Bal Yera'eh U-Val Yimatzei and Tashbitu

  • Rav David Brofsky

 

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In memory of Yakov Yehuda ben Pinchas Wallach
and Miriam Wallach bat Tzvi Donner

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            In previous shiurim, we discussed the definition of chametz, including grains which can become chametz, the physical definition of leavening, the status of mixtures, the use of medicines and cosmetics which contain chametz on Pesach, and the custom of refraining from eating kitniyot.

 

 

 

            This week, we will begin our study of prohibitions and mitzvot related to chametz. We will discuss owning chametz, the timeframe for the prohibitions of chametz, the search for chametz (bedikat chametz) and its destruction (bi’ur and bittul), and their relationship to the mitzva of “tashbitu." In addition, we will study the laws of chametz she-avar alav ha-Pesach (chametz that was owned by a Jew during Pesach) and mechirat chametz.

 

 

 

Bal Yere'ah U-Val Yimatzei - Prohibitions Relating to the Ownership of Chametz

 

 

 

In addition to not eating or deriving benefit from chametz, the Torah (Shemot 12:19) commands: "For seven days, no leavened matter shall be found in your houses." In addition, the Torah adds (Shemot 13:7): "And no leavened matter shall be seen by you, nor shall any leaven [itself] be seen by you in all your borders for seven days."  These prohibitions, which forbid chametz being “seen” or “found," are known as "bal yera'eh u-val yimatzei."

 

 

 

What are the differences between these seemingly similar prohibitions? What is the relationship between them?  

 

 

 

We can identify three differences between these prohibitions.

 

 

 

1) Bal yera’eh relates to chametz which is visible, while bal yimatzei prohibits all chametz which is “found."

2) Bal yera’eh relates to chametz “in all of your borders," while bal yimatzei only prohibits chametz found in one’s house.

3) Bal yera’eh relates to chametz which is “yours," while bal yimatzei prohibits all chametz.

 

 

 

The gemara (Pesachim 5b) notes these differences, suggesting that "bal yera'eh u-val yimatzei" comprise two different prohibitions. It appears that bal yera’eh focuses upon one’s relationship with chametz, characterized by ownership (lecha) and not limited by borders, while bal yimatzei focuses upon the chametz itself and its presence in one’s house.

 

 

 

The gemara, however, noting that the word “se’or” appears in both verses, conflates these two prohibitions by means of a gezerah shavah. The Rishonim disagree regarding whether this means that these prohibitions are thus considered essentially identical or whether there are still halakhic differences between them.

 

 

 

            Some Rishonim insist that there may still be differences. For example, the Ra’ah (cited by Ritva, Pesachim 5b) and Rabbeinu David (Pesachim 5b, s.v. ne’emar) explain that both bal yera’eh and bal yimatzei apply in one’s house and outside of one’s domain. However, bal yera’eh still only applies to chametz which is visible, while bal yimatze applies to both visible and hidden chametz. The Ritva (5b) cites a more extreme position, which posits that while the gezerah shavah equates these two prohibitions regarding ownership, i.e. that the chametz must either be owed or under one’s achrayut (responsibility), there are still different regarding location. For hidden chametz in one’s home, one only violates bal yimatzei, and for visible chametz outside of one’s domain one only violates bal yera’eh. Accordingly, one does not violate either for hidden chametz outside of one’s domain! The Kesef Mishna (Hilkhot Chametz U-Matza 1:3) understands that the gemara only intended to equate these two prohibitions in one direction -whenever one violates bal yera’eh, one also violates bal yimatze. However, if the chametz is hidden, one only violates bal yimatzei.

 

 

 

Others disagree. The Rambam (Hilkhot Chametz U-Matza 4:1-2), for example, implies that the prohibitions are identical, despite that fact that he lists them separately in his Sefer Ha-Mitzvot (200, 201)!

 

 

 

Regardless, owning chametz on Pesach is prohibited, whether visible or not, or whether it is found inside or outside of one’s domain.

