Biur and Mekhirat Chametz

  • 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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Last shiur, we discussed the search for chametz and the subsequent nullification, bittul. This week, we will discuss the disposal and destruction of chametz, known as bi’ur chametz, and the almost universally accepted practice of selling chametz to a non-Jew before Pesach. We will also briefly mention the prohibition of eating chametz she-avar alav ha-Pesach, chametz which was owned by a Jew during Pesach.

 

Bi’ur Chametz

 

            As mentioned previously, according to many Rishonim, one fulfills the mitzva of “tashbitu” by destroying one’s chametz. Although some Rishonim believe that one can fulfill tashbitu through bittul, or even by making one’s chametz hefker, one who does not perform bittul until midday of the 14th of Nissan must certainly destroy his chametz. The Talmud discusses numerous issues regarding bi’ur chametz, including the proper time and manner of bi’ur

 

Regarding the proper time for bi’ur chametz, the gemara (Pesachim 11b) records that while mi-de’oraita, one may keep chametz until midday on the 14th of Nissan, the Rabbis enacted a “fence” to the Torah. According to R. Meir, one may keep and eat chametz until the end of the fifth hour. R. Yehuda rules that one may eat chametz until the end of the fourth hour and must destroy it by the end of the fifth hour. The halakha (Shulchan Arukh 443) is in accordance with R. Yehuda.

 

Regarding the proper manner in which to destroy chametz, the mishna (21a) teaches:

 

R. Yehuda said: There is no removal of leaven except by burning; but the Sages maintain: he may also crumble and throw it to the wind or cast it into the sea.

 

According to R. Yehuda, chametz must be burnt, while the Sages believe that one may even “crumble and throw it to the wind or casts it into the sea.” The Rishonim discuss the conceptual underpinnings of this debate.

 

The mishna (Temura 33b) distinguishes between objects that are buried (or removed), known as “nikbarim,” such as a shor ha-niskal, eglei arufa, and basar be-chalav, and those that must be burnt, known as “nisrafin,” such as teruma teme’ah, orla and kil’ei ha-kerem. The gemara (34a) explains that one may not derive benefit from the ashes of items which are buried. The ashes of objects which must be burnt, however, are permitted. Once one has fulfilled the mitzva of burning, “na'aseh mitzvatam" - their mitzva has been fulfilled, and their ashes may be used.

 

Based on this gemara,Tosafot (Pesachim 21b, s.v. be-hadei) explain that R. Yehuda and the Sages disagree regarding whether we should categorize chametz as nisrafin or nikbarin. While R. Yehuda believes that chametz is categorized as “nisrafin,” the Sages view chametz as “nikbarim,” and its ashes would still be prohibited. The Tur (455) rules accordingly. R. Chaim Soloveitchik develops this approach and defends the Tur in his chidushim on the Rambam (Hilkhot Chametz U-Matzah, 1:3).

 

R. Akiva Eiger disagrees. He explains that there is no mitzva to dispose of those objects which are nikbarin, but rather to remove them as a preventative measure - so that they will not be used. All agree, however, that one must destroy chametz. The Sefat Emet (21a) agrees, arguing that both R. Yehuda and the Sages agree that there is a mitzva to destroy the chametz; they only disagree about the proper means.

 

The mishna, however, does not indicate whether this debate relates to chametz on or before Pesach. The gemara (12b) relates: “When is this? Before the time of removal; but at the time of removal, its ‘putting away’ is by any means.” The Rishonim debate the meaning of the terms “before the time of removal” and “the time of removal.”

 

Rashi (12b) explains that R. Yehuda and the Sages disagree regarding the proper means of disposing of chametz before midday of the 14th of Nissan. Afterwards, all agree that one may dispose of chametz in any manner. The Rosh (2:3) assumes that Rashi means from the beginning of the sixth hour, all agree that one may dispose of chametz in any manner. Others disagree, however. Rabbeinu Tam (Tosafot, s.v. eimatai) explains that until and during the sixth hour, when “most people are involved [in disposing of] their chametz,” all agree that one may dispose of one’s chametz in any manner. After the sixth hour, however, R. Yehuda maintains that one must burn his chametz. He cites the Yerushalmi (Pesachim 2:2) in support of his view. The Ba’al Ha-Ma’or (5a, Rif) agrees fundamentally, but insists that R. Yehuda maintains that even from the fifth hour, an hour before midday, one must burn his chametz. In summary, the Rishonim debate whether R. Yehuda requires one to burn his chametz before midday (Rashi), until the fifth hour (Rosh), from the fifth hour (Ba’al Ha-Ma’or), or after midday (Rabbeinu Tam).

