The Prohibition of Chametz on Erev Pesach

I. The Rabbinic Injunction and the Biblical Prohibition

The Mishna (11b) discusses a disagreement between R. Meir and R. Yehuda regarding the beginning of the rabbinic prohibition of chametz: According to R. Meir, one may EAT chametz for the first FIVE hours of the day, but must DESTROY it at the BEGINNING of the SIXTH hour. According to R. Yehuda, however, one may EAT chametz for only the first FOUR hours of the day. It may be KEPT for the FIFTH hour but must be DESTROYED at the BEGINNING of the SIXTH.

Before discussing the prohibition banning the eating of chametz on the rabbinic level, it would be instructive to review the various opinions relating to this prohibition from the perspective of Torah law. R. Yehuda maintains that there is an explicit passuk which forbids the eating of chametz from NOON on erev Pesach. (We divide daytime into twelve hours, daybreak being the beginning of the first hour, and nightfall the end of the twelfth. Accordingly, noon will be referred to as the beginning of the SEVENTH hour.) R. Shimon, however, argues that the Biblical ban against eating chametz begins only on Pesach proper, after nightfall (28a-b).

As mentioned above, according to R. Meir, the rabbinic prohibition begins one hour prior to the Biblical prohibition (i.e. at the beginning of the SIXTH hour). R. Yehuda, however, advances the prohibition one additional hour, to the beginning of the FIFTH hour. Nonetheless, both opinions, seem to assume that the Biblical prohibition begins at noon. In fact, the gemara (4b) quotes our Mishna and concludes: "According to both opinions chametz from six hours and up is prohibited (according to Torah law)." This is how the Rambam interprets the gemara, and, therefore, concludes that on the mi-DE-ORAITA level, the halakhic ruling is in accordance with the opinion of R. Yehuda and NOT R. Shimon. (See Sefer Hamitzvot lavin 199, Chametz u-Matza 1:8). Consequently, one who eats chametz after the seventh hour is liable to be punished by malkot (lashes).

The Ba'al HaMa'or basically agrees with the Rambam's interpretation that our mishna is in accordance with the opinion of R. Yehuda. However, he maintains that the gemara explicitly sides with R. Shimon as opposed to R. Yehuda with regards to the de-oraita level (see daf 30a where Rava decides in accordance with R. Shimon). Since we reject R. Yehuda's opinion, it is a foregone conclusion that our mishna has no relevance le-halakha as it is merely a rabbinic embellishment of R. Yehuda's view.

Most Rishonim, however, do not identify our mishna specifically with R. Yehuda. Therefore, they do not find it problematic to rule in accordance with our mishna, on the one hand, while ruling like R. Shimon on the other. According to these Rishonim, it is difficult to understand why the Rabbis should begin the prohibition against eating and deriving benefit from chametz from the fifth or sixth hours, even though the Biblical prohibition does not begin until Pesach proper. This problem is exacerbated by our gemara's explanation of the argument between R. Yehuda and R. Meir (relating to the potential error of one or two hours, or a decree based on a cloudy day). Clearly, the gemara is concerned that one should not inadvertantly eat chametz following the sixth hour, and therefore, moved up this prohibition.

This problem can be solved by claiming that, even according to R. Shimon, there is a Biblical injunction against eating chametz after the sixth hour. While R. Shimon argues that there is no independent lo ta'aseh forbidding chametz during this period, he neverthless concedes that there is an issur aseh banning the eating of chametz. This aseh - "tashbitu" - begins according all opinions on erev Pesach at the beginning of the seventh hour. These Rishonim maintain that eating chametz during this time frame is Biblically prohibited since it constitutes a nullification of the mitzva of tashbitu. (Alternately, one could claim that the prohibition of eating is implied by the aseh. In other words an "issur aseh" as opposed to a "bitul aseh". Note the slight differences between the Ra'avad and the Ramban in their respective attacks on the Baal Hamaor 7a.) There are some Rishonim who go a step further, and based on tashbitu, argue that even gaining benefit (hana'a) is Biblically prohibited (see Ran and Sefer Hamikhtam). The Ba'al HaMa'or who argues that tashbitu can be fulfilled through eating would obviously reject this argument.

