chometz – RabbiKaganoff.com

Now I Have It, Now I Don’t

Question #1: Snail Mail

I mailed some hamantashen to a non-frum relative, well before Purim, as a “kiruv” gesture of friendship. The efficient post office has not yet delivered it. I am concerned that (1) as a result, my relative may eat chometz on Pesach; (2) I will be in violation of owning chometz on Pesach.

Question #2: Moonshine in the First Month!

The police confiscated some contraband moonshine in the beginning of April, issuing a criminal citation for the violation. Subsequently, the criminal charges were dropped. On Pesach, the police appeared at the door of the moonshine vendor to return the liquor, who told them that he could not receive the merchandise on his Jewish holiday. They came back to return it after Pesach. May he sell the liquor?

Question #3: Whiskey She’avar Alav haPesach

A non-Jewish business contact was shipped a gift of expensive whiskey, which never arrived. Instead, the shipping company returned it to the Jewish sender, and it arrived shortly after Pesach. Is this prohibited because of chometz she’avar alav haPesach?

Foreword

The above questions are all based on responsa in prominent late poskim, specifically, Rav Moshe Feinstein, Rav Meir Arik, and the Sochatchover, Rav Avraham Bornstein, often referred to by the names of his most famous two seforim, the Avnei Neizer and the Eglei Tal. Each of our openings questions relates to a serious halachic shaylah involving two different issues:

(1) A legal circumstance referred to as shelo ve’eino birshuso,which means property that you own but is not under your control (Bava Kama 68b-70a and many other places).

(2) The specific ramifications that shelo ve’eino birshuso has regarding owning chometz on Pesach.

Shelo ve’eino birshuso

The concept of shelo ve’eino birshuso translates, literally, as “your property, but not in your jurisdiction.” The Gemara explains that when an item is stolen, neither the original owner nor the thief has the halachic ability to declare the stolen property as hekdesh, the property of the Beis Hamikdash, as long as the original owner has not lost hope that he might retrieve it. The thief cannot make it hekdesh, because it is not his property, and only an owner can declare an item hekdesh. But the original owner, also, cannot make it hekdesh, because it is outside his control, and only an item within your control can be declared hekdesh. Thus, the stolen item flounders in a twilight zone, in which no one has full legal control over it – it is in a no man’s land.

More important for our purposes, just as neither the thief nor the owner can declare the item hekdesh, they also cannot sell it. This creates an intriguing conundrum, when we need to make sure that no Jew owns chometz on Pesach. The owner certainly does not want to own chometz on Pesach and would like to include it with the chometz that he sells to a non-Jew, if he can. A self-respecting Jewish thief may, also, not want to violate bal yeira’eh and bal yimatzei. He may be a gonif, and his gelt is earned in a non-kosher way, but he wouldn’t dream of owning chometz on Pesach! So, what does he do with the cases of Chivas Regal that he lifted and for which he has not yet found a fence? (For some interesting reason, in all of the teshuvos I found, the question was asked by the original owner, and not from the perspective of the thief! Maybe thieves are reticent to ask their shaylos from prominent rabbonim?)

Introduction

The Torah prohibits a Jew from owning chometz on Pesach. This is included in the two lo sa’aseh proscriptions of bal yeira’eh and bal yimatzei, one of which prohibits a Jew from owning chometz that may be seen, but does not prohibit owning buried chometz that cannot be seen; and the other prohibits owning chometz, even when it has been buried. In other words, owning buried chometz violates one lo sa’aseh, that of bal yimatzei; owning unburied chometz violates two lo sa’aseh, bal yeira’eh and bal yimatzei. Because of this distinction, the Rambam counts bal yeira’eh and bal yimatzei as two separate lo sa’aseh prohibitions among the 365 lo sa’aseh mitzvos of the Torah. Most authorities contend that these two prohibitions apply both to chometz gamur (pure chometz) and to ta’aroves chometz (chometz mixed into another product). (See, however, the opinion of Rabbeinu Tam, quoted in Tosafos, Pesachim 42a s.v. ve’eilu.)

To enforce these Torah mitzvos, Chazal penalized a Jew who owned chometz during Pesach by barring benefiting from it. Chometz prohibited because of this penalty is called chometz she’avar alav haPesach.

Tashbisu

There is also a positive mitzvah to destroy chometz, tashbisu, which requires a Jew to rid himself of his chometz before Pesach. Since the Torah uses an unusual term, tashbisu, the rishonim explain that there are actually two ways to avoid violating bal yeira’eh and bal yimatzei, and both involve the mitzvah of tashbisu.

Biur chometz: One is by physically destroying the chometz, either by burning it or disposing of in a different, equally effective way (Mishnah, Pesachim 21a and numerous places in the Gemara).

Bitul chometz: Alternatively, I can rid myself of owning my chometz by making a declaration of bitul, which states that I view all chometz in my possession to be like dust of the earth. This declaration, assuming that it is sincere, removes the chometz from my ownership, so that I do not violate bal yeira’eh and bal yimatzei.

The preceding analysis reflects the halacha as explained by Targum Onkelos, Rashi, the Ran and many other rishonim. There is an alternative approach, that of Tosafos, who explains that bitul chometz is declaring the chometz to be ownerless, hefker. According to either approach, someone who performed bitul chometz and does not want to own their chometz will not violate the prohibitions of bal yeira’eh and bal yimatzei. However, for reasons beyond the scope of this article, the halachic conclusion is that the penalty of chometz she’avar alav haPesach applies to chometz on which someone performed bitul, but not to chometz that was properly sold to a non-Jew.

Selling chometz

Although a Jew may not own chometz on Pesach, there is nothing wrong with selling chometz to a non-Jew before it becomes prohibited. In contemporary times, people usually do not undertake to sell their chometz themselves, but, instead, appoint a rav to sell the chometz for them. The reason for this is that the non-Jew does not take the chometz with him; he leaves it in our houses. Since this may have the appearance of a charade, the sale must be performed in a way that halacha recognizes as valid. Since the laws of selling are very complicated, it is better that a lay person not handle the arrangements for mechiras chometz by himself, which is why it is common to use a rav as one’s agent to sell the chometz.

Snail mail

At this point, we are prepared to discuss the halachic background to our opening question. Rav Moshe Feinstein discusses the following case: Someone wants to ship several products, including some chometz items, to a relative in Eretz Yisroel, and wants to include this chometz with his standard mechiras chometz that he does before Pesach. The rav who sent Rav Moshe the shaylah felt that there may be legitimate halachic grounds to do this, but Rav Moshe proves that such a sale cannot be done. This is because once the chometz is delivered to or picked up by the shipping company, the chometz is beyond the owner’s jurisdiction (shelo ve’eino birshuso), and there is no simple way to regain control over it. Even should the package be refused by the receiving party and returned to the sender, until and unless that happens and the item is indeed returned, it is eino birshuso.

Moonshine in Nissan!

The next shaylah is discussed by the Av Beis Din of Sochatchov (1839-1910), known as the first Sochatchover rebbe, whose halachic works are used by all talmidei chachamim. He was the son-in-law of Rav Menahem Mendel of Kotsk (known by all, very simply, as “The Kotzker”). The Sochatchover was a highly respected gaon in learning when he married the daughter of the Kotzker, even though he had just turned bar mitzvah!