 

Regarding the halakha, while some Rishonim (Tosafot 27b, s.v. ein; Rashi, Siddur Rashi 356; Rosh 2:3; Semag 39; Semak 98, et al.) rule in accordance with R. Yehuda, others (Rosh 2:3; Ritva 27b; Ran 5a, Rif; Ba’al Ha-Ma’or, ibid., Rif and Rambam 3:11) rule like the Sages. Interestingly, the Vilna Gaon (Be’ur Ha-Gra, 445:1) insists that even the Sages agree that the preferred method of disposing of chametz is through burning.

 

The Shulchan Arukh (445:1) follows the view of the Geonim and the Rambam that chametz may be disposed of in any manner. The Rama records, however, that it is customary to burn chametz, like the opinion of R. Yehuda (Mishna Berura 6) and those who believe that R. Yehuda requires burning even before midday.

 

The Mishna Berura (445:18) mentions that one may throw one’s chametz to a place of hefker before the end of the fifth hour, and would therefore no longer need to burn the chametz. R. Moshe Feinstein (Iggerot Moshe, Orach Chaim 3:57) writes that one should not throw his chametz into his outdoor garbage can; since he owns the garbage can, the chametz is still in his possession. If one throws his chametz into a public garbage bin outside of one’s property, then one does not have to destroy the chametz.

 

As we mentioned previously, the Acharonim debate whether the mitzva of tashbitu dictates that one should remove chametz from one’s possession before midday of the 14th of Nissan, and one would only have to destroy chametz which happens to be in one’s possession afterwards, or whether one should even acquire chametz before Pesach in order to perform bi’ur. Thus, many are accustomed to make sure that they still have chametz in their possession to burn on the morning of the 14th of Nissan.

 

Some burn the feather and the wooden spoon which are customarily used for bedikat chametz, and some also burn their lulavim and oils left over from Chanuka.

 

After burning one’s chametz, one should recite the bittul chametz. The Rama (434) notes that one should recite the bittul only after one has already burned the chametz, so that one fulfills bi’ur chametz while the chametz is still his. Some also point out that one should not pour lighter fluid on the chametz itself, as that might render the chametz unfit for canine consumption (nifsal me-akhilat kelev), and would therefore be no need to burn it.

 

            Regarding one who finds chametz in his possession during Pesach, the Talmud distinguishes between one who finds chametz on a day of Yom Tov and one who finds chametz on chol ha-mo'ed (or after midday of erev Pesach).

 

            The gemara (6a) teaches that one who finds chametz on Yom Tov should cover it with a vessel until the evening. Rashi (6a, s.v. kofeh) explains that the chametz is considered to be muktza, and therefore one would not be permitted to move it. The Rishonim debate why one should not burn the chametz on Yom Tov, especially in light of the principle of mitokh (Beitza 12a), which permits one to perform on Yom Tov a melekhet ockhel nefesh, a melakha necessary for the preparation of food, even for a non-food related purpose.

 

            Some Rishonim (Ran 2b; Rif s.v. ho-motzei; Rashba, Teshuvot 1:61; Or Zaru’a, 2:256) explain that the gemara refers to a case in which one nullified his chametz properly. Therefore, one who finds chametz in his possession on Pesach does not violate bal yera’eh u-val yimatzei, and there is no pressing reason to destroy the chametz. The principle of mitokh, they explain, only applies if one has a “need,” even a “slight need,” for this melakha, such as carrying a child to shul on Yom Tov. However, since here there is no need to burn the chametz, it is muktza and one should dispose of it after Yom Tov. If, however, one did not nullify one’s chametz before Pesach, the chametz is not considered to be muktza, and one may, and should, dispose of it on Yom Tov.

