Pesachim Perek 2 - 21a

This is the first shiur on the second perek of Pesachim. Our goal is to learn those sections of this perek (up to daf 28a) which discuss the nature of issur hana'a - the prohibition to gain any BENEFIT from certain forbidden foods. This is the greatest concentration in the Talmud which deals with this concept. In these discussions, chametz will serve only as an example, if at all. But first, we have one page which briefly refers back to the concepts we learned in the first perek. Today's shiur will discuss a few individual points raised on that page, without repeating the major points which were dealt with in the shiurim on the first perek.

1. "Lama li le-mitna beheima, lama li le-mitna chaya"

The gemara implies that if one gives chametz to an animal on the 14th of Nissan, and the animal subsequently hides it, he does not transgress the prohibitions of bal yera'e and bal yimatze on Pesach. However, we know that "out of sight" does NOT prevent bal yimatzei (what the gemara called "lo yatmin", 5b). Thus, it must be understood why the prohibition is, nevertheless, non-existent in our case.

a. The variant reading in Rashi (small print on the side of the page) implies that one does indeed transgress bal yimazte, but NOT bal yera'e. This variation relates to a more general question relating to bal yera'e and bal yimatze: Are they, genuinely, two DIFFERENT prohibitions, or does the implications of one formulation (lo yimatzei implies even hidden chametz) widen the PERCEIVED restriction of the other (lo yeiraeh SEEMED to refer only to visible chametz)?

Tosafot (s.v. Ve-i), however, introduces a novel restriction on "lo yatmin" - hidden chametz is prohibited despite not being visible, from the verse of "lo yimatze;" however, its location must be known. If it has been hidden away by an animal, it is not "matzui." The verb "MTzA" in Hebrew, translated in modern Hebrew as "existing," actually means "found." An object lost is not "found", where the definition of being "lost" is having the location be unknown. Hence, according to Tosafot, chametz which is truly lost in the house is not included in any Torah prohibition at all. Why then does one do bedika? Apparently, according to the Tosafot this is either for chametz which has been placed in a particular spot, but you do not now remember it - this is not considered to be lost; or else the definition of truly lost is chametz which is not found in a normal search. In any event, whatever remains after bedika poses no problem as long as it is not found on Pesach.

(The Ran on 2a raises the question of chametz which is not found during bedika, and claims that one does not transgress any prohibition due to the principle of "oness rachmana patrei;" in other words, one has technically committed the action prohibited, but it is not one's fault and he is, therefore, not held accountable. Tosafot say, however, that one has not transgressed at all; there is no forbidden action being performed.)

b. R. David offers another explanation, based on bittul. We assume that he has done bittul the night before. However, since mi-de-rabbanan he must not rely on bittul, but is obligated to search and destroy whatever chametz he can, we assume that he did not intend to have the bittul apply to whatever chametz will be included in the de-rabbanan. Hence, if the animal (beheima) leaves over chametz and does not hide it ("mishaira"), this chametz is not included in bittul; whereas if it hides it ("chaya"), bittul does apply. Hence, in the case of chaya, there is no possibility of a Torah prohibition (and in regard to the rabbinic obligation, I would have thought that I can rely on the probability that it finishes all the chametz), while in the case of beheima, the chametz is not included in bittul and hence there is a Torah obligation, and therefore I would have thought that we should not feed it, lest he leave over and I somehow not notice and fail to destroy it.

It follows from R. David that chametz which one kept at the time of bedika in order to feed to an animal in the morning, which is not included in bedika at the time - since it is before him - will nonetheless be automatically included if the animal will hide it the next day. This is true without a second bittul (which is not mentioned in the gemara, although we do it). Many Achronim assume that this is not true (see Taz 435,5). The question would appear to be dependent, among other things, on the nature of bittul. If it is hefker, a kind of financial transaction, then what was not included in the bittul at the time of bittul will not be included later without another explicit bittul (as we do, adding "delo yedaina lei" - the chametz that I do not know about). However, if bittul is basically a negative attitude ("eino rotze be-kiyumo"), as R. David, following the Rambam, stated in the first perek, it does not effect each piece of chametz individually, but relates to the mindset of the owner. Hence, R. David claims that any chametz which meets the condition of bittul (namely, that it is unknown or lost, and hence not subject to the de-rabbanan of bedika and biur) will not be chametz that on Pesach is "beda'ato - in his mind."