To review the case: the police confiscated some contraband moonshine in the beginning of April, issuing a criminal citation for the violation. Subsequently, the criminal charges were dropped. On Pesach, the police appeared at the door of the moonshine vendor to return the liquor, who told them that he could not receive the merchandise on his Jewish holiday. They came back to return it after Pesach. May he sell the liquor?

It is interesting to read the actual shaylah as it appears in the teshuvos of the Sochatchover, from which we can appreciate the mesiras nefesh of the Jew involved. In czarist Russia, where this case occurred, the whiskey business was a government monopoly, and the czar and his agents did not take kindly to those who ignored this, particularly if they were Jews. The czar’s police investigated this Jew’s premises, and located both legal, government distilled liquor and privately made product, moonshine. All the liquor was confiscated, and the accused knew that his future as a client of the czar’s legal and penal system was far from envious. However, with great difficulty, much mazel, and an appropriate transfer of rubles, the police concluded that they had not discovered anything. The vendor assumed that the police had utilized the contraband or sold it, for some additional profit on their part of the venture.

Surprise of surprises: During Pesach, the cops showed up on his doorstep with the schnapps, insisting that if they held onto it any longer, they would be forced to reopen the “protocol” against the vendor. In my opinion, this would qualify as pikuach nefesh, a life-threatening emergency, permitting him to receive the chometz, and then immediately destroy it in honor of Pesach, thus fulfilling the mitzvah of tashbisu in an extremely exemplary fashion. (Note that, according to Tosafos, Pesachim, 29b s.v. Rav, there is no violation of bal yeira’eh and bal yimatzei in this situation.) This worthy Jew did not ask me a shaylah, but simply told the czar’s finest that he could not receive the chometz during the holiday.

To complete our surprise, after Pesach, the police returned with the chometz. The vendor then asked his local rav, Rav Chanoch, whether the chometz was prohibited as chometz she’avar alav haPesach. Although the vendor had indeed sold all his chometz before Pesach, it qualified as eino birshuso, and he could not halachically sell it; and, now, it may be prohibited as chometz she’avar alav haPesach.

The Sochatchover contends that the whiskey is not prohibited as chometz she’avar alav haPesach, because of the following reasons:

The Sochatchover weighs whether, according to halacha, the vendor owns the chometz in a way that he can still sell it. If, indeed, it is still considered to be his chometz, it was sold. However, we previously demonstrated that this is not true, because of the principle of shelo ve’eino birshuso. The Sochatchover quotes the opinion of the Maharam and the Rosh, quoted by the Shitah Mekubetzes, Bava Kama 33a, that when the property is returned to the owner, the hekdesh that he declared will take effect. (Note that many authorities do not agree with this conclusion, including Tosafos s.v ika and Penei Yehoshua ad loc.; Nachal Yitzchak, end of chapter 73.) Similarly, rules the Sochatchover, should the gift not take place and the chometz return to his hands, it is considered to have been under his control the entire time, and is included in the sale retroactively.

On the other hand, if we assume that having the whiskey confiscated is a reason why he cannot sell it, he also did not violate bal yeira’eh and bal yimatzei, since the chometz was not his during the entire Pesach period. Rav Chanoch, the rav who sent the Sochatchover the question, noted that, according to Russian law of the time, when the police seized the contraband, it automatically became property of the czar. Since none of the czars were ever Jewish, this also means that it is not chometz she’avar alav haPesach. When the vendor received the liquor after Pesach, it was a new acquisition of chometz that had been owned by non-Jews over Pesach. As a result, no prohibition of chometz she’avar alav haPesach applies to this whiskey (Shu’t Avnei Neizer, Orach Chayim #339).

Whiskey she’avar alav haPesach

At this point, let us discuss the last of our opening questions: “A non-Jewish business contact was shipped a gift of expensive whiskey, which never reached him. Instead, the shipper returned it to the Jewish sender, and it arrived shortly after Pesach. Is this prohibited because of chometz she’avar alav haPesach?”

This question is based on a case discussed in Shu’t Imrei Yosher (1:32), authored by Rav Meir Arik (1855–1925), who was viewed as the posek hador of his era in Galicia. Among his most famous talmidim were Rav Meir Shapiro, Rav Reuven Margolies (author of Margoliyos Hayam on Sanhedrin and many other seforim), and Rav Zev Wolf Leiter, who later was the av beis din of Pittsburgh. The situation which the Imrei Yosher discusses was when a Jew sent a barrel of local spirits, by train, to a government official. The barrel, indeed, arrived before Pesach, but the official refused to accept it, so it was shipped back, arriving at the Jew’s house after Pesach. At this point, the Jew sees himself a loser on both scores – he did not successfully curry any favor with the official, and he is also out of the expensive barrel of liquor, which he fears is prohibited as chometz she’avar alav haPesach because he did not sell it.

Rav Arik discusses several possible angles whereby the chometz might be permitted. First of all, he notes that, in their day in Russia, the primary ingredient in the mash that was fermented and distilled was potatoes, which are not chometz. However, all whiskey had a small amount of barley malt added, which is chometz. Nevertheless, the liquor manufactured this way was predominantly not chometz, and would have a status of chometz only miderabbanan, since the percentage of chometz in the final product is below the threshold to qualify as ta’aroves chometz min haTorah. Thus, the questioner did not violate bal yeira’eh and bal yimatzei min haTorah.

A second reason to permit this liquor is that the owner had fulfilled bitul chometz before Pesach, in which he declared all of his chometz null, void and ownerless. In this instance, he would not have violated bal yeira’eh and bal yimatzei, even without the bitul, and, therefore, it may be possible to permit the liquor.

This heter is not obvious, for two reasons:

The Shulchan Aruch rules that you cannot rely on bitul to permit chometz she’avar alav haPesach (Orach Chayim 448:5).

Some authorities reject relying on bitul when the owner would certainly have sold the chometz, rather than trash it.

The conclusion of the Imrei Yosher is that a Jew should not drink this liquor after Pesach, but that the owner can sell the liquor to a non-Jew for a price that subtracts the amount of chometz-malt in the finished product. If this is done, the Jew is neither drinking nor benefiting from the chometz. (He discusses concerns that the non-Jew may sell it, afterward, to a Jew who is not permitted to drink it, and suggests a couple of ways to make sure that this does not happen.)

I will share with you one last case, which happened to friends of mine. They had shipped their belongings on a lift while making aliyah, and realized that they had included chometz on their lift. The question was whether they could include the chometz in the sale that they made. This case is different from all those we have discussed because, although they have no access to the chometz at the moment, it is being shipped to themselves. The question is whether this qualifies as birshuso. They received a psak that it was permitted for them to do so, although I do not know who ruled this way and certainly recommend anyone with a similar shaylah ask his own rav or posek.

Conclusion

According to kabbalah, searching for chometz is symbolic of searching, internally, to locate and remove our own arrogant selves. As we go through the mitzvos of cleaning the house, searching, burning, and selling the chometz, we should also try to focus on the spiritual side of this search-and-destroy mission.

Selling Chometz before Pesach

Question #1:

“A room is rented to a non-Jew, because it contains the chometz that was sold to him as part of the mechiras chometz. May I enter the room in order to remove something that was not included in the sale?”

Question #2:

“On an occasional emergency basis, my daughter requires use of a medicine that is not listed as being chometz-free. Should we include this medicine with what we sell to the non-Jew, and if we do, what should we do if she needs it during Pesach?”

