S.A.L.T. - Pesach 5780 / 2020

  • Rav David Silverberg
Motzaei Shabbat
            The Gemara in Masekhet Pesachim (5b) tells that one year, before Pesach, Rava instructed the people of his city, Mechoza, to eliminate from their homes the “chamira di-bnei cheila” – “the soldiers’ chametz.”  Apparently, soldiers were stationed nearby, and the local townspeople provided them with accommodations.  These soldiers kept food in the townspeople’s homes, and this included chameitz.  Rava felt that the people were halakhically required to eliminate this chameitz from their homes before Pesach, to avoid violating the prohibition of possessing chameitz on Pesach (“bal yeira’eh u-val yimatzei”).
On the basis of Rava’s instruction to his community, the Shulchan Arukh (O.C. 440:1) rules that if a gentile entrusted his chameitz to a Jew, and the Jew bears responsibility for this chameitz, the Jew may not keep this chameitz in his possession on Pesach.  Responsibility for the chameitz constitutes a degree of “ownership,” and is thus forbidden on Pesach.  Therefore, just as we may not own chameitz on Pesach, we cannot have on Pesach chameitz for which we bear responsibility.
            A number of recent and contemporary poskim addressed the question of whether this halakha is relevant to insurers.  If a grocery store or bakery, for example, has its assets – which obviously include chameitz – insured by a Jewish-owned insurance company, then, seemingly, the Jewish owner of the insurance company is in violation of the halakha forbidding bearing responsibility for chameitz on Pesach.  Even though the company’s owner does not actually own the chameitz, nevertheless, since he has taken responsibility for the chameitz, this qualifies as a form of “ownership” with respect to the prohibition of owning chameitz on Pesach.  And, if the Jewish insurer is, indeed, in violation of this prohibition, then this chameitz becomes forbidden for all after Pesach.  The halakha of “chameitz she-avar alav ha-Pesach” establishes that chameitz which was owned by a Jew during Pesach in violation of halakha may not be consumed or benefitted from in any way by anybody after Pesach.  It would thus appear that if a store has insurance on its merchandise, which includes chameitz, and the insurer is Jewish, then this chameitz is forbidden for all even after Pesach.
            Rav Zvi Ryzman, in a thorough article on the subject, notes that this question may likely hinge on a dispute between the Rambam and the Ra’avad regarding the scope of the halakha forbidding taking responsibility for chameitz during Pesach.  The Rambam (Hilkhot Chameitz U-matza 4:4), in presenting this halakha, writes explicitly that this applies even if one is coerced to assume responsibility for the chameitz.  He understood that the people in Mechoza never agreed to this arrangement, whereby they would have to compensate the soldiers if the chameitz stored in their homes was lost or stolen, but it was forced upon them.  Nevertheless, since they were held responsible, they were considered “owners” over the chameitz with the respect to the chameitz prohibition on Pesach.  The Ra’avad, however, disagrees.  He writes that if the people did not accept responsibility for the soldiers’ chameitz, but would be forced by the government to pay compensation if anything happened to it, this arrangement would not be forbidden on Pesach.  The situation in Mechoza, the Ra’avad writes, involved a voluntary arrangement, where the townspeople offered to accommodate the soldiers and agreed to take responsibility for their belongings.  This commitment, the Ra’avad explains, qualifies as “ownership” over the chameitz that is forbidden on Pesach.
One approach we can take in understanding the Ra’avad’s position is that in his view, compulsory responsibility does not actually create any sort of association between the individual and the chameitz.  The Ra’avad would say that in the case described by the Rambam, the Jews of Mechoza had no responsibility for the chameitz, because they never accepted responsibility for the chameitz.  If the chameitz was lost and the government then forced them to pay, this would be a case of government unfairly confiscating citizens’ property.  From the Jews’ perspective, they are not responsible for the chameitz, and it is the government that made the decision to seize their money if that chameitz is lost.
            However, Rav Ryzman suggests an alternative understanding of the Ra’avad’s view.  Perhaps, the Ra’avad understood that it is not a commitment to compensate for lost chameitz that constitutes “ownership,” but rather a commitment to care for the chameitz.  For the Ra’avad, one is not deemed an “owner” over chameitz by promising to pay its value if it is lost, but only if he takes on the obligation to guard it like a true owner.  In the case of compulsory responsibility, the people never make such a commitment, and so they are not considered the owners over the chameitz.
