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 Shabbat Pesach| 5764P’ninat MishpatOwnership of Chametz on Pesach - Part II
We saw last time that as chametz becomes asur b’hana’ah (forbidden to receive benefit from), it leaves the possession of its owner. At that point, he cannot sell it or nullify it.
The Rambam (Chametz U’matza 1:3) states that although possession of chametz on Pesach is a lav (negative commandment), one does not normally receive malkot (flogging) for violating it. This is because it is a lav she’ein bo ma’aseh (a prohibition which one violates without activity). Therefore, he says, if one buys the chametz on Pesach, then the action of buying makes him deserving of malkot.
A question that comes to mind is, how can chametz be bought on Pesach if one is not able to affect ownership changes on objects that are asur b’hana’ah? Several possible scenarios and approaches arise from the various discussions in the Minchat Chinuch (mitzva #11).
1. Buying from a non-Jew- although a Jew is not, as “owner,” empowered enough to transfer chametz on Pesach, chametz is not forbidden to a non-Jew, so he can sell it. In order for a Jew to be able to acquire it, it only needs to have the potential to be a permitted item (based on Ran in Avoda Zara). Since, at the time of the transaction, the chametz is owned by a non-Jew, it has the potential to stay that way and be permitted even for a Jew after Pesach.
2. Taking chametz which was previously not owned- based on the aforementioned Ran, the Jew is able to acquire the chametz, although, subsequently, he will not be able to sell it.
Receiving it from a Jew through a physical act of kinyan- Some kinyanim (acts of acquisition) are acts that don’t involve the object physically but demonstrate and create levels of agreement by the parties to transfer the ownership. These do not work when the “owner” loses his authority. However, if the “owner” allows the “acquirer” to physically bring the chametz into his possession, then the acquirer will receive enough possession to enable him to violate the prohibition of chametz ownership. (According to the Rivta (Sukka 34b) one is capable of owning an object which is asur b’hana’ah. All that he is missing is the control or possession (birshuto) which enables him to sell it to others).
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