Answer:

As we all know, a Jew may not own chometz on Pesach; this is included in the Torah’s double prohibition, bal yira’eh and bal yimatzei. Furthermore, the Torah commanded us with a mitzvas aseh, a positive mitzvah, to destroy any chometz left in our possession after midday on Erev Pesach. According to most poskim, these prohibitions apply both to chometz gamur (pure chometz) and to ta’aroves chometz (chometz mixed into another product). In addition, Chazal required us to search our homes and property the night before Pesach for chometz that we may have forgotten, the mitzvah we refer to as bedikas chometz. According to many authorities, this requirement of searching for chometz is, at times, required min haTorah, and certainly fulfills a Torah requirement.

In addition, Chazal created a penalty on a Jew who owned chometz during Pesach in violation of bal yira’eh and bal yimatzei, prohibiting this chometz from use forever, referring to the product involved as chometz she’avar alav haPesach. I will note that this financial incentive has often proved extremely effective in convincing marginally observant Jews to perform mechiras chometz.

Although a Jew may not own chometz on Pesach, there is nothing wrong with his selling his chometz to a non-Jew before it becomes prohibited. The Mishnah states explicitly that one may sell chometz to a non-Jew before Pesach. However, the Mishnah does not discuss whether I can sell my chometz and leave it in my home, knowing that the non-Jew does not intend to keep or use it. To be more specific, does the Jew’s expectation that he will receive the chometz back invalidate the sale? Also, does the non-Jew really intend to buy the chometz, or does he think that this is a charade, and that he is not really purchasing it? This would, of course, undermine the sale.

The Tosefta (Pesachim 2:6) provides us with background to these questions:

A Jew is travelling by ship and has with him chometz that he needs to dispose of before Pesach. However, the Jew would like the chometz back after Pesach, because there is a dearth of kosher food available. Apparently, the cruise liner being described by the Tosefta did not have a supervised kosher kitchen, nor any supervised airline dinners on board.

The Tosefta rules that the Jew may sell the chometz to a non-Jew before Pesach, and then purchase it back afterwards. Alternatively, the Jew may give the chometz to the non-Jew as a present, provided no conditions are attached. The non-Jew may then return the present after Pesach. Thus, we see that one may sell or give away chometz to a non-Jew and expect it back, without violating any halachos, provided that the agreement does not require the non-Jew to return it or sell it back.

In contemporary times, people usually do not undertake to sell their chometz themselves, but instead appoint a rav to sell the chometz for them. The reason for this is that the non-Jew does not take the chometz with him; we leave it in our houses. Since this may have the appearance of a charade, the sale must be performed in a way that halacha recognizes as a valid sale. Since these laws are very detailed and complicated, it is better that a lay person not handle the arrangements for mechiras chometz by himself.

When I was in the first year of a previous rabbinical position, I realized shortly before Pesach that one of my shul members, who was an attorney by training, had not yet arranged sale of his chometz. I called him, asking him if this was an oversight. He answered me that he always arranged his own mechiras chometz by drawing up a contract with a non-Jewish business associate.

Halachically selling chometz via a written contract without any other maasei kinyan does not make the chometz the halachic property of the non-Jew. It might still work because of dina demalchusa dina or similar reasons too complex to explain in this article. The bottom line is that according to many halachic opinions, our lawyer violated the two Torah prohibitions of bal yira’eh and bal yimatzei by owning chometz on Pesach, and also the positive mitzvas aseih requiring that we destroy or otherwise cease our ownership of chometz before Pesach. Merely drawing up a contract with a non-Jew is certainly not the way to sell your chometz and be able to leave it in your house over Pesach. Be’dei’evid, after the fact, this sale would probably be considered valid enough that his chometz would not be prohibited as chometz she’avar alav haPesach. Unfortunately, I did not have a relationship with this attorney to explain to him why his plan was not the best approach to the problem. In other words, if you are an attorney trained in American law, realize that you may not be an expert in Anglo-Saxon common law, Chinese law, Napoleonic Code, the codes of Hammurabi, or halacha, even though we can correctly call halacha “Talmudic Law.”

One of the standard methods we use of guaranteeing that the sale of our chometz to the non-Jew is fully valid is to rent to him the area where the chometz is stored. Thus, we return to our first question as to whether I am permitted to enter that area for my own purposes.

There is also another concern involved in entering the area where the sold chometz is located: The Gemara states that it is permitted to have a non-Jew’s chometz in one’s house on Pesach, provided that a barrier the height of ten tefachim (about thirty-seven inches) is constructed around the chometz, presumably to guarantee that no one mistakenly eats it. So, we have two concerns:

(1) Does entering the area invalidate the sale?

(2) Is it prohibited to enter the area because of concern that I might eat the chometz?

Regarding the first question, whether entering the rented area violates the sale agreement, several authorities rule that it does not (see Chok Yaakov and Machatzis Hashekel, Orach Chayim 472:1). Regarding the second issue, whether entering the area is prohibited because of concern that you might eat the chometz, this question is raised by the halachic authorities (see commentaries to Shulchan Aruch, Orach Chayim 448:3). Most authorities conclude that it is permitted to enter the area for a brief period of time in order to remove something that was forgotten there (see Shu’t Nimla Tal, Orach Chayim, #167).

At this point, let us examine the second of our opening questions:

Most mechiras chometz contracts that I have seen allow for this. They specify that if someone should need a medicine that is sold, the non-Jew permits the use of the medicine, over which he maintains ownership, but that he will be compensated after Pesach for what was used. Since this provision does not exist in all mechiras chometz contracts, I suggest that someone who foresees that they may have this issue should clarify it in advance with the rav who is facilitating the mechiras chometz.

There is another basis to be lenient. Medicines generally do not have a good taste, except for medicines meant for children. Thus, most medicines are inedible, and, according to most poskim,not a chometz problem. Let me explain:

The Gemara states: One does not get punished for violating any prohibitions of the Torah unless he consumes them the way they are usually eaten (Pesachim 24b). It is not prohibited min hatorah to eat or drink a prohibited substance that is now inedible, either because it became spoiled or because a bitter ingredient was introduced (Rambam, Hilchos Yesodei Hatorah 5:8).

Can chometz change its stripes so that it is no longer considered chometz? The answer is that it can lose its status as chometz – when it is decomposed or otherwise ruined to a point that it is nifsal mei’achilas kelev, a dog will no longer eat it (see Pesachim 45b). Since it no longer can be used for either food or feed, it loses its status as chometz that one is prohibited from owning and using on Pesach (Tosafos ad locum; Shulchan Aruch, Orach Chayim 442:9; cf. Rashi, Pesachim op cit., whose position is more lenient).

However, there is a question based on a passage of Gemara that states that chometz burnt before Pesach may be used on Pesach (Pesachim 21b). The rishonim raise the following question: Why does the Gemara say that one may benefit from the burnt chometz, but does not permit eating it, since it is no longer considered food and therefore not included under the prohibition of chometz?

There are two major approaches to answer this question, which result in a dispute in practical halachah. According to the Ran, since the burning rendered the chometz inedible even by an animal, one may even eat it, even though the Gemara does not mention this. This approach seems to have the support of the Rambam (Yesodei Hatorah 5:8), who permits consuming a prohibited beverage after a bitter ingredient was added to it.

However, the Rosh contends that the rabbis prohibited one from eating the inedible chometz because of a principle called achshevei, which means that by eating it one is treating it as food. Most later authorities follow the Rosh’s approach, prohibiting someone from ingesting inedible chometz because of this rabbinic prohibition (e.g., Terumas Hadeshen #129; Taz, Orach Chayim 442:8; Magen Avraham 442:15; Shaagas Aryeh #75).

