In loving memory of my dear father, Moreinu haRav Avraham Benzion ben Azriel Hertz Isaacson zt’l, whose love of Torah, passion for justice, and acts of kindness inspire everything I do.
In the previous post, we noted that the Gemara seems to be leaning towards following Rabbi Shimon’s view, that the prohibition of benefitting after Pesach from Chametz that was owned by a Jew over Pesach is only rabbinical in nature and is essentially a קנס (fine) for transgressing the biblical prohibition of owning chametz on Pesach (.בל יראה ובל ימצא)
We also noted that seeing that this is a fine, there is a strong argument that it should only apply to chametz that a Jew intentionally, or negligently owned on Pesach, but not for chametz that he owned unknowingly (שוגג) or against his will (אונס).
However, there are indeed times when Chazal imposed a fine even for unknowing neglect (see for example Shabbos 38a) regarding one who cooked on shabbos unintentionally) and it is certainly still possible that they did so in the case of chametz unknowingly or unintentionally owned by a Jew on Pesach too.
It certainly seems logical that if a Jew failed to find some chametz during the search but performed בטול, thus avoiding the prohibition of בל יראה ובל ימצא completely, that the chametz should not be forbidden after Pesach, and this certainly seems to be backed up by the wording of the Mishna and Rabbi Shimon that specifically refers to בל יראה being the reason for the prohibition.
Yet, we noted that the Rambam rules that even chametz that was in a Jew’s possession on Pesach unknowingly or against his will is forbidden after Pesach for perpetuity, and that many Rishonim extend this prohibition even to when בטול has been done!
The Rosh, though himself opining that if בטול had been done, the chametz should be permitted, notes that this is subject to a dispute in the Yerushalmi )Perek 2, halacha 2) where Reish Lakish permits chametz that one declared הפקר (ownerless) before Pesach and Rabbi Yochanan forbids it as we are concerned people will be מערים (act deceitfully) and claim they declared chametz ownerless before Pesach when they did not do so.
Assuming that the Bavli does not disagree with the Yerushalmi, it would follow based on the general rule that Rabbi Yochanan’s rulings are more authoritative than those of Reish Lakish, that we should follow Rabbi Yochanan and forbid even chametz that one was מבטל before Pesach despite the fact that one never transgressed the prohibition of בל יראה ובל ימצא!
Nevertheless, this stringency seems to be absent from the Rambam, and some Rishonim (such as the Ramban, Ritva and Ran) attempt to prove from the Bavli itself, on our daf, that the prohibition applies even if one unwillingly owned chametz on pesach, or perhaps even if one did בטול!
The Mishna on 30b tells us that if a non-Jews lends money to a Jew using the Jew’s chametz as surety, the chametz is permitted after Pesach.
Conversely, if a Jew lends money to a non-Jew using the non-Jew’s Chametz as surety, the chametz is forbidden after Pesach.
The Gemara clarifies that this refers to a case where the lender kept the chametz in his possession as surety, the borrower failed to pay on time, and the chametz thus automatically went into the ownership of the lender.
So long as the original stipulation was that in case of failure to pay on time, the surety would become the property of the lender retroactively from the time of the loan, the chametz is then seen as to have belonged to the lender over Pesach, and if the lender is not Jewish, the Jew will be permitted to derive benefit from it after Pesach.
What would happen if there was no such stipulation? The Chametz would then still have belonged to the Jew over Pesach and would thus be forbidden to him even after Pesach.
The implication is that this is the case even if the Jew wanted to repay the money and reclaim the chametz to destroy before Pesach, but did not have the money to do so, in which case he would have owned the chametz on Pesach due to factors beyond his control.
It is this sugya that the Magid Mishna (on above quoted Rambam) brings as the source for the Rambam’s stringency, though we should note that the implication of this sugya is that this would also be the case even if he performed בטול – otherwise it would not be beyond his control as he could simply perform בטול on it and avoid the prohibition entirely- yet the Rambam makes no mention of going this far.
Yet it is a sugya later on daf 31b that many Rishonim (see Ramban, Ritva, and Ran) bring to prove that the Chametz of a Jew that was not disposed of correctly over Pesach is forbidden after Pesach, even if the failure to do so was unknowing (שוגג) or unintentional (אונס) , and even if בטול was done and he did nor transgress anything at all.
The Gemara brings a Beraisa which discussed a shop owned by a Jew and whose merchandise is also owned by a Jew, but whose workers are non-Jewish.
According to the version of the Gemara we have, as well as that of Rashi, if Chametz is found in the shop after Pesach, its is forbidden, as we assume that it was part of the inventory that had not been disposed of correctly before Pesach and did not belong to the worker.
Conversely, if the shop and inventory belong to a non-Jew and the workers are Jewish, chametz found there after Pesach is permitted as we assume that it is part of the inventory and does not belong to the Jewish workers.
However, Rabbeinu Chananel has a different version of the Gemara, quoted by the above mentioned Rishonim, that permitted the chametz in the first case and forbade it in the second, always assuming that the chametz belonged to the workers and not to the owner of the shop or the inventory!
The Ramban explains that because the worker probably dropped the chametz before Pesach and is probably unaware where he dropped it (or he would have gone back to remove it,) he must have been מתיאש (given up hope) of getting it back, which essentially makes it ownerless, as if he actively nullified it.
Yet, the chametz is still forbidden, which proves that even if בטול was performed and the prohibition of בל יראה was not transgressed, the chametz is still forbidden after Pesach. The Ran adds, probably based on the above-quoted Yerushalmi, that this is to prevent people from being מערים (sneaky) and declaring it ownerless after Pesach.
The above proof, however, seems to assume that יאוש ,בטול and הפקר work in similar ways and that a lost item that one has despaired of has the status of הפקר, or at least of something that one has nullified, something anyone who has studied the earlier sugyas of בטול and the sugyas of יאוש in אלו מציאות know is not to be taken for granted.
If anything, יאוש seems to be a weaker form of detachment that הפקר, in that it only works if the lost item came into the hands of the founder AFTER the owner had despaired of it (see Tosfos, B.K. 66a who makes that point. )
As such, according to this view of יאוש, the fact that chametz is still subject to the prohibition of חמץ שעבר עליו הפסח after יאוש cannot serve as a proof that it is still subject to that prohibition after בטול, particularly if one holds that בטול includes a declaration of הפקר within it.
- the Rambam makes no mention of חמץ after בטול
- the proof brought by the Ramban and the Ran do not work with the version of the Gemara in front of us, which is also that of Rashi, Rav Hai Gaon, and the preferred girsa of the Meiri.
- The proof does not work with the view of the Tosfos regarding יאוש
- The Rosh himself says that there should be no prohibition if בטול has been done
- The Rif makes no mention of this case at all, and it appears that neither does the Rambam
It seems to me that the view of the Yerushalmi , the Ramban, and the Ran is not accepted by most Rishonim, and that particularly as we hold like Rabbi Shimon that חמץ שעבר עליו הפסח is מדרבנן, there should be little reason to be stringent, at least in theory.
Yet, the Tur (O.C. 448), and Shulchan Aruch (O.C. 448/5) rule stringently even if בטול was done, and most Achronim (see for example M.B. there ) appear to concur, while suggesting that one could possibly be lenient if one performed the check properly, was unaware of the chametz and also did בטול.
This could be because the Mechaber follows his explanation of the Rambam in Kesef Mishna, which as we pointed out, seems to indicate that he is stringent even if בטול was done, despite not having said so explicitly.
In case of great need, further guidance should be sought.
These posts are intended to raise issues and stimulate further research and discussion on contemporary topics related to the daf. They are not intended as psak halacha.