 

 

 

            As mentioned above, bal yera’eh implies that one may not "own” chametz, while bal yimatzei implies that chametz may not even be “found” in one’s domain. While the gemara cited above discusses how these two verses together teach the location and state of chametz that is prohibited, it does not explicate the type of relationship to chametz which is forbidden.

 

 

 

Prohibited Relationship to Chametz

 

 

 

            The Talmud (5b) teaches that a Jew who takes responsibility for the chametz of a non-Jew violates bal year’eh u-val yimatzei. Apparently, the Torah does not only prohibit “owning” chametz. If so, what type of relationship to chametz did the Torah prohibit? We may suggest a few understandings of this prohibition:

 

 

 

1) The Torah forbids “ownership” (“lecha”) of chametz, but the prohibition of bal yimatzei expands the definition of “ownership" (“yimatzei”).

2) The Torah forbids chametz which is “found" (“yimatzei”), in which one has a vested interest in preserving (“lecha”).

3) The Torah prohibits “ownership” (“lecha”) of chametz, as well as chametz which is “found" (yimatzei).

 

 

 

We will briefly examine this question in light of three issues discussed by the Rishonim: the type of responsibility that constitutes a violation of bal yera’eh u-val yimatzei, whether one violates bal yera’eh u-val yimatzei for chametz entrusted to a non-Jew, and whether one violates bal yera’eh u-val yimatzei for chametz entrusted to a fellow Jew.

 

 

 

Regarding a non-Jew’s chametz entrusted to a Jew, the Rishonim disagree regarding the level of responsibility that constitutes a violation of bal yera’eh u-val yimatzei. Tosafot (Shavuot 44b, s.v. shomer) rules that only one who accepts upon himself responsibility to pay for damages incurred through events beyond his control, “ones”, violates bal yera’eh u-val yimatzei. They explain that this type of responsibility is akin to a type of ownership. On the other hand, the Rosh (1:4) cites the Behag, who insists that even one who accepts upon himself a minimal level of responsibility, not to be negligent (poshe’a) in protecting it, like a shomer chinam, violates bal yera’eh u-val yimatzei. While Tosafot clearly maintain that one only violates bal yera’eh u-val yimatzei for owning, on some level, chametz, the Behag apparently believes that even a minimal legal relationship with chametz in which one maintains a vested interest in its preservation is forbidden.

 

 

 

The Rosh also cites the Ri, who maintains that only one who accepts upon himself responsibility for the object in case of it being stolen or lost, like a shomer sakhar, violates bal yera’eh u-val yimatzei. It seems that the Ri can be understood in either manner. Achrayut in case of the chametz being stolen or lost can be understood as a serious interest in the chametz, or even as a quasi form of ownership.

 

 

 

The Rambam (Hilkhot Chametz U-Matza 4:4) agrees, but adds that even if the non-Jew forces the Jew to pay in case it is stolen or lost, he violates bal yera’eh u-val yimatzei. The Rambam clearly cannot maintain that this relationship is defined as a type of ownership. Rather, he violates bal year’eh u-val yimatzei because of his personal interest in the chametz.

 

 

 

Interestingly, the Rishonim also disagree whether or not this chametz, owned by the non-Jew but entrusted to the Jew, must be in his possession in order to violate bal yera’eh u-val yimatzei. The gemara (6a) cites a Tosefta, which states:

 

 

 

Our Rabbis taught: If a Gentile enters an Jew’s courtyard with [leavened] dough in his hand, he [the Jew] is not obliged to remove it. If he deposits it with him, he is obliged to remove it; if he assigns a room to him [for the dough], he is not obliged to remove it.

 

 

 

The Rishonim debate why if “he assigns a room to him," that is, the chametz is not kept in the Jew’s procession, he would not be obligated to remove it. Rashi (s.v. yiched) explains that if he assigns a room to him, then he has not accepted upon himself achrayut (responsibility). The Rif and the Rambam do not even cite this case, implying, like Rashi, that this case does not present a new principle, but is rather a case in which the Jew did not accept responsibility.

