Although we normally discuss a topic related to the weekly parsha, this week will deviate from the norm and we will discuss a timely topic, a shailah related to chometz she’avar alav haPesach [chometz that has passed through Pesach]. The particular shailah we will discuss, is a case of a ba’al teshuvah who wants to eat by his parents the Shabbos after Pesach. Unfortunately, he knows that his parents don’t keep very much, they don’t get rid of their chometz before Pesach, they eat chometz on Pesach, and they certainly don’t sell their chometz before Pesach. Understandably, the ba’al teshuvah can’t eat by his parents on Pesach, the question is, however, may he eat there the Shabbos after, or is it a problem that the food that he will be served is chometz she’avar alav haPesach? Obviously if the situation can be avoided it would be best, however, if the child has a good relationship with his parents, and if he doesn’t turn up, they will be very insulted – especially as he never came for Pesach, is there anything that can be done to get around the issue? Obviously, I would be too scared to tackle this issue alone, and much of the ensuing discussion is based on a Teshuvah written by HaRav Doniel Travis shlita in his wonderful Shu”t Takonas Hashovim (siman 23).
Source
The Mishnah in Pesochim (28a) teaches: חמץ של נכרי שעבר עליו הפסח מותר בהנאה ושל ישראל אסור בהנאה שנאמר לא יראה לך שאור – “Chometz of a non-Jew that has passed through Pesach is permissible to benefit from, of a Jew, however, it is forbidden to benefit from, as it says in the pasuk ‘It shall not be seen by you leaven’”.
The prohibition of chometz she’avar alav haPesach is rabbinic in nature, yet the Mishnah cites a pasuk, how is this to be understood? Rashi explains, that from the Gemara it’s clear that the reason one is not allowed to benefit from chometz after Pesach is because of a kenas [penalty], and the reason Chazal made such a strict kenas is because one who kept chometz over Pesach violates the prohibition of לא יראה לך שאור – “It shall not be seen by you leaven”. In other words, the prohibition of chometz she’avar alav haPesach isn’t learnt out from the pasuk לא יראה לך שאור, however, because one who keeps chometz in his possession over Pesach violates the issur de’O’raisa of לא יראה לך שאור, Chazal enacted a very strong kenas [penalty].
What is the Status of the Kenas?
The question is, what exactly is the nature of this kenas: Is it a traditional kenas which serves as a punishment for doing something wrong, or is it perhaps not serving as a punishment, but rather as a deterrent (harchokah) to ensure that one doesn’t come to violate ba’al yero’eh again in the future?
A nafka minah [practical difference] would be our shailah. If it’s a regular kenas, then in cases of oinus [unavoidable circumstances] and similarly in our case of a tinok shenishboh [someone who from birth was never taught very much about Judaism, and doesn’t know any better] who doesn’t know any better, there would be no need for the kenas. If, however, it is a deterrent to ensure that it doesn’t happen again, then seemingly it would apply to a tinok shenishbah as well. In the end of the day he is subject to the prohibition of keeping chometz in his house over Pesach, and if we give him the kenas, hopefully next year he will be more careful, especially if he sees that his children and grandchildren can’t come to eat by him after Pesach.
Machlokes Rishonim
The answer to the above question seems to be a big machlokes, with Rishonim on either side.
From a number of Rishonim it’s clear that the kenas of chometz she’avar alav haPesach is a regular kenas given as a punishment to one who purposely violates the issur of ba’al yero’eh. The Ran writes: הואיל ועבר עליה משום בל יראה ובל ימצא – “Since one violates the prohibition of ‘It shall not be seen, or be found’”. It’s clear from the Ran, that the kenas is a punishment for violating the prohibition of keeping chometz in one’s house over Pesach. The Meiri quoting the Chachmei Lunil also writes that, “It is kenas for those who purposely violate ba’al yero’eh u’ba’al yimatzei”.
From the Tashbatz (2:189) it’s also clear that the kenas is a punishment, and that in a case of oinus, there would be no kenas. The Tashbatz writes: חמץ שעבר עליו הפסח אינו אסור אלא משום קנס משום שעובר עליו וזה [שביטל והשאירו באונס] אין לנו לקונסו דמה היה לו לעשות אנוס הוא וכבר ביטל - “Chometz that has passed through Pesach is only forbidden because of a penalty given to one who violates the prohibition of keeping chometz, for this person [who nullified it and kept it by mistake] there is no reason to give him a penalty, as what else could he have done, it was a mistake and he already nullified it.”
However, from a number of other Rishonim it’s clear that the kenas of chometz she’avar alav haPesach is not a punishment, but rather a harchokah, a deterrent.
