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.