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Pesachim 28

1) HALACHAH: "EIN BI'UR CHAMETZ ELA SEREIFAH"

OPINIONS: Rebbi Yehudah and the Rabanan argue about the manner in which one must destroy his Chametz. The Rabanan say that one may destroy his Chametz in any manner, even by crumbling it up and throwing it into the sea or river. Rebbi Yehudah says that Chametz must be destroyed only by burning it.

What is the Halachah? How should we dispose of our Chametz?

(a) TOSFOS (27b, DH Ein) and the SEMAG rule that Bi'ur Chametz must be done through burning the Chametz, in accordance with the opinion of Rebbi Yehudah. The reason is because, firstly, an anonymous Mishnah in Temurah (33a) follows his opinion, and secondly, Rebbi Yehudah derived his ruling from a valid source -- a Binyan Av from Nosar. Just like Nosar may not be left over and must be burned, so, too, anything which must not be left over -- such as Chametz -- must be burned. The only problem with his Binyan Av was that Rebbi Yehudah himself maintains that an Asham Taluy, which also may not be left over, must be buried and not burned. However, we rule like the Rabanan who say that an Asham Taluy must be burned, and therefore we may accept Rebbi Yehudah's Binyan Av. Therefore we learn from Nosar that anything that may not be left over must be burned.

(b) The ROSH (2:3) cites a number of authorities who dispute this conclusion, including the GE'ONIM, RABEINU YONAH, and the RAMBAM (Hilchos Chametz u'Matzah 3:11). They maintain that the Halachah follows the opinion of the Rabanan who say that Chametz may be destroyed in any manner and does not have to be burned. What about the Binyan Av, which seems to be irrefutable according to the opinion of the Rabanan? The Rishonim suggest that the Binyan Av may be refuted in a number of ways: First, perhaps the Rabanan learned that the verse, "You shall burn the Nosar with fire" (Shemos 29:34), which teaches that only Nosar is to be burned and no other Isur is to be burned (Daf 24a), excludes Chametz as well, and that verse overrides the Binyan Av. Second, the Rosh suggests that the Rabanan differentiate between something which is Kodesh and something which is not Kodesh. Nosar is Kodesh and must be burned, while Chametz, which is not Kodesh, cannot be learned from Nosar.

HALACHAH: The SHULCHAN ARUCH (OC 445:1) rules like the Rabanan, that Chametz may be disposed of in any manner. The REMA adds that the custom is to burn it nonetheless.

However, the ROSH points out that whether the Halachah follows the opinion of Rebbi Yehudah or the Rabanan does not make much of a difference. Even Rebbi Yehudah agrees that b'She'as Bi'uro, one may dispose of Chametz in any manner. The argument involves only she'Lo b'She'as Bi'uro. According to TOSFOS, "she'Lo b'She'as Bi'uro" refers to *after the sixth hour* on Erev Pesach and throughout the festival. That is when Rebbi Yehudah says that Chametz must be burned, and the Rabanan say that it may be destroyed in any manner. But no one leaves over his Chametz until then! According to Rashi, "she'Lo b'She'as Bi'uro" refers to the *duration of the sixth hour* but not before nor after, so again the Halachic rendering is not usually relevant -- people do not leave their Chametz until the sixth hour starts, because by then it is Asur mid'Rabanan (see Insights to Daf 27:1:b-c).

(Even if we do not accept the Rosh's ruling, and we maintain that according to Rashi before the sixth hour is also considered " b'She'as Bi'uro," that just means that if one *wants* to destroy it (as opposed to eating or selling it), he should burn it. He is certainly not violating the Torah's command of "Tashbisu" if he gets rid of it by selling it or being Mafkir it, as we pointed out above.)

The TUR (OC 445) suggests that there may be a bigger difference between whether we rule like Rebbi Yehudah or like the Rabanan. According to Rebbi Yehudah, there is a specific Mitzvah to burn Chametz. We learn in Temurah (33a) that whenever there is a specific Mitzvah to burn something which is Asur b'Hana'ah, that item's ashes are permitted. Once the item has been burned and the Mitzvah fulfilled, the item is no longer Asur (because of "Na'asah Mitzvasah," Daf 26a). However, according to the Rabanan, there is no Mitzvah to burn Chametz. Therefore, even if one does burn it (on Pesach), its ashes will remain Asur b'Hana'ah. Thus, an added difference between whether the Halachah follows the opinion of Rebbi Yehudah or the Rabanan is whether the ashes of burnt Chametz (which was burned b'She'as Bi'uro) are Asur b'Hana'ah.

REBBI AKIVA EIGER (ibid.) challenges the Tur's conclusion. How can the Tur say that the Rabanan do not hold that there is a Mitzvah to burn Chametz? There is a Mitzvah to dispose of Chametz in any manner, which certainly includes burning it! Since burning it is a fulfillment of the Mitzvah to get rid of it, once the Chametz has been burned and the Mitzvah fulfilled, the ashes should be Mutar b'Hana'ah!

