THE LAWS OF PESACH

by Rav David Brofsky

Lecture #5: The Laws of Pesach

Kitniyot

            Over the past few weeks, we discussed many of the halakhot relating to chametz: its definition, mixtures containing chametz, chametz which has spoiled, and the status of medicines and cosmetics that contain chametz.

            As we noted previously, the laws of chametz are far stricter than the laws of ordinary ma’akahlot assurot (prohibited foods).  One may not own chametz during Pesach, nor may one derive benefit from it.  Furthermore, one who eats chametz incurs the punishment of karet, and we are commanded to destroy chametz in our possession before Pesach.  We suggested a number of understandings of the severity of chametz.

            We have also demonstrated that many Rishonim, especially those from Ashkenaz (France and Germany), rule strictly on matters relating to chametz.  While all opinions agree that a mixture containing even the slightest amount of chametz (a “mashehu”) is prohibited, the Rema cites additional stringencies.  For example, he applies the principle of chozer ve-nei’or to chametz, which means that even if chametz is mixed into a mixture of permitted substances, it “wakes up” during Pesach and prohibits the entire mixture.  However, he limits this to mixtures of dry ingredients, and does not extend it to a mixture of lach be-lach (447:2).  Similarly, he rules (447:10) that the principle of noten ta’am li-fgam does not apply to chametz on Pesach.  Furthermore, he does not permit eating matza ashira on Pesach (462:1), and even writes that one should not eat food that was not watched to ensure that it did not come into contact with chametz. (447:5).  Of course, the custom of some Ashkenazim (usually of Chassidic descent) not to eat “gebrukts,” matza that came into contact which water during Pesach, further demonstrates the strict inclination of Ashkenzim on Pesach. 

            This week, I would like to briefly discuss another area in which we see this tendency towards stringency in the laws of Pesach – the prohibition of kitniyot.

Kitniyot

            Possibly the most well known and certainly the most discussed stringency of Pesach is the prohibition of kitniyot.  Ashkenazi Jews refrain from eating kitniyot during the entire week of Pesach.  What is the source of this stringency?

            The Talmud (Pesachim 35a) teaches that just as one can only fulfill the mitzva of eating matza with matza made from one of the five grains (wheat, spelt, barley, oats, or rye), only these grains can become chametz when mixed with water.  Although one of the Tana’im, R. Yochanan ben Nuri, maintains that “rice is a species of corn and karet is incurred for [eating it in] its leavened state, and a man discharges his obligation with it on Pesach,” this opinion is not accepted as halakha. 

            In fact, the gemara (114b) reports that R. Huna, one of the Amoraim, did not accept the position of R. Yochanan ben Nuri:

Rabba used to be particular for beet and rice, since it had [thus] issued from the mouth of R. Huna.  R. Ashi said: From R. Huna you may infer that none pay heed to the following [ruling] of R. Yochanan ben Nuri.  For it was taught - R. Yochanan b. Nuri said: Rice is a species of corn and karet is incurred for [eating it in] its leavened state, and a man discharges his duty with it on Pesach.

Indeed, the Rambam (Hilkhot Chametz U-Matza 5:1) writes:

The prohibition of chametz on Pesach only applies to the five types of grain: two types of wheat, namely, wheat and spelt, and three types of barley, namely, barley, oats, and rye.  But kitniyot, such as rice, millet, beans, lentils, and the like are not subject to [the prohibition of] chametz.  Even if a person kneads rice flour or the like with boiling water and covers it with a cloth until it rises like dough that ferments, it is permitted to be eaten, for this is not fermentation, but rather decay.[1]

            Despite these passages, some sources indicate concern that substances other than the five grains can become “chametz nukshe” (partially leavened).  The Ritva (35b), for example, cites opinions that suggest that although rice and millet cannot become chametz gamur, they can become chametz nukshe.  Similarly, the Maharam Chalava explains that although rice and millet cannot become chametz, some types of kitniyot can become partially leavened. 

            As we mentioned, almost all Rishonim, and well as the Shulchan Arukh, reject this view, and rule that only the five grains listed in the mishna can become chametz. 

            However, during early 13^th century, the custom to refrain from eating legumes (kitniyot) developed in France and Provence (southern France). 

