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The Hametz Nightmare on Chelm Street
Rabbi Joshua Kulp
Purim has passed and as a good, somewhat neurotic Jew, as soon as the hametz candy has been put away (or maybe even before) you’ve started worrying about Pesah. Slowly, you’ve set siege to your hametz, limiting its mobility. First, no hametz upstairs. Then no hametz outside the kitchen or dining area. Despite the kids' protest, you’ve ordered that there be no hametz on the couch while watching TV. Soon thereafter you start cleaning, such that by the time the 14th of Nissan comes, you’ve cleaned your house thoroughly. You carefully spread out ten pieces of bread on Erev Pesah, then found them and burned them the next morning. You sit down for your seder, knowing that you have a hametz-free house. You can coast through the Hag, eating funny tasting baked, drinking slivovitz, and hoping it won’t take long for your digestive tract to recover.
On the second day of Pesah, you head off to shul and the weather has gotten better. It's Hag Ha-Aviv after all. So you take out your light coat and in one of the hidden pockets you find a Clif Bar you left there in October. The horror! The shame! The fear! What do you do?
The first to address the issue is Rav, a third century Babylonian sage. On Bavli Pesahim 6a Rav states, “If one finds hametz in his home on Yom Tov, he should put a vessel on top of it.” On Yom Tov (in Israel, the first and last days of Pesah, outside of Israel, the first two and the last two) one cannot burn hametz because burning is permitted only if it is for the purpose of eating (or perhaps other bodily pleasures) but not for other reasons. He can’t just leave the hametz there, lest he come to eat it. He can’t even touch it, because it is muktzeh. So he puts a vessel, perhaps a bowl, on top of it. This will prevent him from eating it. When Yom Tov is over, he will destroy it either by burning or by another acceptable form of destruction.
However, Rashi adds an important caveat. By maintaining hametz in his home he is not transgressing the biblical prohibition of seeing one’s hametz (bal yira’eh) or possessing hametz (bal yimatze) because he already performed bitul–nullification of hametz. Since bitul is an effective form of removing hametz, there is no chance that he is transgressing by having hametz in his home. Rashi does not answer the question as to what one should do if they found hametz on Pesah but had not nullified it. My guess is that Rashi cannot imagine a case where a person did not nullify his hametz. By his time, the process was completely standard. However, a few hundred years later, the Tur’s brother, R. Yehiel, rules (Arb’a Turim, Orah Hayyim, 446:1) ruled that if one did not preform bittul and found hametz on Yom Tov, he must burn it. Such burning is necessary in order to avoid the transgression of the biblical commandments.
The Rambam, Laws of Hametz and Matzah 3:8 has a different take:
Thus, a person who did not nullify [his chametz] before the sixth hour and discovers chametz which he considered important…and then forgot at the time of the destruction of hametz, and hence did not destroy it, transgresses [the prohibitions]: "[leaven] shall not be seen" and "[leaven] shall not be found."...
[Therefore,] he is obligated to destroy it whenever he finds it. If he finds it on the day of a festival, he should cover it with a utensil until the evening, and then destroy it.”
The Rambam understands Rav’s ruling that one puts a vessel on top of the hametz as referring to a case where he did not do bitul. This would imply that in the second part of this halakhah, where he finds it on Yom Tov and puts a vessel on top of it, he is not actively transgressing the rules of Pesah even if he did not nullify it. For if he were considered to be transgressing at every moment, why suffice with putting a vessel on top of the hametz. Wouldn’t he want to destroy it immediately to avoid more hours of owning hametz on Pesah? But this is puzzling. The person has hametz in his house and he’s not destroying it and he did not nullify it. How is he not considered a transgressor? Why shouldn’t he take every immediate step he can to avoid this grave transgression.
The Kesef Mishneh, R. Yosef Karo’s commentary on the Mishneh Torah, explains that one transgresses the biblical commandments of owning hametz only when one could have burned it but did not. If a person intentionally does not destroy his hametz then he has transgressed the biblical prohibition. But if he didn’t find some hametz, or through some extreme circumstance he was not able to perform the mitzvot, he has not transgressed the biblical prohibition, even if he did not earlier nullify all of his hametz. When he finds hametz on Yom Tov, he can’t burn it because he does not need to do so to avoid the transgression. He puts a vessel on it to remind him and others not to eat it. When Yom Tov is over, he should destroy it in any acceptable manner.
The dispute between Rashi and Rambam gets to the heart of bittul–nullification of hametz. To Rashi (and especially to R. Yehiel), without bittul, hametz found on Pesah and not destroyed immediately will cause him to transgress the biblical prohibition of owning hametz on Pesah. Bittul is necessary to avoid the transgression. This is a reflection of the attitude towards bittul taken by the editors of the Talmud who deemed bittul to be the fulfillment of the biblical commandment to destroy hametz. Rashi goes a step further–without bittul, not only has one not fulfilled the positive commandment to destroy, one runs the risk of transgressing the negative commandment not to possess.
In contrast, the Rambam follows an earlier understanding of bittul. Bittul is helpful in expressing the will of the owner not to own hametz on Pesah, but as long as an honest bedikah was performed, and the person tried to destroy all the hametz in his possession, the person will not transgress by having hametz in his possession on Pesah.
The final halakhah on this issue is debated by the aharonim and the Mishneh Berurah grants both positions legitimacy. According to the dominant position, even if one did not nullify his hametz, if he finds it on Shabbat or Yom Tov he puts a vessel on top of it and then destroys it when Shabbat or Yom Tov is over. This is the Rambam’s position, which is also codified in the Shulkan Aruch, Orah Hayyim, 446:1. But if on Yom Tov one wants to destroy the hametz immediately and not just put a vessel on top of it, he may do so. This is Rashi’s position. Both positions are also cited by Rav Melamed in his modern work, Peninei Halakhah. Finally, there are those who say that if one sold the hametz to a non-Jew before Pesah, then even hametz he did not know about was sold and therefore there is no danger of transgressing the biblical commandment. Even on Hol Hamoed, when he could burn or otherwise destroy the hametz, he should instead make sure that he does not come to eat it by putting it away with his sold hametz and this is sufficient.
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