            Conceivably, then, according to the Ra’avad, this halakha would not apply to insurers.  Their commitment, of course, is only to pay the owner the value of the chameitz if it is lost or damaged; they have no responsibility whatsoever to guard it or look after it.  According to this understanding of the Ra’avad, then, the Ra’avad would likely allow insuring chameitz even during Pesach.
            However, the Mishna Berura (440:9) writes that Halakha follows the Rambam’s position, that even compulsory responsibility constitutes “ownership” with respect to the chameitz prohibition.  The question thus resurfaces as to whether there is a basis to allow insurers to insure chameitz over Pesach.
            We will iy”H continue this discussion tomorrow.
            Yesterday, we noted the halakha requiring that one who had been entrusted with chameitz, for which he has assumed legal responsibility, must eliminate the chameitz from his possession before Pesach (Shulchan Arukh, O.C. 440:1).  Assuming responsibility over chameitz is treated by Halakha as a form of ownership, and therefore, just as one may not own chameitz on Pesach, one likewise may not be responsible for chameitz on Pesach.  As we began discussing, this halakha would seem to indicate, at first glance, that one may not insure the assets of a grocery store or bakery over Pesach if these assets include chameitz, as the insurer accepts responsibility over the chameitz – a topic addressed by Rav Zvi Ryzman in his Ratz Ka-tzvi.
            Rav Ryzman references Rav Shmuel Eliezer Stern’s Shevivei Eish (16), where Rav Stern notes that in the case of an Ltd. company, whose shareholders have limited liability, it stands to reason that no single shareholder can be assigned the obligation to eliminate the chameitz for which the company has assumed responsibility.  Such a corporation exists as separate entity, which is not under the ownership of any specific individual, and thus even the principal shareholder cannot be said to be personally insuring the chameitz.  As such, there is no violation of the chameitz prohibition.  Of course, this does not apply to a private insurer, who does not have a corporation, and who indeed assumes personal responsibility for the assets he insures.
            Rav Ryzman demonstrates that even in such a case, an insurance arrangement would be permissible over Pesach, in light of the poskim’s treatment of insurance in regard to other halakhot.  A number of responsa have been written asserting that when an insurer pays the customer after the insured asset is lost or damage, this payment is not halakhically regarded as compensation for the owner’s loss.  Rather, the insurer and the customer entered into a business arrangement whereby the customer makes annual payments to the insurer in exchange for the commitment of a large sum of money should one of several different events occur.  When such an event occurs – such as if the property is stolen, or consumed by a fire – the insurer is merely fulfilling his commitment to the customer.  He is not compensating the customer for his lost property, but rather simply meeting his obligations stipulated in their business contract.  This perspective finds expression in a responsum of the Maharsham (7:7) asserting that one who sets fire to his fellow’s property must pay reparations even though the owner has full insurance coverage.  The insurer’s payment is made by force of the arrangement he had made with the owner, and does not technically constitute compensation.  As such, since nobody has assumed responsibility to compensate for the damage on the guilty party’s behalf, the guilty party must pay the owner for damages.
            Another example is a case addressed by Rav Eliyahu Bakshi-Doron (Binyan Av, 1:70) involving precious articles which were donated to a synagogue and then stolen.  After the synagogue collected the insurance payments, the donor demanded that the money be used to replace the original articles, while the synagogue’s officers wished to use the money for more pressing matters.  According to the view of the Maharsham, the synagogue would be allowed to use the money as it wishes, because the money collected was received as part of its commercial arrangement with the insurer.  This money did not pay for the stolen goods, in which case the donor might have been correct in his insistence that they be replaced.  Rather, this money was paid in fulfillment of the insurer’s agreement with the synagogue, which has nothing at all to do with the donor.
            Accordingly, one who insures property does not, technically speaking, assume responsibility for the property.  He simply makes a mutually beneficial arrangement with the customer, whereby he receives annual payments in exchange for a commitment to pay a large sum if the insured property is lost or damage.  Hence, there is room to argue that one may insure chameitz over Pesach.
