Taking Possession of Chametz on Pesach

18 Iyyar (Lag BaOmer): Taking Possession of Chametz on Pesach

by R. Gidon Rothstein

Welcome to a new series Torah Musings does me the honor of hosting. Over the past several years, I have become attached to the idea of learning a shu”t, a responsum, written on that Jewish date. There is a certain charm to it, it seems to me, to spend the anniversary of the writing of that responsum involved in it. It also gives exposure to giants of our past who we might know only by name; here, over time, we get to know how they thought, the kinds of arguments they made to support their positions, and so.

More than that, it fits a broader project of mine, the search for windows on what Hashem wants of us not shaped by the people opening those windows. One part of my Torah studies has shown me, over and over, that no matter how great a giant in Torah one reads, that gadol tends to bring some personal elements to his reading, some tendency to gravitate towards some sources over others, to resonate with some aspects of Torah over others.

True gedolim are faithful enough to sources that they never warp or misread them, and produce conclusions that others, without those tendencies, recognize as an accurate representation of the tradition, but it is still true that we are getting the Torah of so-and-so. Which is fine if that is our rebbe, the gadol whose worldview we adopt.  Too often today, people both refuse to become the talmidim, the students, of a particular gadol, and also allow themselves to pick and choose what they see as important.

What I have been seeking, for some time, is ways for the tradition to speak for itself, where we cannot dismiss it as “so-and-so’s view” (as if that’s a reason to dismiss the thoughts of those much greater than us).

A few years ago, I published a book that used the haftarot in this way. It offered a short essay (about 1000 words) on each haftarah in the Jewish calendar, then paused at the end of each group of haftarot (for each book of Chumash as well as the special haftarot and the chagim haftarot) to note recurring themes. My claim was that the haftarot themselves, selections of Navi chosen for their connection to the Torah reading, offer a bare theology of Judaism.

I did something similar in We’re Missing the Point, and here, too, it is my belief that taking a responsum for each possible day of the Jewish calendar (clearly, no responsa were ever written on the 10^th of Tishrei, for example) will eventually bring us to recurring themes and emphases. To get there, we have to build a library, choosing responsa randomly enough that we not allow our biases to get in the way.

As part of building up to that, I hope to, once a week, publish a summary of a teshuvah written on that Jewish date. It is a convenient and a propos piece of learning for that date, and will build our library of responsa towards that larger goal.

One more word about selection: I only choose responsa I can summarize in under 2000 words (and, usually, 1500 or so), and I do have favorites among the meshivim. I strive to expand beyond the teshuvot of R. Moshe Feinstein, Tzitz Eliezer, Yabia Omer, Chatam Sofer, R. Shlomo Zalman Auerbach, R. Kook, zt”l, and a few others, but it is weighted in that direction, because I find their responsa so clear, so well-written, so well-thought out (and they’re among the ones careful to date their responsa), that it is always a pleasure to engage with them on an halachic topic, even when common practice does not follow their view.

Which is the last point to note: I have not limited myself to responsa that are accepted practice today. Any of the meshivim I consult were sufficiently authoritative that even if the community has gone in a different direction, I find studying their views worth the trip. I hope you’ll join me, week to week.

18 Iyyar, 1935 in Jerusalem, R. Kook on Avoiding Owning Chametz on Pesach

Shu”t Orach Mishpat, R. Kook’s Orach Chayim responsa, number 85, deals with a Jew who had agreed to purchase flour from a non-Jew before Pesach, with no specified delivery date or act of acquisition. On Chol haMoed, the non-Jew’s messenger brought the bags of flour, when the Jew wasn’t there to react. His daughter showed the non-Jew a place in their store to leave it, which he did. Later, the non-Jew demanded a receipt, and the Jew gave him one.

Is the flour now חמץ שעבר עליו הפסח, flour owned by a Jew over the course of Pesach, and therefore prohibited?

Some necessary background that R. Kook provides: this Jew had sold his chametz before Pesach, leaving the keys with the non-Jew to whom he sold the store (a stringency we do not generally follow today). The daughter found spare keys, without his knowledge. His only participation was writing the receipt afterwards, at the non-Jew’s insistence.

Flour: Chametz or Not?