The Maharam Chalavah (Pesochim 28b) writes: Even if one annulled his chometz and isn’t in violation of ba’al yero’eh there is still a kenas. וכי תימא מאי קנסא הכי קאמר אי היו שרינן ליה אתא לשהויי לכתחילה והוא עבר עליה הלכך קנסינן היתירא אטו איסורא - “And if you will ask, what is the point? The point is, because if we don’t make a kenas, one will end up keeping his chometz ideally without annulling it, therefore, we make a kenas even when there is no real need, to avoid there being a case when there is a need”. We see, that even when there is no prohibition involved, we still make a kenas to avoid it happening in the future. The Maharam Chalavah clearly holds, that the kenas is a deterrent.
This approach is also clear from the Ramban (Pesochim 31b). The Ramban writes, the kenas is not only when one purposefully violates ba’al yero’eh, rather: בין שוגג ובין מזיד בין אונס בין רצון קנסינן – “Whether accidentally, purposefully, a completely unavoidable situation, or an avoidable situation we make the penalty”. We see from the Ramban that even in a case of oinus we give the kenas. If the kenas was a punishment, we don’t normally punish for oinus, therefore, it’s clear that the Ramban understands that the kenas is a deterrent.
From the Tur (Orach Chaim 448) it’s also clear that the kenas is a deterrent. The Tur, like the Ramban writes: חמץ של ישראל שעבר עליה הפסח אסור בהנאה אפילו הניחו שוגג או אונס – “Chometz of a Jew that passed through Pesach is forbidden to benefit from, even if it was left accidentally, or the situation was unavoidable ”.
The Rambam (Hilchos Chometz U’Matzah 1:4) writes: חמץ שעבר עליו פסח אסור בהנייה לעולם ודבר זה קנס הוא מדברי סופרים מפני שעבר על בל יראה ובל ימצא. ואפילו הניחו בשגגה או באונס, כדי שלא יניח אדם חמץ ברשותו בפסח כדי שיהנה אחר פסח - “Chometz that passed though Pesach is forbidden to benefit from, forever. This law is a penalty enacted by Chazal, due to one violating the prohibition of ‘It shall not be seen or found’. Even if one did this accidently, or because of unavoidable circumstances it is still forbidden, to ensure that one won’t come to leave his chometz in his property over Pesach so that he can benefit from it after Pesach”.
From the beginning of the Rambam which says, “this law is a penalty enacted by Chazal, due to one violating the prohibition of ‘It shall not be seen or found’” it sounds like the kenas is a punishment, however, from the end of the Rambam which says “in order that one won’t come to leave his chometz in his property over Pesach so that he can benefit from it after Pesach”, it’s clear that the kenas is a deterrent.
It’s clear from all the above that the status of the kenas is a machlokes amongst the Rishonim. According to the Ran, Meiri and Tashbatz, the kenas is a punishment for violating ba’al yero’eh u’ba’al yimatzei. According to these Rishonim, there would be room to say that for a tinok shenishboh (in our case the ba’al teshuvah’s parents) there is no kenas. However, even according to these Rishonim we could argue and say that Chazal made a lo plug [no distinctions], and even by a tinok shenishboh they forbade the chometz.
However, according to the other Rishonim, the Maharam Chalavah, Rambam, Tur, Ramban and others, it seems quite clear that the kenas of chometz she’avar alav haPesach is a deterrent. The Shulchan Aruch (448:3) rules accordingly, and says that even by a case of complete oinus there is still a kenas. Being as the kenas is a deterrent, it would apply to everyone, whether they are shomrei Torah u’mitzvos or not [keep Torah and mitzvos or not] and will hopefully serve to ensure that they don’t do it again next year.
Chometz of a Mumar
The poskim discuss what the status of chometz belonging to a mumar is after Pesach. A mumar is worse than a tinok shenishboh, as he deliberately doesn’t keep Torah and mitzvos. The question is: Do we say that in the end of the day he is a Jew, therefore, his chometz is forbidden after Pesach. Or, do we say that the entire purpose of the kenas is to stop people keeping chometz over Pesach, and since a mumar doesn’t care less the kenas won’t achieve anything, therefore, Chazal never bothered making one?
The Magen HaEleph (448:7) understands, that we only give a kenas to someone who keeps Torah and mitzvos, if one doesn’t care about Torah and mitzvos then we don’t bother with a kenas.
The Shu”t Mekom Shmuel (17) writes, that if one sells chometz to a mumar over Pesach one may benefit from the chometz after Peasch, as we treat a mumar like a non-Jew. Consequently, there is no kenas on the chometz.
