Gemara Y17 2016-2017 Unit 7 ‫בס״ד‬

Source Sheet #13 (2/16)

I. Whose Obligation? - The ‫ שוכר‬or the ‫משכיר‬
A. .‫גמ׳ פסחים ד‬
1. If one rents out his house on the 14th of ‫ניסן‬, who is
obligated to check it?
a) Maybe the owner must check, because he lived there
until now, so the ‫ חמץ‬is his.
(1) (Tosfos - once he was obligated to check, he retains
the obligation);
b) Maybe the guest must check, because the ‫ איסור‬is in his
premises during the time it’s prohibited!
c) We learned in a ‫ ברייתא‬that the guest is obligated to
put up a Mezuzah.
(1) (We assume that the same applies to all ‫מצוות‬
related to a house.)
(2) ‫רש״י‬: We see that therefore all the similar ‫ מצוות‬are thrown upon him
2. ‫ רב משרשיא‬taught that a ‫ מזוזה‬is an obligation for whoever lives there. (Here, the owner must get rid of his ‫חמץ‬
even though he does not live there).
a) This answer is rejected because ‫ מזוזה‬is a ‫ מצוה‬for the occupant of the house, but we’re not sure if ‫ בדיקה‬is an
obligation for the occupant of the house.
3. ‫רש״י ד״ה חובת הדר‬
a) Because he is the one watching it, and the ‫ פסוק‬says “‫”בתיך‬, this must mean the one that goes in and out (the
owner).
b) Also, since mezuzah protects the one living there, the owner should put it up.
c) However, ‫ בדיקה‬is ‫ דרבנן‬and not because of ‫בל יראה‬, so it may not be the responsibility of the owner.
(1) This contradicts when ‫ רש״י‬said on .‫ ב‬that the reason for ‫ בדיקה‬is ‫ דאורייתא‬because ‫ בל ימצא‬+ ‫בל יראה‬.
4. We learn in a ‫ ברייתא‬that ‫ רב נחמן בר יצחק‬says that if one rented out his house:
a) If the 14th came before he gave over the keys, the owner must check
b) If the 14th came after he gave over the keys, the guest must check.
5. If one rents out his house on the 14th, is there a ‫ חזקה‬that it’s been checked?
a) What difference does it make? (We can ask the owner!)
6. The case here is that the the owner is not here. Does the guest have to do ‫ בדיקה‬out of a ‫?ספק‬
7. We learn in a ‫ ברייתא‬that ‫ רב נחמן בר יצחק‬says that everyone is believed regarding the owner doing ‫בדיקת חמץ‬,
even women/slaves/children.
a) Even though they are not valid witnesses, they’re believed because it is ‫ מוחזק‬to have been checked. (They
merely support the ‫חזקה‬.)
b) The Tana considers everyone to be ‫( חבר‬trustworthy) regarding ‫בדיקת חמץ‬
8. ‫ רש״י‬says that the house belongs to the guest, while the ‫ חמץ‬belongs to the owner.
9. Analysis:
a) The question is: Who has the responsibility of ‫חמץ‬, the owner or the possessor?
b) To what degree is rental considered to be a ‫ ?קנין‬Is the rental the owner in any degree?
c) Are we only focusing on the fact that the food is in the ‫’שוכר‬s possession, or are we also focusing on the fact
that the
d) It seems that it’s ‫ חמץ‬vs. location regarding who does ‫בדיקה‬
e) The problem with could be that once the renter takes possession the house, he also takes over the ‫חמץ‬.
(1) When someone rents something, it could be they’re acquiring a certain area for a limited time, or that they
only acquire the use of the space and not the contents inside of it (not the ‫ חמץ‬inside)
(2) With the language of the Gemara, the guy rents it once the 14th already began. At that point, the owner
was obligated to do ‫ בדיקה‬on the ‫חמץ‬.
(a) The question is: If the owner rents it, is the obligation to do ‫ בדיקה‬sold as well?
(b) Additionally, can a set ‫ חיוב‬be uprooted?

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 B. ‫ ד״נ חובת הדר‬.‫רש״ש ד‬
1. If ‫ בל יראה‬was the reason for ‫בדיקה‬, it would be obvious that the owner would have to do it because it’s his ‫חמץ‬.