            We have discussed this week the question addressed at length by Rav Zvi Ryzman, in his Ratz Ka-tzvi, regarding the permissibility of insuring assets that include chameitz during Pesach.  In our previous installments, we examined the status of assuming responsibility over chameitz, whether or not this would qualify as “ownership” with respect to the prohibition against owning chameitz on Pesach.
            Additionally, however, even if – as we saw – there are compelling reasons why such an arrangement does not suffice as “ownership,” we must also reckon with the separate halakha known as “rotzeh be-kiyumo” – literally, “one wants it to exist.”  The Gemara in Masekhet Avoda Zara (64a) addresses the case of a gentile who owes a Jew money, and tells the Jew that he will sell his idol, or his wine used for pagan worship, in order to obtain the funds to repay.  In such a case, the Gemara rules, where these articles – from which all benefit is forbidden – were designated as the assets to be sold in order to facilitate repayment of the debt, the Jew may not accept the money.  If he accepts the money, then “rotzeh be-kiyumo” – the Jew has interest in these articles’ continued existence until the gentile sells them, and such interest is forbidden.  It emerges from the Gemara that one may not be in a position where he has vested interest in the existence of objects of pagan worship.  As such articles are forbidden for any sort of benefit, it is also forbidden to place oneself in a position of wanting them to exist.  Accordingly, the Shulchan Arukh (Y.D. 133:6) rules that a Jew may not commit to guard a gentile’s wine which is used for pagan worship, even if he does not assume responsibility to pay for it if it is lost.  Since he will feel distressed if something happens to the wine, he has interest in the wine’s existence, and so he may not make such a commitment.
            The Tur and Shulchan Arukh (O.C. 450:7) apply this concept also to chameitz on Pesach, which, like objects of idol worship, is forbidden for any sort of benefit.  They thus rule that one may not lend his pot to a gentile to use for cooking chameitz during Pesach, because if the chameitz spills from the utensil while it sits on the fire, leaving the utensil empty, the utensil might break.  Therefore, during the time the gentile cooks with the utensil, the Jew has the status of “rotzeh be-kiyumo” – he is interested in the chameitz’s existence, which is forbidden on Pesach.
            Seemingly, this prohibition should also apply to an insurer.  Somebody who insures chameitz obviously has vested interested in its remaining intact, as otherwise he will have a legal obligation to pay the owner.  At first glance, then, insuring chameitz on Pesach should be forbidden by virtue of the provision of “rotzeh be-kiyumo.”
            However, Rav Ryzman presents numerous different reasons for refuting this argument.  First, the Peri Chadash (450:7) disputed the Tur and Shulchan Arukh’s ruling that the concept of “rotzeh be-kiyumo” applies to chameitz on Pesach.  The Peri Chadash notes Rashi’s explanation of this concept, stating that since we are commanded to obliterate idol worship (when this is practically feasible), we may not place ourselves in situations where we wish for the continued existence of articles of pagan worship.  According to Rashi, “rotzeh be-kiyumo” is a function not of the prohibition against deriving benefit from articles of idol worship – in which case it could be applied to chameitz, which is likewise forbidden for any kind of benefit – but rather of the requirement to eliminate idolatry.  Quite obviously, although the Torah forbids owning or benefitting from chameitz on Pesach, there is no obligation to obliterate other people’s chameitz.  Therefore, in the view of the Peri Chadash, it is entirely permissible to place oneself in a situation where he has interest in chameitz’s existence on Pesach, as long as he does not directly derive benefit from it.  This is also the view of the Radbaz (1:240) and the Mekor Chayim (450:7).
            Additionally, even within the view that the rule of “rotzeh be-kiyumo” indeed applies to chameitz on Pesach, some poskim maintained that it is very limited in scope.  The Chatam Sofer (O.C. 116) writes that this rule refers only to situations where one stands to actually benefit from the chameitz.  In his view, it is only when one rents his utensil to a gentile on Pesach – as opposed to lending – that the prohibition of “rotzeh be-kiyumo” applies, as the chameitz’s existence brings him profit.  If one’s interest in the chameitz’s existence is only to avoid a loss, this situation does not qualify as “rotzeh be-kiyumo” according to this view.  In the case of an insurer, he does not profit from the chameitz, even though he stands to lose if the chameitz is lost, and therefore, in the view of the Chatam Sofer, this is allowed.
