Shulchan Aruch: Chapter 441 - The Laws [Applying] to a Person Who Extended a Loan and [Took] Chametz [as Security]

SECTION 441 The Laws [Applying] to a Person Who Extended a Loan and [Took] Chametz [as Security] (1-16)

1 [The following law applieswhen] a Jew extended a loan to another Jew, and the borrower gave him chametz as security, whether [the borrower] gave the security [to the lender] at the time of the loan or afterwards. [If the borrower] told [the lender]: “If I do not pay [you] by this-and-this time, collect your debt from the security in your possession,” even if the time of payment was set for after Pesach, according to Scriptural Law, [the lender] is obligated to obliterate the security when Pesach arrives. If [the lender] does not obliterate it, he violates the prohibition against [having chametz] seen in his domain.1

[This law applies] even when [the lender] stipulated with the borrower that if the security was stolen from him or lost before the time for payment arrives, he is not responsible for it, and [the borrower] must repay the entire loan. Nevertheless, as long as the security is in the domain of the lender, it is [considered to be] his possession, and it is considered as his in all contexts. [For example, the lender] may consecrate a woman with [this chametz], or use it to purchase servants and land, as explained in Even HaEzer, sec. 28.2 [The rationale is that] a Jew acquires security from [another] Jew by virtue of a Scriptural decree.3 Therefore, [the lender] transgresses [the prohibitions against possessing chametz on Pesach] as if [the chametz used to secure the loan] was actually his. ([With regard to] how [the lender] should conduct himself when obliterating [this chametz], see sec. 443[:6ff.].)

2 [A similar principle applies when] a non-Jew gave a Jew a loan, and the Jew gave [the non-Jew] chametz as security,4 and told him, “From now on,5 all this chametz will be yours as a present or as an outright sale in return for the money you gave me, if I do not repay you by this-and-this time.”6 Even though the non-Jew stipulated with [the Jew] that if the security is stolen from him or lost, [the non-Jew] is not responsible for it7 and thus, as long as [the Jew] does not [repay the non-Jew], the Jew is responsible for [the chametz], nevertheless, when Pesach arrives the Jew is not required to redeem [the chametz] from the non-Jew so that he could obliterate it.

[This ruling applies] even if [the Jew] set the time of payment to the non-Jew [to be] after Pesach, and [thus,] throughout all the days of Pesach the Jew is responsible for [the chametz]. Nevertheless, if at the time when chametz must be obliterated,8 the Jew’s intent is not to redeem his chametz from the non-Jew at the time [the Jew] stipulated that it be redeemed from him, it follows that retroactively, all of the chametz belonged to the non-Jew from the moment [the Jew] gave it to him as security and onward.9 [The rationale is that] the Jew told [the non-Jew]: “From this time [onward, the chametz] will be entirely yours if I do not redeem it from you at this-and-this time.” Therefore, the situation resembles one in which [a Jew] accepts responsibility for chametz that belongs to a non-Jew that is located in the home of a non-Jew, in which instance, the Jew is not at all liable [for possessing this chametz], as explained in sec. 440[:11].10

3 If the Jew changed his mind after Pesach and redeemed [his chametz] from [the non-Jew] at the time [the Jew] established for him, the chametz retroactively belonged to the Jew throughout all the days of Pesach. [In this instance, the Jew] violated the prohibition against possessing [chametz].11 Therefore, all Jews are forbidden to eat and benefit from [this chametz] as [is true regarding] any other chametz belonging to a Jew that existed [in his domain] during Pesach.