2. Why did the ‫ חכמים‬institute ‫?בדיקה‬
a) Answer #1 is that so you won’t come to eat ‫חמץ‬.
b) Answer #2 is that if one doesn’t have full ‫ כונה‬in his ‫ביטול‬, then his ‫ בדיקה‬will still cover him.
3. This is the main idea of this conflict: If the reason for ‫ בדיקה‬is is Answer #1, the renter would have to do ‫בדיקה‬
since he’s the one that may come to eat it. However, if the reason for ‫ בדיקה‬is is Answer #2, the landlord would
have to do ‫ בדיקה‬since it’s his ‫ חמץ‬that he has the responsibility to do ‫ ביטול‬for.
C. ‫רבינו דוד ד״ה המשכיר‬
1. ‫ רבינו דוד‬wonders what the ‫ גמ׳‬is even asking here regarding the ‫ משכיר‬and the ‫שוכר‬.
a) It can’t be about ‫ בל יראה‬because it says “who has to be ‫”בודק‬, not anything about ‫בל יראה‬.
(1) If it were about ‫בל יראה‬, it wouldn’t even be a question because the ‫ משכיר‬would obviously have to do
‫ בדיקה‬in that case.
(a) Therefore, it has to be about the ‫ דרבנן‬concept.
2. ‫ רבינו דוד‬says that in order to violate ‫ בל יראה‬or ‫בל ימצא‬, one must be the owner of the ‫ חמץ‬and have it in their
‫ רשות‬during ‫פסח‬, and since neither the ‫ משכיר‬or the ‫ שוכר‬fulfill both these requirements, they can’t violate ‫בל יראה‬
or ‫בל ימצא‬, and therefore the ‫ גמ׳‬doesn’t discuss it.
a) According to ‫ בל יראה‬,‫ רש״י‬isn’t mentioned because the owner already did ‫ביטול‬, which covered ‫בל יראה‬.
(1) If he wasn’t ‫מבטל‬, then ‫ בל יראה‬would be on the table.
b) Since it’s not about ‫בל יראה‬, the ‫ גמ׳‬is wondering about the issue of coming to eat it.
c) If ‫ בל יראה‬isn’t on the table and ‫ ביטול‬doesn’t have to be done, ‫ חכמים‬only institute ‫ בדיקה‬because ‫ חמץ‬that
belongs to a Jew must be destroyed regardless of who the owner is.
(1) The big question is: Who is ‫ חייב‬to be ‫ בודק‬now? The people who have a connection to the ‫ חמץ‬are in
question to do ‫בדיקה‬, namely the owner and guest.
(a) It can’t be only about coming to eat it because then it would obviously be the renter who has to do
‫בדיקה‬, because he’s the only one that’d come to eat it during the time that it’s prohibited.
i) The point of argument between ‫רש״י‬
‫רש״י‬ ‫רבינו דוד‬
and ‫ רבינו דוד‬is that ‫ רש״י‬believes it
only needs to be your ‫ חמץ‬to violate ‫בל‬ If the ‫ חמץ‬leaves a person’s Owner’s Guest’s ‫רשות‬
‫ רשות‬when they rent a house, ‫רשות‬
‫יראה‬, but ‫ רבינו דוד‬believes that you
it’s in the….
need both ownership and for it to be in
your ‫רשות‬. What it takes to violate ‫ בל יראה‬Ownership Ownership and having
it in your ‫רשות‬
(2) Another possible point of dispute is if the ‫חמץ‬
leaves a person’s ‫ רשות‬when they rent a house. What makes a person ‫ חייב‬in a
(a) ‫ רש״י‬says it’s still in the owner’s ‫רשות‬, while ‫ דרבנן‬case
‫ רבינו דוד‬says it’s in the guest’s ‫רשות‬ Why neither the ‫ שוכר‬or the The ‫ ב״י‬x2 require
3. Analysis: ‫ משכיר‬violate ‫ בל יראה‬and ‫בל‬ ‫משכיר‬ possession and
a) What’s the nature of ‫שכירות‬ ‫ימצא‬ already ownership, criteria that
(‫ ב״י‬x2) did ‫ביטול‬ neither of them fulfill
II. The Connection to ‫חיוב מזוזה‬
A. ‫ ד״ה על המשכיר לבדוק דחמירא דידיה הוא‬.‫תוס׳ פסחים ד‬
1. You can’t explain that the reason the
landlord should be required to do ‫בדיקה‬, ‫רש״י‬ ‫תוס׳‬
because since the ‫ חמץ‬belongs to him,
nobody other than himself is able to nullify it, Why ‫ מזוזה‬is Because he’s the one Because it’s not ‫חייב‬
and that is why he is ‫ חייב‬to search ‫מחייב‬ the renter who is protected by it the owner because
a) If that was the case, why would the he doesn’t live there.