 

Others insist that even if one did not nullify his chametz before Pesach, he should still not move it on Yom Tov. Tosafot (Ketuvot 7s, s.v. mitokh) explain that since the chametz is considered to be muktza on Yom Tov, even in this case one should not burn it until the evening. The Kesef Mishna (3:8) suggests that the allowance of mitokh may not apply in this situation, since burning chametz may not be a “need” which is "shaveh le-khol nefesh" (something that most people enjoy), which the gemara (Ketuvot 7a) requires in order to invoke mitokh. Interestingly, the Me’iri and the Kol Bo (48) suggest that although one who did not nullify his chametz should not burn it on Yom Tov, he should set aside the prohibition of muktza and dispose of it in another manner.

 

The Shulchan Arukh (456:1) rules that one who finds chametz in his house on Yom Tov should cover it with a vessel, and does not specify whether or not he nullified his chametz before Pesach. The Gra explains that he rules in accordance with those who do not distinguish between one who has nullified his chametz and one who has not.

 

One who finds chametz in his possession during chol ha-mo'ed should dispose of it immediately, either through burning or in another manner.

 

Mekhirat Chametz

 

            Nowadays, almost every community offers a “mekhirat chametz,” the opportunity to sell one’s chametz to a non-Jew before Pesach, thereby avoiding the prohibition of bal yeira’eh u-val yimatzei, and then to buy back the chametz after the festival. This practice, although almost routine in many communities, has been the source of great halakhic controversy for hundreds of years.

 

            R. Shlomo Yosef Zevin (1888–1978), in his classic work on the festivals, Ha-Moa’dim Be-Halakha (Pesach, ch. 4), traces the development of this practice. He identifies four historical/halakhic phases of mekhirat chametz: Selling chametz without the intention of repossessing it after Pesach, selling the chametz with the intention of repossessing it after Pesach, a private sale of chametz found in one’s possession to a non-Jew, and the general communal sale of chametz that remains in the possession of the Jew.

 

The mishna (Pesachim 21a) teaches that before chametz becomes prohibited, one may eat, feed one’s animals, or sell one’s chametz. Similarly, the gemara (13a) relates:

 

It once happened that a certain man deposited a saddle-bag full of leaven with Yochanan of Hukok, and mice made holes in it and the leaven was bursting out. He then went before Rabbi. The first hour he said to him, “Wait;” the second he said to him, “Wait;” the third he said to him, “Wait;” the fourth he said to him, “Wait;” at the fifth he said to him, “Go out and sell it in the market.”

 

Apparently, one who was left with large amount of chametz before Pesach and did not wish to destroy the chametz, as he would thus incur financial loss, would sell the chametz to a non-Jew.

 

The mishna and gemara refer to a case in which the owner did not repurchase the chametz after Pesach, but the Tosefta (2:12) records a situation in which one would sell his chametz and then repurchase and take possession of it again after Pesach.

 

A Jew and a non-Jew who were on a ship, and the Jew was in possession of chametz - he may sell the chametz to the non-Jew or give it to him as a gift and after Pesach take [the chametz] back, as long has he gave it to him as a proper gift (matana gemura).

 

R. Zevin cites Rishonim who explain that the Tosefta refers to a case in which the Jew, because he is traveling on the eve of Pesach, will not have any food for after the festival unless he performs this sale. Furthermore, the Beit Yosef (448) cites the Behag, who explains that the Tosefta refers to a case in which one does not intend to buy back the chametz afterwards. While the Beit Yosef disagrees, he notes that the Tosefta permits this practice because the non-Jew actually took possession of the chametz.

 

R. Yisrael Isserlin (1390-1460; Terumat Ha-Deshen 1:120) permits one to sell chametz to a non-Jew “outside of one’s house” and then to re-purchase it after Pesach. The Acharonim discuss whether the Terumat Ha-Deshen insisted that the non-Jew be outside of his house, that is, that he did not work for the Jew, or the chametz.

 

Over time, there were people who wished to sell their chametz to non-Jews without removing it from their property. For example, flour that may have become chametz, liquors, and other items were difficult to remove from one’s property.  R. Yoel Sirkis (1561-1640; Bach 448) permits those with large quantities of commercial liquor produced from chametz to sell their stock to a non-Jew and give the non-Jew a key to the room in which it is stored.

