The Process of Biur Chametz

Few mitzvos are planned and prepared for to the extent we are used to seeing with biur chametz. A mitzvah which on a Biblical level applies only from midday on Erev Pesach, and rabbinically starts the night before, in practice tends to be prepared for weeks beforehand.

There are many details of this mitzvah which require clarification, and I will to try to do justice to a few of them. The basis for everything here is this passuk:

שבעת ימים מצות תאכלו אך ביום הראשון תשביתו שאר מבתיכם כי כל אכל חמץ ונכרתה הנפש ההוא מישראל מיום הראשן עד יום השבעי

)שמות יב, טו)

“You shall eat matzos for seven days, but on the day beforehand you shall nullify leaven from your homes. If anyone eats chametz from the first day until the seventh day, that soul will be cut off from Yisrael.”

(Shemos 12:15)

Bitul Chametz

The gemara tells us that on a Biblical level, all we are required to do to our chametz is ‘bitul’ (nullification).[1] The simplest explanation of this is given by Rashi[2] and the Rambam- the word תשביתו means nullification in the mind.[3] Others explain that bitul is a synonym for hefker, relinquishing of ownership.[4]

Either way, the requirement to search out and destroy all chametz in one’s possession is rabbinic. This rabbinic obligation applies only to someone who is in his own home in the thirty days before Pesach. One who is away during this entire period may rely on bitul alone[5] (although chametz remaining in his possession must be burned upon return according to most, even after Pesach[6]).

Bedikas Chametz

Most people are aware that the ‘Pesach-cleaning’ that they do is above and beyond what is strictly necessary, although many do not realise the extent of this. Nowhere in Chazal do we find any obligation to start cleaning the house from chametz until the night of Erev Pesach (or if one will not be at home then, the night before he leaves[7]).

I am not suggesting that everyone should wait until the night of Erev Pesach to start cleaning. This may have worked in the tiny houses people lived in in the time of Chazal, but in much bigger houses it can be impractical.[8] However, to put what we do in perspective it is important to understand what the basic obligation is.

In addition to this, there are a number of points that remain completely relevant even in the biggest houses. Firstly, the obligation to search for chametz applies only to places where one normally brings chametz.[9] In homes where food consumption is limited to small areas, the search can be a simple and quick task.

Secondly, although generally people know that ‘dust is not chametz’, less well known is the fact that insignificant chametz crumbs also need not be removed.[10] The only halachic problem that could be caused by such crumbs is the unlikely possibility of them falling into the food on Pesach, in which case the food may become forbidden to eat.[11]

The last halacha that must be pointed out in this area is a stringency. No matter how meticulously the house has been cleaned beforehand, there is no exemption from the obligation to check the house on the night of Erev Pesach.[12] If chametz is normally brought into all (or most) rooms in a large house, it would be wise to leave much of the job until that night and delegate amongst the members of the family.[13]

Mechiras Chametz

What I have written until now is more or less agreed upon by the vast majority of halachic authorities. When it comes to the question of selling versus burning of chametz, two opposite views have become more popular in recent times. I reject both of them, as I will try to explain.

The first view is that of the extreme pro-mechira camp. Sometimes based on a healthy loathing of wastefulness, they claim that burning chametz is a violation of the negative commandment of ‘Bal Tashchis’ (a paraphrasing of the Torah in Devarim 20:19, referring to destruction of fruit trees).[14]

This claim is not hard to refute. The fulfilment of a mitzvah cannot seriously be described as purposeless destruction.[15] All the more so when it comes to destroying something that the Torah considers valueless.[16] However, I do agree that it is appropriate to limit the chametz one burns by being prudent in the weeks before Pesach.

The opposite argument is that the sale we do is fictitious, or at best a ‘haaramah’ (halachic trickery). There are different levels of extremity to this claim, some not wanting to rely on any kind of sale or even to buy chametz after pesach from shops who sold. More common is the practice to sell only items which have not been supervised as chametz-free while not containing known or complete chametz, and to be more lenient when it comes to buying chametz after pesach.[17]

My view is that as long as the sale is legally valid (by secular as well as Torah law), it can be relied upon by all without hesitation. The only stipulation I would add is that it would not be within the spirit of the law to purposely stock up on chametz before pesach in order to have it ready for after pesach. To support this position, I will first quote precedents and then attempt to refute the various counter-claims.