Gemara speak specifically about the ‫ מזוזה‬is…. ‫( תנאי מספיק‬sufficient ‫( תנאי נחוץ‬necessary
case of someone who rented the condition) for the condition) but
apartment on the fourteenth, seeing as it requirement of ‫מצה‬ ownership is also
would be the same case if he rented it on without anything else required
the thirteenth. but a necessary
2. The ‫ ר״י‬explains that since it’s the landlord’s qualification
‫חמץ‬, the ‫ חיוב‬to be ‫ בודק‬falls on him before
the renting takes place.
a) One proof is that the Gemara now tries

Y.U. Kurz 2
 to answer the question from the ‫ מצוה‬of ‫מזוזה‬, because although the obligation to fix a ‫ מזוזה‬fell on the
landlord before the renting took place, the obligation to fix it is on the guest.
(1) This proof is rejected on the grounds that the ‫ חיוב‬of fixing a ‫ מזוזה‬lies on the person who is currently living
in the house, so if the owner were to stop living in the house, he would be ‫ פטור‬from ‫מזוזה‬, since he no
longer lives in the house nor uses it.
b) But in the case of ‫חמץ‬, if he didn’t rent out the house, he’d still be ‫ חייב‬to search, even if he stopped living in
the house.
3. Analysis: We see the most important factor with this scenario is the person who with the ‫ חמץ‬in their ‫רשות‬
B. ‫ ד״ה על המשכיר‬.‫תוספות רבינו פרץ ד‬
1. Once the ‫ חיוב‬is on the owner, can it be uprooted or is it stuck? The ‫ מחייב‬of ‫ בדיקה‬is that you might come to eat
it, so it all depends on who’s ‫ רשות‬it’s in.
2. ‫ תוספות רבינו פרץ‬says that it appears that the discussion isn’t about ‫ ב״י‬x2 because we’re not dealing with ‫ביטול‬
here- it’s already been done by the owner.
3. Rather, we’re talking about the idea of ‫ חיוב בדיקה‬because of the ‫ גזירא‬that one will come to eat the ‫( חמץ‬so ‫רשות‬
matters most), and the rental was done after the 14th started, so the ‫ חיוב‬originally fell on the owner.
4. The question is:
a) Can ‫ חיוב‬no longer be uprooted?
b) Or, maybe once the owner rents it out, is the ‫ חיוב‬uprooted and is transferred to the renter?
5. The answer is that the house and the ‫ חיוב‬are a package deal and both come to the renter when he gets the key.
a) Therefore the ‫ חיוב‬is focuses more on the ‫ חפצה‬than the ‫גברה‬, and the house needs to be ‫ מבדק‬regardless of
who is checking it.
C. ‫ ד״ה מזוזה חובת הדר היא‬.‫תוספות רבינו פרץ ד‬
1. Background: For the first 30 days of a house rental you don't have to put up a ‫מזוזה‬, but when you buy a house
you must put up a ‫ מזוזה‬immediately
a) Why should there be a difference between the two?
2. The proof for a ‫ שוכר‬being ‫ פטור‬from putting up a ‫ מזוזה‬in the house for 30 days is the fact that there’s a ‫חיוב‬
‫ דרבנן‬for a person to put up a ‫מזוזה‬.
a) According to Rashi, the renter would be ‫ חייב מדאורייתא‬because just living there is enough.
3. Had the ‫ חיוב‬been ‫דאורייתא‬, what difference would there have been between the ‫ שוכר‬and the ‫ ?משכיר‬Both
would have had to put up ‫ מזוזות‬after 30 days!
a) This connects to our conversation because ‫ תוס׳‬holds that residence is necessary, but not sufficient, so he’s only
required ‫מדאורייתא‬. According to Rashi, the renter would be ‫ מחייב מדאורייתא‬because just living there is
enough.
