Siman 446

It is stated in the Gemara (6a): One who finds chametz in his house on Yom Tov—he overturns a vessel upon it. Rashi explained: For it is not fit to be moved or to be taken out. However, regarding "it shall not be seen," he does not transgress, for he already nullified it in his heart yesterday. Rather, because he might forget and eat it—he requires the overturning of a vessel. Thus far his words. It is clear from his words that if he had not nullified the chametz yesterday and transgresses "it shall not be seen"—overturning a vessel is not sufficient. This is the opinion of the Tur in the name of his brother, our teacher Yechiel, who wrote that he may burn it on Yom Tov; since there is somewhat of a mitzvah in its burning, we say "since lighting a fire was permitted for a need—it was also permitted not for a need." Therefore, if he did not nullify it—he should take it out and burn it, so that he does not transgress it intentionally, for until now he only transgressed it unintentionally. And so he wrote in the Sefer HaMitzvot. Thus far his words.

This is the wording of the Semag in the positive commandments (39): One overturns a vessel over it – the explanation: it deals with a case where he nullified it, for if he did not nullify it – he would be able to burn it on Yom Tov… since it was permitted… it was also permitted not for a necessity, provided that there is some necessity for Yom Tov. Thus far his words, and so wrote the Ran, of blessed memory, see there. And even though the chametz is absolute muktzeh, as it is not fit for anything since it is forbidden for benefit, nevertheless, because of the prohibition of "it shall not be seen" – we are not concerned with the rabbinic prohibition of muktzeh.

But the Tur wrote: One who finds chametz in his house… and if it is Yom Tov, some say that he should overturn a vessel upon it until the night when he may take it out (and burn it). But on Yom Tov he cannot move it in order to take it out. And it is not only if he nullified it… but even if he did not nullify it, such that there is a Torah prohibition, even so he should not take it out, since he cannot destroy it according to its law, which is by burning according to Rabbi Yehuda. And such is the law regarding chametz that remained in his house on the fourteenth that falls on Shabbat after five hours. But my brother… Thus far his words. And he holds that we do not say "since lighting was permitted for a need – it was also permitted not for a need" except for something in which there is some need for the essence of Yom Tov. But that which pertains to a prohibition is called not for a need at all.

It is clear from the words of the Tur that because one cannot burn it on Yom Tov—it is impossible to destroy it. This is according to his reasoning, for he rules like Rabbi Yehuda that the destruction of chametz is only through burning, as I wrote in siman 445. However, according to the Rabbanan, who say one may crumble it and scatter it to the wind or cast it into the sea, one should have to destroy it on Yom Tov. And even though according to Rashi after six hours its removal may be done with anything, the Tur holds according to the explanation of Rabbeinu Tam that on the contrary: after six hours specifically burning is required, as is explained there. But from the words of the Rambam in chapter 3, halacha 8, it does not seem so, for he wrote: Therefore, if he did not nullify it before six hours, and from six hours and onward he found chametz—he has violated "it shall not be seen"... and he is obligated to destroy it at any time he finds it. And if he found it on Yom Tov—he overturns a vessel over it until the evening and destroys it. Thus far his words. Now, the Rambam rules there like the Rabbanan, that specifically burning is not required, as I wrote in siman 445, and nevertheless he forbids destroying it on Yom Tov. And he is dealing with a case without nullification, as is clear from his words where he began "if he did not nullify." And so wrote the Maggid Mishneh, see there. And a reason is required as to why he should not destroy it on Yom Tov.