Both the Magen HaEleph and the Mekom Shmuel understand that there is no kenas by a mumar, however, the Mishnah Berurah seems to disagree. The Mishnah Berurah (448:11) writes: “It is forbidden to sell chometz to a mumar as he has the status of a Yisroel for all matters, and his chometz is forbidden to benefit from after Pesach”. We see that chometz of a mumar is forbidden to benefit from after Pesach.
Interim Summary
What comes out so far, is that most Rishonim take on that the kenas on chometz she’avar alav haPesach is a deterrent, and the Shulchan Aruch rules accordingly. The Mishnah Berurah takes on that this applies to a mumar, and certainly it would apply to a tinok shenishboh. Therefore, it comes out, that if a ba’al teshuvah would want to eat by his parents who aren’t shomrei Torah u’mitzvos after Pesach it would be problematic and he wouldn’t be allowed to.
Every Problem Has a Solution
The question is, is there something that the ba’al teshuvah could do to avoid the issue?
The answer is, yes. There is something he could do which would allow him to eat by his parents after Pesach, and would even save his parents from violating the prohibitions of ba’al yero’eh u’ba’al yimatzei. What should he do? He should convince his parents to sell their chometz before Pesach. This way the chometz won’t be considered theirs over Pesach, and there will be no prohibition of chometz she’avar alav haPesach. The question is, however, does it help to sell chometz if the parents will continue eating from it on Pesach?
An Old Machlokes
The Sdei Chemed (Mareches Chometz U’Matzah 9,35) discusses what to do when erev Pesach falls on Shabbos, and the chometz must be sold on erev Shabbos. Normally, the chometz is sold by the fifth hour, after which time people aren’t interested in eating it anymore. However, when erev Pesach falls on Shabbos, we can’t sell the chometz Friday morning, as like every week, the shopkeepers want to continue selling chometz until just before Shabbos. ואם נמכור לנכרי קודם חצות והם יסחרו בהם אחר המכירה א"כ תהא המכירה שמכרנו לנכרי בטלה – “If the chometz is sold to a non-Jew before midday and the shopkeepers continue to sell after the sale, the sale becomes void.”
Similarly, the Shu”t Maharam Shik (205) writes: “Once the chometz is sold, how can one benefit from it? By benefiting from it one cancels the sale”. We see that if a Jew continues to treat chometz he sold as if it still belongs to him, it cancels out the sale.
R’ Moshe Sternbuch in Teshuvas V’Hanagos (1:288) also writes: “Although Chazal allowed doing certain tricks when it comes to selling chometz, one must set aside a place for the chometz, and it must look like it has been sold. If, however, the chometz is left where it always is, and one continues to sell it, he reveals that the sale was never a sale, and it is invalid”.
According to the poskim cited above, if after selling chometz to a non-Jew one continues to use it and sell it like normal, the sale is void. Accordingly, if the ba’al teshuvah would sell his parents chometz and they would continue to use it on Pesach the sale wouldn’t help and it would become void.
However, the above is far from simple and there are prominent poskim who disagree with the above, and maintain that the sale does in fact work.
The Other Side
The Shu”t Chelkas Ya’akov (siman 194) encourages selling the chometz of shopkeepers, even if they intend to continue business like normal and sell chometz on Pesach, and he writes that doing so has a double advantage: 1) Those who buy chometz after Pesach won’t transgress on eating chometz she’avar alav haPesach, 2) The shopkeeper himself won’t be in violation of ba’al yero’eh u’ba’al yimatzei.
The Chelkas Ya’akov adds, that if the shopkeeper sells chometz that belongs to the non-Jew there is no problem of stealing, as in the sale contract (of the chometz) it says, that the Jew may use the chometz. Just if he does, the non-Jew has a right to demand some compensation.
R’ Moshe Feinstein who was very familiar with what was going on America in the 1940’s and 1950’s also has two landmark Teshuvah’s in which he discusses the above issue and rules that it’s ok.
Nowadays this shouldn’t be to difficult, especially that nowadays many rabbonim and botei dinim offer such services online. Obviously, going to the rov is more ideal, however, it is not strictly necessary.
In his first Teshuvah (Igros Moshe, Orach Chaim 1:149), R’ Moshe discusses shopkeepers who sell their chometz with the rov, and then carry on business as normal during Pesach, and sell the very chometz that was sold to the non-Jew. R’ Moshe writes: “It’s obvious that doing so doesn’t invalidate the sale, as one of the stipulations written in the sales document is that a Jew may take things from the non-Jew, he just has to pay the non-Jew for it. Consequently, it’s obvious that the sale is not nullified, and that that which he doesn’t take remains sold to the non-Jew. Even without this, a shopkeeper selling chometz doesn’t annul the acquisition which was made, and the chometz still belongs to the non-Jew. When the Jew sells it, it is considered as if he brought the chometz anew or stole it from the non-Jew. He may be in violation of possessing chometz or the prohibition of stealing, however, only on what he takes and sells. On what remains sold to the non-Jew, however, remains sold to the non-Jew, and there are no issues involved.”