 

 

 

Rabbeinu Tam (Tosafot, s.v. yiched), the Ran (2b, Rif), and the Rosh (1:6), however, disagree. They explain that although the Jew accepted upon himself achrayut, since the chametz is not in his procession, he does not need to remove it. These Rishonim apparently maintain that in order to be considered to be “found” in one’s procession, he must not only be interested in the preservation of the chametz, it must also be physically found in his possession. “Matzui” (found) implies that the Jew maintains a special interest in the chametz and it is physically located in his domain.

 

 

 

May we apply the same logic presented above to a case in which a Jew entrusted chametz to a non-Jew? In other words, just as under certain circumstances a Jew violates bal yera’eh u-val yimatzei due to his relationship with the non-Jew’s chametz, if a Jew entrusts his chametz to a non-Jew under the same conditions, it would stand to reason that he should not violate bal yera’eh u-val yimatzei!

 

 

 

The Rosh (1:4) cites the Geonim, who accept this symmetry, but he concludes in accordance with other Rishonim (see Rambam 4:1, for example), who maintain that the owner is always held accountable for his chametz, no matter whose procession it is in. Apparently, they disagree as to whether one who “owns” chametz is always accountable or if only one whose chametz is “found” violates bal yera’eh u-val yimatzei.

 

 

 

Although some Rishonim (see Rosh 1:4) assume that this debate would apply to chametz that is entrusted to a Jewish shomer as well, the Gra (443:2) disagrees, arguing that one always violates bal yera’eh u-val yimatzei for Jewish owned chametz found in one’s possession, regardless of whether one accepted upon oneself responsibility or not.

 

 

 

In summary, the Rishonim disagree as to whether one must maintain some degree of “ba’alut,” ownership, and possibly even possession, or whether maintaining a personal and vested interest in the chametz suffices in order to violate bal yera’eh u-val yimatzei.

 

 

 

The Shulchan Arukh (440) rules that one who owns chametz, regardless of where it is found, violates bal yera’eh u-val yimatzei. Furthermore, one who is responsible for chametz, even if it is not found in his possession, also violates bal year’eh u-val yimatzei. The Magen Avraham (1) writes that if a Jews accepts responsibility for a non-Jews chametz, which remains in the non-Jew's possession, he does not violate bal yera’eh u-val yimatzei. The Shulchan Arukh also cites two opinions regarding the level of responsibility necessary, i.e. shomer chinam or shomer sakhar. These questions may be relevant in determining whether the chametz is to be considered chametz she-avar alav ha-Pesach and is forbidden after Pesach.

 

 

 

Owning Stocks in Companies That own Chametz

 

 

 

            This discussion may also be relevant to the following question: May one owns stocks in a company which owns chametz during Pesach?

 

 

 

R. Yitzchak Ha-Levi Ettinga (Mahari Ha-Levi 2:124) discusses this question. He concludes: "It seems that [the shareholders] are guilty of no wrongdoing if they did not sell their shares." Similarly, R. David Zvi Hoffmann (1843–1921), in his Melamed Le-Ho'il (OC 91), reports that this question was asked on an exam in the Hildesheimer Seminary, and that all of the students ruled leniently. He relates that R. Hildesheimer wrote on all the exams, next to this answer, that they ruled correctly.

 

 

 

R. Shaul Weingort, a student at the Seminary who was later responsible for bringing R. Yechiel Yaakov Weinberg, the Seridei Eish, to Switzerland after WWII, wrote an article on this topic, which was later printed in "Yad Shaul," a volume of Torah articles published in his memory and commemorating his early death in a tragic train accident. He concludes that the shareholders are not considered to be owners of the corporate assets, and therefore do not violate bal yera’eh u-val yimatzei.

 

 

 

While some question whether a shareholder ownership is really considered ownership, at least regarding chametz, others equate this case to one who accepts responsibility for a non-Jew’s chametz found in the possession of the non-Jew.