Does oral intake of a chometz-based medicine qualify as achshevei? If it does, then it is prohibited to ingest inedible chometz even as medicine, unless the situation is life-threatening.

We find a dispute among later authorities whether ingesting medicine is prohibited because of achshevei. We can categorize the positions into three basic approaches:

1. Taking medicine is considered achshevei.

The Shaagas Aryeh (#75) rules that ingesting medicine is prohibited miderabbanan because of the rule of achshevei.

2. Taking medicine is not achshevei.

Rav Moshe Feinstein maintains that medicine never qualifies as achshevei. His reason is that people take even very bitter items for their medicinal value; thus taking something as a medicine does not demonstrate that one views it as food.

3. It depends on why the chometz is there.

The Chazon Ish advocates a compromise position. Although he agrees with the Shaagas Aryeh that consuming something as a medicine qualifies as achshevei, he contends that achshevei applies only to the active ingredient – the item for which one is taking the medicine. However, he maintains that achshevei does not apply to the excipient ingredients, those added so that the medicine can be made into a tablet.

According to Rav Moshe, as long as the medicine is foul-tasting, there is no need to check if it contains chometz. The chometz is nifsal mei’achilas kelev, and the consumption of medicine does not qualify as achshevei. The only need for a medicine list is when the medicine is pleasant tasting.

On the other hand, according to the Shaagas Aryeh, barring a situation of pikuach nefesh, one may not ingest a medicine containing chometz on Pesach, and it is important to research whether it contains chometz. According to the Chazon Ish, this is a concern only when the chometz is the active ingredient, which is rare in a tablet medicine.

A lay person should not decide on his or her own not to take a necessary medicine without consulting with a rav or posek, and, of course, their physician.

Even according to the Shaagas Aryeh, there is nothing wrong with owning or even benefiting from these medicines on Pesach – the only prohibition would be to ingest them. Thus, a Jewish-owned pharmacy is not required to remove from its shelves foul-tasting medicines that are on the prohibited chometz lists.

Regardless as to which approach one follows, one must be absolutely careful not to look down on someone who follows a different approach. In any situation such as this, this attitude will unfortunately cause great harm, since it can lead to feelings of conceit. Remember that the prohibition of chometz is to sensitize ourselves greater to concerns about conceit. It would be terribly ironic if an attempt at being more machmir in the halachic arena would cause someone to become conceited, the exact opposite of the intent of the mitzvah.

According to Kabbalah, searching for chometz is symbolic of searching internally to locate and remove our own arrogant selves. As we go through the mitzvos of cleaning the house, searching, burning, and selling the chometz, we should also try to focus on the spiritual side of this search and destroy mission.

May I Enter the Room that I Sold to the Non-Jew

The style of this article is an experiment; it is somewhat different from what I usually send out, and I am looking for feedback from our readers. The article consists of an actual teshuvah that I wrote many years ago and is published in Shu”t Nimla Tal (Orach Chayim, #167), which is available for download on the website RabbiKaganoff.com. (The teshuvah begins on page 214 of the sefer.)

To create this article, the original Hebrew teshuvah was rendered by Google translate, and then edited. I am looking for feedback from our readership whether you enjoyed this style of article, and whether you would like to see it in the future on an occasional or even a regular basis.

The responsum was an answer to an actual question that I was asked:

“A room is rented to a non-Jew because it contains the chometz that was sold to him. Is it permissible to enter the room in order to remove something that was not included in the sale?”

The responsum, which was addressed to a Torah scholar, reads as follows:

The Magen Avraham (472:2) asked a question on the position of the Maharil, who permitted someone to use, in honor of the Seder, a very valuable item, perhaps made of gold or containing precious stones, that had been given by a gentile as collateral on a loan, what I will henceforth call a pawned item. The Magen Avraham questioned how the Maharil permitted the Jew to use the pawned item, when the halacha is that one may not use someone else’s property without permission. Since the Jew is holding the pawned item only to make sure that he can recoup the value of the loan should there be a default, the Magen Avraham assumes that the Jew is not permitted to use the pawned item without the explicit permission of the owner, until the loan is due. At that point, he is permitted to sell it or keep it.

The Magen Avraham answers that we can assume that the non-Jewish owner does not mind if one uses his pawned item only once, and, therefore, one may display the valuable item at the Seder as part of one’s celebration of this very special night.

Let us examine a related passage of Gemara. The end of tractate Avodah Zarah (75b) relates that Rav Ashi immersed a vessel he had received as collateral from a non-Jew, in fulfillment of the mitzvah of tevilas keilim, before using them for food. The Gemara inquires why Rav Ashi immersed the item when there is no obligation unless the item is owned by a Jew. Was it because Rav Ashi contended that receiving the item as collateral is considered halachically as if the Jew already owns it? In other words, notwithstanding the borrower’s option to redeem it, the lender may assume that since most pawned items are not redeemed, he may already treat it as his property. An alternative position mentioned by the Gemara is that the lender may not assume that an item received as collateral can be treated as his. However, in Rav Ashi’s specific case, there were specific indications from the borrower’s actions that he did not intend to redeem the pawned item, and therefore Rav Ashi assumed that he had already acquired it.

Regarding the conundrum presented by the Gemara, the Shulchan Aruch (Yoreh Deah 120:9) assumes that the issue remained unresolved. He therefore concludes that if the Jewish lender notices any indication that the non-Jewish borrower does not intend to redeem the security, the lender should recite a brocha prior to immersing it. However, if there is no such indication, he should immerse the vessel before using it, but without reciting a brocha, since the borrower may return to redeem the security, in which case it was property of a gentile at the time of the immersion, and there was no requirement to immerse it. Halachically, only an item owned by a Jew requires immersion before use, not an item used by a Jew that is owned by a non-Jew. When there is uncertainty whether one is fulfilling a mitzvah with a certain action, the usual procedure is to perform the mitzvah but without reciting a brocha because of the principle of safek brochos lehakeil.

Returning to the ruling of the Shulchan Aruch, since it is uncertain whether the item requires immersing before use, one should immerse it, but without reciting a brocha.

At this point, this passage of Talmud and the ruling of the Shulchan Aruch present us with a question on the position of the above-quoted Magen Avraham. The Magen Avraham asked on the Maharil’s position how he can permit the lender to display at his Seder the valuable pawned items that he is holding, since one may not use an item without permission, and the lender has no explicit permission to use the collateralized valuables. The Gemara in Avodah Zarah that we just quoted is certainly assuming that Rav Ashi was permitted to use the collateralized item – the only question is whether he should assume that the item is already his property, and therefore he should recite a brocha when he immerses it, or whether he should not recite a brocha, because the property still belongs to the gentile. But no one questions Rav Ashi’s right to use the item.

The Taz (in Yoreh Deah) indeed questions how Rav Ashi could use the security and explains that halacha does not forbid using an item of a non-Jew that is already in your house. In other words, the prohibition not to use an item without permission does not apply to a non-Jew’s property that he is storing in a Jew’s house, whether as collateral or for any other reason.

Based on this above discussion, several halachic authorities (Chok Yaakov; Machatzis Hashekel) dispute the Magen Avraham’s assumption that one may not use collateral owned by a non-Jew without permission. According to these authorities, it would seem that it is permitted to enter the room that you have rented out to the non-Jew in order to use the room for your own purposes.