In a different Teshuvah (4:95) R’ Moshe adds, that we don’t say that from the fact that the shopkeeper continues to sell the chometz it shows that he Is not interested in selling the chometz, as, דברים שבלב אינם דברים - “words of the heart are not considered words”.
R’ Shlomah Zalman Auerbach (cited in Halichos Shlomah, Mo’adim 10:13) concurs with the above.
According to the Chelkas Ya’akov, Igros Moshe and R’ Shlomah Zalman it would seem that one may sell the chometz of one who is not shomer Torah u’mitzvos (in our case the father of the ba’al teshuvah), and by doing so, the children and grandchildren would be able to go to their house after Pesach. Even if the parents may not have proper intention to sell the chometz, in the end of the day they signed on the document and it’s considered a proper sale, and even if they do acts which demonstrate that they don’t care, דברים שבלב אינם דברים - “words of the heart are not considered words”.
Therefore, it would seem that in our case, the best thing to do, would be for the son to explain to his parents in the politest way possible, that if they want him to come after Pesach they must sell their chometz. And even if the only reason they sell their chometz is so their children and grandchildren can eat there, and not because of ba’al yero’eh it doesn’t matter, as in the end of the day it was sold.
A Distinction Between a Store and a Private House
In another Teshuvah (2:91) R’ Moshe is worried that the above may not be so ideal, as there is a chance that the shops will end up buying chometz on Pesach itself. However, this is far less likely to happen in a house than in shop, and the prohibition of chometz she’avar alav haPesach is rabbinic in nature, therefore, there is room to be lenient. Consequently, being as it is a small private setting, and there is peace and harmony at stake (sholam bayis), it would seem that the son should sell his parents chometz, and not be worried about them buying new chometz on Pesach. R’ Zalman Nechmia Goldberg also held like this.
R’ Travis mentions that he heard from R’ Ezriel Auerbach, that if the parents continue eating chometz on Pesach, it invalidates the sale and it doesn’t help with the issue of chometz she’avar alav haPesach, and that this is also what R’ Elyashiv held. However, R’ Travis also brings that he heard from R’ Ezriel Auerbach that if it will create lots of dislike and strife in the family, if the father is makneh [makes an acquisition to give] his chometz to a non-Jew, with a proper kinyan, such as by using a chometz sales document recognized by law, there is room to be lenient.
Is It Considered Stealing to Eat Chomez Sold to a Non-Jew?
However, seemingly there is another issue with all the above. If the son sells his parents chometz, and saves them from violating ba’al yero’eh u’ba’al yimatzei, he transgresses lifnei iver [creating a stumbling block], as he is causing his parents to steal from the non-Jew, as surely eating chometz belonging to someone else is considered stealing?
The Shulchan Aruch HaRav (Kuntros Achron 440:11) discusses selling and burning the deposit (pikodon) of a non-Jew and he says: “Stealing from a non-Jew is not forbidden, unless one’s intention is to steal and not to give anything back. If, however, one is happy to pay back money (instead of the deposit) there is no prohibition of stealing. There may be a prohibition of ‘lo sachmod’ [do not covert], like it says in Bava Metzia (5b), however, by ‘lo sachmod’ it says, “your friend” and a non-Jew is not considered a friend ... moreover, it came to his hand in a permitted manner, and it is like avoiding to pay back a loan (hafko’as halvoh) which is allowed”.
We see from the above, that unless one intends to steal and not return the money, there is no issue of stealing. In our case, where the parents continue to eat chometz that was sold to the non-Jew, they are not trying to steal, therefore, there is nothing wrong and there is no issue of stealing, and subsequently no issue of lifnei iver.
Conclusion
According to many Rishonim, the kenas of chometz she’avar alav haPesach is a deterrent and not just a punishment, therefore, it applies even in cases of oinus and even to one who is a tinok shenishboh. Consequently, even if one’s parents are not shomer Torah u’mitzvos, the chometz remains chometz she’avar alav haPesach and forbidden to benefit from. Therefore, the best thing to do is for the son to arrange that his parents chometz gets sold before Pesach. Although the parents will continue to eat chometz on Pesach and according to some poskim this invalidates the sale, both the Igros Moshe and the Chelkas Ya’akov maintain it doesn’t, and to help keep the peace between the son and his parents it would seem that these opinions may be relied on. Although it may seem like stealing to sell chometz to a non-Jew and then continue to use it, the Shulchan Aruch HaRav speaks out, that if one isn’t intending to steal, there is no concern.
