Chametz on Erev Pesach

  • Rav Binyamin Tabory
 
 
Issur Akhila
 
The gemara (Pesachim 28a-b) records an argument between R. Yehuda and R. Shimon. According to R. Yehuda, there is a Biblical prohibition (issur lav) to eat chametz on erev Pesach (in the afternoon), while R. Shimon maintains that no such prohibition exists.
 
The Rambam (Hilkhot Chametz U-Matza 1:8; Sefer Ha-Mitzvot, mitzvat lo ta'aseh 199) rules in accordance with R. Yehuda, that there is a Biblical prohibition. Thus, one who transgresses this prohibition is punishable by malkot (lashes). The Rambam cites the gemarot in Pesachim 28a and 5a, which, in his view, are consistent with the opinion of R. Yehuda. Therefore, he claims that the gemara adopts the view of R. Yehuda and rejects that of R. Shimon.
 
The Ra'avad (ad loc.) disagrees and maintains that the halakha is in accordance with R. Shimon. There is therefore no punishment of malkot. However, even according to R. Shimon, there is a Biblical prohibition against eating chametz on erev Pesach, based on another source. The Ramban (Sefer Ha-Mitzvot ad loc.) agrees with the Ra'avad.
 
 
 
Tashbitu
 
The gemara (Pesachim 4a) cites a machloket between R. Meir and R. Yehuda regarding the exact point at which the Rabbinic prohibition of eating chametz begins on erev Pesach – the fifth hour or sixth hour of the morning. This implies that the Biblical prohibition begins after the sixth hour. The gemara then continues to search for the Biblical source for this prohibition.
 
At first glance, this gemara should be relevant only to the view of R. Shimon, since he maintains that there is no specific lav regarding chametz on erev Pesach, and we must therefore inquire why chametz is nonetheless prohibited on erev Pesach. According to R. Yehuda, however, there is a specific lav of chametz on erev Pesach, and the search for an alternative source therefore seems superfluous.
 
Indeed, Maharam Chalawa and Rabbeinu David cite a manuscript of Rashi, not found in our standard editions, to the effect that our gemara refers only to R. Meir (who presumably agrees with R. Shimon), and not to R. Yehuda. However, Maharam Chalawa and Rabbeinu David themselves maintain that the gemara seeks a source to obligate the removal of the chametz on erev Pesach, and this point is relevant even according to R. Yehuda. Although, in his view, there is a specific lav not to eat chametz on erev Pesach (as is evident from Pesachim 28), one might have thought that it is permissible to retain chametz in one’s possession until the night of Pesach.
 
The gemara cites two alternative sources that prohibit us from retaining chametz (mi-de'oraita) from the afternoon of the 14th of Nissan:
 
1. "Tashbitu" (Shemot 12:15) – the command to nullify or dispose of one's chametz, which implicitly prohibits possession of chametz.
 
2. "Lo tishchat al chametz" (Shemot 34:25) – the command not to sacrifice the korban Pesach if one still has chametz in his possession.[1]
 
            As we mentioned above, the Rambam rules in accordance with R. Yehuda, and he cites this gemara (5a) as a support for his contention. Therefore, it seems that according to the Rambam, it is only according to R. Yehuda, who maintains that there is a prohibition to eat chametz, that it is possible to entertain that one is also prohibited to retain chametz. According to R. Shimon, there is no issur at all of retaining chametz on erev Pesach. Since, in his view, there is no prohibition of eating, it may be argued that the Rambam felt that even if R. Shimon does prohibit retaining chametz on erev Pesach, he would not agree to an additional stringency placed by Rabbanan. Only if there is an actual lav and not merely the positive commandment of tashbitu – R. Yehuda’s opinion – would there be a new enactment of the Rabbanan. In any case, according to the Rambam, the gemara regarding owning chametz on erev Pesach is only in accordance with the opinion of R. Yehuda. Thus, according to R. Yehuda, not only is it forbidden to eat chametz on erev Pesach, one may not retain it either.
 