However, it might be prohibited to enter the room for other reasons, germane to the sale of the chometz. When the Terumas Hadeshen discusses how one should sell one’s chometz to a non-Jew, he states expressly that the chometz should be removed from the house of the Jewish seller. Many authorities question this requirement, noting that the Gemara states that it is permitted to have a non-Jew’s chometz in one’s house on Pesach, provided that a barrier the height of ten tefachim (about forty inches) is constructed around the chometz, presumably to guarantee that no one mistakenly eat it. Why, then, does the Terumas Hadeshen insist that the chometz sold to the non-Jew be removed from the Jew’s residence?

Most later authorities explain that one is permitted to leave the non-Jew’s chometz in one’s house, provided that he has taken adequate care that no one mistakenly eat it. The reason that the Terumas Hadeshen insisted on removing the chometz from the Jew’s property was because of the technical laws that must be followed in order to change ownership of the chometz to the non-Jew. However, should one accomplish changing ownership to the gentile without moving it out of your house, you are not required to do so.

One of the standard methods we use of guaranteeing that the sale of our chometz to the gentile is fully valid is to rent to the gentile for the entire holiday the area where the chometz is stored. However, even when one rented to the gentile the area where the chometz is stored, this rental should not preclude the Jew from entering this area for a short period of time. It therefore appears that, should the need develop, it is permitted to enter the room that was rented to the non-Jew.

Wishing everyone a chag kosher vesomayach!!

Medicines for Pesach

Question #1: The Ubiquitous Lists

“Why do we have lists of acceptable medicines for Pesach? Aren’t they all inedible?”

Question #2: Leavening Forever!

“Is leavened dough always chometz?”

Question #3: The Spoiler

“Do prohibited foods remain so after they spoil?”

Introduction

As we all know, the Torah prohibits eating, using or even owning chometz on Pesach. But do these laws apply to something that is no longer edible? May I swallow it as medicine? Understanding properly the source material is our topic for this week’s article.

We should first note that many of these issues are germane not only to chometz, but also in regard to all foods that the Torah prohibits (issurei achilah): Does the Torah ban them even after they have become inedible? Can this be considered eating? And, assuming that the Torah does not prohibit them, are they perhaps forbidden because of a rabbinic injunction? Furthermore, if they were proscribed due to a rabbinic decree, perchance some exemption was provided for a medical reason, even when it is not pikuach nefesh, a life-threatening emergency.

Pikuach nefesh

It is important to point out that most of our discussion is not about instances of medicines necessary because of pikuach nefesh. With very few exceptions, an emergency that might endanger someone’s life, even if the possibility is remote, requires one to take whatever action is necessary, including consuming non-kosher food and benefiting from prohibited substances. We will return to this discussion later in this article, but only after we understand the basic principles.

Unusual benefits

A question similar to what was raised above — whether non-kosher foods that are now inedible remain prohibited — relates to items from which the Torah prohibited benefit (issurei hana’ah), such as the mitzvah of orlah. Does this prohibition apply only if one benefits from orlah fruit the way people typically utilize the forbidden item, such as by selling it or by polishing furniture with orlah lemon juice, or does the prohibition apply even to using the item in an unusual way, such as by taking edible fruit and using it as an ointment?

Unusual eats

Let us begin our search with the original Gemara sources of this discussion, which provides the following statement: One does not get punished for violating any prohibitions of the Torah unless he consumes them the way they are usually eaten (Pesachim 24b). It is not prohibited min hatorah to eat or drink a prohibited substance that is now inedible either because it became spoiled or because a bitter ingredient was introduced (Rambam, Hilchos Yesodei Hatorah 5:8). We will discuss shortly whether there is a rabbinic prohibition involved in eating this food.

The same rule applies regarding eating on Yom Kippur. For example, someone who drank salad dressing on Yom Kippur is not punished for violating the Torah’s law requiring one to fast, because this is not a typical way to eat (Yoma 81a). However, someone who dipped food into salad dressing and ate it violates the Torah laws of Yom Kippur also for the dressing, since this is a normal way of consuming it.

Bad benefits

Similarly, when the Torah prohibits issurei hana’ah, they were usually prohibited min hatorah only when used the way the substance is typically used. However, using the material in an abnormal way, such as by smearing an orlah fruit on his body as an ointment, is not proscribed by the Torah, but only because of an injunction introduced by the Sages, an issur derabbanan. Such an atypical benefit is called: shelo kederech hana’asah.

Rubs me the wrong way

Since the prohibition of benefiting in an unusual way is rabbinic, it is relaxed when there is a medical reason to do so, even when no life-threatening emergency exists. These principles are reflected by the following Talmudic passage:

Mar the son of Rav Ashi found Ravina rubbing undeveloped orlah olives onto his daughter, who was ill. Whereupon Rav Ashi asked Ravina why he did this since the disease was not life threatening? Ravina responded that using the fruit this way is considered unusual because people typically wait until the olives ripen before extracting their oil. Since this is not the normal way to use the olives, the prohibition to use orlah fruit this way is only miderabbanan, and in the case of medical need Chazal were lenient (second version of Pesachim 25b, see Rashi ad locum and Tosafos, Shavuos 22b s.v. aheitera and 23b s.v. demuki).

To sum up: We have established that both issurei achilah and issurei hana’ah are prohibited min hatorah only when they are eaten or used in the way that someone would typically consume them or benefit from them. Benefiting from issurei hana’ah in an atypical way is prohibited miderabbanan; however, the Sages permitted this to be done when a medical need exists. We do not yet know whether this ruling holds true also regarding someone who needs to eat something that is not typically eaten.

Now that we have established some of the basic principles, let us examine some rules specific to the prohibition of chometz that will help us answer our original questions.

When is it no longer chometz?

This is true only when the chometz was rendered inedible before Pesach. The Gemara (21b) states that if chometz became burnt before the time on Erev Pesach when one is prohibited from owning it, one may benefit from it even on Pesach. If it was still chometz when Pesach arrived, and it was destroyed or rendered inedible in the course of Yom Tov, it is prohibited from benefit on Pesach (Pesachim 21b).

We will see shortly that there are instances when it is permitted to own and use chometz on Pesach even though it is still edible. But first, we need to explain an important principle.

What is sourdough?

The Torah explicitly prohibits possessing on Pesach not only chometz, but also sourdough (Shemos 12:15, 19; 13:7; Devarim 16:4). What is sourdough? It is dough left to rise until it has become inedible. However, it can be used as a leavening agent added to other dough to cause or hasten fermentation. Since sourdough originates as chometz and can produce more chometz it shares the same fate as chometz – one may not consume, use, or even own it on Pesach. (By the way, although yeast has replaced sourdough as the commonly used fermentation agent, sourdough is often used today in rye breads and other products to impart a certain desired flavor.) This halachah implies that something may no longer be edible and yet still be prohibited as chometz.

Can sourdough go sour?

I mentioned above that once chometz is no longer edible for a dog, it loses its status as a prohibited substance. Does this law apply also to sourdough? Although a Jew may not own or use inedible sourdough on Pesach, does this prohibition apply only to what a dog would eat? May one own and use sourdough on Pesach that decomposed to the point that a dog would not eat it?