2. R. Yehuda b. Beteira, Beit Shammai, and Beit Hillel

a. Rashi explains that Beit Shammai maintains that once one is obligated to do biur, selling the chametz to a non-Jew does not suffice, as biur means to DESTROY (presumably, according to Beit Hillel, biur means to get out of one's possession). Furthermore, the obligation to do biur begins from thirty days before Pesach (from this we see that the thirty day time period is de-oraita, even though the example that we are familiar with, the time to begin studying the laws of Pesach, is de-rabbanan). Hence, any chametz that was in his possession thirty days before Pesach must be destroyed by the time of Pesach. Since Kutach is kept for long periods, R. Yehuda b. Beteira, who agrees with Beit Shammai, prohibits selling Kutach to a non-Jew from the thirty day time-limit on.

b. Tosafot seemingly agrees with Rashi's explanation of the disagreement of Beit Shammai and Beit Hillel. He explains, however, that R. Yehuda b. Beteira agrees with Beit Hillel. Kutach is a special case, mi-de-rabbanan, since it is recognizable as belonging to the Jewish owner. If someone sees it on Pesach in the possession of the non-Jew, he will recognize that it was made by a Jew (shmo alav), and might think it was sold on Pesach. Accordingly, if we rule like R. Yehuda b. Beteira (as the Bach does), it will be forbidden to sell long-lasting chametz to a non-Jew before Pesach if it is "shmo alav."

c. R. David denies that Beit Shammai prohibits the sale of chametz because of the obligation of biur. Hence, he concludes that Beit Shammai is only concerned about "ha'arama" - the possibility that the sale is fictitious, and the Jew will get the chametz back after Pesach (this is precisely the problem raised by some poskim concerning the modern institution of mechirat chametz). R. David himself prefers to explain R. Yehuda b. Beteira like Rashi - he agrees with Beit Shammai (according to the new explanation of Beit Shammai). Accordingly, we who rule like Beit Hillel have no problem at all. But R. David has a version of his explanation that follows Tosafot. R. Yehuda b. Beteira follows Beit Hillel, but is worried especially about the long-lasting nature of kutach. However, following the new explanation in Beit Shammai, R. David has a version of R. Yehuda that is far more stringent than Tosafot. R. Yehuda agrees with the concern of Beit Shammai when dealing with long-lasting chametz. Here, the possibility of ha'arama is greater, since when the sale was arranged (within the thirty day limit), there was a reasonable expectation that the chametz would be in existence after Pesach. If we were to rule like R. Yehuda b. Beteira in this version, it woulbe forbidden to do mechirat chametz for any long-lasting chametz, like canned goods, whiskey, etc. (According to Tosafot's version, the prohibition is dependent on "shmo alav;" this is unnecessary according to R. David's version). R. David, however, explicitly states that even according to this version, we do not follow R. Yehuda b. Beteira.

3. Behadi dikasaref lei lithani minei

The gemara proposes a "hava amina" that one could derive benefit from the chametz as a byproduct of its burning, at least according to R. Yehuda, who requires that chametz be burnt, and not destroyed in other ways. Although this possibility is rejected, the question remains, what was the hava amina?

a. Tosafot explain that according to R. Yehuda, the ashes of the chametz AFTER burning are indeed permitted. The hava amina was that it would be permitted to benefit from the chametz before the actual state of ashes if it was during the process of turning it into ashes.

A note on the background to this halakha: Ashes are not chametz. That is why if it is burnt before the sixth hour, the ashes are not prohibited even according to Chachamim who disagree with R. Yehuda. The prohibition obtains at the sixth hour, and can apply only to chametz, not ashes. However, once the chametz is prohibited, derivatives of it, even though they are not edible, remain prohibited. Here the principle that Tosafot cites applies. The ashes of those issurei hana'a that have a requirement that they be burnt ("kol hanisrafim") are permitted. The reason is that the fulfillment of the mitzva of burning them ends the halakhic interest in those foods ("na'ase mitzvatam" - their mitzva has been fulfilled, finished). In effect, we are assuming that the reason they are prohibited is because the Torah has a mitzva that need be done with them. If, however, the issur hana'a is defined as "nikbarim," meaning that we bury it in order to get it out of the way, the destruction in one way or another, including burning, is not a mitzva, and therefore there is no state of "na'ase mitzvatam." This halakha concerning the permissibility of ashes, will be discussed on 27a.

