Submitted by the Bais Hora’ah
Q: I rent an apartment, and my landlord allows me to store items in his basement. I want to place a box of whiskey, which is chametz, in a room in his basement that he plans to sell to a non-Jew. I understand that I still have to sell my whiskey myself, but when reading the mechiras chametz contract, I noticed that it says that I am leasing the area in which the chametz is found to the non-Jew. Since I do not own that room, is it a problem for me to sell the chametz, or is the sale valid since that room is being sold or leased to a non-Jew by the landlord?
A: We need to preface the answer to your question by explaining the history of mechiras chametz.
Originally, chametz that was sold would actually be transferred to the property of the non-Jew, which was easy in olden times when only minimal quantities of chametz were generally sold. Indeed, the Shulchan Aruch (O.C. 448:3) rules that one must give his sold chametz to the non-Jewish purchaser, and may not leave it on his own property.
The question is why this is necessary, since it is generally permissible for a Jew to keep a non-Jew’s chametz in his house, as long as he is not responsible for damage or loss to it and it is concealed behind a barrier of at least ten tefachim so that he does not mistakenly eat it on Pesach (ibid. 440:2).
The Acharonim offer several reasons why this heter does not apply to chametz that has been sold:
Since the non-Jew never touches the chametz, it seems as though it still belongs to the Jew, and it is therefore forbidden for him to keep it in his house.
Since this chametz initially belonged to the Jew, it is even more likely that he might mistakenly eat it on Pesach (Mishnah Berurah 448:12).
Since a non-Jew cannot complete a purchase simply by paying for the item, but must also make a physical kinyan (see Shach 194:1) in order for the sale to be considered final, the non-Jew has to actually move the chametz into his own property (Chok Yaakov 448:14).
Over time, as many Jews began to deal in spirits made from fermented grain, which is chametz, it became extremely difficult for them to move all of their barrels of whiskey and beer into a non-Jew’s property. The Bach therefore allowed a new type of sale in which the room holding the chametz would be sold to the non-Jew, which would mean that the chametz is being held on the non-Jew’s property — as long as the Jew would not enter that room for the duration of Pesach so he would not mistakenly drink it.
[The kinyan on that chametz would be made as an addendum to the purchase of the property, through a kinyan agav (C. M. 202:1). A full discussion of all the kinyanim made in today’s chametz sales is beyond the scope of this article.]
A renter obviously cannot sell the room in which he stores chametz, but he may sublet that room to the non-Jew (Mekor Chaim 440:3), and then sell the chametz along with it (see Shach 202:2). Some say that a tenant must receive permission to sublet a room to a non-Jew from his landlord (Shivas Tzion 10). The Poskim rule, however, that if the landlord is Jewish, we can certainly assume that he agrees to this sort of subleasing, because it is widely known that it is necessary for mechiras chametz. Furthermore, even a non-Jewish landlord generally agrees to a sublease of only a portion of the tenant’s total space for a short time, because it is considered standard business practice to allow others to use some space for storage (Shu”t Divrei Malkiel vol. 4, 22:9). The assumption of consent is even more likely to be valid because the tenant is not actually earning money on the sublease; the entire purpose of the agreement is to avoid the chametz prohibition (Shu”t Maharshag, vol. 1, 56:3).
In your case, since your landlord allows you to store chametz in his basement and has allowed you to use that space, you would be allowed to sublet that space to the non-Jew (see Taz, C. M. 189, and Ketzos Hachoshen 1). In truth, however, you do not have to sublet to the non-Jew, because your landlord has already created a rental agreement with a non-Jew, so the space doesn’t belong to you and the chametz is not considered to be in your property. The kinyan on the chametz can be made with a kinyan agav through a different space you lease to the non-Jew (see Choshen Mishpat 202:2).