The sugya in the first perek dealing with the issue of issur hana'a on erev Pesach is the stage for the argument between the Ba'al HaMaor and other Rishonim: Rav rules that if someone is mekadesh a woman on erev Pesach (from the sixth hour onwards) with chametz, the kiddushin is void (7a). This ruling is based on the fact that from the sixth hour on there is a rabbinic prohibition to derive any benefit from the chametz. Therefore, the chametz has no value, and cannot be used as kesef kiddushin. This ruling is harmonious with both R. Meir and R. Yehuda of our mishna (who argue only about the rabbinic prohibition to eat during the fifth hour). The Rambam (Ishut 5:1) accepts this ruling. Since, according to him, we adopt R. Yehuda's assertion that there is a Biblical injunction against eating or deriving benefit from chametz from the seventh hour, we can also accept the rabbinic extension of this prohibition. However, the Ba'al HaMa'or, who rejects R. Yehudah on the Biblical level, argues that this ruling of Rav must, similarly, be discarded.

Both the Ra'avad and the Ramban, while agreeing with the Ba'al Hama'or that R. Shimon, is accepted on the Biblical level (and NOT R. Yehuda), nevertheless, quote the ruling of Rav as halachically binding. In other words, it is rabbinically forbidden to derive benefit from chametz from the sixth hour on, even though there is no explicit Biblical prohibition banning the eating of chametz on erev Pesach.

II. The Prohibition of Eating Chametz During the Fifth Hour

In our Mishna, both R. Meir and R. Yehuda agree that during the sixth hour it is forbidden to even derive benefit from chametz. However, they argue whether there is an additional injunction concerning the fifth hour: According to R. Meir, there is none. R. Yehuda, on the other hand, maintains that it is permissible to eat chametz only during the fourth hour. During the fifth hour, chametz is in an interim state of suspension ("tolin"). Rashi explains that although the chametz can no longer be eaten, it is nevertheless possible to derive benefit from it. Therefore, it is suspended i.e. not yet destroyed, since one retains the option of feeding it to an animal or selling it to a non-Jew.

The Rambam (Chametz u-Matza 1:9) however, interprets "tolin" as referring to Teruma or kodshim, which although cannot be eaten, remains suspended and may not be burnt until the sixth hour. Since there is no possibility of deriving any benefit from teruma or kodshim (i.e. feeding it to an animal or selling it to a non-Jew), why is it necessary to wait till the sixth hour to burn this chametz? Furthermore, in the following halakha (1:10), the Rambam rules that one who eats chametz during the sixth hour receives lashes for violating a rabbinic decree (makkot mardut). This clearly indicates that if one eats chametz during the fifth hour, one is not punished by lashes. The reason for this distinction is unclear, since the rabbinic decree forbids eating during both the fifth and sixth hours.

In order to understand why there is no rabbinic punishment for eating chametz during the FIFTH hour we must look elsewhere in the Rambam. In hilkhot Mamrim (4:1) the Rambam discusses the requirements necessary to define someone as a "zaken mamre" which is punishable by death: "If one argues with the supreme court regarding an issue which involves "karet" when done intentionally, and "chatat" when unintentiona... Similarly if he argues with them regarding a rabbinic decree which involves a "chatat" when transgressed unintentionally, and "karet" when intentional, such as allowing chametz on the fourteenth of Nissan (erev Pesach) during the sixth hour, or forbidding benefit from chametz during the fifth hour." Since eating chametz on Pesach involves "karet", even the prohibition against chametz on the rabbinic level is included in this category. However, only eating chametz makes one liable for "karet". Although benefit is prohibited by Torah law it does not obligate the penalty of "karet" (Chametz u-Matza 1:1-2). Why then does the Rambam not include one who argued regarding the decree banning the eating of chametz during the fifth hour in the category of "zaken mamreh"?