            R. Peretz ben R. Eliyahu (d. c. 1300), in his comments to the Smak (Sefer Mitzvot Katan), writes:

Regarding kitniyot, such as beans, lentils… and the like, our Rabbis practiced a prohibition not to eat them on Pesach… They did not practice a prohibition because of the fermentation itself, for they would not have erred in a matter that even school children know…

And therefore it seems right to maintain the practice and forbid all kitniyot on Pesach - not because of the fermentation itself, for it would be a mistake to say that, but rather because of a decree.  Since kitniyot are a cooked dish, and grain too is a cooked dish, were we to permit kitniyot, people might come to mix them up… And it is also something that is piled up ("midi demidgan"), like the five species [of grain].  There are also places where it customary to make bread from them as from the five species, and those who are not well-versed in the Torah are therefore liable to mix them up.  (Hagahot Rabbeinu Peretz 222)

Rabbeinu Peretz describes this custom as a “gezeira” (Rabbinic enactment), and not a result of confusion regarding whether these foods leaven. He claims that people may confuse legumes with grains since they are cooked in a similar fashion, they are both used to make bread, and they are even gathered in a similar way. 

            The Tur (453) brings another reason for the prohibition of kitniyot:

Some authorities forbid the eating of rice and all other types of kitniyot in a cooked dish because wheat might have become intermingled with them.  This is an excessive stringency, and it is not the customary practice.

The Tur cites those who express concern that wheat kernels may be mixed with other legumes in storage. 

            The Tur, however, describes this custom as “an excessive stringency.” The Hagahot Rabbeinu Peretz cited above also records opposition to this custom:

And my master R. Yechiel was accustomed to eat white beans… on Pesach, and he would also say this in the name of great authorities… Nevertheless, it is very difficult to permit something regarding which the world practices a prohibition from the time of the ancient Sages…

Similarly, the Or Zaru’a (2:256) cites the custom to refrain from eating kitniyot, but then notes that R. Yehuda of Paris would eat kitniyot on Pesach.  Likewise, Rabbeinu Yerucham (Nativ 5, 3:41:1) cites this practice and rejects it, referring to it as “nonsense” (shetut).

            R. Yaakov Moelin (Maharil; 1365 – 1427) codifies this custom.  He writes (Sefer Maharil [Minhagim], Hilkhot Ma'akhalot Assurot Be-Pesach, s.v. [16] kitnit):

As for all kinds of kitniyot – the Maharash said that it was decreed not to cook them on Pesach.  Even though it is only the five grains – wheat, barley, spelt, oats and rye – that ferment, nevertheless, because of them they decreed about all kinds of kitniyot.  One must not say that since no Torah prohibition is involved, there is nothing to be concerned about, for anyone who transgresses a rabbinic decree is liable for the death penalty and violates the prohibition, "You shall not deviate from what they tell you."

The Rema summarizes in his comments to the Shulchan Arukh (453:1):

And there are those who forbid this (Tur; Haggahot Maimoniyot, chap. 5; and Mordekhai, chap. kol sha'a).  And the customary practice in Ashkenaz is to be stringent, and one must not deviate.  It is obvious, however, that we don't forbid be-diavad if they [kitniyot] fell into the pot.  Similarly, it is permissible to light with oils made from them, and we do not forbid if they fell into the pot.  And similarly it is permissible to keep kitniyot in the house (Terumat Ha-Deshen, no. 113).

R. Yaakov Emden (1697-1776) laments that no one has abolished this custom.  He writes (Mor U-Ketzi'a 453):

I can testify about my father, the gaon, ztz"l, how distressed this righteous man was about this… I, therefore, say that whoever abolishes this custom not to eat kitniyot – may my lot be with him.  I wish that the great authorities of the generation would agree with me….

            Despite this opposition, the custom of Ashkenazim is to refrain from eating kitniyot on Pesach.              Apparently, this custom became very entrenched in early Ashkenazi practice. The Terumat Ha-Deshen (453) was even asked whether kitniyot that came into contact with water must be destroyed.  He responds that one may even keep kitniyot in one’s procession over Pesach, as we shall discuss below. 

Definition of Kitniyot

            The Acharonim discuss the extent to which the definition of kitniyot is botanical or functional.  Furthermore, they debate whether we forbid items that technically fit the definition of kitniyot but were not originally included in the enactment against kitniyot.

            The Rambam (Hilkhot Kilayim 1:8), in defining kitniyot for the purposes of other agricultural halakhot, distinguishes between grains (which include wheat, wild wheat, barley, oats, and spelt), kitniyot (which include seeds that are eaten, such as beans, peas, lentils, millet, rice, sesame seeds, poppy seeds, white peas, and the like), and garden seeds (onion seeds, garlic seeds, leek seeds, ketzach seeds), cabbage seeds, and flax seeds), which are not fit for human consumption.   