 

 

 

R. Yitzchak Yaakov Weiss (1902-1989; Minchat Yitzchak 3:1) and R. Moshe Shternbuch (Mo'adim U-Zemanim 3:269, note 1) disagree, and prohibit owning shares in a company which owns chametz. However, they both allow selling the shares as part of the customary mekhirat chametz before Pesach. Indeed, many modern mekhirat chametz documents include the sale of stock shares.

 

 

 

Mixtures

 

 

 

Does bal yera’eh u-val yimatzei apply to chametz mixtures as well?

 

 

 

The mishna (Pesachim 42a) teaches, “Ve-eilu overin be-Pesach”- one may not keep a chametz mixture in one’s procession during Pesach. The Rishonim disagree, however, regarding how to understand the phrase “ve-eilu overin” and whether the Mishna refers to a Biblical or Rabbinic prohibition.

 

 

 

Rashi (s.v. ve-eilu), for example, understands that “ve-eilu overin” means: those who keep chametz mixtures during Pesach violate bal year’eh u-val yimatzei. Rabbeinu Tam (s.v. ve-eilu), on the other hand, explains that “ve-eilu overin” means, “and these should be removed from the table." In other words, while one does not violate bal yera’eh u-val yimatzei, one must remove chametz mixtures from one’s possession. Similarly, the Ran agrees that although one does not violate bal yera’eh u-val yimatzei for keeping chametz mixtures during Pesach, one much destroy - “ve-eilu overin” - these mixtures mi-derabbanan.

 

 

 

Some are more inclined to sell chametz mixtures, as opposed to chametz gamur, due to this debate.

 

 

 

Finally, as we mentioned previously, chametz mixtures that are inedible may be kept during Pesach (Rambam, 4:88; Shulchan Arukh 442:1).

 

 

 

Mitzvat Tashbitu

 

 

 

In addition to the prohibition of bal yera’eh u-val yimatzei, the Torah also commands that one should “destroy” chametz.

 

 

 

Seven days shall you eat unleavened bread; on the first day, you shall put away ("tashbitu") leaven out of your houses; for whoever eats leavened bread from the first day until the seventh day, that soul shall be cut off from Israel. (Shemot 12:15)

 

 

 

How does one fulfill the mitzva of tashbitu?

 

 

 

The Rishonim debate how one fulfills the mitzva of tashbitu. Some Rishonim explain that tashbitu refers to the physical removal or destruction of chametz. Tosafot (Pesachim 4b, s.v. mi-de’orayta), for example, insists that tashbitu entails destroying chametz. The Maharam Chalava and Rabbenu David explain that "tashbitu" refers to physically emptying one's house of chametz, beginning with the "bedikat chametz."

 

 

 

Rashi disagrees (Pesachim 4b), explaining that one fulfills the mitzva of tashbitu through bittul. He cites the Targum, which translates "tashbitu" as "tevatlun," "nullify," as support for his position. Rashi writes that "bittul" refers to "negation in the heart" ("bittul be-lev"). In other words, one fulfills "tashbitu," according to Rashi, through merely negating the importance of chametz and one’s relationship to it. Tosafot, incidentally, insists that "bittul" refers to the renunciation of ownership, known as "hefker."

 

 

 

Rashi's position is rather difficult to comprehend. How, why, and when would psychological negation suffice?

 

 

 

The Ramban accepts the efficacy of "bittul," but he writes:

 

 

 

There are three methods of disposing of chametz, as the Torah says that one should not see chametz in our procession. Therefore, one should burn or totally destroy chametz, and that is the best method… and if one performs bittul through speech, one has also fulfilled the commandment.

 

 

 

In other words, according to the Ramban, while bittul may be a valid form of tashbitu, physical destruction through burning or another method is preferable.