4 [Stringency is also required,] however, if the Jewish [borrower] did not tell [the non-Jewish lender], “From now on, [the chametz] will be entirely yours [if…],” but [rather] gave [the non-Jewish lender] the security without [making such a stipulation,] and merely told him, “If I do not pay you by this time, [the chametz] will be entirely yours.” [In this instance as well, if the Jew redeems his chametz after Pesach, he will be held liable for possession of the chametz] even though the time for payment arrived before Pesach and [the Jew] did not repay [the non-Jew. True,] the chametz has already been transferred to the ownership of the non-Jew before Pesach, for even if the Jew desired to redeem it from the non-Jew after the time [the payment came due], secular law would prevent [the Jew] from taking it [from the non-Jew] against his will.12 Nevertheless, according to Jewish Law, [the Jew] may redeem [his security] even after the time [the payment for the loan became due. The rationale is that] since [the Jew] did not stipulate “From now on, [the chametz] will be yours [entirely if…,”13 the agreement] is considered merely an asmachta.14* Thus, the chametz is not acquired by the non-Jew according to Jewish Law, for [according to Jewish Law,] the Jew may redeem it from him at any time. Thus, [the non-Jew] has nothing more than a lien [on the chametz] for his debt and the physical substance of the chametz [still] belongs to the Jew, for a non-Jew does not acquire security [entrusted to him by] a Jew.15

* To explain: [Ordinarily, when a borrower gives chametz as security for a loan,] he has in mind that he will certainly redeem [the chametz given as security] at the time [originally stipulated]. Based on this intent, [the borrower] says that if he does not redeem [the chametz used as security] at that time, it will be acquired by [the lender. That statement is being made facetiously]. Had [the borrower] known that he would not have the means to redeem [the security] at the [stipulated] time, he would not have made this statement. Therefore, his transfer of [the chametz] was made in error; [the borrower] never firmly resolved in his heart to transfer ownership [of the chametz to the lender] in an absolute sense. In contrast, when [the borrower] says, “From now on…,” he has certainly firmly resolved in his heart to transfer ownership [of the chametz to the lender] if he does not redeem it at the [stipulated] time, based on the rationale explained in Choshen Mishpat, sec. 207.16 Consult that source.

Therefore, it is forbidden for all Jews to benefit from this chametz after Pesach, i.e., it is forbidden for all [Jews] to purchase [this chametz] from the non-Jew, because the Jewish owner of the chametz violated the prohibition against possessing chametz because of it.17 Therefore, its status is the same as all other chametz possessed by a Jew during Pesach. Nevertheless, the Jewish owner of the chametz is obligated to redeem it from the non-Jew and obliterate it from existence entirely, [for the chametz is considered as his. That determination is made since the Jew] owes the non-Jew money, and is released from his debt because this chametz from which he is forbidden to benefit, was transferred to the possession of the non-Jew. Thus, [the Jew] is repaying his debt with an object from which he is forbidden to benefit.

5 All the above applies when the chametz is worth more than [the debt the Jewish borrower] owes the non-Jew, for then the laws of asmachta [are relevant]. If, however, the chametz is only worth the amount of the debt, there are authorities who maintain that the laws of asmachta [are not relevant], for the reason described in Choshen Mishpat, sec. 207.18

Therefore, if the time for repayment arrived before Pesach and [the Jew] did not repay the loan at the appropriate time, the non-Jew already acquired the chametz according to Scriptural Law [prior to Pesach]. Thus, it is deemed as chametz belonging to a non-Jew that existed [in the non-Jew’s possession] during Pesach, which is even permitted to be eaten [by a Jew, after Pesach]. Their words may be relied upon [with regard to the] prohibition [applying after Pesach] to chametz [that existed in a Jew’s possession during Pesach], which is only of Rabbinic origin, as will be explained in sec. 448[:1].19

6 [Different laws apply] if the Jewish [borrower] transferred ownership of the chametz to the non-Jewish [lender] before Pesach through a [binding] contractual act that enables [the chametz given as security] to be transferred entirely to [the non-Jew] in lieu of the debt. [As a result, the Jew] will never be able to redeem [the chametz] against [the non-Jew’s] will. For example, [the Jewish borrower] told [the non-Jewish lender] before Pesach, “All of my chametz that is in your possession is given to you as an outright gift – or as a sale – in exchange for the money that you lent me;” or [the Jew] tells [the non-Jew], “[My chametz] will be entirely yours in lieu of my debt.” With this statement, the ownership of all the chametz is transferred to the non-Jew,20 even if it is worth more than the debt,21 as explained in Choshen Mishpat, sec. 73.22 Therefore, even if the time of repayment did not arrive until after Pesach, and [at that time,] the Jewish owner of the chametz redeemed his chametz from the non-Jew – [i.e., the non-Jew] agreed to return [the chametz] to him23 – it is even permitted to partake of this chametz.24 [The rationale is that] throughout all the days of Pesach, [the chametz] belonged to the non-Jew [in an absolute sense].

