[By Rabbi Yair Hoffman]
It is a little known debate in Halacha, but one that affects the practices of tens if not hundreds of thousands of religious Jews each year.
Each year, airports, year-round kosher hotels, newly-koshered hotels, and homes of in-laws are swarming with religious Jewish families who have made plans to leave their homes for the duration of the Pesach holiday. The question is the Pesach clean up.
Do they sell their homes to a gentile? And if they do, do they need an inspection? And if an inspection is required – is it any different than a regular inspection
THOSE WHO REQUIRE AN INSPECTION
The issue is addressed by the Mishna Brurah (436:32) who cites the Rabbinic figures behind the debate. Rabbi Adam Danziger, author of the Chayei Odom ( see Klal 119:18), felt that even though you are planning to sell the rooms on the morning of the 14th of Nissan – on the previous night – you were still the owner! You still need to inspect and clear out the Chometz! The Mekor Chaim (on OC 436) also expressed this position. Rav Shlomo Kluger (in his responsa HaElef Lecha Shlomo 392), although not mentioned by the Mishna Brurah, also seems to agree with the Mekor Chaim.
THE SECOND OPINION
The other side holds that since it will be sold to a gentile there is no obligation to inspect. The proponents of this position are the Chsam Sofer (OC 131), the Responsa Binyon Olam (20) and the Aishel Avrohom. The Mishna Brurah’s conclusions are that even though one should not be mocheh those who are lenient, it is better to sell on the day of the thirteenth of Nissan.
Since the Mishna Brurah was written, there are Rabbis who make a special sale on the thirteenth. On the other hand there are Rabbis (See Responsa Kinyan Torah 3:53 and 6:26) who write that even the Chayei Odom and the Mekor Chaim would agree that nowadays things are different. These Achronim were concerned that a gentile might not be found. Nowadays, however, since the sale is done with a Bais Din there is no concern that a gentile would not be found to make the purchase. These Poskim contend that the Mishna Brurah would not have ruled more stringently. Nonetheless, it is not clear that the Mishna Brurah would agree to these authorities, even though it seems the prevalent custom is to be lenient.
What is often recommended is to leave one room over where one does a thorough cleaning and an inspection. Since a Bitul is being made, the inspection is a Rabbinic requirement. It may be argued that the entire issue revolves around a Rabbinic issue and thus when there is a debate about Rabbinic issues, and there is an additional factor of the new reality as explicated by the modern Poskim, we can be lenient in accordance with the principle of safek derabanan lekulah. This is especially true of there is a much extra effort necessary (See Pnei Yehoshua Brachos 21).
Nonetheless, if one wishes to be particularly scrupulous one should do a sale on the 13th.
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One Response
If I’m not mistaken, the reason the custom is to make “Bittul” AFTER the “Bedika” is in order that when we first do the Bedika we should get a Biblical Mitzvah (D’Oiraisa).
If somebody makes the Bedika after Bittul, then his Bedika Mitzvah is only Rabbinical (D’Rabonnon)because the Chometz is already ownerless.