By Rabbi Yair Hoffman
It has happened in the past to families that never thought it would happen to them. Whether in a drawer that wasn’t checked properly, under a sofa cushion, or in a compartment in a toy that went unnoticed before, each year there are numerous stories of chametz being found over Pesach. And the incidents happen both on yom tov and on chol ha’moed.
The Shulchan Aruch (O.C. 446:1) tells us what to do. If it is found on yom tov, it must be covered with a vessel so that the chametz cannot be seen. It cannot be moved, because muktzeh. At night, after yom tov, it must be burned. This is based upon the instructions in the Gemara (Pesachim 7a). The reason is that there would be no biblical mitzvah to burn it over yom tov, and the burning would constitute a burning shelo l’tzorech, for no yom tov need. Why is this so? Because, presumably, he had already recited the formula for the bitul, the negation of ownership of all chametz big and small, hidden or revealed, that he may own. Since he had already recited this bitul formula, the mitzvah of burning the chametz does not set aside the laws of yom tov. (The Mishnah Berurah rules according to the opinion of the Ran that burning it on yom tov would be biblically prohibited.)
When One Did Not Say
There are two opinions, however, in a case where the person did not recite the bitul formula. The Vilna Gaon rules that the halachah of the Shulchan Aruch applies across the board, and one may not destroy the chametz or move it on yom tov. Other poskim (Rashi, Rashba, SmaG, Ohr Zaruah), however, hold that when the bitul was not recited, one may flush it down the toilet, throw it in a river, or scatter it in the wind. Which view do we follow? The Mishnah Berurah states that the custom is like the first view, but in a community where the custom is to ask a non-Jews flush it down the toilet, then one should not negate a Jewish custom.
In Contemporary Times
The Shulchan Aruch ruled that, aside from issues of yom tov, if found, the chametz should be burned even if one did recite the bitul. However, things may have changed since then, in light of how we sell the chametz in contemporary times. In our times, the forms in which we sell the chametz include all chametz that we own, known and unknown. What are the implications of this development? The chametz that we find therefore belongs to the gentile. If that is the case, is it then permitted to burn the gentile’s chametz?
This issue has been addressed by contemporary poskim. Rav Tzvi Pesach Frank, zt’l, held (Mikrai Kodesh Vol. I, Pesach #74) the position that the chametz should be placed in the goy’s section. Rav Shternbuch and Rav Wosner (Sheivet HaLevi Vol. IX #116) both hold that it is permitted to burn it. Rav Shternbuch bases his view on a Shach (C.M. 358:1) that if one is completely sure that his friend would be amenable to it, one may consume fruits without the permission of the owner. In our case, since the one who finds the chametz is completely sure that the gentile would be amenable to the burning of the chametz that was found, and that he would not have to pay for the balance of it after Pesach, it would be permitted.
Handling The Chametz
May one handle chametz that is to be burned, or should it be kicked to the site where one will burn it? The Shulchan Aruch rules (446:3) that if a gentile’s chametz blew onto the roof of a Jew, he should move it with a stick but not handle it with his hands. The reason is that when one handles things with the hands it is likely that one can come to eat it.
The answer is that one may touch it. The Mishnah Berurah (446:10) states that since one is burning it one may handle it by hand if it is for a short period of time. It is a good idea, however, to say out loud that one is not acquiring the chametz. This is based on a response of the Rivash cited in the Biur Halachah. Why is this so? Because a person’s hand acquires items for him even if he does not have in mind that he is acquiring it.
Hopefully, however, most of us will have done a good job eliminating the chametz before Pesach has started and there will be no need to be doing so on Pesach itself. v
The author can be reached at firstname.lastname@example.org.