Early authorities (Maharil, Minhagim, Ma’akhlot Assurot Be-Pesach 19), cited by the Darkhei Moshe and Rama (464), discuss whether seeds that are not edible can be considered kitniyot.  They include mustard in the category of kitniyot in regard to Pesach, despite the fact that mustard, as described by the Rambam (ibid., ch. 2) is not kitniyot! The Taz (453:1) explains that since mustard grows in pods, in a similar fashion to kitniyot, it is prohibited. 

            The Posekim disagree as to whether peanuts should be considered kitniyot. R. Tzvi Pesach Frank (Mikra’ei Kodesh II:60), for example, notes that peanuts are not generally cooked or gathered in a fashion similar to kitniyot, He concludes, however, that the common practice is not to eat peanuts on Pesach.  R. Moshe Feinstein (Iggerot Moshe, Orach Chaim 3:63), however, disagrees.  He argues that we clearly do not refrain from foods from which one can in theory make flour, as it is not customary to prohibit potatoes, a common source of flour, on Pesach.  Furthermore, he insists that we do not refrain from eating foods that are commonly stored with wheat.  Rather, he argues that we only forbid that which was prohibited explicitly.  He explains that the prohibition of kitniyot applies to those foods that people refrained from eating either because they often mix with wheat or because they are commonly used to produce flour.  However, foods that did not exist at the time of the development of this custom, such as potatoes, were not prohibited.  Therefore, in areas in which people did not refrain from eating peanuts, one may eat peanuts.    

            R. Feinstein’s rationale calls into question the common custom to refrain from eating soy beans on Pesach. 

            Interestingly, the Chayye Adam (Nishmat Adam, Pesach, 20) records that some people actually did not eat potatoes on Pesach because they are used to make flour.  It is, however, customary to eat potatoes on Pesach,

Shemen Kitniyot - Oil Derived from Kitniyot

            The Acharonim disagree regarding whether one may eat kitniyot derivatives. 

            Some Acharonim (Nishmat Adam 33; Avnei Nezer, Orach Chaim  373) rule that one may not consume oil produced from kitniyot.  Others write that fundamentally, oils derived from kitniyot are permitted.  Therefore, the Terumat Ha-Deshen (113) implies that only oils produces from kitniyot that are soaked in water before processing are prohibited.  R. Yitzchak Elchanan Spektor (1817-1896) is even more lenient (Be’er Yitzchak 11).  He permits oil derived from kitniyot as long as the kitniyot are carefully checked for grains of wheat before they are processed.  R. Chanoch Agus (Marcheshet, Orach Chaim 3) also rules that one may use shemen kitniyot as long as the kitniyot are boiled before they come into contact with water and are carefully checked for grains.  The Rema cites the Terumat Ha-Deshen. 

            R. Avraham Yitzchak Ha-Kohen Kook (1865-1935) permitted sesame oil during his tenure as Chief Rabbi of Yaffo (Orach Mishpat, 108-114).  He argues that since the sesame seeds are not exposed to water before processing, the oil is permitted.  The Eida Ha-Chareidit forcefully objected and prohibited this oil. 

            R. Kook, in addition to his halakhic argument, writes:

In truth, this way of my teachers, the wise and righteous men I merited to serve, their merit should protect us and all of Israel, were not inclined to be stringent when there was room to be lenient, especially regarding matters which do not have a strong foundation in the words of our Sages in the Talmud.  It is sufficient that we not stray from that which we are accustomed to follow from our teachers, the posekim.  However, regarding matters that have not been decided, certainly one who inclined to be lenient is praiseworthy.

He also warns that being stringent regarding matters that can easily be permitted will cause a great chillul Hashem.

            Soy oil is produced in a manner similar to sesame oil; the soy beans are not exposed to water before processing. 

While some authorities permit using cottonseed oil (Mikra’ei Kodesh 2:60), as is the practice of the Orthodox Union kashrut agency, for example, R. Yitzchak Weiss (Minchat Yitzchak 3:138) rules stringently. In Israel, cottonseed oil is generally not used by those who do not use shemem kitniyot. 

            As mentioned above, the Acharonim discuss whether peanuts are considered kitniyot.  While R. Moshe Feinstein (Iggerot Moshe, Orach Chaim 3:63) doubts that they are considered kitniyot, others (R. Tzvi Pesach Frank, Mikra’ei Kodesh 2:60; Chelkat Ya’akov 97, Seridei Eish 1:50) prohibit eating peanuts, although they permit its oil.   

            Canola oil, produced from rapeseeds, was first approved for food use in the United States in 1985.  In recent years, canola oil has become popular due to its low saturated fat and high monounsaturated fat content.  Many products, especially in Israel, are produced with lecithin, a canola derivative.  Is canola oil (or lecithin) considered kitniyot?