It should be noted, however, that although erev Pesach is similar to Pesach regarding the prohibitions of chametz, the two are not identical. There is certainly no issur karet of eating chametz on erev Pesach, and it is questionable whether bal yera'eh (the specific lav of retaining chametz on Pesach itself) applies to erev Pesach, as we will see below.
 
 
 
Issur Hana'ah
 
In the previous section, we noted that although there is no specific lav on eating chametz on erev Pesach according to R. Shimon, it is possible that tashbitu or lo tishchat nevertheless apply (unless we accept the Rambam’s interpretation). While this may involve nothing more than a mitzva to dispose of chametz, it may indicate an issur hana'ah.
 
The gemara (Pesachim 6b) states: "If one betroths a woman by giving her chametz even in the sixth hour, when the issur is only mi-derabbanan, the kiddushin is invalid." This indicates that one may not derive hana’ah from chametz once the issur sets in. However, one might argue that this is only the opinion of R. Yehuda. R. Shimon, in contrast, may disagree and validate such a kiddushin, as there is no issur hana’ah.
 
The Ba'al Ha-Ma'or maintains the radical position that R. Shimon would allow one to fulfill tashbitu by eating the chametz. Maharam Chalawa and the Ran maintain, however, that the requirement of tashbitu creates a ban on both eating and hana'ah. They seem to interpret tashbitu as a negative prohibition: One must destroy or nullify the chametz, and therefore not benefit from it in any manner. According to the Ran, tashbitu is, in fact, the source for the prohibition of hana'ah from chametz throughout Pesach. This implies that tashbitu applies the entire week.
 
According to Tosafot (Pesachim 28b) and the Ramban (Milchamot Hashem), R. Shimon agrees that tashbitu precludes eating chametz; however, he maintains that mi-de’oraita, one may benefit from the chametz until Pesach. They apparently felt that eating contradicts tashbitu. In effect, the Torah said destroy or nullify, but don't eat the chametz.
 
According to the Ramban and the Ra'avad, there exists an issur hana'ah on a Rabbinic level (and R. Shimon would therefore agree that kiddushin with chametz on erev Pesach is invalid), whereas Tosafot maintain that there is no issur hana'ah at all according to R. Shimon.
 
 
 
Bal Yera'eh
 
Although there is no reference to the possibility of the lav of bal yera'eh in the gemara, the issue has been raised in the Rishonim. Rabbeinu David (Pesachim 5a) expressly rejects such a possibility (even according to Rashi). Nevertheless, Rashi in a number of places seems to posit that the lav does begin on erev Pesach.[2] However, Rashi on the mishna in Pesachim 63b writes that although there is a punishment of malkot during Pesach for bal yera'eh, there is no such punishment on erev Pesach. Tosafot Yom Tov on that mishna interprets Rashi to mean that there is no bal yera'eh on erev Pesach.[3]
 
If we take Rashi to mean that there is no lav at all on erev Pesach, we may suggest that the contradiction can be resolved by maintaining that Rashi maintains that bal yera'eh exists only according to R. Yehuda, who holds that there is a real issur akhila on erev Pesach. However, according to R. Shimon, even if chametz may not be eaten due to tashbitu, since there is no real lav, there is no bal yera'eh.[4]
 
The Rambam (Hilkhot Chametz U-Matza 3:8) states that if one did not nullify his chametz before the sixth hour and he finds chametz after the sixth hour, he transgresses bal yera'eh. The Ra'avad (ad loc.) comments that perhaps the Rambam thought that bal yera'eh applies from the sixth hour, but this is not true, as the Torah explicitly says that the prohibition applies for "seven days." In contrast, the issur hana'ah begins at the same time as the issur of eating (see Pesachim 28b).
 
The Maggid Mishneh notes that a careful reading of the introduction to Hilkhot Chametz U-Matza indicates that the Rambam explicitly states that this section contains a mitzva of tashbitu beginning on the fourteenth and bal yera'eh all seven days of Pesach. Thus, he interprets halakha 8 to mean that one would violate bal yera'eh only from the night of Pesach.[5] Since, as we noted, the Rambam codified the law according to R. Yehuda, he maintains that there is a specific lav of eating chametz on erev Pesach, which would explain why bal yera'eh might apply.
 