 

Although this type of sale appears to be ideal, as it is personal and specific, apparently it became difficult to leave the sale of chametz up to each individual. Towards the beginning of the nineteenth century, a broader, more general sale of chametz developed, in which the members of a community would either sell their chametz to the beit din or appoint them as their agents to sell the chametz to a non-Jew.

 

Some question whether mekhirat chametz constitutes a ha’arama, a legal loophole, and, if so, whether one may rely upon it. R. Yosef Shaul Nathanson (1808-1875; Sho’el U-Meishiv, Tinyana 2:7), for example, argues at length for the abolishment of this practice. The Chatam Sofer (Orach Chaim 113), however, defends the practice and rebukes anyone who casts doubt upon its legitimacy. Although the sale of chametz has become standard in most communities, some rely upon mekhirat chametz only when necessary, such as a store owner or one who owns large quantities of liquor. Some (see Nefesh Ha-Rav, p. 177, citing R. Soloveitchik) also insist that one should refrain from selling chametz gamur (real chametz). Others (R. Moshe Feinstein, cited by in Halachos of Pesach, p. 123, nt. 44) disagree. Some recommend that even those who dispose of all of their chametz before Pesach, such as single men and women who live in dormitories, should still execute a mekhirat chametz lest they forget to dispose of some chametz or keep items that they are unaware that they contain chametz

 

The Acharonim also question the technicalities of the sale. For example, what is the most appropriate form of kinyan

 

The mishna (Kiddushin 26a) teaches that the acquisition of movable items must be done through physically transferring them (meshikha or hagba’ah), and not merely through the transfer of money (kinyan kesef). The gemara (Bekhorot 13b) discusses whether this is true regarding transactions between Jews and non-Jews as well. Tosafot (Avoda Zara 71a, s.v. Rav Ashi) writes that since the final ruling is a matter of dispute, both in the gemara and among the Rishonim, one should preferably perform both a physical transfer of the item and a monetary transfer when performing a transaction with a non-Jew for the sake of a mitzva.

 

Regarding chametz, since the chametz never leaves the possession of the Jew, another kinyan, aside from meshikha or hagba’ah, must be employed. The mishna (Kiddushin 26a) teaches that one can transfer moveable items as part of another transaction involving property, known as a kinyan agav. Based on this, the Mishna Berura (448:19) recommends renting or selling part of one’s property as part of the sale and including one’s chametz in the transaction. One generally rents the room or cabinet in which the chametz is stored as part of the mekhirat chametz. In addition, the gemara (Bava Metzia 74a) also discusses a transaction commonly used by local businessman, a kinyan situmta. Some explain that a shetar (contract document) is used for mekhirat chametz, even though a shetar cannot generally be used to transfer movable objects, as it may constitute a kinyan situmta. The Mishna Berura (ibid.) also recommends employing a kinyan chalipin, in which the non-Jew gives an item of his own in exchange for the chametz

 

            Others note that one generally pays the full price for what one purchases. The non-Jew, however, does not pay the full price for all of the chametz which he buys. The Mishna Berurah (Biur Halakha 448:3, s.v. be-davar) notes that although the sale reflects the full price of the chametz, the non-Jew simply gives a “down payment” at the time of the sale, and the balance is considered to be his debt.

             The Acharonim also discuss how to reacquire the chametz after Pesach. While some suggest that the Jew takes back the chametz after Pesach because the non-Jew has not yet paid the full balance of his debt, R. Shlomo Kluger (Ha-Elef Lekha Shlomo, Orach Chaim 221), as well as the Mishna Berura (Bi’ur Halacha, 448:3 s.v. mekhira) and other posekim, insist that the chametz be repurchased from the non-Jew.

 

            In recent times, when travel has become increasingly common, especially travel to and from Israel for the festival, the Acharonim questioned what one should do if his chametz is located in a different time zone. For example, a person who lives in America and travels to Israel for Pesach will begin celebrating Pesach before the sale of chametz in America takes place. Conversely, one who travels from Israel to America will most likely reacquire his chametz while still observing Pesach in America. Does the prohibition of bal yeira’eh u-val yimatzei follow the location of the chametz or the owner?