And I saw that they wrote the reason is because of muktzeh, for it is forbidden to move it (Taz subsection 3, and Magen Avraham subsection 2). And even though muktzeh is rabbinic, since this is "sit and do not act" – they forbade it. And he does not transgress "it shall not be seen," since he is under duress due to a rabbinic enactment (Magen Avraham ibid.), or because it is not "at the time," meaning that at the time he moves the muktzeh – it is not yet the act of removal (ibid.). And it is very astonishing: for while it is true that we find in several matters that the sages upheld their words, this is out of concern that they might come to a Torah prohibition, such as shofar and lulav on Shabbat lest one carry it four cubits in the public domain. But solely because of the prohibition of muktzeh that they should let him transgress "it shall not be seen" – it is an astonishing thing to say so! And also regarding "at the time" – we only find this regarding a positive commandment overriding a negative commandment, and not regarding the prohibition of muktzeh. And it appears more likely to say that because even in crumbling and scattering to the wind there is an approximation of a Torah prohibition, for crumbling, since it is not needed for eating, it is possible that he is liable for grinding, and scattering is also a primary category of labor, and casting into the sea also requires crumbling in the case of hard chametz, as I wrote in siman 445. And when finding chametz – it has presumably dried out and requires crumbling. And know that dough that became chametz on Yom Tov, even if he nullified it before the sixth hour – it does not help it, as it was not included in the nullification, and he transgresses "it shall not be seen." And it is simple. (And also it is not comparable to shofar, which involves the cancellation of a positive commandment, and not "it shall not be seen" which he transgresses every moment.)

They wrote another reason: that by overturning a vessel one does not transgress "bal yera'eh" according to the words of the Tosafot (29b). For one who retains chametz and intends to destroy it does not transgress "bal yera'eh," because the prohibition of "bal yera'eh" is a negative commandment transformed into a positive one (Magen Avraham there). And it is impossible to say so, for the Rambam does not hold that "bal yera'eh" is a negative commandment transformed into a positive one, since he obligates lashes for one who purchases chametz on Pesach in the first chapter, as the great authorities wrote there (Mishneh LaMelech chapter one in the name of several great authorities, see there). However, according to what we wrote in siman 431 section 9, it can be said that the Rambam also holds that it is a negative commandment transformed into a positive one, see there (see Machatzit HaShekel).

Regarding an agent who is a non-Jew, there is one who permits having him remove it from his house, even when he has nullified the chametz, because since according to rabbinic law one must destroy it—the rabbinic positive commandment of "you shall remove" comes and overrides the rabbinic prohibition of instructing a non-Jew (ibid. in the name of the Shelah). However, by removing it from his house, he has not yet fulfilled the rabbinic positive commandment of "you shall remove" (ibid.); however, to cast it into a river by means of a non-Jew is permitted, as it is a double rabbinic prohibition in the context of a mitzvah (ibid.). But to scatter it to the wind is close to a Torah prohibition (ibid.). And it appears to me that also to throw it into the latrine is permitted by means of a non-Jew. The common custom is to destroy chametz found on Yom Tov itself, and to cast it into a river or into filthy places. And even a grain of wheat found in a cooked dish—they remove the dish and cast it into a filthy place. And in siman 447 this will be explained with the help of Heaven. (See Magen Avraham there what he wrote in the name of the Bach. And he wrote that in a place where there is no custom—"sit and do not act" is preferable, see there.)

One who finds chametz in his house during Chol HaMoed is obligated to remove it and destroy it immediately. He may not delay it even for one moment, even if he already nullified it. And certainly according to those who hold that the destruction of chametz is only through burning, and according to the method of our teacher, the Tam, in siman 445 that this applies after the time of its prohibition—he is obligated to burn it. Some say that one must recite a blessing over the destruction of chametz (ibid. subsection 1). And some are in doubt regarding this. We have already written in siman 435, section 3, that in a case of doubt regarding blessings we are lenient, and the blessing that he recited on the fourteenth applies to all the days of Pesach; see there. And on Chol HaMoed, even a minute amount of chametz—he is obligated to remove and destroy, and likewise on Erev Pesach after midday. But on Yom Tov, with less than a kezayit—it is obvious that he overturns a vessel over it until the evening, and likewise on Shabbat Erev Pesach after the fifth hour. Some say that even in the fifth hour when it is forbidden for eating—it is forbidden to handle. This is also implied in the Rambam, chapter three, who wrote that on Erev Pesach on Shabbat after four hours—he overturns a vessel over it; see there. And it requires further study: how is it worse than a carcass that died on Shabbat, which is permitted to handle because it is fit for dogs? And here too, in the fifth hour, it is permitted for benefit (ibid. subsection 3). And it must be said that it is speaking of a case where he has no one to give it to at this time (ibid.). That is to say, the Rambam was not speaking there specifically about this hour, but rather he wrote that after four hours he overturns a vessel over it, see there, and it follows that if in the fifth hour there is someone to give it to—it is also permitted to handle it and remove it.