Tosafot are, therefore, advancing two points. The first is that according to R. Yehuda, chametz is defined as "nisrafim," whereas according to Chakhamim it is defined as "nikbarim." The second point, and this is only a hava amina, is that the permissibility of "efer hanisrafim," might begin in the process of turning them into ashes and need not be delayed until the object is objectively defined as ash.

R. David rejects the second point, even as a hava amina. Logically, it would seem that the permissibility of ashes is based on the concept of "na'ase mitzvatam," which implies that the halakhic interest in the food is FINISHED. Hence, if it is still in the middle of the process, there is no reason for the food to be permitted.

Rav Akiva Eiger disagrees with the first premise of Tosafot. In most cases of "nikbarim," he argues, there is no mitzva to do anything with the forbidden food. It is buried only as a preventive measure, to avert the possibility that someone may eat it. Hence, even if it is burnt, this is not a mitzva, and there is no fulfillment of "na'aseh mitzvato." However, in chametz, both R. Yehuda and Chachamim agree that there is a mitzva (Tashbitu) to destroy the chametz; they only disagree on the means. There is no special permissibility associated with burning as a means. The distinction between burning and burying is one between a positive mitzva to destroy and a recommendation to distance the food from one's mouth. Hence, Rav Akiva Eiger concludes, even according to Chakhamim who permit one to throw the chametz into the sea, if one burns it, it will be permitted.

Rav Chaim z"l (Chametz U-Matza 1:3) defends the Tur (who agrees with Tosafot). The disagreement between R. Yehuda and Chachamim is not only about the means. It is true that according to Chakhamim there is a positive mitzva to destroy chametz, unlike the issurei hana'a known as the nikbarim. However, this is not a mitzva that it is inherent in the chametz. The mitzva is that not only is chametz prohibited, but you are commanded to get rid of it as well. It is not that the chametz requires burning, it is not a mitzva of the "cheftza" of the chametz. That is why it makes no difference which method is chosen, as long as it is effective in destroying the chametz. This is not called "naaseh mitzvato," as the burning or other method is not a mitzva of the chametz. However, according to R. Yehuda, the Torah required specifically burning, even though throwing it into the sea would be just as effective. From this we can conclude that the chametz itself requires burning, this is the "destiny" of the chametz, and hence the prohibition is dependent on the non-fulfillment of that "destiny." Once the mitzva of the chametz is finished, there is no longer a reason for the prohibition.

b. R. David, having rejected the explanation of Tosafot, offers a totally different explanation. The gemara is suggesting that if the chametz is being burnt, and the benefit is incidental, it is not prohibited. It is only prohibited to do an action of obtaining benefit, but not to passively benefit. A moments reflection reveals that the problem here is basic to the nature of issurei hana'a. What is the action, the maaseh, of an issur hana'a? This is the subject of a sugya on 25b. The gemara, according to R. David, is suggesting that according to Chachamim one has a choice how to dispose of the chametz; hence the CHOICE of burning renders the subsequent benefit as an action of GETTING benefit. However, according to R. Yehuda, one had no choice in burning; hence the benefit can be seen as incidental and permitted. This is of course rejected by the gemara (it was only a hava amina), and the exact reason for this rejection depends on the sugya on 25b, which we shall learn in a few weeks. But this is a good introduction for a basic problem which will occupy us sooner, in fact, already next week; what precisely is the action forbidden when the Torah prohibits benefit?

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Next week we begin the topic of issurei hana'a. You should prepare the gemara from 21b, "Amar Chezkia" to 22a, "Chulin shenishatu ba'azara lav d'oraita he". The immediate question is what is the source for declaring something assur b'hana'a, since this is never explicit in the Torah. The second-level, and not less important, question is what is the nature of a hana'a prohibition, given the derivations proposed by the gemara, and what is the relationship between issur hana'a and issur achila. See:

Rambam: Ma'akhalot Assurot 8:15-16; 9:1; Chametz U-Matza 1:2 Rambam: Sefer HaMitzvot, lav 186,187 (very important)

Rambam: Commentary to the Mishna, Kritut, 4:3