            The Chatam Sofer’s disciple, the Maharam Shick (O.C. 225), imposes a different limitation on the rule of “rotzeh be-kiyumo.”  In his view, this rule refers only to an action which clearly indicates vested interest in the chameitz – such as leasing one’s pot to a gentile on Pesach, which is done clearly with the interest in the gentile’s food being cooked in it.  In the case of an insurer, Rav Ryzman posits, granting coverage to an establishment year-round does not, in and of itself, express interest in the existence of the facility’s chameitz on Pesach, and would thus, seemingly, be permissible according to the Maharam Shick.
            The Mishna in the beginning of Masekhet Pesachim (2a) establishes the obligation of bedikat chameitz, which requires searching one’s property for chameitz on the night of the 14th of Nissan.  This search is in preparation for the mitzva which applies the following day, Erev Pesach, to eliminate all chameitz from one’s property by midday.  The Mishna rules, “Every place where chameitz is not brought does not require searching.”  Meaning, one is required to search only those areas in one’s property where chameitz is normally brought during the year.  The Mishna Berura (431:4) clarifies that even areas of the home where chameitz is not frequently used must be checked for chameitz if they are occasionally used for chameitz.
            Rav Yisrael of Kozhnitz, in his Avodat Yisrael (Shabbat Ha-gadol), uncovers the symbolism of this halakha by drawing upon the well-established association between chameitz and the yetzer ha-ra – our negative impulses.  The search for chameitz with the aim of eliminating it before Pesach has often been viewed as representing the process of identifying our flaws and weaknesses in an effort to eliminate them.  As Pesach celebrates the anniversary of our having been taken by God as His treasured nation, it behooves us to strive to be worthy of this designation by eliminating the “chameitz” within us.  Accordingly, the Maggid of Kozhnitz suggests, the law exempting us from searching in areas “where chameitz is not brought” symbolizes the fact that there are places where we are specifically instructed not to search for chameitz.  Namely, the Maggid teaches, this refers to other people’s characters and conduct.  The Maggid writes:
Everywhere chameitz is brought requires searching – meaning, each person must check in the place where the evil inclination – which is the “chameitz” – normally resides, each person according to his nature… And everywhere chameitz is not brought does not require chameitz – the allusion, it would seem, is that there are people who do not look after their own actions – but only after the actions of other people.  The Tanna therefore warns that places where chameitz is not brought does not require checking – meaning, one should not look after the actions of others, but rather correct and look after his own actions.
Often, when people focus their attention on self-improvement, on studying their conduct and character in an effort to grow and eliminate the “chameitz” from their beings, they become very critical of others, as well.  In their passionate quest to rid themselves of their own faults, they are quick to find those same faults in others, and look down upon those people for what they presume to be apathy, their refusal to make an effort to improve.  This tendency not only distracts one from his own efforts at self-improvement, but is also wrong in its own right.  We are to strive to look upon others favorably, to focus our attention on their admirable qualities, to respect people for what they do right, rather than criticize and find fault.  The Maggid of Kozhnitz thus warns us that our search for “chameitz” must be directed inward, within ourselves, and not lead us to the destructive habit of looking critically upon our fellow.
            The Mekor Chayim (by Rav Yaakov Lorberbaum of Lissa, the author of Netivot Ha-mishpat) writes (in siman 445) that one should burn his remaining chameitz on the morning of Erev Pesach immediately after eating whatever chameitz he wishes to eat.  Halakha permits eating chameitz on the morning of Erev Pesach until the beginning of the fifth halakhic hour of the day, and requires destroying one’s remaining chameitz by the beginning of the sixth hour.  The Mekor Chayim maintained that one should not delay the burning of the chameitz, and should do so immediately after he has eaten all that he has planned to eat, even if there is still time remaining until the point when the chameitz becomes forbidden and must be destroyed.  Indeed, some have the practice of ensuring to burn the chameitz early in the morning, in fulfillment of the famous dictum, “zerizim makdimin le-mitzvot” – that one should fulfill mitzvot at the earliest possible time, without any delay.
