, basing his ruling on Pesachim 5b, which relates that a non-Jewish ruler billeted his soldiers in the homes of the Jewish residents of Bnei Mechuza. When these people asked Rava, what their responsibility was regarding the soldiers’ chametz, Rava instructed themto obliterate this chametz. Rava’s rationale was that if the chametz were lost or stolen, the residents would be held responsible even though they did not accept that responsibility.

In his Kuntreis Acharon (note 8), the Alter Rebbe explains that the ruling in the main text follows the opinion of Rambam (Hilchos Chametz U’Matzah 4:3-4). It is inferred that Rambam holdsa Jew liable to obliterate the entrusted chametz if he accepted responsibility for it, even if he designated a place for it. This conclusion is derived from the fact that Rambam does not state that a Jewish watchman is exempt if he designated a place for the non-Jew to place the chametz. If designating such a place was effective even when the non-Jewish owner was a man of force, Rambam should have mentioned this point. Similarly, Rav Yosef Caro does not mention this leniency in his Shulchan Aruch (Orach Chayim 440:1). Thus, it can be concluded that according to the stringent approach, designating a place for the chametz does not even exempt an unpaid watchman when the owner of the chametz is a man of force.

There are four differences of opinion between the halachic authorities mentioned in this and the previous subsections. The lenient opinions are mentioned in subsections 9-12 and the more stringent opinions are mentioned in subsections 13-14. The four differences of opinion are:

a) Whether the Jew must accept responsibility if the chametz is lost or stolen to be liable, or if it is sufficient for him to accept responsibility for negligence.

b) Whether the Jewish watchman is only liable if the responsibility is incumbent on him either according to Torah Law or according to the laws of the ruling kingdom, or whether it is sufficient that the non-Jew is a man of force who will require the Jewish watchman to take responsibility.

c) Whether or not designating a place for the non-Jew to deposit his chametz exempts the Jewish watchman from liability if he accepted responsibility for the chametz.

d) Whether or not entrusting the chametz to a second non-Jew who accepted all the responsibility that the Jewish watchmanaccepted exempts the Jewish watchman from liability.

In his Kuntreis Acharon (note 9), the Alter Rebbe states that there is a difference of opinion among the Rishonim regarding the third issue listed above. On this issue, Rabbeinu Tam rules leniently, and Rambam rules stringently. The Acharonim conclude that since this difference of opinion originated with the Rishonim, Rambam’s view should be followed as an initial preference, but after the fact, one may rely on Rabbeinu Tam’s more lenient ruling. A similar approach applies with the first difference of opinion as well. Following the same logic, the Alter Rebbe postulates that since the early Acharonim disagree concerning the second and the fourth issues, thesame approach should be followed. The stringent position should be followed as an initial preference, but after the fact, one may rely on the more lenient view. See subsection 16, where the Alter Rebbe cites this resolution in the main text.

See subsection 1, above.

The Alter Rebbe is describing a situation where the Jew accepted the responsibility of an insurer. In this instance, the Jewish insurer would be liable for the chametz even though the chametz was not entrusted to him or held in his domain.

The non-Jew in whose possession the chametz was held was not responsible to the non-Jewish owner, or to the Jew who accepted the responsibility for the value of chametz.

This situation resembles the law stated in subsection 11, that one is not liable if he accepts responsibility for chametz belonging to a non-Jew that is located in the home of the non-Jew.

Shmos 12:19.

See Kuntreis Acharon (note 1), which states that as long as the chametz does not belong to the Jew, he is not liable for it when it is located in another person’s home.

In his Kuntreis Acharon (note 10), the Alter Rebbe substantiates his ruling in the main text, stating that although there is a difference of opinion regarding this matter among the later authorities, this ruling should be followed.

The Alter Rebbe notes that he based this ruling on the decision of Rabbi Yeshayahu di Trani (Piskei Mahari, ch. 1, sec. 1:11). Moreover, the ruling is apparent from the mishnah in Pesachim 30b, which discusses the following situation: A Jew takes a loan from a non-Jew before Pesach, and secures his loan with chametz. Although the chametz is being used as security for the loan and is located in the non-Jew’s domain, the non-Jew declines to take responsibility for the chametz in the event that the chametz is lost or damaged. Hence, the Jew is still responsible should the chametz be lost or damaged. Nevertheless, the mishnah states that even in this instance, the Jew is not liable for the possession of chametz. (See sec. 441:2.) Thus, the situation resembles that described above in subsection 11: “[A Jew who] accepts responsibility for chametz belonging to a non-Jew which is located in the domain of a non-Jew for which [the Jew] is not liable.”

