Chometz She’ovar Olov HaPesach
The Prohibition to Consume Chometz that Pesach Passed Over
The Shulchan Aruch (448:3) writes: Chometz of a Jew that passed through Pesach (and wasn’t sold to a non-Jew) is forbidden to benefit from, even if one left it unsold, either by mistake or due to circumstances beyond his control (i.e. oinus).
What If One Finds Chometz in His House After Pesach?
If one did mechiras chometz [the sale of his chometz] and bitul [nullification of any chometz] before Pesach, and after Pesach he discovered that he had in his house a food containing real chometz over Pesach, even if this person doesn’t normally sell real chometz to a non-Jew, since the rav sold for him any chometz he owns, and not only the items he specified on the sales document (שטר הרשאה), and the owner of the chometz did bitul on his chometz, the chometz is permissible after Pesach.
The Stringency of the Gaon
Strictly speaking, it is permissible to sell real chometz to a non-Jew before Pesach, and to buy it back off him after Pesach, and there is no concern of chometz she’ovar olov hapesach as is clear from Shulchan Aruch (448:3). However, there are yaraim v’shlamim [fearful and wholesome people] that are stringent (as a stringency and not because they hold this is the strict halachah) like the stringency of the Gaon in Maaseh Rav (ois 180-181) who says two dinim, one practical for before Pesach, and one for after Pesach. It’s written: “He was accustomed not to sell chometz to a non-Jew, unless it was an eternal sale. After Pesach he wouldn’t buy anything from the market, which was baked with flour belonging to a Jew, or from yeast, wines etc. belonging to Jews, כי המכירה גרועה – because he held the sale was very weak. He would only buy from a non-Jew, or from flour from a Jew that hadn’t undergone any process of coming into contact with water. Beer and alcohol he wouldn’t drink, until a new stock was available, made after Pesach.” (In Igros Sofrim, Kisvei R’ Akiva Eiger, siman 48 it is quoted that R’ Akiva Eiger, “was careful not to buy chometz sold to a non-Jew”. Boruch Taam in his sefer Shu”t Ateres Chachomim, Choshen Mishpot 14 was also stringent). In light of this Gaon, these yaraim v’shlamim only sell to the non-Jew items which are not proper chometz. However, when there is great loss involved such as factories, chain stores etc. even those who are normally stringent are more lenient.
The Mishnah Berurah Omits the Stringency of the Gaon in Maaseh Rav
It’s worthy of pointing out, that the Shulchan Aruch, Nosay Keilim and Mishnah Berurah all make no mention of such a stringency. In many places the Mishnah Berurah brings pesokim from Maaseh Rav, however, here he doesn’t. On the contrary, there is proof that the Mishnah Berurah wasn’t stringent. The Mishnah Berurah (443:11) writes in the name of the Magen Avraham: If a Jew has chometz belonging to another Jew by him as a deposit, and the owner of the chometz doesn’t come to take it before the fifth hour of erev Pesach (where the halachah is that it should be sold to a non-Jew), if it’s possible to sell to a non-Jew and the non-Jew will give it back after Pesach (like what we do today with our mechiras chometz), then it’s forbidden to sell it to a non-Jew with an eternal sale. The Machatzis HaShekel explains: דאדם רוצה בקב שלו – “People like their own belongings, and don’t won’t to have to get new items.”
From this Mishnah Berurah it seems that selling to a non-Jew with intention of getting it back after Pesach is lechatchilah [ideal], otherwise, the Mishnah Berurah would have said to sell it eternally, instead of advising to carry out a temporary sale. The Shulchan Aruch (Choshen Mishpot 292:17) also rules: “After the fifth hour, one should sell in the market any chometz deposited by him ‘for a short time’”. The Pischei Teshuvah (s.k. 8) and Minchas Chinuch (Mitzvah 11, s.k. 9) are medayak [make an implication] from here, that one should only sell it short term for the duration of Pesach, like the Magen Avraham and other Achronim.
Understanding Why the Gaon Was Stringent
The poskim discuss the stringency of the Gaon in Maaseh Rav and what exactly he was worried about, and if perhaps the reasoning no longer applies today. There are two ways two understand the concern of the Gaon, 1) In terms of the sale, i.e. the sale is not such a good sale (המכירה גרועה ), 2) People don’t really mean to sell their chometz, and they just do it as a get out clause (הערמה ).