A glance at the opinion of R. Gamliel may shed some light on this issue. R. Gamliel limits the rabbinic ban against eating chametz during the fifth hour to ordinary food ("chulin"). Sanctified objects such as teruma or kodshim may still be eaten during the fifth hour since one is not allowed to destroy sanctified objects (Rashi). However, even R. Gamliel admits that kodshim may be destroyed based on the rabbinic decree prohibiting chametz during the sixth hour. Why then does the decree which forbids eating chametz during the fifth hour not apply with respect to kodshim?

Apparently, there is a basic distinction between the decree relating to the sixth hour and that relating to the fifth hour. The sixth hour is not an independent decree which forbids chametz. Rather it is an extension of the Biblical prohibition. Therefore, it includes both the prohibition of eating and benefit, identical to the prohibition which begins at the seventh hour according to Torah law (at least according to the Rambam). The fifth hour, however, is an independent rabbinic decree which bars only the eating of chametz. Consequently, the prohibition of the sixth hour which is an extension of Biblical law, includes kodshim as well. The decree regarding the fifth hour which is independent, has more flexibility, Therefore, so as not to cause the destruction of kodshim, Chazal chose to limit this decree to chulin.

With this distinction, we can resolve our difficulties in the Rambam. Only one who argues with the supreme court regarding the decree of the sixth hour is categorized as a "zaken mamreh", since only during this time frame is the status of chametz applied on the rabbinic level. However, during the fifth hour, although there is an independent decree which bans the eating of chametz, there is no extension of Biblical status of chametz. Therefore, it is not an issue which involves "karet" even from a rabbinic perspective.

III. NAFKA MINOT

1. Makkot

R. Velvel uses this distinction to solve the other problems in the Rambam. Since, the rabbinic extension of Torah law applied to the sixth hour is much more serious than an independent decree, lashes are only given to one who ate chametz during the sixth hour.

2. Teruma and Kodshim

Furthermore, kodshim which is chametz must remain in a state of limbo (tolin) during the fifth hour, neither eaten nor destroyed. It cannot be eaten, since we don't accept the ruling of R. Gamliel. Nevertheless, it cannot be destroyed, since during the fifth hour there is only an independent prohibition against eating, which does not nullify the sanctity of the kodshim. Only during the sixth hour when the status of chametz is rendered rabbinically, is one allowed to burn the kodshim.

R. Velvel notes that the Yerushalmi does not accept this distinction. According to the Yerushalmi, although only eating is forbidden during the fifth hour, it may nevertheless be considered an extension of the Biblical prohibition against eating chametz. These two understandings may be based on the two different explanations offered for the prohibition during the fifth hour. According to Abbaye (and the Yerushalmi), people are prone to err, and therefore, Chazal banned eating (which is a more serious offence than benefitting) an additional hour. This can clearly be understood as an extension of the Biblical prohibition. However, Rava, argues that people do not ususally make such gross errors. Rather, it is a decree based on the possibility of a cloudy day, when (prior to the invention of watches) the exact time of the prohibition would be difficult to ascertain. The Rambam who quotes Rava's reason, would accordingly have a strong case for considering the prohibition during the fifth hour as an independent decree.

3. Burnt Chametz

The gemara in the beginning of the second perek (21b), rules that if one singed chametz prior to the time of the prohibition, it remains permitted on Pesach. (The extent the chametz has to be burnt will not be discussed here.) The Ritva comments, that if one singed chametz BEFORE the fifth hour, it is permissible to eat the resultant coals, since the prohibition against eating never took effect on such chametz. However, if the chametz was singed DURING the fifth hour, after the prohibition to eat already took effect on this particular piece of chametz, it is only permissible to derive benefit from this chametz. It is interesting, that the Rambam (Chametz u-Matza 3:11) only quotes this halacha regarding one who burnt the chametz before the sixth hour. This would be consistent with our interpretation of the Rambam, which viewed the ban against eating during the fifth hour as an independent decree, which does not affect the status of the chametz. (True, the Rambam only allows one to benefit but not to eat the singed chametz.)