The Alter Rebbe is referring to the four differences of opinion mentioned in footnote 63.

In which instance, the Jewish watchman is absolved of responsibility, as stated in the previous subsection.

In his Kuntreis Acharon (note 11), the Alter Rebbe focuses on the ruling in the main text that it is preferable for the Jewish watchman to either return the chametz to its owner or sell it to another non-Jew. One might wonder how the Jewish watchman could sell the chametz entrusted to him by the non-Jew. Why would this not be considered stealing? The Alter Rebbe explains that as stated in Bava Metzia 5b, one only violates the prohibition against stealing when he takes an object and does not intend to pay the owner for its value. However, when the person intends to pay the owner, he does not violate the prohibition against stealing, although he does violate the prohibition of lo sachmod, “Do not covet.” In this instance, however, the prohibition of lo sachmod does not apply, for that prohibition only applies to articles owned by Jews. (See Kesef Mishneh, Hilchos Gezeilah 1:1. See also the Kuntreis Acharon (note 6)to Hilchos Gezeilah U’Geneivah, in the Alter Rebbe’s Shulchan Aruch, which is based on Bava Kama 113b.)

In a note appended to this Kuntreis Acharon, the Alter Rebbe explains why the Jewish watchman cannot simply nullify the chametz entrusted to him by the non-Jew. The rationale is that since the chametz does not belong to the Jewish watchman, he is not able to withdraw his ownership from it and declare it ownerless. See Bava Kama 68b, where the Sages rule that a person cannot consecrate an article that he does not own, but which was entrusted to him for safekeeping.

As explained in that source, since the Jew is forbidden to benefit from the chametz from the onset of the sixth hour on the day before Pesach, he is also forbidden to sell it.

See the Kuntreis Acharon (note 9), which is explained in footnote 63, above.

According to the more stringent opinion, the Jewish watchman is required to obliterate the chametz in this situation.

See subsection 17, below. See also sec. 441:11. In these sources, the Alter Rebbe addresses the license for the non-Jew to take the chametz.

It is desirable for the Jew to return the chametz to the non-Jew immediately, for according to the more stringent opinion, he is liable for having the chametz in his home every moment of Pesach. However, by returning the chametz to the non-Jew, the Jew absolves himself from this prohibition.

See also sec. 446:7, which explains that there is a concern that while handling the chametz, one may forget that it is Pesach and partake of it.

According to the first opinion, the watchman is not liable for having this chametz in his possession during Pesach. That opinion is relied upon with regard to the prohibition against partaking of the chametz after Pesach. See also sec. 436:19 and 448:30.

In his Kuntreis Acharon (note 12), the Alter Rebbe states that this ruling can be derived from Rambam (Hilchos Chametz U’Matzah 4:3), who writes concerning a Jew who served as a watchman for chametz: “If he did not accept responsibility for [the chametz], it is permitted to be eaten after Pesach.” The implication is that if the Jewish watchman did accept responsibility for the chametz, then it is forbidden after Pesach. The same conclusion can be derived from Tosafos (Pesachim 31b, s.v. shekoneh), which makes a similar statement. Furthermore, the same principle can also be inferred from the ruling in sec. 441:12, which applies to chametz that a Jew accepted as security for a loan.

Since the Jewish watchman is not considered to be obligated to the non-Jew in any way, he is not repaying a debt.

This ruling can be derived from Bava Kama 96b, which states that a person who stole chametz before Pesach may return it to its owner after the holiday, and thus fulfill his obligation to make restitution. See the Kuntreis Acharon (note 2, summarized in footnote 12), which mentions this concept. See also sec. 443:8, which delivers a ruling based on the same principle.

In his Kuntreis Acharon (note 13), the Alter Rebbe cites many halachic authorities who accept this decision. Therefore the Alter Rebbe rules in this manner even though Magen Avraham 440:1 raises doubts regarding these rulings.

In that source – and similarly in sec. 442:19 – the Alter Rebbe gives an example of an instance where a Jew must take extra precautions regarding chametz that he sells to a non-Jew. Those sections refer to kernels of grain or flour concerning which there is a question whether or not they have leavened. Hence, it is forbidden to partake of this food, but it is permitted to derive benefit from it by selling it. Nevertheless, when selling it, certain extra precautions must be taken.

The Alter Rebbe is borrowing a Biblical phrase found in Devarim 12:28, et al.

In his Kuntreis Acharon (note 14), the Alter Rebbe explains that there is no absolutely clear support for the lenient position. Therefore, it is proper to be stringent because of the doubts raised by Magen Avraham, loc. cit.