And there is one who says that the second day of Yom Tov has the status of Chol HaMoed regarding this matter. Since the second day of Yom Tov is rabbinic—we permit him to handle the muktzeh and to destroy it. Nevertheless, one should not permit burning it, and it is sufficient to cast it into the river (Magen Avraham and Taz subsection 4). And even though according to the system of Rabbeinu Tam it requires burning, we can rely on the system of Rashi that after the time of its prohibition, its destruction may be through any means (ibid.). And all the more so according to the Rambam and the Geonim that it never specifically requires burning, as I have written. And according to what I have written that even with crumbling and scattering there is a concern of a Torah prohibition—he should cast it into the latrine. However, from the wording of the Tur it is explicitly clear that only on Chol HaMoed may he destroy it, but on Yom Tov there is no distinction between the first and second day. And so it is implied from the wording of the Shas, and there are some of the great later authorities who ruled accordingly in practice (Chok Yaakov subsection 5, and Eliyah Rabbah subsection 3).

It is stated in the Yerushalmi (chapter two, halacha 2): The roof of a non-Jew that was adjacent to the roof of a Israelite, and chametz rolled from the roof of the non-Jew to the roof of the Israelite—he pushes it with a reed. And if it was Shabbat or Yom Tov—he overturns a vessel upon it. That is to say: that even on Chol HaMoed he should not take it in his hand, but rather pushes it with a reed, because we decree lest he come to eat from it. And it is not similar to one who finds his own chametz on Chol HaMoed, where he takes it and destroys it, because since he is occupied with its destruction—he will not come to eat. This is not the case with chametz that is not his, which he does not destroy—we decree. And even though on Yom Kippur it is permitted to take food in his hand, and we do not decree lest he come to eat as I wrote in siman 612, it can be said that the awe of Yom Kippur is upon him, and we do not fear that he will forget that today is Yom Kippur. This is not the case on Pesach—he may forget that it is Pesach today. And according to this we have learned that it is forbidden to take in his hand on Pesach the chametz of a non-Jew, or one who sees chametz in the street—he should not touch it for this reason. And on Shabbat and Yom Tov when it rolled onto his roof—he overturns a vessel upon it, because it is forbidden to be moved even by means of a reed due to muktzeh. And even though this is "moving from the side," it has already been explained in siman 311 that "moving from the side" for the sake of a forbidden object—is forbidden. See there.

It appears clear to me that this law applies only to their roofs, which were not sloped, and they would make use of the roofs. However, regarding our roofs – we do not care, and he should not touch it at all. Only in his courtyard adjacent to the courtyard of a non-Jew, or his house adjacent to the house of a non-Jew, where chametz rolled from one to the other – he should act as has been explained.

If one found bread in his house during Pesach and does not know if it is matzah or chametz, such as chametz wafers that resemble matzah—it is permitted even for eating, as we follow the last. That is to say: for ordinary chests used for food, one takes the first ones first so that they do not become moldy; and all the more so since he presumably searched on the fourteenth, and this is from the last and it is matzah. And this matter is like a certainty. And even if it was found in a hole—it is permitted, for he certainly searched according to the halakhah (Magen Avraham subsection 6). And if the bread is very moldy, such that it is impossible that it would become so moldy within the days of Pesach—it is certainly chametz. And if enough days of Pesach have passed that we can attribute the moldiness to the time from when Pesach began until now, if it is their custom to bake warm bread every day during Pesach—we attribute it leniently even if it is very moldy. For we attribute it by saying that every day he baked warm bread and placed it upon it, therefore it increased in moldiness. And it is not a wonder that regarding a prohibition of karet we rely on this, because this matter is like a certainty, for every man of Israel searches for his chametz before Pesach. And it is simple that this does not refer to it being found in his house on the ground or in some place, for that is certainly forbidden. Rather, it refers to it being found in a chest where food is kept. And for us, this law is not relevant, for with us there is a clear distinction between chametz and matzah, and we have never heard of a doubt arising regarding a piece of bread as to whether it is chametz or matzah.