Who Owns The Matzah?

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by R. Gil Student

When you eat matzah at the Pesach Seder, you have to eat matzah that you own. How much do you have to own it? The Gemara (Pesachim 38a) equates the mitzvos of eating matzah and of taking challah regarding ownership. Just like you must take challah from dough that you own, similarly you must eat matzah that you own. Based on this passage, the Rosh (Pesachim, ch. 2 no. 18) rules that you cannot fulfill the mitzvah of eating matzah with stolen matzah, and the Shulchan Aruch (Orach Chaim 454:4) follows likewise. Mishnah Berurah (ad loc., 15) adds other situations to avoid because you might end up eating matzah that you do not technically own (borrowing is fine because if you borrow something to eat, clearly the lender does not intend that you return it).

What if you are a guest in someone’s home for the Seder and eat matzah provided by your host? Do you fail to fulfill the mitzvah? Authorities and commentators offer varying answers. Rav Yosef of Trani (Maharit, 17th cen., Greece; Responsa Maharit 1:150) says that we can assume that a host intends to gift the matzah to guests but each guest must have specific intent to acquire the matzah. Without this conscience intent, you do not acquire the matzah and therefore do not fulfill the mitzvah. Rav Yehudah Aryeh Leib Alter (Sefas Emes, 19th cen., Poland; Commentary to Pesachim 38 s.v. asya) concludes that the host must actively give the matzah to each guest — intent is not enough. Rav Meir Auerbach (19th cen., Israel; Imrei Binah, Pesach, no. 23) argues that a guest acquires any food he takes to eat, and therefore fulfills the mitzvah of eating matzah without needing an extra intent or acquisition.

I would like to offer an argument that a guest does not need to acquire the matzah from a surprising opinion in the Gemara that was subsequently retracted. Rav Acha bar Ya’akov (Pesachim 29a) compares the prohibition against owning chametz on Pesach to the prohibition against eating it. The Torah (Ex. 13:7) says that we may not “see” our own chametz on Pesach, which the Gemara (Pesachim 5b) interprets as meaning that (on a biblical level) we may not maintain our own chametz on our property on Pesach but we may maintain chametz that belongs to a gentile. Rav Acha bar Ya’akov says that this applies to eating chametz also — we may not eat our own chametz but we may eat chametz that belongs to a gentile.

Rashi (Pesachim 29a s.v. ve-yalif) reads this simply — according to Rav Acha bar Ya’akov a Jew is allowed to eat chametz on Pesach as long as that chametz is owned by a gentile. As mentioned above, Rav Acha bar Ya’akov subsequently retracted this shocking position. Be that as it may, I would like to focus on Tosafos’ analysis of Rashi’s interpretation. Tosafos ask how it is ever possible, from a technical perspective, for a Jew to eat chametz owned by a gentile on Pesach. If the gentile gives it to a Jew, the Jew acquires it. If a Jew steals it, he also acquires it to some degree because he is liable for damage to the stolen property. If so, there is never a case in which a Jew can eat gentile-owned chametz — the food always belongs to the person eating it.

Because of this question, Tosafos offer other explanations that I think fit better into the flow of the Gemara. Maybe Rav Acha bar Ya’akov permitted benefitting from gentile-owned chametz on Pesach or maybe he was discussing eating the chametz after Pesach. Be that as it may, why doesn’t Tosafos answer that, according to Rashi, a Jew who eats chametz at a gentile’s table is able to eat gentile-owned chametz? Tosafos assume that there is no possible case in which a Jew can eat gentile-owned chametz. Tosafos must understand that a guest acquires the food he eats at a host’s table. If so, the same should apply to a guest eating matzah — he acquires the food he eats so that the matzah is considered his. I later found that the Devar Shmuel sees the same implications in Tosafos. This would mean that a guest does not have to acquire the matzah he eats to fulfill the mitzvah.

In practice, Rav Shmuel Kamenetsky (Kovetz Halakhos, Pesach 17:6) rules that preferably a guest should make an acquisition on the matzah but if he does not, he still fulfills the mitzvahPiskei Teshuvos (454:2) quotes more authorities who approve of the common practice not to be concerned with this issue but suggests that guests and married children pay (before Yom Tov) a token amount to acquire the matzah they will eat.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link of New Jersey, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Board of Jewish Action magazine and the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

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