4. ‫ רבינו פרץ‬says that its possible that ‫ מזוזה‬is a ‫ חובת הדר‬and it’s all about ‫ דירה‬and ‫ רשות‬regarding this obligation.
5. A ‫ שוכר‬has to wait a 30 day period for obligations, even if it’s a ‫חיוב דאורייתא‬, because it’s not considered to be
‫ קבוע‬until he has hit the 30 day period. Only then will he be considered to be a permanent fixture in his home, as
opposed to an owner, who acquires the title of residency immediately.
III. The Halakhic Significance of ‫מסירת המפתח‬
A. ‫רש״י ד״ה מסירת מפתח‬: Simply put, it’s a ‫קנין‬/acquisition- the handing over of the keys acquires the rental.. Even if he
hands over the keys on the 14th, the ‫ חיוב‬is still on the ‫משכיר‬.
1. This sounds like the question is if the owner’s ‫ חיוב‬can be uprooted by the renter’s ‫חיוב‬. Rashi holds that once the
owner’s ‫ חיוב‬is created, it can’t be uprooted.
B. ‫ ד״ה אם משמסר המפתח‬.‫תוס׳ פסחים ד‬
1. (SUMMARY: ‫ תוס׳‬explains how handing over the key obligates the ‫ שוכר‬to search for ‫חמץ‬, and on what condition
it does not.)
2. ‫ רש״י‬explains that handing over the keys is a ‫קנין‬.
3. This doesn’t appear so to the Ri, because didn’t it say in a ‫ גמ׳‬in ‫ בבא קמא‬that rules that just like ‫קרקע‬, like
purchasing it, one can acquire it land with ‫שטר‬, ‫כסף‬, and ‫( חזקה‬and not by ‫?)מסירת מפתח‬
4. We only say ‫ מסירת המפתח‬is effective if the owner says to the hirer “Go make a ‫ חזקה‬and acquire it!” but
nothing more than that.
5. The Ri therefore explains that it speaks here where the landlord handed over the key, but the renter has not yet
made a ‫ חזקה‬- and it is the one who has the key at the beginning of the fourteenth who is able to search for ‫;חמץ‬
how could you search a house if you don’t have the key to get in?
6. If however, A hands over the keys to B for safe-keeping, B isn’t ‫ חייב‬to search for ‫ חמץ‬on the 14th; Only where he
intends to make a ‫ חזקה‬on the house and to acquire it.

Y.U. Kurz 3
 7. The only thing that really matters is ‫מסירת המפתח‬
8. It would seem that all the factors lead to the ‫משכיר‬, and if he has a key then all the more so
9. What’s the difference between a ‫ שוכר‬and a ‫?נפקד‬
a) The idea of ‫ שוכר‬is quasi-‫ברשותו‬, but by the ‫נפקד‬, it’s completely ‫אינו ברשותו‬
b) The ‫ שוכר‬will have access the house and have the risk of ‫שמא יבאו לאכלו‬, while the ‫ נפקד‬will do no such thing,
and therefore have no ‫חשש אכילה‬- the two are fundamentally different.
C. ‫ ד״ה אם עד שלא‬.‫רבינו דוד ד‬
1. The discussion in the ‫ גמ׳‬is a case when the ‫ קנין‬already took place beforehand.
a) This contrasts with ‫תוס׳‬, who says that it has nothing to do with the ‫קנין‬.
2. The ‫ ספק‬is ownership vs. ‫רשות‬.
3. The handing over of the keys plays the role of of whether he has accessibility.
a) Accessibility does not create the ‫ ;חיוב‬it simply decides who has the ‫חיוב‬.
4. Just having the keys is irrelevant. You need
D. ‫ ד״ה ופשט להו רב נחמן‬.‫ריטב״א ד‬
1. The ‫ חיוב‬depends on whether the keys have been handed over because whoever has the ability to get access to the
house must do ‫בדיקה‬, as each person already had a reason to be ‫חייב בדיקה‬. The possession of the keys only
adds to the reasons that a parson would be ‫חייב‬.
a) Each candidate has the criteria for ‫בדיקה‬, so as a tiebreaker the ‫ חיוב‬goes to the one with access to the house.
b) Possession of the keys could just be a required factor and not just a tiebreaker to push it over the edge.

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