4. Chametz Nukshe and Ta'arovet Chametz

According to the Nodah Bi-yehuda (vol. 1 O.C. 21), although there is a rabbinic ban against eating chametz during the fifth hour, this ban does not include chametz nukshe (inedible chametz) and ta'arovet chametz (a mixture including chametz). This opinion would be logical if we view the fifth hour as an independent decree. However, if we consider the fifth hour as an extension of the Biblical ban against eating chametz, we would expect these cases to be prohibited, just as they are prohibitted on Pesach proper. Interestingly, the Or Same'ach claims that according to the Yerushalmi these cases are actually prohibited during the fifth hour.

5. Kashering Pots

We find an expression of this issue in the Shulchan Arukh as well. There is a basic problem with kashering pots before Pesach. When kashering a pot, the taste of chametz which is in the pot, will be reabsorbed from the boiling water back into the pot. Since even a slight amount of chametz within a mixture is forbidden on Pesach, a pot that has in which chametz has been cooked should be unfit for Pesach use even after kashering. This problem can be overcome by applying the princible known as "nat bar nat". According to this principle, if the taste of a certain food has been transferred twice before it becomes forbidden, it loses its identity. Therefore, the Shulchan Arukh (452:1) rules that one should kasher his pots PRIOR to the fifth hour, in other words before the prohibition to eat chametz commences. The Taz (ibid) notes that there are some versions which allow one to kasher his pots DURING the fifth hour. The Taz obviously considers the prohibition of the fifth hour as an independent decree, which has no effect on the chametz in terms of giving it the status of something forbidden. The Shulchan Arukh, however, considers chametz during the fifth hour as already having this status.

SUMMARY:

According to the Ba'al HaMa'or, there is no prohibition (mi-de-oraita or mi-de-rabbanan) against eating chametz on erev Pesach or deriving benefit from it. However, one IS commanded by the Torah to rid oneself of all chametz (tashbitu) - beginning from NOON on the 14th of Nissan.

According to both the Ra'avad and the Ramban, it is rabbinically forbidden to derive benefit from chametz from the SIXTH hour on, even though there is NO explicit Biblical prohibition banning the eating of chametz on erev Pesach.

According to the Rambam, it is forbidden mi-de-oraita to eat chametz from the SEVENTH hour on erev Pesach. Mi-de-rabbanan, it is forbidden to EAT chametz frothe beginning of the FIFTH hour and to BENEFIT from it from the beginning of the SIXTH hour. However only one who eats chametz from the beginning of the sixth hour receives makkot mardut - one who eats chametz in the fifth hour is exempt from any punishment. We explained this law as follows: The issur of the sixth hour is an EXTENSION of the de-oraita law and is, consequently treated much stricter than the fifth hour which is an independent rabbinic decree.

This distinction also explains the reason that:

1. Teruma and kodshim of chametz may not be burnt in the FIFTH hour, but may be thus destroyed in the SIXTH hour.

2. Chametz that was burnt to cinders BEFORE the SIXTH hour is not forbidden.

3. Chametz nukshe and ta'arovet chametz are NOT included in the decree of the FIFTH hour. [Noda Bi-yehuda]

4. The Taz allows one to kasher chametz-dik pots during the FIFTH hour (as opposed to the Shulchan Arukh who forbids such a practice).

According to the Yerushalmi, however, even the decree of the FIFTH hour is an EXTENSION of the Torah prohibition.

 

NEXT WEEK we will begin the second perek. (Afterwards, the gemara is not related to Pesach specifically at all.)

The first pages (21a-22b "...ha mashma lan" serves to a great extent as a summary and a review of some of the topics of the first perek, and should be studied as such.

Special attention should be paid to:

1. Tosafot s.v. "ve-ee" - notice the definition of "bal yatmin."

2. Tosafot s.v. "behadi." (See Chiddushei Rav Chaim HaLevi.) The shiur will discuss a number of issues related to the gemara.