Chametz She'Avar Alav HaPesach:
Chametz that was in the Possession of a Jew on Pesach
The Mishna, Pesachim 28a, states that it is prohibited to benefit from chametz that was in the possession of a Jew over Pesach, even after the completion of Pesach. This is known as chametz she'avar alav haPesach. [For the purpose of this discussion, any reference to chametz she'avar alav haPesach assumes that it was in the possession of a Jew on Pesach.] The Gemara, Pesachim 29a, concludes that the reason for the prohibition is that the rabbis imposed a penalty on those who violated the prohibition against owning chametz on Pesach. In this issue, we will discuss the parameters of this prohibition and provide practical applications.
Purchasing Chametz from Jewish Owned Stores that Remained Open on Pesach
One of the common questions that is asked after Pesach is regarding Jewish owned stores that sold their chametz before Pesach to a non-Jew, but remained open on Pesach. It is arguable that the original sale of chametz was invalid because the Jewish owner continued to transact with the sold chametz, thereby indicating that he does not consider the original sale to be genuine. This is the opinion of R. Chaim C. Medini (1833-1904), S'dei Chemed, Ma'arechet Chametz U'Matzah 9:35. He rules that if someone uses part of the chametz that he sold to a non-Jew, the entire sale is null and void. Therefore, after Pesach, all of his chametz is considered chametz she'avar alav haPesach. R. Moshe Feinstein (1895-1986), Igrot Moshe, Orach Chaim 1:149, disagrees. R. Feinstein is of the opinion that the sale of the chametz is not nullified. Rather the actions of the individual are considered a form of theft. Therefore, one may purchase chametz that was sold to a non-Jew even though the store owner continued to transact with chametz that he sold. R. Feinstein, op. cit., 2:91, does note that if the store owner purchased new chametz inventory on Pesach, it is not included in the original sale and therefore, that chametz is prohibited.
R. Yechiel M. Epstein (1829-1908), Aruch HaShulchan, Orach Chaim 248:20, provides a solution for a business that will continue to operate on Pesach and buy and sell chametz. He notes that one can effectively sell the business to a non-Jew such that the non-Jew owns all of the assets of the business and is responsible for paying its employees. In such a situation, when chametz is sold or purchased on Pesach, it is the actions of the non-Jewish entity.
If the chametz was in the possession of a publicly held corporation that has Jewish shareholders, there are a number of leniencies that can be employed. One leniency includes employing retroactive designation (b'reirah) to the rabbinic prohibition against benefiting from chametz she'avar alav haPesach. This means that when one purchases chametz after Pesach, one can assume that one purchased the chametz from the portion of the business owned by non-Jews. Another leniency that can be employed is that many poskim permit owning a minority share of a corporation that owns chametz. As such, the chametz would not be considered chametz she'avar alav haPesach. [For a lengthy discussion of the leniencies to purchase chametz from a corporation after Pesach, see R. Shmuel Hibner's article in HaDarom no. 24 (5727).]
An additional leniency is provided by R. Shmuel of Altona (18th century), Teshuvot Makom Shmuel no. 17, and R. David Friedman (1828-1915), She'eilat David, Orach Chaim no. 5. They are of the opinion that the penalty imposed on the chametz of someone who owns chametz on Pesach does not apply to someone who does not observe mitzvot. However, it is difficult to rely on this leniency because R. David HaLevi Segal (c. 1586-1667), Taz, Orach Chaim 448:4, rules explicitly that chametz she'avar alav haPesach applies to someone who is not observant. Taz's comments are codified by Mishna Berurah 448:11.
The Case of the Sale that was not Executed Properly
There are a number of situations where a person thought that he properly sold his chametz, but in reality, the chametz remained in Jewish possession over Pesach. First, it is possible for the rabbi, who acts as the agent of sale, to accidentally omit people from his sale. Second, it is possible to discover after Pesach that the "non-Jew" who purchased the chametz was really Jewish. Third, a person may forget to tell the rabbi that he will be in a time-zone where the prohibition against owning chametz precedes the actual time of the sale. In these situations, is the chametz considered chametz she'avar alav haPesach?
R. Shimon ben Tzemach (Tashbetz, 1361-1444), Teshuvot Tashbetz 2:199, rules that if someone was in a situation where he had no option to dispose of his chametz and he performed bitul chametz (nullification of chametz), the chametz is not considered chametz she'avar alav haPesach. However, Shulchan Aruch does not seem to follow this opinion. Shulchan Aruch, Orach Chaim 448:3, rules that the prohibition against chametz she'avar alav haPesach applies even if it was caused by extenuating circumstances. Shulchan Aruch, Orach Chaim 448:5, further rules that chametz she'avar alav haPesach applies even if one performed bitul chametz on the chametz. Nevertheless, R. Yehuda Ayash (1688-1760), Mateh Yehuda 448:4, suggests that Shulchan Aruch does not dispute Tashbetz's ruling. Shulchan Aruch rules that chametz she'avar alav haPesach applies even in extenuating circumstances when bitul chametz was not performed. It also applies if bitul chametz was performed but the circumstances were not extenuating. However, if bitul chametz was performed in extenuating circumstances, Shulchan Aruch agrees with the ruling of Tashbetz. R. Akiva Eger (1761-1837) in his responsa (1:23) contends that Shulchan Aruch's opinion is that one must be stringent even in a situation where there were extenuating circumstances and bitul chametz was performed. Mishna Berurah 448:25, rules that one may rely on the lenient opinion of Mateh Yehuda in a case of great loss.
Mixtures of Chametz She'Avar Alav HaPesach
In a previous issue, we noted that there are two basic types of mixtures when dealing with a mixture of prohibited and permissible items. Dry mixtures are mixtures where each item remains a separate entity and one does not know which items are prohibited and which are permissible. An example of a dry mixture relating to chametz she'avar alav haPesach is a store shelf that contains products that were owned by a Jew on Pesach and products that were not owned by a Jew until after Pesach. Liquid mixtures are mixtures that are uniform and contain both prohibited and permissible items. An example of a liquid mixture relating to chametz she'avar alav haPesach is a product that was made with a chametz ingredient (e.g. bread crumbs) that was owned by a Jew on Pesach and is now blended into the product.
Regarding dry mixtures, R. Avraham Gombiner (c.1633-1683), Magen Avraham 449:2, rules that if there is a doubt who owned the chametz on Pesach, one may benefit from the chametz, but one may not eat it. If however, it is also possible that the chametz was produced after Pesach, one may be lenient to eat it. R. Ya'akov Reisha, Chok Ya'akov (c. 1670-1733) 449:1, rules that if there is a doubt regarding who owned the chametz, one may be lenient to eat or benefit from the chametz. Mishna Berurah 449:5, cites both opinions and does not provide a resolution.
Regarding liquid mixtures, R. Ya'akov ben Asher (1269-1343), Tur, Orach Chaim no. 447, rules that if chametz she'avar alav haPesach was mixed with other permissible ingredients after Pesach, the chametz she'avar alav haPesach is nullified if and only if there is at least a sixty to one ratio of permissible items to the chametz she'avar alav haPesach. Magen Avraham 447:44, contends that most Rishonim disagree with Tur's ruling and maintain that if the items were mixed after Pesach, one may eat or benefit from the mixture if the chametz she'avar alav haPesach comprises a minority of the mixture. Mishna Berurah 447:105, rules that one be lenient in cases of great need or cases of great loss.