            By contrast, Rav Yosef Karo (author of the Shulchan Arukh), in his Kessef Mishneh commentary to the Rambam’s Mishneh Torah (Hilkhot Chameitz U-matza 1:9), suggests that it might be more proper to specifically wait and burn the chameitz just before the final time by which it must be burned.  This way, he explains, one makes it clear that he destroys the chameitz specifically for the purpose of fulfilling the mitzva.
            Rav Yitzchak Zilberstein, in his Chashukei Chemed (Pesachim 11b), suggests a possible explanation for the common practice not to delay the burning of the chameitz on Erev Pesach.  Perhaps, he writes, since nowadays the burning of chameitz is generally done in large groups, and people bring their siddurim or Haggadot in order to make the formal bittul proclamation (renouncing ownership over all of one’s chameitz), it is abundantly clear that the chameitz is burned for the mitzva.  Even if this is done early in the morning on Erev Pesach, it is quite evident that the chameitz is burned for the purpose of fulfilling the mitzva to eliminate one’s chameitz, and so there is no need to delay the burning.
            Rav Gavriel Ciner, in Nitei GavrielPesach (vol. 1, p. 218), brings those who suggested that one should delay the burning of chameitz until the beginning of the fifth hour, when the chameitz becomes forbidden for consumption.  Namely, burning edible foodstuff before it becomes forbidden for consumption would constitute bal tashchit – a forbidden act of destroying food.  As Halakha forbids unnecessarily ruining or destroying edible food, one might argue that chameitz may not be destroyed until the time when it is forbidden to be eaten.  And thus, according to this theory, one should not burn the chameitz until the beginning of the fifth hour, the point at which it may no longer be eaten, such that destroying it would not violate the prohibition of bal tashchit.
            However, Rav Ciner dismisses this theory, noting that fundamentally, the mitzva of destroying chameitz may be fulfilled already the previous night, and it is only by force of accepted custom that we wait until the morning of Erev Pesach before burning the chameitz.  The fact that Halakha fundamentally allows fulfilling this mitzva already at night proves that the prohibition of bal tashchit is not relevant to chameitz on Erev Pesach.  Since the Torah specifically commands us to destroy chameitz, doing so does not violate the prohibition of bal tashchit, even if this mitzva is fulfilled before the chameitz becomes forbidden for consumption.
            In relaying to Benei Yisrael God’s commands concerning the paschal sacrifice which they were to offer on the eve of the Exodus, Moshe instructed, “Mishkhu u-kchu lakhem tzon” – which literally means, “Pull and take for yourselves a sheep” for the sacrifice (Shemot 12:21).  The Midrash (Mekhilta; Shemot Rabba 16:2) famously interprets the word “mishkhu” (“pull”) in this verse to mean “withdraw.”  According to the Midrash, Moshe was instructing the people, “Withdraw your hands from idol-worship.”  As a prerequisite for the miraculous Exodus, the people were instructed to renounce Egyptian paganism, to which they had grown accustomed over the course of the Egyptian exile, and to then display their faith in the one, true God by offering a special sacrifice.
            Rav Avraham of Sochatchov (the Avnei Neizer), cited by his son, in Sheim Mi-Shmuel (Parashat Tzav, 5678), explained that the Midrash understood the word “mishkhu” as denoting not simply “withdrawal,” but an active process of distancing.  He notes the observation made by Rav Simcha of Bunim of Peshischa that the only prohibition from which the Torah commands us to “distance” ourselves is the prohibition against falsehood, which the Torah formulates as, “Mi-devar sheker tirchak” – “You shall keep a distance from falsehood” (Shemot 23:7).  The root of all falsehood, the Avnei Neizer taught, is idol-worship.  And thus the command of “mishkhu,” that Benei Yisrael were to distance themselves from idol worship, has the broader implication of requiring that we distancing ourselves from self-deception and delusion, from the many different “falsehoods” with which we live.
            How might we understand this association between idolatry and falsehood, and how does this relate to the Pesach celebration?
