[Avodah] Chamets Sale, the one that got away

[Micha Berger via Avodah]

On Sun, May 14, 2017 at 11:04:32AM +1000, Rabbi Meir G. Rabi via Avodah wrote:
: If ownership
: According to Halacha
: Is determined by believing one is in control
: And when that control
: Is lost
: There's YiUsh
: Then this Chamets
: Had no owner
: During Pesach

But if this were true, there would be no discussion of yi'ush shelo
mida'as -- it would be open and shut.

I think ba'alus (as opposed to ownership) is defined by having the
legal responsibility for something, and only as a consequence about
having control or a right to use it. Which would explain why qinyan,
a mechanism for eatablishing shelichus or shibud, is more thought of as
a means of establishing baalus. Because baalus is also primarily on the
hischayvus side.

And so, it has as a consequence actual legal right of control, rather
than depending on belief that one is in control. Which is why a ganav
needs yi'ush plus shinui. Yi'ush, loss of belief of having control,
is NOT enough to end ba'alus.

But that's ba'alus. We don't have ba'alus over chameitz on Pesach.
For example, an avaryan who dies on Pesach while violating bal yeira'eh
bal yeimatzeih (BYBY) does not leave that chameitz to his sons.

BYBY is a unique concept of ownership that differs from choshein mishpat,
and is not baalus.

...
: And Chamets can be Muttar
: Even if owned by a Y
: If it's abandoned
: For the duration of Pesach
...
: And it seems
: Even without Bittul.
...

The mishnah on Pesachim 31b says that if it's buried so deep a dog cannot
dig it up, it is a form of bi'ur. R' Chisda in the opening gemara says
it needs bitul.

But in any case, the question is whether this is destruction. The
gemara likens it to bi'ur. Not about a loss of ownership. Which would
create a whole different question, as Tosafos (Pesachim 4b "mideOraisa")
understand relinquishing ownership to be the very definition of bitul.
(The majority opinion -- Rashi "bibitul be'alma", Ritva, Ran, and the
Rambam 2:2 -- say it's a form of bi'ur.)


Rashi and the Ran say the need for bitul after a mapolah fell on one's
chameitz is derabbnan, a gezeira in case it gets unburied. But while
buried, it's kebi'ur.

The Samaq (#98) says the need for bitul is de'oraisa. And the MA holds
that the Semaq would require buried chameitz not was not batul to be
dug up and burnt on Pesach.

The Mekhilta (on Shemos 12:19, see #2 <http://j.mp/2rvDtNT>) says that
chameitz owned by a nakhri which is in a Jew's reshus or a Jew's chameitz
are excluded from BYBY by the pasuq's extra word "beveteikhem". "Af al
pi shehu birshuso".

The Mekhilta is making a split between reshus and BYBY. And it could be we
are discussing three different concepts of "ownership", with reshus
and baalu being different from each other as well.


There is also a whole sugya about buried issurei han'ah on Temurah 33b-34a
(starting at the mishnah) that I would need to understand better with
rishonim and posqim to really comment in full.

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 37th day, which is
micha at aishdas.org        5 weeks and 2 days in/toward the omer.
http://www.aishdas.org   Gevurah sheb'Yesod: When does reliability
Fax: (270) 514-1507               require one to be strict with another?