These questions are the subject of a disagreement among the rishonim. Many authorities permit owning sourdough that would no longer be eaten by a dog, whereas others, such as the Raavad (Hilchos Chometz Umatzoh 1:2), proscribe owning over-soured dough on Pesach. Those who forbid it do so because sourdough is never considered an edible product, yet the Torah banned it because of its facility as a leavening agent, which is not harmed by its becoming inedible. Edibility, whether for man or beast, is only a factor when we are defining prohibited foods, but not when the Torah forbade an item that was never a food to begin with.

The later authorities dispute which way we should rule in this last matter. See the Biur Halachah 442:9 s.v. Chometz who quotes much of the dispute.

When is edible chometz permitted?

We have so far established that although chometz that a dog would not eat is no longer forbidden as chometz, sourdough that a dog would not eat might still be prohibited. However, there is a major exception to this rule – that is, there are instances when chometz may not have reached the level of nifsal mei’achilas kelev, and yet one may own it and even use it on Pesach. This exception is when the chometz is no longer considered to have any food use, notwithstanding that it is technically still edible. Here is the germane passage of Gemara:

Rabbi Shimon ben Elazar says one must destroy chometz only as long as the bread or the sourdough still exists as a food. However, a block of sourdough that was designated to use for sitting is no longer considered chometz, even when it is still edible (Pesachim 45b and Tosafos ad loc.).

How can one possibly own this sourdough on Pesach if a dog would still eat it?

When presenting this case as a halachic rule, the Rambam (Hilchos Chometz Umatzoh 4:10, 11) introduces us to a new term: nifsad tzuras hachametz, literally, its appearance as chometz is lost. The Chazon Ish (Orach Chayim 116:8) explains this to mean that since people are now repulsed to eat it or to use it in a food product, it is no longer halachically chometz since people no longer regard it as food. The same ruling applies to similar items whose use is not for food, such as chometz used in ointments or to starch clothes (Rambam, Hilchos Chometz Umatzoh 4:10; Rosh, Pesachim 3:5).

A sourdough cover-up

Although the Gemara concludes that we are not quite as lenient as is Rabbi Shimon ben Elazar, this is a question of degree, but not of basic principle. Whereas Rabbi Shimon ben Elazar permitted sourdough that one intends to use as a seat, the Gemara permits it only when the surface of the block is coated with a layer of dried mud. This demonstrates that it is now viewed as a piece of furniture (Rashi). The halachic authorities dispute to what extent one must coat the sourdough block, some ruling that it must be covered on all sides whereas others rule that it is sufficient if the top, the part that will be sat upon, is coated with mud (see discussion in Mishnah Berurah 442:42 and Shaar Hatziyun ad loc.).

Notwithstanding this dispute concerning how much of the block needs to be coated, all agree that the sourdough beneath the dried mud surface is still theoretically edible, yet one may own and use it on Pesach (Shaar Hatziyun 442:69). Since people no longer view this sourdough as food, it loses its status. As the Mishnah Berurah (442:41) emphasizes, our conclusion is that two steps must have occurred to this block before Pesach to permit owning and using it on Pesach:

The owner must have designated the sourdough as a seat.
Its surface was overlaid with mud.

The dispute among tanna’im regards only whether we require the second step, which Rabbi Shimon ben Elazar did not require.

At this point we can answer one of our opening questions:

“Is leavened dough always chometz?”

The answer is that there are two instances when it is not considered chometz anymore:

When it was rendered before Pesach so inedible that a dog would not eat it.
When it is being used for a non-food purpose and something has been done to it that makes people repulsed by the idea of eating it.

Eating spoiled chometz

We mentioned above the Gemara’s statement that chometz burnt before Pesach may be used on Pesach (Pesachim 21b). The wording of the Gemara causes the rishonim to raise the following question: Why does the Gemara say that one may benefit from the burnt chometz, rather than permit even eating it, since it is no longer considered food and therefore not included under the prohibition of chometz?

There are two major approaches to answer this question, which result in a dispute in practical halachah. According to the Ran, since the burning rendered the chometz inedible even by an animal, one may even eat it, but the Gemara does not mention this. This approach seems to have the support of the Rambam (Yesodei Hatorah 5:8), who permits consuming a prohibited beverage after a bitter ingredient was added to it.

However, the Rosh contends that the rabbis prohibited one from eating the inedible chometz because of a principle called achshevei, which means that by eating it one is treating it as food. Most later authorities (e.g., Terumas Hadeshen #129; Taz, Orach Chayim 442:8; Magen Avraham 442:15; Shaagas Aryeh #75) follow the Rosh’s approach, prohibiting someone from ingesting inedible chometz because of this rabbinic prohibition.

Is chometz medicine prohibited?

With this lengthy introduction, we are now able to discuss the original question posed above: “Why do we have lists of acceptable medicines for Pesach? Aren’t they all inedible?”

I will now rephrase the question: Does oral intake of a chometz-based medicine qualify as achshevei? If it does, then it is prohibited to ingest inedible chometz, even as medicine, unless the situation is life-threatening.

We find a dispute among later authorities whether ingesting medicine is prohibited because of achshevei. We can categorize the positions into three basic approaches:

Taking medicine is considered achshevei.

The Shaagas Aryeh (#75) rules that ingesting medicine is prohibited miderabbanan because of the rule of achshevei.

Taking medicine is not considered achshevei.

Rav Moshe Feinstein (Shu”t Igros Moshe, Orach Chayim 2:92) maintains that medicine never qualifies as achshevei. His reason is that people take even very bitter items for their medicinal value; thus taking something as a medicine does not demonstrate that one views it as food. (See also Shu”t Yechaveh Daas 2:60.)

It depends on why the chometz is an ingredient.

On the other hand, according to the Shaagas Aryeh, barring a situation of pikuach nefesh, one may not ingest a medicine containing chometz on Pesach, and it is important to research whether it contains chometz. There are also some authorities who contend that when a prohibited substance has a bitter ingredient added, it remains prohibited. I leave it for each individual to ask his or her own halachic authority to decide which approach they should follow. A lay person should not decide on his or her own not to take a necessary medicine without consulting with a rav or posek.

Even according to the Shaagas Aryeh, there is nothing wrong with owning or even benefiting from these medicines on Pesach – the only prohibition would be to ingest them. Thus, a Jewish owned pharmacy is not required to remove from its shelves foul-tasting medicines that are on the prohibited chometz lists.

Regardless as to which approach one follows, one must be absolutely careful not to look down on someone who follows the other approach. In any situation such as this, this attitude will unfortunately cause great harm, since it can lead to feelings of conceit.

Pikuach nefesh medicine lists

There can be another situation in which it is important for a rav or posek to know whether a product contains chometz, but, personally, I would discourage making such a list available to lay people. The case is: Someone who is taking a pleasant-tasting food supplement containing chometz for a pikuach nefashos condition in which the chometz is not a necessary ingredient. Halachically, we should try to find for this person a non-chometz substitute. For example, many years ago, someone I knew used a medicine where the active ingredient required being dissolved in alcohol, which could be chometz. We arranged to have a knowledgeable pharmacist make a special preparation for Pesach using alcohol that was kosher lepesach. (It is humorous to note that the pharmacist used his home supply of kosher lepesach Slivovitz since it was the easiest available Pesach-dik alcohol, and the preparation did not require pure alcohol.)

Is it a good idea to make a medicine list available to the general public? We know of situations when lay people thought that a product may contain chometz and therefore refused to use it, which led to a safek or definite pikuach nefashos situation, itself a serious violation of halachah. Many rabbonim feel that these lists should be restricted to the people who understand what to do with the information – the rabbonim and the poskim.

