[Avodah] Consistency in8 Workarounds?

[Zev Sero]

On 31/05/18 09:25, Rich, Joel via Avodah wrote:
> In the discussion of the beer brouhaha (distributor is Jewish and owns 
> beer over pesach), one source quoted is S’A C”M 99:7, which deals with a 
> case where Reuvain signs over his assets to a third party, borrows 
> money, but continues his business as if nothing happened. The Beit Din 
> is to look through the sign over if the lender comes to collect and 
> Reuvain claims insolvency.
> Do you think it’s a slam dunk that one could parallel this to selling an 
> ongoing business for Pesach?

Not at all, for two separate reasons.

First, there is no parallel at all between giving away all of ones 
property, in which case why would one still be using it, and selling a 
going concern, where obviously one does and is expected to stay and 
continue working for the business, and the business does and is expected 
to continue as usual, with no difference perceptible to the customers. 
So in this case where the Jew sold not the chametz but the entire 
business, there's nothing to indicate that the sale was anything but 
serious and effective.

Second, that entire siman is about bet din not allowing people to get 
away with fraud, by rolling back transactions that were transparently 
made in order to defraud someone.  In this se'if, the entire purpose of 
the "gift" was to defraud subsequent lenders, who were not to know that 
the "donor" no longer had any assets, and lent on the assumption that he 
still owned what he was publicly known to own.  So in the name of equity 
the BD treats the transaction as never having happened.    See the 
Mechaber's opinion at the end of se'if 2, where it's very clear that 
he's concerned about what's fair, not what's technically correct.   So 
none of this has any relevance to Hilchos Pesach, where "equity" is not 
an issue; Hashem is not being "cheated".  He commanded us not to own 
chametz, and He gave us a choshen mishpat to determine who owns what, 
and He certainly knows about all our transactions, so if we follow that 
CM and dispose of our chametz there's no "fraud" and no need for a BD to 
"pierce" it in the name of equity.

-- 
Zev Sero            A prosperous and healthy 2018 to all
zev at sero.name       Seek Jerusalem's peace; may all who love you prosper