 
 
Summary
 
There are four areas that must be investigated when determining the status of chametz on erev Pesach:
 
1. Issur akhila: According to R. Yehuda, there is a specific Biblical prohibition against eating chametz on erev Pesach (from the sixth hour and on). According to R. Shimon, although there is no specific prohibition, it is nevertheless forbidden. The Rambam rules in accordance with R. Yehuda. The Ra'avad and the Ramban rule in accordance with R. Shimon.
 
2. Possession of chametz: According to Maharam Chalawa and Rabbeinu David, this prohibition exists both according to R. Yehuda and R. Shimon. According to the Rambam, this prohibition exists only according to R. Yehuda.
 
We explained that the dispute between the Rishonim is based on whether the gemara on daf 4b-5a applies to R. Shimon’s view or not.
 
3. Hana'ah: Everyone agrees that according to R. Yehuda, it is forbidden to benefit from chametz on erev Pesach. However, there is a disagreement concerning the opinion of R. Shimon.
 
According to the Ba'al Ha-Ma'or, one can even eat the chametz as a means of destroying it.
 
According to the Ran and Maharam Chalawa, it is forbidden to benefit from chametz in any manner.
 
According to Tosafot, one may benefit from chametz, but not eat it.
 
According to the Ramban and the Ra'avad, there is an issur hana'ah on a rabbinic level.
 
4. Bal Yera'eh: It is possible that according to Rashi and the Rambam, this prohibition applies according to R. Yehuda.
 
The opinion of R. Shimon, which limits issurei chametz on erev Pesach to tashbitu (and all that it implies) corresponds with the understanding that erev Pesach basically functions as preparation for Pesach proper. However, R. Yehuda's opinion, as developed by the Ramban, may indicate a more intrinsic role played by erev Pesach. Therefore, a whole array of issurei chametzissur akhila, tashbitu, and perhaps bal yera'eh – begin at noon on erev Pesach.[6]
 
 
 
 
 

[1] There may be a practical difference depending on which source is determined to be authoritative. If the source is the negative lo tishchat, women are certainly enjoined from retaining chametz. However, if the source is the positive commandment of tashbitu, one might argue that women are excluded, as it is a time-related commandment from which women are exempt. Accordingly, one would reach the strange conclusion that women could retain chametz until nightfall. Although the Minchat Chinukh rejected this idea, see R. Perlow in Sefer Ha-Mitzvot of Rabbeinu Sa'adia Gaon, mitzva 50 for a fuller discussion of this point.
[2] See Pesachim 6b, s.v. ve-da'atah and Tzelach, ad loc.; Pesachim 4a, s.v. bein le-Rav Meir; Bava Kama 29b, s.v. mi-shesh sha'ot.
[3] Presumably, one might disagree and argue that the lav exists, but there are no malkot because the lav should be rectified by tashbitu, making it a lav ha-nitak le-aseh, and tashbitu does not apply to the week of Pesach.
[4] A careful reading of the above texts of Rashi could support this conclusion. The Talmud Yerushalmi (Pesachim 1:4) states almost explicitly that there is a machloket between R. Yehuda and R. Meir regarding whether bal yera'eh applies on erev Pesach.
[5] The Noda Be-Yehuda, Kama OC 20, disagrees with the Maggid Mishneh and writes that although bal yera'eh applies on erev Pesach, it is only "mi-divrei sofrim" (derived from the Torah, but not explicitly stated), and therefore was not mentioned in the Rambam’s introduction.)
[6] Editor’s note: See https://www.etzion.org.il/en/issur-melakha-erev-pesach, where two distinct approaches to the nature of erev Pesach are developed: 1. an independent holiday connected to the korban Pesach; 2. a day set aside to prepare for Pesach.