 

 

 

The Rambam (Hilkhot Chametz U-Matza 2: 1-2), however, seems to offer a different interpretation. He writes:

 

 

 

There is a positive commandment to destroy (le-hashbit) chametz before the time in which it becomes prohibited to eat, as it says, "on the first day ye shall put away ("tashbitu") leaven out of your houses," and we have learned that the "first" refers to the fourteenth… And what is the "hashbata" described by to Torah? One should nullify chametz in his heart, and resolve in one's heart, that he has no chametz in his possession at all and that all chametz in his possession is like dirt and is akin to something of no use…

 

 

 

The Rambam strongly implies two points. First, the manner of fulfilling tashbitu is through psychological/spiritual negation. Second, he implies that each person should actively fulfill this mitzva, as we will discuss. If so, we might ask how bittul prevents the prohibitions of bal yare’ah and bal yimatze. And what does this imply about the prohibitions of chametz?

 

 

 

Seemingly, the Rambam understands that chametz transcends the recognized, formal prohibitions of forbidden foods. Ultimately, the Torah prohibited, according to the Rambam, having any "relationship" with chametz. Therefore, not only is it prohibited to eat chametz, but chametz also may not be "seen" or "found" in one's possession. The most appropriate way to rid oneself of chametz is to separate from it psychologically and spiritually.

 

 

 

Chametz, according to this theory, represents a spiritual foe, which must be battled physically and, apparently, spiritually as well. Indeed, as we discussed previously, the gemara relates (Berakhot 17a) that "R. Alexandri would end his daily prayers with the following supplication: 'Master of the Universe, You know full well that it is our desire to act according to Your will; but what prevents us from doing so? The yeast in the dough..."

 

 

 

Chametz represents something extremely negative, beginning with the "evil inclination," and according to many sharing characteristics of idolatrous practice, that we must rids ourselves of it in every sense. Apparently, this view of chametz permeates the Rambam's understanding of the prohibitions of chametz and his understanding of the mitzva of "tashbitu."

 

 

 

The Time and Nature of Mitzvat Tashbitu

 

 

 

The gemara (Pesachim 5a) determines that the "first day" refers to the fourteenth of the month of Nissan, upon which the Pesach offering in brought, and not the fifteenth, the first day of the festival. While the gemara offers different reasons as to why the "first day" must refer to the fourteenth of Nissan, partially depending upon the way in which the mitzva is to be fulfilled, all seem to agree to this interpretation.

 

 

 

This gemara, however, raises the following quandary: If tashbitu is fulfilled through bedikat chametz or bittul, then hasn't one already fulfilled the mitzva before its proper time? And if tashbitu is fulfilled through burning or destroying the chametz, then only one who is already in violation of the prohibition of owning chametz can fulfill tashbitu!

 

 

 

Seemingly, this question is related to a broader question concerning the nature of tashbitu. Does one fulfill tashbitu passively, that is, by not having any chametz in one’s possession by noon of the 14th of Nissan, or actively, through destroying chametz? The Minchat Chinukh (9) relates to this question. He asks whether the mitzva of "tashbitu" refers to an obligation to actively destroy chametz, a "ma'aseh," or to a responsibility to ensure that all chametz is disposed of before noon on the fourteenth, a "totza'ah." In other words, does one fulfill "tashbitu" at noon on the fourteenth of Nissan if one has no chametz in one's possession or only through actively destroying the chametz?

 

 

 

Tosafot (Pesachim 4b, s.v. mi-de’orayta), mentioned above, discusses the manner in which one fulfills the mitzva of “tashbitu." They disagree with Rashi and assert that "tashbitu" is fulfilled through burning, not bittul. First, they note that R. Akiva (Pesachim 5a) insists that "the first day" must refer to the fourteenth of Nissan, as if it were to refer to the fifteenth, the first day of the festival, it would be prohibited to burn the chametz on Yom Tov. Furthermore, if the nullification of chametz ("bittul") cannot be performed after noon ("chatzot"), tashbitu must refer to the burning of chametz. Clearly, Tosafot assumes that the mitzvah of "tashbitu" is fulfilled after chatzot on the fourteenth.

