Rabbi Meir Orlean
Mr. Cohen and Mr. Mann owned a large storage complex, C&M Storage. This past year, they had inaugurated a freezer warehouse; major food manufacturers and distributors became clients of their storage space. In the freezer sat a wide range of frozen food, including chametz.
As Pesach approached, Mr. Cohen wondered what to do about the chametz in the freezer warehouse. He planned to sell his chametz, as he did every year, but had no control over his clients. Some of the clients who had stored chametz were Jewish, and some were not.
“What should we do about the chametz sitting in the freezer?” Mr. Cohen asked Mr. Mann.
“I suppose nothing,” Mr. Mann shrugged his shoulder. “It’s not our chametz; it’s not our problem.”
“But the chametz is on our property,” Mr. Cohen pointed out.
“So what?” replied Mr. Mann. “If a non-Jew walks into my house with his chametz, that’s not a problem!”
“What about the Jewish clients?” asked Mr. Cohen. “That’s a problem; they’re keeping their chametz in our warehouse!”
“I hope they sell their chametz,” replied Mr. Mann. “If not — it’s their issue, not ours. Anyway, you always include the C&M Storage facilities in your mechiras chametz form, so the warehouses are rented out; they’re not even our property for Pesach.”
“What you’re saying makes sense,” said Mr. Cohen. “I have to go to Rabbi Dayan this week for mechiras chametz, though. I’ve discussed with him a number of issues relating to the business, so I’ll ask him this, too.”
When Mr. Cohen came to sell his chametz, he told Rabbi Dayan: “I have a new twist this year. Food manufacturers are storing chametz in the new freezer warehouse. Does that pose any issue? Can I include that chametz in my sale?”
“A Jew who is responsible as a guardian of chametz, whether of a fellow Jew or a non-Jew, violates the prohibition of possessing chametz (bal yeira’eh ubal yematzei),” replied Rabbi Dayan. “Some say only a paid guardian (shomer sachar), while others say even an unpaid guardian (shomer chinam) is violating it. Since you rent out the storage space and are liable for the contents, you are a shomer sachar, and must certainly dispose of this chametz or sell it! Otherwise it becomes prohibited, as other chametz she’avar alav haPesach” (O.C. 440:1, 4).
“How can I sell what is not mine, though?” asked Mr. Cohen.
“The Gemara (B.M. 38a; Pesachim 13a) teaches that the guardian of produce that is spoiling rapidly should sell it before it becomes a total loss, based on hashavas aveidah,” explained Rabbi Dayan. “This is part of his responsibility as a guardian. The same is true for chametz, so that it should not become prohibited” (C.M. 292:17; Pischei Teshuvah 292:8; O.C. 443:2; Mishnah Berurah 443:11; Pischei Choshen, Pikadon 2:34).
“What about chametz of a non-Jew?” asked Mr. Cohen. “He has no issue with Pesach; it’s only my issue, because I am responsible as a guardian.”
“Indeed, Pri Megadim cites Shaagas Aryeh (#73) that you cannot sell chametz of a non-Jew for which you accepted responsibility,” answered Rabbi Dayan. “However, others disagree and maintain that you can sell it” (Eishel Avraham 441:4; Taz, O.C. 440:1; Mishnah Berurah 440:4).
“How does that work?” asked Mr. Cohen.
“Shulchan Aruch Harav (O.C. 440:16) explains that disposing of a non-Jew’s property with intention to pay him is not considered theft, especially if it was handed to you willingly,” answered Rabbi Dayan. “Harav Moshe Sternbuch further suggests that since the Torah holds you responsible for the non-Jew’s chametz in this case, it is included in your mitzvah of tashbisu (ridding oneself of chametz). Thus, the Jew is allowed to destroy or sell it. This is especially true according to the practice of many Rabbanim to sell the chametz in the fifth hour, when there is already a requirement of tashbisu” (Moadim Uzmanim 4:271).