R' Moshe Sternbuch in Teshuvos V’Hanhagos (5:108) quotes the Maaseh Rav HaShaleim who brings in the name of the Hanhagos Yeshorois (ois 136) that he heard from the Gaon, that it used to be that every Jew would sell his own chometz to a non-Jewish neighbor, and not everyone knew how to do this properly, therefore the Gaon was worried it wasn’t a valid sale, and he was stringent.
According to this reasoning, here in Eretz Yisroel (and in most places in the world today) where we don’t do private individual sales, rather, we go to a rov who is an expert in Hilchos Mechiras Chometz, and he is particular to do seven different kinyonim [acts of acquisition] with a non-Jew etc. and he checks beforehand that the non-Jew understands the implication of the sale, and we fill out a sales document which works according to all opinions. In such a case there is nothing to worry about, and even the Gaon would agree one can rely on such a sale.
However, R’ Moshe Sternbuch writes: This argument that today things are better is not so simple, as in Keser Rosh (ois 102) it’s written in the name of R’ Chaim Volozhiner, that Rabbeinu HaGra (the Vilna Gaon) wouldn’t eat chometz which was sold to a non-Jew, as bitul needs to be done with a lev shaleim [complete heart], and not everyone is able to do this. We see that the Gaon was concerned about the bitul. According to this, certainly one shouldn’t eat from chometz sold by baalei aveirah who don’t even do bitul chometz, and even if they do perform bitul because they are told to, it certainly isn’t carried out with a lev shaleim.
However, meikar hadin [according to strict halachah], since the seller signs on the sales document, and the rov signs on a document with the non-Jew, according to strict halachah all the chometz is sold. Some poskim add that the document must be recognized by the local government as well, so that there is no room to question its validity.
A Big Difference Between the Olden Day Mechiras Chometz, and the Mechiras Chometz of Today
R’ Moshe Sternbuch is me’orah [raises awareness], that in earlier times when each Jew sold his own chometz, although it may have been a haromah [trick], since on a Torah level bitul helps and all we are worried about is an issur derabonon, we take on that by an issur derabonon, haromah is ok. However, the Gaon had his personal stringency, that he was worried that the bitul wasn’t done with a lev shaleim, or that people didn’t know how to do the kinyonim properly. However, nowadays people sell chometz worth millions, and seemingly there is no bigger haromah than this, and even on a rabbincal level it shouldn’t work.
However, he concludes: We can’t speak badly about previous generations, and the shtar mechirah that we do today has been around for a number of generations, and chas vesholam to say that it doesn’t work because the heads of companies aren’t shomer Torah u’mitzvos and they don’t mean to do a real sale – especially when the minhag is (at least of Eidah Chareidis) that we write on the document that even if in the non-Jewish court it is not a proper sale, they accept that the sale is valid according to Torah law, therefore, there is no room to question the validity of the sale.
It’s Ironic How People Are Stringent When It Comes to Eating Chometz Sold to a Non-Jew, and Are Lenient with Making a Heter Iska
It’s interesting note, that when it comes to a heter iska which involves a concern of ribbis de’O’raisa, and the Gaon in Maaseh Rav (ois 108) was stringent not to rely on it, there are many people who are lenient and rely on using it, especially when they take out a mortgage, however, when it comes to chometz being sold over Pesach which meikar hadin is permissible, and is an extra chumrah, then people are stringent.
In this Teshuvah R’ Moshe brings an interesting story which happened when he was the rov in Johannesburg. He sold the chometz of the kehillah to a particular non-Jew, and on the first day of Pesach the non-Jew knocked on his door and said he wanted some of the chometz. R’ Moshe told him to take it, however, he should remember that after Pesach he must pay for it at a 2% discount as stipulated on the sales contract. The non-Jew then left and did the same to various other houses, and each time he received the same answer. In the end, it was discovered that the wife of this non-Jew was Jewish and she wanted her husband to keep various Jewish minhogim. One of the things she wanted him to do was sell chometz over Pesach. The non-Jew argued that the entire sale is a joke and the Jews don’t really mean it and his wife said, that no, they really mean it. The non-Jew decided that he would test it out on Pesach and see how sincere the Jews really are. After trying it out at a number of different houses on Pesach, the non-Jew realized the sincerity of the Jews, and that his wife was right.
R’ Moshe then brings, the non-Jew told his wife, that he sees the greatness of Klal Yisroel and how they honestly live a life of serving the Ribbono Shel Olam and he wants to convert. R’ Moshe sent a message to the non-Jew, that he should know that it’s hard to be a Yid, and at least for the duration of Pesach he should remain a non-Jew, as if he converts it will make problems with the mechiras chometz.