            The explanation, perhaps, is that we sometimes delude ourselves into feeling subservient and bound to certain perceived needs.  Like the ancient pagans, who, unwilling or unable to feel subservient to a single, omnipotent Divine Being, made for themselves inanimate “gods” to whom to subjugate themselves, we, too, impose on ourselves various forms of “servitude” to absolve ourselves of our true obligations.  We tend to mistake certain excesses and luxuries for necessities, voluntarily “subjugating” ourselves to these comforts.  We also tend to turn other people’s habits and lifestyles into “gods” that we must “serve,” models of living to which we are willing to sacrifice the most important things in our life.  Idol-worship is the embodiment of “falsehood” in that it is false subservience, deceiving oneself into committing absolute loyalty to something which does not deserve it, at the expense of one’s real obligations and responsibilities.  This could be a worthless statue, but it can also be something of value that we mistakenly turn into the highest priority, and for which we sacrifice more important commitments. 
            The Exodus marked the moment when Benei Yisrael were to break themselves free of all subservience other than subservience to the Almighty.  And thus they were commanded to “withdraw” and distance themselves from “falsehood,” from illusionary “gods” to which they felt committed.  Our celebration of Pesach each year requires our release from our own “falsehoods,” from our imaginary, self-imposed “masters” whom we serve.  As we remember and reenact God’s taking us out of servitude to become His servants, we must make the firm decision to leave our “service” of the many different “masters” which we have empowered over ourselves, the various loyalties and commitments that we have but shouldn’t have.  We must reaffirm our exclusive subservience to the Almighty, and resolve that the only true obligations which we have are those imposed upon us by God Himself.
            Towards the end of Shir Hashirim (7:2), the man – symbolizing God – exclaims to his lover – symbolizing Benei Yisrael, “Ma yafu fe’amayikh ba-ne’alim bat nadiv” – “How beautiful are your steps in shoes, o daughter of nobles!”  He marvels at the grace and beauty of his beloved as she walks “with shoes.”
            The Gemara in Masekhet Chagiga (3a) interprets this verse as a reference to the mitzva of aliya le-regel – making a pilgrimage to the Beit Ha-mikdash on the festivals of Pesach, Shavuot and Sukkot.  According to the Gemara’s reading, God here praises the Jewish Nation for making the journey to the Temple to celebrate these occasions, exclaiming, “How beautiful are the feet of Israel at the time they make the pilgrimage.”  Am Yisrael are called here “bat nadiv” (literally, “the daughter of nobles”), the Gemara explains, as a reference to their descending from Avraham.  (The Gemara notes the verse in Tehillim (47:10) which refers to Am Yisrael as “nedivei amimam Elokei Avraham,” indicating an association between Avraham and the title “nadiv.”)
            Rav Yechezkel Shraga Halberstam of Shinova, in Divrei Yechezkel, suggests that the Gemara here draws upon the symbolic significance of “shoes,” which are emphasized in this verse.  When God first appeared to Moshe at the burning bush at Choreiv, He instructed him to remove his shoes out of deference to the sanctity of the site (Shemot 3:5).  Rav Moshe Alshikh explains that as the shoes separate between one’s body and the ground, they symbolically represent all that obstructs a person from sanctity.  The removal of one’s shoes at a sacred site alludes to the effort we must make to rid ourselves of the vanity and distractions which hinder us from achieving spiritual greatness.  Accordingly, the Divrei Yechezkel suggests, the Gemara here teaches us that God finds it “beautiful” when we ascend to the “Beit Ha-mikdash” – when we devote ourselves to His service – even when we still wear “shoes,” when we are submerged in the pursuit of vain worldly pleasures.  God expects us to achieve to the best of our ability under our current conditions, whatever they may be, and He cherishes every “step” we make even in our “shoes,” even if we are very far from perfecting our character. 
            Shir Hashirim depicts God’s relationship with Benei Yisrael by way of an allegory to the passionate relationship between two lovers.  We might have assumed that in order to earn this level of love, we must perfect ourselves, and succeed in eliminating all our human vices to the point where we have achieved complete purity and innocence.  The Divrei Yechezkel teaches us that God loves us and marvels at our “beauty” when He sees our “steps,” our efforts to advance and move forward.  Even when we are still in our “shoes,” mired in our base desires and negative tendencies, He cherishes each and every “step” we take towards the “Mikdash,” in the direction of holiness.  What matters most to our relationship with the Almighty is our “steps” forward, the work and effort we are making to grow and improve.  No “step” is unimportant or too small to celebrate, because each and every one earns us God’s special love and affection, no matter how far we still need to go to reach our maximum spiritual potential.