Conclusion

According to Kabbalah, chometz is symbolic of our own arrogant selves. We should spend at least as much time working on these midos as we do making sure that we observe a kosher Pesach!

How Do We Sell Our Chometz?

As we all know, a Jew may not own chometz on Pesach, which is included in the Torah’s double prohibition, bal yira’eh and bal yimatzei. Furthermore, the Torah commanded us with a mitzvas aseh, a positive mitzvah, to destroy any chometz left in our possession after midday on Erev Pesach.

According to most poskim, these prohibitions apply both to chometz gamur (pure chometz) and to ta’aroves chometz (chometz mixed into another product). Furthermore, the Torah prohibited benefiting from chometz from midday on Erev Pesach regardless whether a Jew or a gentile owns it. Chazal prohibited benefiting from chometz an hour earlier. In addition, Chazal instituted a penalty whereby chometz owned by a Jew during Pesach may never be used. They also required us to search our homes and property the night before Pesach for chometz that we may have forgotten.

Although a Jew may not own chometz on Pesach, there is nothing wrong with his selling his chometz to a gentile before it becomes prohibited. The Mishnah (21a) states explicitly that one may sell chometz to a gentile before Pesach, although this meant that the gentile took the chometz home with him (see Terumas HaDeshen #120). Today when we sell our chometz, we leave it in our homes and we know that the gentile does not intend to use our chometz. Does this sale present us with any halachic issues to resolve?

REASONS TO ARRANGE MECHIRAS CHOMETZ

Before addressing these issues, we should note that there are several valid reasons to arrange a mechiras chometz even if one has no chometz of any value:

1. One is required to rid one’s house and all one’s possessions of chometz. However, some items, such as toasters, mixers, wooden kneading bowls, and flour bins are difficult, if not impossible, to clean. Shulchan Aruch and Rama (442:11) recommend giving wooden kneading bowls and flour bins and the chometz they contain as a gift to a non-Jew before Pesach, with the understanding that the gentile will return them after the holiday.

However, if one does not have such a relationship with a gentile, or it is inconvenient for the gentile to store these items in his house, one needs to modify the solution so that one does not possess chometz on Pesach. Thus, one can include this chometz and these appliances in the sale of chometz.

One should not sell items that require tevilas keilim (immersing vessels in a mikveh), such as metal or glass appliances, but rent them out instead, since otherwise one will have to immerse them again according to many poskim (Pischei Teshuvah, Yoreh Deah 120:13). Alternatively, one can simply sell the chometz that is attached or inside them, but not the appliances themselves.

2. Someone who owns stocks either directly or through mutual funds and/or retirement programs has another reason to arrange selling his chometz. Although some poskim contend that one may own stocks in a chometz business over Pesach (Rav Moshe Feinstein), most poskim prohibit owning shares on Pesach of a company that owns chometz. They contend that owning part of a corporation that owns chometz is considered as if I own chometz myself (Shu’t Minchas Yitzchok 3:1). Thus, in their opinion, even if someone’s house is completely chometz-free, he should arrange a mechiras chometz to include that which he owns as part of his shares.

3. The Mishnah Berurah mentions an additional reason to sell one’s chometz — to avoid searching for chometz (bedikas chometz) in areas that are difficult to check (433:23) or where one plans to store non-Pesach items (436:32). Many poskim contend that when using the sale to preempt bedikah, it should take affect prior to the time of bedikas chometz. This way, when the mitzvah of bedikah takes affect, these areas and their chometz are already under the control and ownership of the gentile.

4. Modern manufacturing creates an additional reason why one should arrange mechiras chometz, since it is difficult to ascertain whether medicines, vitamins, and cosmetic items such as colognes and mouthwashes contain chometz. For this reason, many people perform a standard mechiras chometz even if they destroy all their known chometz and search all the areas they own for chometz.

SOURCES FOR MECHIRAS CHOMETZ

The Mishnah (Pesachim 21a) and Gemara (Pesachim 13a) discuss selling chometz before Pesach in cases that one does not expect to receive the chometz back. In these instances, the sale is fairly easy to arrange: The gentile pays for the chometz (or receives it as a gift) and takes it home with him.

However, in instances where the Jew is expecting to receive the chometz back after Pesach, how does one guarantee that the chometz indeed becomes the property of the non-Jew? Does the Jew’s expectation that he will receive the chometz back undermine the sale? Also, does the gentile really intend to buy the chometz, or does he think that this is all make-believe and that he is not really purchasing it? This would, of course, undermine the purpose of the sale.

The Tosefta provides us with background to these questions:

A Jew is traveling by ship and has with him chometz that he needs to dispose of before Pesach. However, the Jew would like the chometz back after Pesach because there is a dearth of kosher food available. (Apparently, there was no hechsher on that particular ship.) The Jew may sell the chometz to the gentile before Pesach, and then purchase it back afterwards. Alternatively, the Jew may give the chometz to the gentile as a present, provided no conditions are attached. The gentile may then return the present after Pesach (Tosefta Pesachim 2:6). Thus we see that one may sell or give away chometz to a gentile and expect it back without violating any halachos provided the agreement does not require the gentile to give it back.

REMOVING THE CHOMETZ TO THE GENTILE’S PROPERTY

Terumas HaDeshen (#120) also discusses whether you may give your chometz to a gentile as a present that he intends to return to you after Pesach. He permits this, although he stipulates that the gentile must remove the chometz from the Jew’s house (as explained by Bach, Orach Chayim 448).

This condition presents us with a problem in arranging our mechiras chometz. The gentile is willing to cooperate and purchase our chometz, but he does not remove the chometz to his own house. Is there a way to alleviate this problem, or must we forgo selling chometz?

This problem became common when Jews became extensively involved in the ownership of taverns, which was in many places one of the few forms of livelihood open to them. It became common practice to sell the whiskey to a gentile before Pesach even though it remained in the Jew’s tavern (Bach, Orach Chayim Chapter 448). This procedure seems to violate the Terumas HaDeshen’s instructions.

Before we address this question, we must first analyze why the Terumas HaDeshen requires the removal of the chometz from the Jew’s premises.

The poskim present different reasons for this stipulation, some suggesting that leaving the chometz on the Jew’s property implies that the Jew assumes responsibility for the chometz even though he no longer owns it (Magen Avraham 448:4). The halacha prohibits a Jew from being responsible for a gentile’s chometz during Pesach (Gemara Pesachim 5b; Shulchan Aruch, Orach Chayim 440:1).

Others contend that the sold chometz should be removed from the Jew’s property out of concern that the Jew might eat it by mistake since it was once his (Shu’t Radbaz #240). The halacha is that if the Jew never owned the chometz, he may leave it on his property as long as he places a very noticeable barrier around it (Gemara Pesachim 6a).

The poskim rule that transferring ownership of the area where the chometz is stored to the gentile satisfies both of these concerns (Bach 448). Thus, rather than moving the chometz onto the gentile’s property, we make the property holding the chometz into his property. Therefore, the contract selling the chometz also sells the area where the chometz is located.

If the Jew does not own the area holding the chometz but is renting it, he should rent the area to the non-Jew for Pesach rather than sell it. (To simplify matters, many Rabbonim simply rent areas to begin with, and do not sell the areas to a gentile.) Similarly, in Eretz Yisroel, where the Torah prohibited selling land to a gentile, one should rent his property to a gentile rather than sell it.