Perhaps here is the place to bring the Chazon Ish (cited in Derech Emunah, end of Vol. 3, michtav 12):
“The avodah Hashem wants from us, is to guard the main halachah (דקדוק הדין), and this is the correct way a person should go, and not like those who raise concerns with using a heter iska, and say that it is against the desire of the Torah, and the same with a pruzbal etc.”.
Distinction Between Selling Chometz to a Non-Jew Before Pesach, and Benefiting from Chometz Sold to a Non-Jew After Pesach
Although the Gaon was stringent both regarding selling chometz before Pesach to a non-Jew and benefiting from such chometz after Pesach. There is definitely more room to be lenient with benefiting from chometz after Pesach. The issur to benefit from chometz she’ovar olov haPesach is a kenas [a rabbinic penalty]. Therefore, if the one selling his chometz really intended to sell it, how can we give him a kenas? If he never really sold it, i.e. he did it himself without a rov and didn’t do the kinyonim properly, or he is a chiloni [non-religious Jew] and he never really intended to sell it, then we can apply the stringency of the Gaon, that even after Pesach one shouldn’t benefit from the chometz. If, however, the shop owner is a frum charedi Yid and he honestly sold his chometz to the non-Jew over Pesach, and he sold it through a Beis Din which is careful to do it properly, then how can we say there is a kenas in such a case. If one did what Chazal want from him, how can we give him a kenas?
Does the Non-Jew Need a Guarantor (ערב קבלן)
Nowadays, when we sell large amounts of chometz to a non-Jew, and it’s clear he doesn’t have enough money to pay for it if he would want to, some poskim say we need to make sure the non-Jew has a guarantor, who will help pay for the chometz if the non-Jew faults.
The Shulchan Aruch HaRav (448:8) and the Aruch HaShulchan (s.k. 24) both say: When selling chometz to a non-Jew, one needs to find a guarantor for the non-Jew who takes responsibility to pay if the non-Jew doesn’t, as the seller doesn’t rely on the non-Jew when he knows he can’t afford to pay. There is no problem of bal yaro’eh and bal yimotzei for the guarantor, as the chometz belongs to the non-Jew and he must pay for it, it’s just that if he faults then one can go to the guarantor and demand payment.
The Question of the Shoel U’Meishiv
The Shoel U’Meishiv (Mahadura Tinyona 4:10) argues on the above and he says that having a guarantor makes things worse, because the Jewish guarantor is רוצה בקיומו של החמץ – wants the existence of the chometz, so that if the non-Jew doesn’t pay, he can just give the original chometz back. Therefore, he says, it’s better not to have a guarantor.
The Sdei Chemed (Vol 8, pg. 195) speaks at length about the above and he answers the question on the Shulchan Aruch HaRav based on a Chasam Sofer. The Chasam Sofer (Orach Chaim 116, and 119) says, the problem of רוצה בקיומו is only when one wants to gain, if one simply doesn’t want to lose out then there is no problem. Since a guarantor isn’t looking to gain, he just doesn’t want to lose, it’s ok and there is no problem of רוצה בקיומו.
The Shevet HaLevi (Vol. 4, end of siman 49) takes on like this Chasam Sofer and practically, when he would do his mechiras chometz in his Beis Din, he would make sure to have a guarantor who took responsibility.
Strengthening the Sale by Asking for An Open Cheque
The Shu”t Shevivei Eish (3:13) is mechadesh that when he would sell chometz to a non-Jew, he would ask him to leave a signed open cheque, to ensure payment for any chometz he takes. He explains that this strengthened the sale, as the non-Jew can no longer say the whole sale was joke, as his deposit of the cheque shows it was a proper sale. He adds: That by doing this one doesn’t need a guarantor, as the open cheque guarantees that any money needed to be claimed from the non-Jew can easily be claimed. Additionally, leaving a cheque shows to everyone that it’s a sale and not just a joke.
The Opinion of R’ Shlomah Zalman Auerbach
R’ Shlomah Zalman held (Halichos Shlomah, Perek 6, 9) that it is lechatchilah [ideal] to buy chometz that was sold to a non-Jew before Pesach. Even if the chometz belongs to one who isn’t shomer Torah u’mitzvos – provided it is known that he did mechiras chometz the way one is supposed to. He explains that we don’t go after intent, as דברים שבלב אינם דברים – words in the heart aren’t considered words, and we look at the actions not the thought, and since in the end of the day he signed on a shtar mechirah, the chometz is sold.