The fact that selling to a non-Jew is a legitimate way of getting rid of chametz is explicit in the Mishna.[18] The Tosefta (another collection of teachings from the mishnaic period) tells us that it is also ok to buy the chametz back from the non-Jew after pesach and to mention this possibility beforehand, provided that the original sale was genuine.[19]

There are two main claims of the anti-mechira camp against the applying of this Tosefta to our sale. The first is that the Tosefta deals with a case of a Jew and a non-Jew on a boat on Erev Pesach, and the solution of selling was only given for lack of a better alternative.[20]

This interpretation of the Tosefta seems flawed. As the chametz in question is with the Jew on the boat[21], there is a perfectly viable option of throwing it into the sea. This explains why the Shulchan Aruch writes this option of selling chametz without the limitation to the case of the boat.[22]

The second claim is that the way we do our sale today is problematic, and not similar to the sale mentioned in the Tosefta and the Shulchan Aruch. The main basis for this is the stipulation of the Terumas Hadeshen, quoted in the Shulchan Aruch, that the chametz must not remain in the house of the Jew.[23]

The Mishna Berura quotes a dispute over the reason for this stipulation.[24] Some say that it is a mere technicality, to ensure the non-Jew halachically acquires the chametz. According to this if the non-Jew removes the chametz with the intention of acquiring it, the problem is solved even if he then returns it to the house of the Jew. In the sale we do today this technical problem is circumvented by the performance of a number of methods of halachic acquisition, to be safe.

Others say that if the chametz stays in the house of the Jew, it ‘looks like’ the chametz of the Jew. There is also a concern that he may forget that it is pesach and eat the chametz. But these problems also have a solution through the sale of the place that the chametz is kept, and sealing it.

Another objection some have is to the practice of a rav selling the chametz of an entire supermarket chain or city. They claim that the non-Jew cannot possibly have real intention to buy the chametz, including the possibility of a huge loss in the event that something unforeseen happens to the chametz over pesach.

This objection may sometimes have some validity, and it is the responsibility of the rav involved to ensure that the non-Jew is aware of the ramifications of the sale. Provided that the contract is written in a way that it will be upheld in court, this should not be too difficult a task.

Chag Kasher v’Sameach!

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[1] Pesachim 4b

[2] Ibid.

[3] Chametz Umatzah 2:2-3

[4] See Tosfos and Ran. Among other problems with this explanation, it is hard to understand why the gemara used the new terminology of bitul instead of the usual word ‘hefker’.

[5] Pesachim 6a. See also Shulchan Aruch Orach Chaim 436:2, that if he intends to return during Pesach this may not be the case.

[6] O.C. 488:5. See also Biur Halacha in 488:3 (ד"ה אפילו).

[7] O.C. 436:1, Mishna Berura 3.

[8] Although even this is usually not so much a function of the mitzvah of biur chametz, and more a preventative measure against the consumption of chametz during Pesach.

[9] Pesachim 2a (Mishna)

[10] Ibid. 6b. See also Yabia Omer 7, Orach Chaim 43.

[11] See Pesachim 30a, O.C. 447:1 (see also Mishna Berura 2).

[12] O.C. 433:11

[13] Even children under the age of bar/bas mitzvah may be entrusted, see Pesachim 4a-b.

[14] See Rambam Melachim 6:8-10, that any needless destruction of something useful is included in this prohibition.

[15] See Bava Kama 91b where it is clear that even fruit trees may be destroyed if they are causing damage.

[16] See for example Bava Kama 98b, that one who destroys someone else’s chametz on Pesach is exempt from payment, as all are commanded to destroy it.

[17] Many believe that the sale is technically valid and may be relied on by shops in a case of large monetary loss, but should not be used by private individuals when the loss due to burning is minimal.

[18] Pesachim 21a

[19] Pesachim ch. 2. This Tosefta is quoted by many rishonim, and to the best of my knowledge no-one questions its authority.

[20] See Maharam Chalava, Pesachim 30b in the name of Rav Amram Gaon who explains similarly. However, this seems to be a lone view.

[21] The language of the Tosefta is that the chametz is ‘in the hand of the Jew.’ Even though the term ‘in the hand of’ is not always meant literally, here it is hard to explain otherwise. Because as mentioned previously, one who left home thirty days before pesach may rely on bitul alone.

[22] O.C. 448:3-4

[23] Ibid.

[24] Ibid. 12