 

 

 

This position raises many difficulties, as one is not permitted to own chametz after chatzot on the fourteenth of Nissan! Seemingly, the Tosafot understand that the mitzva of "tashbitu" can be fulfilled only when a person inadvertently retains chametz in his possession after noon, and thereby violates the prohibitions of bal yera’eh u-val yimatzei.  One who follows the halakha precisely, according to Tosafot, may never fulfill "tashbitu," as it serves to "repair" the violation of owning chametz.

 

 

 

Interestingly, the Mordechai cites those who would save chametz and burn it on the exact hour of noon in order to fulfill the mitzva in its fullest. Apparently, one may keep chametz for a short time after noon on erev Pesach, for enough time to fulfill the mitzva of tashbitu. Furthermore, they clearly believed that "tashbitu" is incumbent upon every individual to fulfill.

 

 

 

(Interestingly, the Ba'al Ha-Ma'or (Pesachim 7a), in an opinion outside the scope of this shiur, asserts that according to R. Shimon (Pesachim 28a), who permits eating chametz until nightfall, not only may one eat chametz after the sixth hour, but by eating chametz one actually fulfills the mitzva of tashbitu!)

 

 

 

Rashi (Pesachim 4b) disagrees and claims that "tashbitu" is fulfilled before noon through bittul. The Maharam Chalava and Rabbeinu David, cited above, must also believe that tashbitu may be fulfilled before noon through the bedikat chametz.

 

 

 

The Minchat Chinukh explains that Rashi, who understands that one may fulfill "tashbitu" through bittul before noon, must believe that "tashbitu" does not refer to an active obligation to nullify chametz, but merely to a responsibility to ensure that one does not own any chametz by noon on the fourteenth. Tosafot, on the other hand, who insist that the mitzva is fulfilled after chatzot on the fourteenth, must view the obligation as "active;" one must burn chametz in one's possession after the sixth hour.

 

 

 

Incidentally, the Ramban, in describing the mitzva of "tashbitu," writes that "God intended that one's chametz should be destroyed or nullified by noon…" Clearly, he also focuses upon the "result," that one should not have any chametz in one's possession by noon, and not upon the act of destruction itself.

 

 

 

R. Chaim Soloveitchik (Hilkhot Chametz U-Matza 1:3) insists that the Rambam also understands the mitzva of "tashbitu" in this manner. He comments on the Rambam's assertion that one who purchases chametz during the festival receives lashes for violating the prohibitions of owning chametz (bal yare’ah and bal yimatzei).  He questions why one should receive lashes, as the general principle is that a negative commandment closely associated with a positive commandment ("lav ha-nitak le-aseh"), intended to undo the damage done by violating the prohibition,  does not incur lashes upon its violation.  Therefore, how can one incur lashes for purchasing chametz during Pesach, if "bal yare’ah" is associated with "tashbitu"?

 

 

 

He concludes by referring to another fascinating debate. The mishna (Pesachim 21a) cites different opinions as to whether one must destroy chametz through burning (R. Yehuda) or through any means of destruction (Chakhamim). R. Chaim explains that while R. Yehuda, who insists that chametz be burned, clearly understands that that "tashbitu" refers to an active commandment to burn chametz, the Chakhamim, who explain that chametz may be disposed of in any manner, must not view "tashbitu" as a mitzva with a specific action.
 Rather, it is a general obligation to ensure that one does not have any chametz in his possession before chatzot. Therefore, he explains, this type of positive commandment is not considered "linked to" or "associated to" a negative commandment, as its fulfillment is not mandated in an active manner.  Incidentally, the Minchat Chinukh rejects this understanding of the debate between R. Yehuda and Chakhamim.

 

 

 

In summary, while some Rishonim view tashbitu as a mitzva fulfilled passively through the pre-Pesach preparations, others understand that one who has chametz in his possession after noon on the fourteenth of Nissan must actively destroy the chametz. The Minchat Chinukh suggests that according to those who understand that tashbitu entails actively destroying chametz after noon on the fourteenth, the Rabbis enacted that one should fulfill this mitzva earlier, an hour before noon, from the fifth hour.

 

 

 

Next week, we will discuss the practical laws of bedikat chametz, as well as bittul and bi’ur chametz.