RABEINU CHAIM HA'LEVI (Hilchos Chametz u'Matzah 1:3) explains that according to the Rabanan, burning Chametz cannot be called "Na'asah Mitzvaso." Since they maintain that Chametz must be disposed of in any way possible, the Mitzvah is one that rests on the person, i.e. *he* is obligated to get rid of his Chametz. It is not a Mitzvah on the Chametz, necessitating that the *Chametz* be burned. If so, even if one burns the Chametz, no Mitzvah has been done to the Chametz itself; rather, the *person* has fulfilled his own obligation. In order to permit the ashes of Chametz, the Chametz must have a Mitzvah done to it which is *inherent* to the Chametz. Rebbi Yehudah, who maintains that the Mitzvah is to specifically burn Chametz, views it as a Mitzvah inherent in the Chametz -- if one has Chametz in his possession during Pesach, it must be destroyed through burning. Therefore, burning it permits the ashes b'Hana'ah.

28b

QUESTION: The Beraisa discusses three separate time periods with regard to the Isur of Chametz: before Pesach (after the sixth hour on Erev Pesach), during Pesach, and after Pesach. According to Rebbi Yehudah, before and after Pesach Chametz is forbidden by a Lav, and during Pesach it is forbidden by a Lav and is punishable with Kares. According to Rebbi Shimon, before and after Pesach there is no Lav forbidding Chametz.

The Beraisa then states that "whenever Chametz is Asur b'Achilah, it is also Asur b'Hana'ah." The Gemara interjects that this statement "goes according to the Tana Kama," referring to Rebbi Yehudah. How does the Gemara know that this is Rebbi Yehudah's statement? It is also true according to Rebbi Shimon! Whenever Chametz is forbidden to be eaten according to Rebbi Shimon -- that is, during Pesach -- it is also Asur b'Hana'ah!

ANSWERS:

(a) The BA'AL HA'ME'OR explains that according to Rebbi Shimon, it would not have been necessary for the Beraisa to explicitly point out that when Chametz is Asur b'Achilah, it is also Asur b'Hana'ah. Since there is only one time period when Chametz is Asur b'Achilah, it goes without saying that that is the time period in which Chametz is also Asur b'Hana'ah. If the Beraisa wanted to mention that during Pesach Chametz is Asur b'Hana'ah according to Rebbi Shimon, instead of saying, "Whenever Chametz is Asur b'Achilah, it is also Asur b'Hana'ah," it should have simply added to the words of Rebbi Shimon, "[During Pesach, Chametz is forbidden with a Lav and is Chayav Kares,] *and it is Asur b'Hana'ah*." Rather, the Beraisa implies that there are different time periods when Chametz is Asur b'Achilah, and therefore it had to say, "Whenever Chametz is Asur b'Achilah...," referring to *all* of the time periods of the Isur Achilah of Chametz, which is in accordance with the opinion of Rebbi Yehudah.

We see that according to the Ba'al ha'Me'or, Rebbi Shimon maintains that after the sixth hour on Erev Pesach until sunset, *it is permitted to eat Chametz*. The Ba'al ha'Me'or clarifies ths in the beginning of the Maseches, asserting that Rebbi Shimon holds that although "Tashbisu" applies from midday on Erev Pesach, one fulfills the Mitzvah to destroy his Chametz by eating it!

(b) TOSFOS (DH Rebbi Shimon) suggests that Rebbi Shimon agrees that Chametz may not be eaten after the sixth hour, because the Mitzvah of "Tashbisu" is in effect. However, it is not Asur because of a Lav, but because of the Mitzvas Aseh of "Tashbisu," requiring one to destroy his Chametz and, consequently, not to eat it. Chametz is Mutar b'Hana'ah, because the Isur of Hana'ah is not included in the Mitzvah of "Tashbisu." Therefore, it would be *incorrect* for Rebbi Shimon to have made the statement that "whenever Chametz is Asur b'Achilah, it is also Asur b'Hana'ah," because that would not be true -- before Pesach Chametz is Asur b'Achilah but *Mutar* b'Hana'ah.

(c) The RAN cites the opinion of the BA'AL HA'ITUR who says that according to Rebbi Shimon, Chametz is also *Asur b'Hana'ah* before Pesach, because the Mitzvah of "Tashbisu" includes an Isur Hana'ah as well as an Isur Achilah. According to the Ba'al ha'Itur, the question remains, then, why does the Gemara assume that the Beraisa's statement was said by Rebbi Yehudah and not be Rebbi Shimon? According to the Ba'al ha'Itur, it is also true according to Rebbi Shimon, and it does not go without saying, because there is more than one period when Chametz is Asur b'Achilah.

The OHR CHADASH answers that the words of the Beraisa imply that we know when Chametz is Asur b'Achilah, but we do not know when it is Asur b'Hana'ah; the Beraisa therefore found it necessary to teach us that "Whenever Chametz is Asur b'Achilah, it is also Asur b'Hana'ah." However, according to Rebbi Shimon, the Isur of Achilah and the Isur of Hana'ah before Pesach both come from the same source -- "Tashbisu." If so, once we know about the Isur Achilah before Pesach we also know about the Isur Hana'ah -- we cannot know the Isur of Achilah without knowing the Isur of Hana'ah, since they have the same source. Therefore, it would not be correct to teach that "*whenever Chametz is Asur b'Achilah*, it is *also* Asur b'Hana'ah."