Nonetheless, R’ Shlomah Zalman says, meticulous people are careful to get rid of all chometz that is not inside a mixture (חמץ בעין) from their houses before Pesach and don’t include it in the mechiras chometz (unless they own shops). Similarly, there are those who are stringent not to buy חמץ בעין which was sold to a non-Jew over Pesach, after Pesach. However, one should only conduct himself like this on a private individual basis, however, one should treat this as public ruling. I.e. a rov shouldn’t say in a public drosha that everyone should act accordingly.
R' Moshe (Igros Moshe, Orach Chaim 4:95) writes there is no logic to be stringent not to eat chometz that was sold according to halachah after Pesach, and they bring from R’ Elyashiv as well (Haggadah Shel Pesach pg. 29) that according to halachah it is perfectly ok to eat chometz sold to a non-Jew over Pesach.
However, there is certainly a hiddur not to eat chometz sold to a non-Jew over Pesach, after Pesach, however, this only applies to chometz gomur [foods items made of proper chometz], however, foods which contain taruvos chometz [mixture of chometz], or baked products which contain a small amount of chometz ingredients that were sold to a non-Jew, if the majority of the product isn’t chometz, even those who are stringent many be lenient. Although, there is room to be stringent about this as well.
One of my friends made a shalom zocher on Friday night of erev Pesach Shechal BeShabbos. He had a baby at 1:00pm on Friday afternoon. Unsure as to when the baby would be born, he brought a bottle of whiskey and put it in the cupboard he sold to the goy and said to himself, “If I have the baby before Shabbos I will take it out and use it at the shalom zocher, and if not I will sell it”. Practically, he had the baby before Shabbos but forgot to take out the whiskey. At the shalom zocher the question arose if perhaps, the whiskey must be taken out the cupboard and drunken as the intention was only to sell it if the baby was born after Shabbos, and in the end it was born just before. Based on the above logic of R’ Shlomah Zalman I argued, that it doesn’t make a difference what was said, as in the end of the day on the shtar mechirah no such stipulation was written and דברים שבלב אינם דברים. The whiskey was left in the cupboard for the goy to enjoy.
Chometz Nuksheh
The Mishnah Berurah (442:2) writes: On chometz nuksheh there is no bal yaro’eh and bal yamotzei, and only on a rabbinic level is one required to get rid of it before Pesach. Chometz nuksheh refers to items which are not real chometz, like glue made from flour and water which scribes use to stick paper together, or items which are not really suitable for eating. The Shaar HaTziyun adds: That if it’s not fit for eating at all, then it’s not even included in chometz nuksheh and one may keep it in his house over Pesach. Bedieved, if chometz nuksheh wasn’t sold over Pesach, it is not forbidden to benefit from it as is clear from the Shulchan Aruch (447:12). The Mishnah Berurah (s.k. 107) explains that since it is not forbidden on a Torah level, Chazal never made a kenas. The Shaar HaTziyun (s.k. 184) writes: If the chometz nuksheh is in a mixture, then one can even keep it in his house over Pesach.
Medicine
The Mishnah Berurah (466:1) writes, a choleh she’ein boi sakonah [one who is ill, but not in great danger] may heel himself on Pesach using chometz belonging to a non-Jew, if he uses it in an abnormal way of benefiting from the item (שלא כדרך הנאתו). Since benefiting in such a manner is derabonon, in place of a choleh [sick person] they never decreed against using it, unless one can be healed without needing to come on to chometz at all. The Shaar HaTziyun (s.k. 4) adds, that one can also heal himself with chometz she’ovar olov hapesach, even if he is just a choleh she’ein boi sakonah, since it is only an issur derabonon.
However, the Kaf HaChaim (s.k. 8) brings the Chelkas Yaakov (s.k. 1) who quotes the Ramban and other achronim who say that the above heter is only when one doesn’t put the chometz in his mouth, if, however, one consumes it, then it is treated like a de’O’raisa and one shouldn’t use it for healing, unless the situation is life threatening. According to this, it’s not so simple that a choleh she’ein boi sakonah can buy medicine from a pharmacy which never sold it’s chometz over Pesach, unless we add a number of different arguments together. I.e. that the medicine is not definitely chometz, it’s not fit for eating (unless it’s a syrup), and that in most medicines the part which is chometz is nullified in the majority of other ingredients.
When it comes to medicines which contain chometz nuksheh, there is no need to be stringent even if one doesn’t know it was sold to a non-Jew over Pesach, as we said that there is no kenas on chometz nuksheh. If the chometz nuksheh is in a mixture then we said that one can even keep it over Pesach, therefore, certainly one can be lenient with medicines.