R. Kook dismisses any worries, and then explains why.  First, flour isn’t assumed to be chametz (this isn’t so clear; today, as then, flour is often tempered, meaning sprayed with water and allowed to sit, before being milled, leading to different views about its status); for R. Kook, when necessary, it would even be permissible to buy flour from the market on Pesach, so how could we claim that it is chametz that passed through Pesach?

R. Kook knows of opinions that non-Jews’ flour is different than ordinary market flour (such as Ritva), but assumes that is because their mills were powered by water. The proximity to water might lead to the wheat being more thoroughly wetted and therefore leavened. In Israel, where most mills were powered in other ways, he saw that as less of a problem. In addition, even some who agreed with Ritva (such as Re’ah), allow the wheat if there are no other options.

Further, while some authorities ruled out flour made from tempered wheat for Pesach use, R. Kook notes that Chok Ya’akov said that was only where we know they washed the wheat, but if only some people do that to their wheat before milling it, we don’t have to take that into account.

In his days, R. Kook says, with new machinery to clean the wheat without using much water, there’s no need to worry about a doubtful issue that, at most, would be a Rabbinic prohibition of chametz owned by a Jew over Pesach.

Pushing the argument to the next step, he says that even if some wheat had been leavened by the water, clearly not all was, and the moisture probably only hit the outside layer.  When it was all ground together, it became nullified in the majority of the wheat that hadn’t been leavened. For those authorities who required sixty times the problematic food even for ignoring chametz owned by a Jew over Pesach, some treat flour as dry food (which mixes less fully—pieces of meat, for example, get mixed together in that we cannot tell them apart, but aren’t really mixed together). Dry food, all agree, is nullified in a majority (since taste doesn’t transfer from one to the other).

Did the Jew Own It?

Beyond all that, R. Kook says, there’s no reason to think the Jew took possession of the chametz. After all, it was prohibited to do so, and Jews don’t want to violate the Torah. Particularly this Jew, who had sold the store, in which case the flour put into the store was actually being placed in the possession of a non-Jew (until this Jew bought the store back after Pesach), so there’s no reason to worry about chametz owned over Pesach.

R. Kook does know of the Ba’al HaIttur in Tur Orach Chayyim 448, who thinks that chametz delivered by a non-Jew on Pesach becomes prohibited to eat, but claims that referred to Jews who arranged such deliveries on purpose (towards the end of the holiday, to have chametz as soon as it was over).  By strict law, R. Kook infers, if a non-Jew dumps chametz in a Jew’s property, that’s not the Jew’s problem (as long as the Jew does nothing to take ownership of it). That stringency, too, only applies to actual chametz, not to flour where we’re worried that it might have become leavened by the water sprayed on it.

Tur quoted his father, Rosh, as requiring the Jew to say he did not want ownership, but R. Kook is not sure that’s an absolute requirement. Beit Yosef’s ruling that we follow Rosh might also only be in a case where the Jew is present when the chametz was delivered. The daughter’s taking delivery does not implicate the father, despite the fact that Beit Yosef applies Rosh’s ruling to a maid taking delivery of chametz on the last day of Pesach, and requires the Jew to say he did not want that chametz.

Nonetheless, R. Kook suggests, Beit Yosef might have been speaking in general, that sometimes there are situations where the Jew has to disavow the chametz.  It is still possible that even absent such a disavowal, the Jew is not thought of as taking possession. Where that wasn’t possible, such as that he wasn’t there, the general idea that Jews do not want to own prohibited items should be enough.

The Jew’s writing the receipt also doesn’t prove anything about ownership (or responsibility—Jews are also not allowed to be responsible for non-Jews’ chametz on Pesach), it’s just a way to assuage the non-Jew’s interest in proof of delivery.

Halachic Concepts We’ve Learned

1. There is some doubt about whether wetting wheat turns it into chametz; even if it does, it is only for wheat that was thoroughly wetted. If that wheat is then ground with other wheat before Pesach, the chametz might be nullified in the mixture.
2. Jews do not want to violate the Torah, such that we can reconstrue what looks like taking possession as something else.
3. There is an halachic requirement to object if someone tries to give us chametz on Pesach, but that might be a stringency, and might only be when the Jew is present.
4. Leaving chametz in a store owned by a Jew, but sold for Pesach (with the keys delivered to the purchasing non-Jew!) does not mean the Jew owns them, even if s/he writes a receipt for the items.

That’s how R. Kook saved a Jewish storekeeper from financial loss, on the 18^th of Iyyar, 1935.