 

            R. Yom Tov Lipman Halperin (Lithuania, d. 1879; Teshuvot Oneg Yom Tov 36), argues that the prohibition of bal yera’eh u-val yimatzei follow the place of the chametz during Pesach. Many Acharonim (see Piskei Teshuvot 443:1) disagree, however. Although most posekim follow the place of the owner of the chametz, one should attempt to follow both opinions (see Iggerot Moshe, Orach Chaim 4:94-95).

 

            Nowadays, it is customary for those who intend to sell their chametz to indicate on a shetar harsha’ah, a Statement of Authorization, which chametz they intend to sell and its location. By signing the document, one authorizes the Rabbi to sell the chametz to a non-Jew. Generally, the Rabbi performs a kinyan sudar, in which the seller lifts the Rabbi’s pen or kerchief, in order to demonstrate his seriousness regarding the sale. Strictly speaking, one need not perform this kinyan, and one may authorize a sale verbally, even over the phone.

 

            May a Jew who owns a supermarket that continues to sell chametz during the festival sell his chametz to a non-Jew? R. Moshe Feinstein (Iggerot Moshe, Orach Chaim 1:149, 2:91 and 4:95) dealt with this question repeatedly. He justified this practice with various conditions and stipulations. One of the most problematic aspects of this question is determining the status of food acquired by the supermarket during the week of Pesach. R. Soloveitchik objected to such a sale, and the policy of the OU is not to sanction such a sale. 

 

            In the previous shi’ur, we discussed the impact of selling one’s chametz or one’s house on the mitzva of bedikat chametz.

 

Chametz She-Avar Alav Ha-Pesach

 

            The mishna (Pesachim 28a) teaches:

 

One may derive benefit from chametz which belonged to a gentile during Pesach; but chametz of a Jew [which remained in his possession over Pesach] is forbidden, for the Torah says, “No leavening may be in your possession” (Shemot 13:7).

 

The gemara cites a debate between R. Yehuda and R. Shimon regarding the origin of this law. R. Yehuda believes that mi-de’oraita, one may not consume chametz owned by a Jew during Pesach. R. Shimon disagrees, and as Rava (Pesachim 29a) explains, the Rabbis instituted a kenas (penalty) since this person violated the prohibition of bal yera’eh u-val yimatzei. The halakha is in accordance with R. Shimon.

 

What if one inadvertently owned chametz during Pesach? The Ramban (31b) rules that we do not distinguish between one who inadvertently kept chametz over Pesach and one who did so on purpose. Similarly, the Rambam (1:4) writes:

 

Chametz of a Jew that remained in his possession during Pesach is forever forbidden from any benefit, and this matter is a fine instituted by the Sages since the person transgressed the prohibition of “it shall not be seen nor found in your domain;” [therefore] they forbade it. Even if he left it over by mistake or against his will, [they instituted the fine] so that no person will leave over chametz in his domain during Pesach in order to have it after Pesach.

 

The Shulchan Arukh (448:3) rules accordingly. The chametz of a non-Jew is permitted after Pesach, even for eating; but that of a Jew, which remained in his possession over Pesach, even if he left it over by mistake or against his will, is forbidden.

 

The Acharonim discuss the status of chametz owned by a non-religious Jew or a Jew who thought he was a non-Jew during Pesach (see Sho’el U-Meishiv 2:60, Yechave Da’at 3:28 and Har Tzvi, Orach Chaim 2:46.)

 

Regarding a supermarket that is owned by Jews, R. Feinstein (Iggerot Moshe, Orach Chaim 4:96) writes that one may purchase chametz from this supermarket after Pesach at the point at which there is at least a 50% possibility that the food one buys was bought by the supermarket after Pesach. Since chametz she-avar alav ha-Pesach is only mi-derabbanan, we invoke the principle of safek de-rabbanan le-kula.

 

 

After Pesach, we will dedicate our shiurim to the laws Sefirat Ha-Omer.

Chag Kasher Ve-Sameach!

 

David Brofsky