However, when it comes to syrups and the like for children where it tastes nice and there is concern it contains chometz that wasn’t sold over Pesach, there is room to be stringent. If one is in doubt if it contains chometz she’ovar olov hapesach we will see below.
Similarly, soaps, toothpastes etc. are permissible after Pesach as the chometz is no longer fit for consumption by a dog, and one can even keep them on Pesach.
Machlokes Haposkim if Doubtable Chometz She’ovar Olov Hapesach Is Forbidden to Eat
The Mishnah Berurah (449:5) writes: If one finds chometz after Pesach and he doesn’t know if it belonged to a non-Jew or a Jew over Pesach, the achronim argue about its status: The Bach, Magen Avraham and Mekor Chaim hold that it is permissible to benefit from it, since chometz she’ovar olov hapesach is an issur derabonon, and when there is a question regarding an issur derabonon we rule leniently (sofek derabonon lekulah). However, it is forbidden to eat as we are very stringent when it comes chometz, and even by derabonons we are stringent (see Machatzis HaShekel). The Shu”t Shevet HaLevi (1, end of siman 144) explains differently: Since some say the issur to eat chometz she’ovar olov hapesach is de’O’raisa, whereas the issur to benefit from it is derabonon, the Bach, Magen Avraham and Mekor Chaim hold that by a doubt on a de’O’raisa level we are stringent, therefore, one shouldn’t eat the chometz. However, when it comes to benefiting from it, we are lenient like we normally say, that when there is a doubt regarding an issur derabonon we are lenient.
However, the Chelkas Yaakov (s.k. 1), Taz (s.k. 1) and Beis Meir all hold that one can even eat the chometz, like a regular case of sofek derabonon lekulah. If the place the chometz is found is made up of a majority of Jews, then it’s even forbidden to benefit from the chometz as we assume it belongs to a Jew, if, however, it is likely that it only fell after Pesach, or that it was baked after Pesach, then one may eat it, as it’s more logical that it fell after Pesach, then to say it fell before Pesach and it was lying on the floor throughout the entire duration of Pesach.
The Magen HaEleph explains the lenient opinion as follows: There is no need to be more stringent by chometz than any other issur derabonon, if chometz she’ovar olov hapesach falls into a mixture we don’t need sixty, we just need a majority to nullify it (see Mishnah Berurah 447:105) unlike other issuray derabonon that need sixty (see Rema, Yoreh Deah 98:8, and Shach s.k. 26). We also find a leniency that some say one can do bitul issur lechatchilah, unlike other issurim (see Biur Halachah, 448:3, d.h. afilu) therefore, certainly we can apply the regular rule of sofek derabonon lekulah.
The Question of the Pri Megodim and R’ Akiva Eiger
The Pri Megodim (449, Eishel Avraham s.k. 2) asks on the Magen Avraham: “I don’t know any reason to differentiate between eating and benefiting, as by both of them we should say sofek derabonon lekulah?”
R’ Akiva Eiger in Shu”t (1:23) also asks: “It’s wondersome (to differentiate between eating and benefiting) without any foundation or reasoning, who is wise enough to explain the difference”.
However, many times we find in the Mishnah Berurah in Hilchos Pesach, that there is an issur to eat, but no issur to benefit. (See 440:5, 442, end of s.k. 1, 447 s.k. 107, and 448 s.k. 25). And we also mentioned the Machatzis Hashekel and Shevet HaLevi who explain the difference.
What Is Included in Doubtable Chometz She’ovar Olov Hapesach
The poskim argue about the status of doubtable chometz she’ovar olov hapesach. The question is, what can be included in such a doubt: Does it mean a doubt if there is chometz at all? A doubt if it was sold to a non-Jew or not? Does it mean a doubt who owned the chometz before Pesach, a Jew or a non-Jew? Or does it mean a doubt if the kinyan [acquisition] done at the time of mechiras chometz was a valid kinyan? It’s not so clear what is included in this doubt.
Buying Chometz in a Shop or Supermarket Where the Owner Is Not Shomer Torah U’Mitzvos after Pesach
The Igros Moshe (Orach Chaim 4:96) discuses buying chometz in a supermarket where there is no concern that the owners or workers want to cause Torah.
By a regular issur it is forbidden to take the issur and purposely nullify it with sixty times of a permissible item, however, when it comes to chometz she’ovar olov hapesach some say one is allowed to.
