April 14, 2024
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April 14, 2024
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A principal in a highly observant yeshiva asked a classroom how many of them had ever found chametz over Pesach. Nearly half of the class raised their hand. Regardless, each year, there are numerous stories where chametz is found over Pesach. And, such incidences happen both on Yom Tov and on Chol HaMoed.

What to Do

The Shulchan Aruch (Orach Chayim 446:1), of course, tells us what to do. If it is found on Yom Tov—it must be covered with a vessel so that the chametz can not be seen. It cannot be moved, of course, because of the issue of muktzah. At night, after Yom Tov, it must be burned.

This is based upon the Gemara (Pesachim 7a), that tells us that if one finds chametz on Yom Tov one must cover it with a vessel, and when Yom Tov is over one should burn it.

Why Cover It?

The reason for this is that there would be no biblical mitzvah to burn it over Yom Tov, and the burning would constitute a burning shelo l’tzorech for no Yom Tov need. Why is this so? Because, presumably, he had already recited the formula for the bitul, the negation of ownership of all chametz big and small, hidden or revealed that he may own. Since he had already recited this bitul formula, the mitzvah of burning the chametz does not set aside the laws of Yom Tov. (The Mishna Berurah rules according to the opinion of the Ran that burning it on Yom Tov would be biblically prohibited.)

When One Did Not Say the Bitul

There are two differing opinions, however, in a case where the person did not recite the bitul formula.

The Vilna Gaon rules that the halacha of the Shulchan Aruch applies across the board, and one may not destroy it or move it on Yom Tov.

Other poskim (Rashi, Rashba, SmaG and Ohr Zaruah), however, hold that when the bitul was not recited, one may flush it down the toilet, throw it in a river or scatter it in the wind.

So, which view do we follow? The Mishna Brurah states that the custom is like the first view; however, in a community where the custom is to flush it down the toilet through a gentile, then one should not negate a custom in Israel.

But Doesn’t the Goy Own It Now?

The Shulchan Aruch ruled that—aside from issues of Yom Tov—if found, the chametz should be burned even if one did recite the bitul. However, things may have changed since then—in light of how we sell the chametz in contemporary times. In our times, the forms in which we sell the chametz include all chametz that we own, known and unknown. What are the implications of this development? The chametz that we find, therefore, belongs to the gentile! If that is the case, is it then permitted to burn the gentile’s chametz?

Contemporary Poskim’s View

This issue has been addressed by contemporary poskim:

Rav Tzvi Pesach Frank, zt”l, held (Mikrai Kodesh, volume I, Pesach no. 74) to the position that the chametz should be placed in the goy’s section.

Rav Sternbuch and Rav Wosner, zt”l, (Shevet HaLevi, volume IX #116) both hold that it is permitted to burn it.

Rav Sternbuch bases his view on a Shach (Choshen Mishpat 358:1) that if one is completely sure that his friend would be amenable to it, one may consume fruits without the permission of the owner. In our case, since the one who finds the chametz is completely sure that the gentile would be amenable to the burning of the chametz that was found, and that he would not have to pay for the balance of it after Pesach, it would be permitted.

May One Touch the Chametz?

May one handle chametz that is to be burned or should it be kicked to the site that one will burn it in? The Shulchan Aruch rules (446:3) that if a gentile’s chametz blows onto the roof of a Jew, he should move it with a stick but not handle it with one’s hands. The reason is that when one handles things with their hands, it is likely that one might come to eat it.

The answer is that one may touch it. The Mishna Berurah 446:10 states that since one is burning it one may handle it by hand, if it is for a short period of time. It is a good idea, however, to say out loud that one is not acquiring the chametz. This is based on a responsa of the Rivash, cited in the Biur Halacha. Why is this so? Because a person’s hand acquires items for him, even if he does not have in mind that he is acquiring it.

Hopefully, however, most of us will have done a good job eliminating the chametz before Pesach has started, and there will be no need to be doing so on Pesach itself.

One last thought: When burning the chametz, make sure that it is not burnt too close to houses where the smoke can enter and cause people breathing issues.

By Rabbi Yair Hoffman 

The author can be reached at [email protected]

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