There is another approach to explain why the gentile should remove the chometz from the Jew’s property when he buys it. This opinion contends that in order to take possession of the chometz, the gentile must remove it into his property (Chok Yaakov, 448:14). This requires a bit of explanation.

WHAT MAKES A TRANSACTION VALID?

On a daily basis, we buy and sell items from merchants without paying attention when the item changes possession. – That is, at what point does the transaction become valid. Indeed for most of our daily activities, this question is not germane. I go to the supermarket to buy groceries. Does the item become mine when I pick it up to place it into my shopping cart, when I pay for it, or when I pick up the bag to leave the store? The vast majority of times it does not make a difference.

However, sometimes it makes a difference at what point the item becomes mine. If the item accidentally breaks after I paid for it, but before I picked up the bag, is it already mine or not? If the item is indeed already mine, I have no right to ask the merchant to replace it. It makes no difference whether it broke while I was at the store or after I brought it home – in either instance it is incorrect for me to assume that the merchant is responsible to compensate me. Indeed, although the merchant may be willing to replace the item, it is unclear that I may ask him to do so. The merchant may replace the item because he does not want to lose a customer, not because he has any obligation. Thus, this may qualify as coercing someone to give a present that he does not want to, something that is halachically prohibited and morally objectionable.

When selling chometz, it is of paramount importance to determine that the transaction has actually transpired. If the transaction has occurred, then the chometz now belongs to the gentile and there is no violation of bal yira’eh and bal yimatzei on Pesach. However, if the transaction has not taken affect, then the chometz still belongs to the Jew, who will violate bal yira’eh and bal yimatzei.

HOW DOES THE CHOMETZ BECOME PROPERTY OF THE GENTILE?

An item changes ownership when there is an agreement between the parties that is then followed by a maaseh kinyan, an act that transfers ownership. There are many types of maasei kinyan, each appropriate to some transactions and not to others.

Here is an example of an attempt to make a maaseh kinyan that does not work. Reuven wants to purchase a candy, and he decides to draw up a contract for the sale. This written contract does not transfer ownership of the candy to Reuven since it is not a recognized maaseh kinyan for transacting movable items. (Real estate is an example of an item for which a written contract is a maaseh kinyan.) On the other hand, the candy becomes Reuven’s property when he picks it up (assuming that the seller has agreed to the transaction and the two parties have agreed to a price) because this is a maaseh kinyan for movable items.

The poskim dispute what is the maaseh kinyan when purchasing movable items from a gentile, some contending that movable property becomes the buyer’s when he pays for it (Rashi, Bechoros 3b), others contending that it does not become his until he picks it up or takes physical possession in a similar way (Rabbeinu Tam, quoted by Tosafos, Avodah Zarah 71a). If it is a large or heavy item, then it becomes his when he pulls it or causes it to move it in some other way, or when it is delivered to his property. Thus the chometz will not become property of the gentile until he takes physical possession.

This presents us with a practical problem. Since the gentile is not bringing the chometz home with him, nor is he picking it up, there is no maaseh kinyan taking place to transfer to him the ownership of the chometz according to Rabbeinu Tam.

Several poskim suggest alternative methods of carrying out the transaction (see Mishnah Berurah 448:17). In some of these methods, one rents to the gentile the places where the chometz is stored.

Since not all poskim accept this method of transacting chometz, we perform several such maasei kinyan in order to guarantee that the chometz indeed becomes the property of the gentile. This concern is one of the reasons why some people refrain from selling chometz gamur and only use the mechirah as a back-up measure. (See also Tevuos Shor, Pesachim 21a for another reason.)

We see that conducting a proper mechiras chometz is a complicated procedure, and certainly beyond the halachic skills of the typical layman. Thus, it is inadvisable for a lay person to arrange his own mechiras chometz without a rav’s supervision and advice.

A PRIVATELY ARRANGED SALE

In one of my previous positions, I was the only rav in the vicinity who was arranging mechiras chometz. One member of my shul, an attorney, had not approached me to arrange for the sale of his chometz, which I assumed was an oversight on his part. Wishing to avoid a crisis, I approached him diplomatically to ask whether he had forgotten to take care of mechiras chometz. He replied that he had arranged his own sale with a non-Jewish acquaintance of his, and had indeed drawn up the deed-of-sale himself.

The attorney did not consult with me before he arranged this sale. In all likelihood, the contract he drew up was valid according to civil law, and therefore would be considered a valid mechirah according to some poskim (Masas Binyamin quoted by Magen Avraham 448:4). However, according to many poskim this attempt to sell chometz did not follow the rules that govern mechiras chometz (see Magen Avraham and Machatzis HaShekel). Thus, the attorney had violated bal yira’eh and bal yimatzei according to many opinions.

DIFFERENT TIME ZONES

Shimon is looking forward to his visit with his children in Eretz Yisroel for Pesach. He must make sure to mention this to his rav who is arranging his mechiras chometz. Since the sixth hour of Erev Pesach will arrive for Shimon in Eretz Yisroel many hours before it arrives for his rav in New York, Shimon’s chometz must be sold before the sixth hour of Erev Pesach in Eretz Yisroel, many hours earlier than if he were in America. The rav will make sure that the sale on Shimon’s chometz takes affect earlier than everyone else’s.

CAN I SELL CHOMETZ WITHOUT AUTHORIZATION?

Yosef stored a case of whiskey in my garage and then left for a lengthy vacation. He told me he would be back by Purim. A few days before Pesach, I notice that the whiskey is still in my garage, and I have not heard from Yosef, nor do I know how to reach him. What do I do with his whiskey? Can I arrange mechiras chometz on it without his explicit authorization?

Yehudah’s father, who lives in South Africa, is unfortunately no longer able to care for himself and suffers from dementia. Months ago, Yehudah moved his father into his own home in New York and closed up his father’s house for the time being. Now Yehudah realizes that he has no idea if his father owns any chometz in the house, or where it possibly might be. Can he authorize mechiras chometz on his father’s property without authorization?

The Gemara tells a story that impacts on these shaylos. Someone placed a large sack of chometz with a man named Yochanan the Sofer for safekeeping. On the morning of Erev Pesach, Yochanan went to ask Rebbe whether he should sell the chometz before it becomes prohibited. Rebbe ruled that Yochanan should wait to take action since the owner might still claim his property.

An hour later, Yochanan returned to ask the shaylah again and received the same reply. This happened hourly until the fifth hour, the last time at which he could sell the chometz, at which time Rebbe instructed him to sell the chometz to gentiles in the marketplace (Gemara Pesachim 13a).

There is a question that this Gemara does not address. How could Yochanan sell the chometz, if the owner had not authorized him?

The answer is that although the owner had not authorized Yochanan to sell the chometz, if it will become worthless, he should sell it as a favor for the owner. This is a form of hashavas aveidah, returning a lost object to its owner, since now he will receive some compensation for his chometz and otherwise it will become worthless (Mishnah Berurah 443:11). Similarly, both Yosef and Yehuda would be able to arrange mechiras chometz even though the owner had not authorized them (see Magen Avraham 443:4).

According to Kabbalah, searching for chometz is symbolic of searching within ourselves to locate and remove our own arrogant selves. As we go through the mitzvos of cleaning the house, searching, burning, and selling the chometz, we should also try to focus on the spiritual side of this search and destroy mission.