7 All the above applies when this chametz was located in the domain of the non-Jew throughout all the days of Pesach. [Different rules apply if] if [the chametz] was located in the Jew’s domain [during Pesach], i.e., the Jew never brought it to the non-Jew’s domain. Although [the Jew] told [the non-Jew], “From this time onward, all [of the chametz given as security] will be yours if I do not pay you by the date set for repayment,” [and] even [though] that date arrived before Pesach and the borrower did not repay [the non-Jewish creditor] and thus, the chametz was acquired outright by the non-Jew,25 nevertheless, since [the chametz] is located in the domain of the Jew, he is responsible for it according to Scriptural Law. [Thus,] were [the chametz] to be stolen or lost, he would be obligated to pay [the non-Jew] his entire debt, for he did not stipulate, “You will receive payment only from this chametz.” Instead, [the Jew] borrowed [the money] from [the non-Jew] without a specific commitment. [Thus] by taking this loan, all of the Jew’s property became bound by the lien for the debt.26 Even though the Jew transferred ownership of the chametz to [the non-Jew] in the event that he did not pay [the non-Jew] on time, nevertheless, this transfer of ownership did not release the lien from the remainder of [the Jewish borrower’s] property. [Hence,] if the chametz would be stolen from [the Jew] or lost, the Jew would suffer the loss. [Hence, the chametz] is deemed as his, and he is obligated to obliterate it on the day before Pesach according to Scriptural Law.27

If [the Jew] does not obliterate [the chametz before Pesach], it is forbidden to benefit from it after Pesach, as is the law [applying to] chametz belonging to a Jew that existed [in his possession] over Pesach. If the non-Jewish [lender] comes to take possession of [the chametz offered as security], the Jew is obligated to redeem it from him and obliterate it. [The Jew] should not permit [the non-Jewish lender] to take it, [for by doing so,] he would be paying his debt with substances from which it is forbidden to benefit, as explained above.28

8 If, however, the Jew stipulated with the non-Jew that if the chametz would be stolen from him or lost, he would not be responsible for it, and instead, the non-Jew would forfeit his debt, [the Jew] need not obliterate it.29 [In that instance,] the laws applying to [the chametz are the same as those that would apply if the chametz] had been situated in the domain of the non-Jew throughout all the days of Pesach, as explained above.30

9 If before Pesach, the Jew transferred ownership of the chametz to the non-Jew through a formal contractual act that effectively transferred its ownership to the non-Jew, so that the chametz would be [the non-Jew’s] property outright – e.g., [the Jew] transferred ownership of [the chametz] to [the non-Jew]31 through a kinyan sudar32 or [a kinyan] agav karka33(as stated in Choshen Mishpat, sections 195, 205, and 202; see also sec. 194)34 – even when [the chametz] is situated in the Jew’s domain, it is as if it was never the Jew’s chametz, because it had already been acquired in an absolute manner by the non-Jew before Pesach.

Therefore, even though at the time the non-Jew gave the loan to [the Jew], the Jew told him, “If I do not pay you by this-and-this time, you may collect your debt from me [from this chametz] from that time onward, and the remainder [of the chametz] will be mine,” and the time for the payment of the debt did not arrive until after Pesach, and when that time arrived [the Jew] paid [the non-Jew the money] he owed him, and the non-Jew agreed to leave [the Jew] his chametz, it is [nonetheless] permitted to benefit from this chametz.35 [The rationale is that] the Jew did not violate any [prohibition even though the chametz remained in his home], since he transferred ownership of [the chametz] to the non-Jew through a valid kinyan before Pesach, as payment of his debt. If so, the Jew utterly removed himself [from the ownership of the chametz]. Thus, the Jew is not responsible for the theft or the loss of the chametz by forces beyond his control unless he explicitly accepted responsibility for the theft or loss of the chametz by forces beyond his control.36 In that instance, it would be forbidden to benefit from the chametz, as is true with regard to other chametz belonging to a Jew that [existed in his possession] during Pesach, as explained in sec. 440[:9-10].