            R. Avraham Bornstein (Avnei Nezer; 1838 –1910) discusses oil produced from rapeseeds in two separate responsa.  In the first (533), he permits rapeseed oil as long as the seeds are processed dry and the oil is boiled before it is mixed with water.  In a responsa written four years later (373), he prohibits using rapeseed, equating them with mustard seeds, which are prohibited.  R.  Shalom Mordechai Shwadron (1835 – 1911), in his responsa (Maharsham, 1:183), permits using oil from rapeseeds, as long as the process of production is dry. 

            While the Ashkenzi kashrut organizations in America and Israel generally consider canola to be kitniyot, some are lenient and eat canola oil produced under Sephardic supervision. Under supervision, the seeds are checked for wheat grains before processing and water does not come into contact with the seeds before processing.  Those who permit peanut oil, and certainly those who permit all oils derived from kitniyot, would certainly permit canola oil. 

Kitniyot for the Sick and Children

            The Posekim question whether to permit kitniyot in times of great duress.  The Chayye Adam (127:1), for example, permits eating kitniyot when there is nothing else to eat.  In the Nishmat Adam, he relates that in 1771, there was a great famine and they convened a beit din in order to permit cooking kitniyot on Pesach.  Others, such as the Maharam Padua (48) and the Divrei Maikhiel (1:28), concur.  Similarly, the Arukh Ha-Shulchan (453:5) suggests that the original custom to refrain from eating kitniyot was conditional; in a year of famine, when the poor are hungry, the communal leaders gather and permit eating kitniyot for that year.  The Teshuva Me-Ahava (259), however, rejects this notion, arguing that since this custom has been accepted by all of Ashkenazi Jewry, “even Shmuel Ha-Ramati and Eliyahu and his court… cannot permit rice and other kitniyot on Pesach.”

            The Chayye Adam (7) adds that in times of great need, for a person who is sick or for a child, one may permit kitniyot.

One who must eat kitniyot on Pesach should preferably use a separate pot and separate utensils (Maharam Shick, Orach Chaim 241). One may use a pot that had been used to cook kitniyot if 24 hours have passed (Kaf Ha-Chaim 453:27). 

Owning Kitniyot and Kitniyot Mixtures During Pesach

            As mentioned above, the Terumat Ha-Deshen (113) writes that one may keep kitniyot in his procession during Pesach, as it is not considered to be chametz.  Furthermore, one can also derive benefit from kitniyot, such as by using kitniyot oil in order to fuel a fire.  Although the Maharil (Teshuvot 25) cites the “chassidim ha-rishonim” who refrained from deriving benefit from kitniyot on Pesach, the Rema (453:1) rules that one may keep kitniyot during Pesach. 

            Furthermore, the Terumat Ha-Deshen (113) permits a mixture containing kitniyot, unlike a mixture containing chametz.  The Acharonim (Chayei Adam 127; Mishna Berura 453:9) rule that kitniyot are batel be-rov, a majority, and shishim (sixty parts of non-kitniyot) is not required. 

            Some recent Israeli authorities have suggested that products containing a minority of kitniyot oil and produced by those who do not refrain from eating kitniyot (Sephardi Jews) are permitted on Pesach, as the principle of “ein mevatlin issur le-chatchila” and its ramifications should not be applicable.  Seemingly, this depends on the question of whether one may eat food containing a minority of non-kosher ingredients (less that 1/60) produced by non-Jews (see Noda Be-Yehuda, Yoreh De’ah 56 and Teshuvot Ha-Rashba 2:214).  Furthermore, larger, global considerations regarding the preservation of the custom of kitniyot may also be relevant.

            R. Ovadia Yosef (Yechave Da’at 5:32) discusses whether an Ashkenazi Jew, who does not eat kitniyot, may eat at the home of a Sephardi Jew on Pesach.  He concludes that he may eat on his utensils, even those used for kitniyot within the past 24 hours.

[1] Dr. B. P. Munk (Techumin 1, pp.97-99) describes the chemical difference between a process of chimutz (becoming chametz) and sirchon.  He explains that wheat flower contains an enzyme called beta-amylase, which breaks down the starch into glucose (sugar). The glucose is then converted into alcohol.  When the alcohol evaporates (producing a pleasant smell), the dough rises.  Rice, however, lacks the beta-amylase.  Although other enzymes contained in rice generate a slow process of fermentation, another enzyme causes the dough to decay before the process is completed.  This is why the Sages explain that rice does not ferment, but rather decays.