The Prohibition of Bal Yeira'eh and Bal Yimatzei (I)

In addition to the Torah’s prohibition of eating or deriving benefit from chametz on Pesach, there is an additional, two-part prohibition of “bal yeira’eh” (“Lo yeira’eh lekha se’or be-khol gevulkha”) and “bal yimatzei” (“se’or lo yimatzei be-vateikhem”). In this shiur, we will begin addressing the nature of this prohibition. 

            The gemara notes that the Torah commands, “lo yeira’eh lekha chametz,” “You should not see chametz of YOURS.” The gemara infers from the added word “lekha” that the prohibition of bal yeiraeh and bal yimatzei applies only to chametz which one owns or achieves ownership of, on Pesach. (Indeed, even partial ownership can violate the prohibition. This issue will be addressed in a forthcoming shiur.) Although the actual language of the Torah forbids SEEING  chametz, one does not violate the prohibition by seeing chametz that belongs to another person.  Ownership is necessary to entail a violation.

However, even though ownership is a likely precondition for the issur, the Torah clearly describes the prohibition with the word "yeira’eh," which implies that seeing the chametz plays SOME role in the issur.  Similarly, when the Torah describes the companion issur of lo yimatzei, the Torah describes chametz in a HOUSE (be-vateikhem), suggesting that legal ownership may not be the ONLY CONDITION qualifying the issur.  By describing chametz in a HOUSE, the Torah may be requiring domestic proximity, and not just legal title. Likewise by describing an issur to SEE chametz, the Torah may be requiring a form of optical contact and not just legal ownership. Are these descriptions of seeing chametz and possessing chametz in a house halakhic statements, or are they merely stylistic? Is the issur of possessing chametz defined PURELY by legal ownership or are there additional requirements or parameters?

The first indicator that these issurim are not defined purely by legal ownership stems from the comments of several Rishonim who note that only the issur of lo yimatzei is violated if one’s chametz is hidden out of view. Lo yimatzei applies irrespective of whether "eye contact" has been established. The companion issur of lo yeira’eh, on the other hand, is only violated if the owner actually SEES the chametz. Rabbenu Dovid suggests this approach, the Kesef Mishnah applies it to the Rambam, and an intriguing comment of Rashi (Pesachim 6a) suggests it as well (see Rashi, s.v. dechi).

The Ritva cites his teacher, the Ra'ah, who expands this concept. If the chametz is visible, the prohibition of lo yeira’eh applies, no matter what the setting (as the lo yeira’eh prohibition is described as applying “be-gevulkha”). If the chametz is not visible, but is located in a domestic setting, “lo yimatzei be-vateikhem,” has been transgressed, as the chametz is “found,” even though it cannot be seen. If, however, the hidden chametz is not located in a “home” setting, neither of the violations applies.

This position of the Ra'ah views the two issurim as COMPLETELY INDEPENDENT tracks- with each one defined by a unique perameter. Lo Yimatzei applies to domestic chametz regardless of its visibility  while lo yeira’eh applies to visible chametz  regardless of its location. Disloctaed AND invisible chametz is not prohibited. Each pasuk slightly expands the scope of the issur, but there is a situation – non-visible chametz situated in a non-domestic setting – in which no prohibition has been violated. Thus, the Torah's descriptions of chametz at home (be-vateikhem) and chametz that is seen (yeira’eh) are not merely stylistic elements, but rather have halakhic implications.

The point articulated by the Ra'ah in the extreme, and the Kesef Mishnah and Rabbenu Dovid in a more moderate fashion leads to two interesting consequences.

First, these Rishonim assert that the two issurim are not overlapping prohibitions with identical scopes and prerequisites; it is NOT true that if you violate one prohibition you automatically violate the other. Rather, it is quite possible to violate only one of the issurim (when seeing your chametz outside of your home or possessing it in your home without seeing it), although they may overlap one another (when seeing your chametz in your home).

This understanding may have ramifications regarding how many mitzvot to count (see the Rambam, who counts them as two mitzvot), how many malkot to administer if the general prohibition has been actively violated (see the Kesef Mishnah), and whether this prohibition can be classified as a “lav ha-nitak la-asei” (see Tosafot, Pesachim 95a). If the two prohibitions overlap and are absolutely identical, perhaps they create a “super-lav,” and perhaps their association with the mitzvat asei of destroying chametz (tashbitu) would not exempt the violator from malkut, as in ordinary cases of lav ha-nitak le-asei. If, however, these are two independent prohibitions that many times incidentally overlap, each individual prohibition may be “nitak” by the same positive commandment to actively burn the chametz. 

A different ramification may have even greater impact. As we noted, these Rishonim assume that that prohibitions of bal yeira’eh and bal yimatzei are not based solely on ownership, but rather demand additional factors – location and visibility. Once we assume that the Torah’s mentioning of these factors is more than literary, perhaps we can determine additional NON-OWNERSHIP based requirements for this prohibition.

Perhaps the most startling example is a statement of the Ramban based on a Mechilta that is not included in our version of the Mechilta. According to this text, the Mechilta expounds on the phrase “be-veitekhem,” although the Mechilta does not require a domestic setting as a precondition for the prohibition. Rather, the Mechilta requires a location comparable to a home setting: just as your home is in your reshut, you physical domain, a person only violates EITHER prohibition (bal yeira’eh OR bal yimatzei) if the chametz is in his physical possession ((reshut). If a Jew were to physically relocate his chametz to the physical possession of a Gentile without relinquishing any legal ownership, he would not violate ANY issur. (Subsequently, the Shaagat Aryeh and the Mekor Chaim debated the halakha about a Jew who relocated his chametz to a public hefker area without relinquishing any ownership. Would this physical relocation also eliminate the prohibition, or does the Ramban demand that the chametz must be placed into the zone of SOMEONE else?)

This Ramban lodges an astounding claim – full legal ownership IS NOT SUFFICIENT to entail violation. In addition, some physical proximity and interaction must exist. According to the Ramban, however, the aforementioned issues of the visibility of the chametz as well as the domestic setting are non-essential; full and dual violations apply even regarding hidden chametz in a non-domesticated setting. However, if the chametz is not in the physical zone of the owner at all, no violation results.  This Ramban represents the most mainstream position to adopt the Torah's unique formulation as a halakhic determinant and impose and ADDITIONAL condition to the issur beyond the ownership factor.