If the Jew stipulated to the non-Jew that from the time he transferred ownership [of the chametz], he would not be responsible [for it] even though it was lost or stolen due to his negligence, [i.e.,] because he failed to guard it as watchmen do, [the Jew] is permitted – even initially – to leave this chametz in his [own] home.37 However, [the Jew] must be careful to erect a partition ten-handbreadths high in front of [the chametz], as explained in sec. 440[:5]. Consult that source.

10 [The following laws apply when] a Jew loaned money to a non-Jew and the non-Jew gave the Jew chametz as security [for the loan]:38 [If the non-Jew] told [the Jew]: “If I do not pay you by this-and-this time, you will acquire the chametz from the present time onward,”39 and that time arrived without [the non-Jew] paying,40 even though [a)] the time for payment did not arrive until after Pesach41 and [b)] throughout the days of Pesach, the non-Jew was responsible for the chametz42 – for the Jew stipulated that even if [the chametz] would be stolen from him or lost, he would not forfeit his debt for this reason – it is [nevertheless] forbidden to benefit from this chametz [after Pesach].

Even if [the chametz] was located in the house of its non-Jewish owner throughout all the days of Pesach, [because] the Jew reversed [the matter] and entrusted [the chametz originally entrusted to him] to [the non-Jew, giving it back to him before Pesach], nevertheless, since the time [for payment] arrived and [the non-Jew] did not pay [the Jew], the ownership of the chametz retroactively became transferred to the Jew from before Pesach, [i.e.,] from the moment the non-Jew gave the chametz to [the Jew] as security and told him, “[This chametz] will be yours from the present time onward if I do not pay you by this-and-this time.”43 Thus, [the chametz] resembles chametz belonging to a Jew that was entrusted to a non-Jew throughout all the days of Pesach, (from which it is forbidden to benefit, as explained in sec. 440[:1]). Therefore, the Jew is obligated to obliterate this chametz on the day before Pesach just like [he must obliterate] his own chametz, lest the non-Jew not pay him on time and thus retroactively, the chametz would be his and [thus,] he would violate the prohibition against possessing [chametz] because of it.

11 If [the Jewish lender] transgressed and did not obliterate [the chametz], and the non-Jew came in the middle of Pesach to redeem [the chametz, the Jew] is permitted to accept the money from him and allow him to take his chametz. [The Jew] is not considered to be profiting from a substance from which it is forbidden to benefit.44 [The rationale is that] since the non-Jew redeemed his chametz [within the prescribed time], it never became the Jew’s property retroactively.

12 [A more lenient ruling45 applies] when [the non-Jew] did not entrust [the chametz] to the Jew as security before Pesach.46 Instead, from the moment [the Jew] gave the loan to [the non-Jew] until after Pesach, the chametz was located in the non-Jew’s house, [and it was only] after Pesach that the Jew brought [the chametz] into his own home. [Seemingly, stringency would be required,] since the time [the Jew] set for repayment [of the loan] already arrived before Pesach and [the non-Jew] failed to repay [it]. Thus, as a result, the chametz was already transferred by the non-Jew [to the Jew] in an absolute sense before Pesach. [The rationale is that] because [the non-Jew] said, “You will acquire the chametz from the present time onward if I do not pay you,” [the agreement] is not considered an asmachta, even according to Jewish Law.47 Nevertheless, [the Jew has yet to fully acquire the chametz. The rationale is that] since the Jew did not draw the chametz into his home before Pesach,48 he did not acquire [the chametz since] he only [paid] money,49 i.e., [he gave the non-Jew] the money that he lent him for which the chametz [served as security. The rationale is that] monetary payment alone is insufficient for a Jew to acquire any entity from a non-Jew, or for a non-Jew [to acquire any entity] from a Jew.50 Instead, [to acquire the entity, the purchaser] must draw it into his possession, for the reason explained in Choshen Mishpat, sec. 194.51 Consult that text. Accordingly, [since the Jew never formally acquired] the chametz, it is permitted to [benefit from this chametz] after Pesach. It is even [permitted] to partake of it.

[Moreover,[ even if [the non-Jew] gave the chametz [to the Jewish creditor] before Pesach, [leniency is granted] if [the non-Jew] did not tell him, “You will acquire [the chametz]from the present time onward…,” but only told him, “If I do not pay you at the appointed time, you will acquire [the chametz] from that time onward,” and the time for payment did not arrive until after Pesach. [In that instance as well, if] throughout all the days of Pesach, the non-Jew was responsible in the event of the chametz having been stolen or lost due to forces beyond [the Jew’s] control, [the chametz is considered as chametz belonging to a non-Jew. The rationale is that the non-Jew] did not stipulate with the Jew that if the chametz would be stolen from him or lost he would forfeit his debt, and according to Jewish Law, a Jew is not responsible for security entrusted to him by a non-Jew in the event of its theft or loss due to forces beyond his control. [The rationale is that] even for security entrusted to [a Jewish creditor] by a fellow Jew, [the creditor] is only responsible because of the laws incumbent on a watchman, for [according to these laws] he is considered a paid watchman for the reason explained in Choshen Mishpat, sec. 72.52 [Here, however, this law is not germane, for] the laws of watchmen do not apply with regard to the property of a non-Jew, for the Torah [introduces those laws by] saying,53 “When a man will give to his fellow,” [thus,] excluding a non-Jew.54 Therefore, even though the time for payment arrived [after Pesach] and [the non-Jew] did not pay [the Jew, and] the chametz thus became the Jew’s property outright, nevertheless, throughout all the days of Pesach, [the chametz] still belonged to the non-Jew. The Jew was not obligated to obliterate [the security] according to the letter of the law, since according to Jewish Law, he was not responsible for theft or loss [of the security due to] forces beyond his control. Thus, [the security] is governed by the laws applying to chametz belonging to a non-Jew that was in [the non-Jew’s] possession throughout Pesach, which is permitted even to be eaten.

Even if before Pesach, the conduct of the non-Jew led the Jew to realize that [the non-Jew] intended to leave his chametz [permanently] in the possession [of the Jew] in an absolute sense, and not to ever redeem it from him, this is of no consequence. The Jew does not violate the prohibition against having [chametz]seen [in his domain] with [this chametz] unless the non-Jewtransferred ownership of his chametz to [the Jew] before Pesach through a completely binding contractual act that is effective so that [the non-Jew] could not retract [his transfer of ownership of the chametz] according to Jewish Law. For example, [the non-Jew] told [the Jew], “I hereby give you as a gift – or sell to you in an outright sale in return for the money that you lent me – my chametz that is in your possession,” or [the non-Jew] tells [the Jew], “[The chametz] shall be yours in exchange for my debt.” [Were such statements to have been made the Jew would have been liable for possessing the chametz,] because with [such a] statement, the Jew acquires the chametz,55 as explained in Choshen Mishpat, sec. 73.56

13 If, however, the time for [the loan’s] repayment arrived before Pesach and [the non-Jew] did not pay [the Jew] at that time, the chametz was already acquired by the Jew with a binding transaction before Pesach, for the non-Jew told [the Jew], “If I do not pay you at this-and-this time, [the security] will be yours entirely.”

Even though [the non-Jew] did not say, “From this time onward, [the chametz] shall be yours…,” the laws pertaining to an asmachta do not apply.57 [This ruling should be followed] even if the chametz is worth far more than the debt. [The rationale is that] according to secular law, the Jew acquires all the chametz, and the non-Jew cannot redeem it by force, [without the Jew’s consent,] because secular law does not recognize the concept of an asmachta. If so, the Jew also acquires [the chametz] according to Jewish Law. For this is what the Torah prescribes if a Jew and a non-Jew come [before a judge] for a decision: If it is possible to [rule in favor of] the Jew according to Jewish Law, one should tell the non-Jew, “This is our law.” If it is possible to [rule in favor of the Jew] according to secular law, one should tell [the non-Jew], “This is in accordance with [your] laws.”58

Therefore, [the Jewish lender] is obligated to obliterate [this chametz] on the day before Pesach according to Scriptural Law. If he did not obliterate [the chametz] until after Pesach, it is forbidden to benefit from the chametz, as is the law with regard to chametz belonging to a Jew that existed [in his possession] during Pesach.

14 [When a non-Jew entrusted chametz as security to a Jew,] even if the time for repayment [of the debt] did not arrive until after Pesach, and [the non-Jew] did not tell [the Jew], “From this time onward, [the chametz] shall be yours…,” the Jew is nevertheless obligated to obliterate [the chametz] on the day before Pesach. [The rationale is that] if [the chametz] would be stolen or lost because of [the Jew’s] negligence in guarding it, he would be held responsible for [its loss]. The statement59 that the laws of watchmen do not [apply with regard to] property belonging to a non-Jew] is relevant] only with regard to theft and loss resulting from forces beyond his control, but not [to theft and loss] resulting from the negligence [of the watchman. The rationale is that] a person who is negligent is comparable to one who damages [property] with his hands.60 For as explained previously in sec. 440[:16], as an initial preference, one must obliterate [chametz] on the day before Pesach even when he is only liable [and responsible] for theft and loss resulting from his negligence.

15 If [the Jewish lender] stipulated with the non-Jew that throughout all the days of Pesach, he would not be liable [and responsible] even for theft and loss that results from his negligence, he need not obliterate [the chametz] even as an initial preference, provided that the time for payment did not arrive until after Pesach and [the non-Jew] did not tell [the Jew], “From this time onward, [this chametz] shall be yours….”61 [The Jew] must, however, be careful to erect a partition ten-handbreadths high in front of [the chametz].62

16 [The following laws apply when] a Jew gives his chametz to a non-Jew as a gift, dependent [on a stipulation, i.e., the Jew] stipulated with [the non-Jew] that if [the Jew] will not perform this-or-this action for him by this-and-this time, all the chametz will be [gifted to the non-Jew, and] acquired by him from the present time onward. Although [the designated] time arrived before Pesach and [the Jew] did not perform the [specified] action and [accordingly,] the chametz was transferred outright to the non-Jew, nevertheless, according to Jewish Law, the non-Jew did not acquire the chametz, because [the agreement] was merely an asmachta. [The rationale is that] the Jew [originally] had in mind that he would certainly have the opportunity to perform the [specified] action by the [designated] time, and [it was specifically] on that basis that he gave [the non-Jew the chametz.63 According to Jewish Law,]a gift is not acquired when an asmachta [is involved], even when [the giver of the present] said, “This will be yours from the present time onward.” [The rationale is that the declaration,] “From the present time onward…” is only effective in preventing an agreement from being considered an asmachta [when they are said] regarding security [and not with regard to a gift], for the reason explained in Choshen Mishpat, sec. 207.64

Therefore, it is forbidden to benefit from this chametz after Pesach, i.e., no Jew may purchase it from the non-Jew, because the Jewish owner of the chametz violated the prohibition65 against possessing [chametz because of this chametz] if he did not retract [the original agreement] and [instead,] give it to the non-Jew as an outright present before Pesach without any stipulation, in the manner explained above.66

If the chametz is still in the Jew’s possession – [i.e.,] he had yet to give it to the non-Jew– it is forbidden for [the Jew] to give it to [the non-Jew],67 as is the law with regard to all articles from which it is forbidden to benefit; they may not be given to a non-Jew. If, however, [the Jew] already gave [the chametz] to the non-Jew before Pesach, even though it is forbidden to benefit from [the chametz] after Pesach, nevertheless the Jew is not obligated to redeem it from the non-Jew in order to obliterate it from existence. [The rationale is that the Jew] does not derive any benefit from his chametz being transferred in an absolute manner to the non-Jew, since he did not give it to [the non-Jew] in exchange for a debt, but only as a present.