GEMARA PESACHIM 5771

Shiur #06: The Nature and Timing of the Obligation of Tashbitu

by Rav Mordechai Friedman

I.

            The Torah [Shemot 12:15] states: "Akh ba-yom ha-rishon tashbitu se'or mi-bateikhem."

            This can be understood in two ways:

a.  On the first day you shall destroy the leaven from within your homes; or

b.  By the first day you must have your homes clear of leaven.

            These translations differ in two main points:

1. The manner in which tashbitu is to be effected: According to the first translation, tashbitu is a specific physical action ["you shall DESTROY"].  According to the second translation, however, tashbitu is a state of being chametz-free ["HAVE your homes clear of leaven"].

2. The time when the command takes effect: According to the first translation, "ba-yom ha-rishon" denotes the specific time of the act ["ON the first day"]. According to the second translation, "ba-yom ha-rishon" designates a dead-line for the chametz-free status ["BY the first day"].

            These two approaches reflect the underlying question: Is the mitzva of tashbitu one of KUM VE-ASSEH - active in nature [consistent with the first translation] - or passive [in keeping with the second]?

            On daf 4b, there is a discussion between Rashi and Tosafot as to the definition of tashbitu.  Rashi [s.v. Be-bitul Be-alma] explains that since the Torah chose not to write "teva'aru" which would clearly mean physical destruction, we must view tashbitu, a general term, to mean bitul ba-lev (a mental decision by the owner disassociating himself from his chametz).

            Tosafot [s.v. mi-de'oraita], on the other hand, translate tashbitu to be teva'aru, physical destruction.  They bring the following proofs:

1.  On daf 5a, R. Akiva proves that the mitzva of ba-yom ha-rishon tashbitu refers to the 14th of Nissan and not to the first day of Pesach (15th).  He does so by pointing out that burning is prohibited on Yom Tov.  Tosafot note that R. Akiva must see "burning" as the only viable translation of tashbitu.

2.  The gemara on 5a brings a derasha which uses the word "akh" to teach us that the time tashbitu is specifically after midday.  Thus, Tosafot note, tashbitu can not be bitul ba-lev, because after midday the chametz is in a halakhic state of issur hana'a which would preclude bitul ba-lev.  (See 6b)

            We can assume that among the Tannaim, R. Akiva indeed views tashbitu as a kum ve-asseh since he translates tashbitu to be specifically burning.  The Ri [quoted in Tosafot] seems to share this view.  However, we cannot assume that Rashi, who does not demand actual burning, accepts the passive version of the mitzva. Bitul ba-lev, however abstract, can still be considered an affirmative act that must be done at a specific time.

            Can we then, conclude that any opinion which holds that one should specifically burn the chametz ("ein bi'ur chametz ela sereifa") agrees with our active model of tashbitu?

            The mishna [daf 21a] states: "R. Yehuda says the only way to fulfill bi'ur chametz is by burning [the chametz].  The Chakhamim say one can even crumble it and toss it to the wind or throw it into the sea."

            One might conclude that R. Yehuda holds tashbitu to be active in nature since he requires chametz to be burnt.  However, the Minchat Chinukh points out that R. Yehuda could accept the passive model of tashbitu which would simply require one to somehow reach the state of not having chametz in his possession by noon of the 14th.  The proper way to ensure this, however, is by burning the chametz.  (R. Akiva's view differs from R. Yehuda, in that his requirement of burning arises directly from his translation of the word tashbitu.)

            This works out well according to Tosafot's (12b s.v. Eimatai) understanding that R. Yehuda learns his understanding from the law of disposal of "notar" (= meat of a sacrifice left-over beyond its permitted time) as opposed to learning from the direct translation of tashbitu.  The mitzva to burn notar need not focus on the fulfillment of an act, it might be the resulting status of being rid of the notar, i.e., the central fulfillment: burning is simply the preferred mode of extermination.

            We can take this idea one step further and propose a dual model of the obligation of tashbitu: The mitzva can be fulfilled passively if by noon of the 14th the home is rendered chametz-free either through bitul ba-lev or burning.  However, the preferred mode of fulfilling the mitzva is to follow the simple understanding of the word tashbitu and to actively destroy the chametz at midday.

            [A parallel dual mode can be seen in R. David's understanding that tashbitu, mi-deoraita, can be fulfilled either through bitul ba-lev or burning, though the latter is preferred since "Torah ki-pshuta" is "bi'ur ha-chametz be-ma'aseh."  (Again, bitul ba-lev does not necessarily mean passive fulfillment - R. David is an illustration of the possibility that the two interpretations might exist simultaneously.)]

            In summary, it is difficult to decisively establish who views tashbitu as a mitzva be-kum ve-asseh and who sees it as a passive state.  R. Akiva and Tosafot seem to view it as kum ve-asseh.  (An additional source might be Abbaye's explanation of pinpointing a precise time of the mitzva on 4b.  See Rashi s.v. Shiv'at.)

RAMBAM

A.  The Rambam [Hilkhot Chametz U-matza 2:2] defines "hashbata" as "bitul ba-lev."  As was pointed out above, this does not necessarily indicate the passive model; yet intuitively, we might justifiably conclude that one who holds tashbitu to be a mental decision as opposed to physical destruction would be less inclined to view it as active in nature.

B.  The Rambam continues: "What is this hashbata that is stated by the Torah?  It means one should deem it insignificant ("yivatlenu") in his heart and consider it as dust and he should come to a decision that he has no chametz in his possession at all."

            It is clear that this "lack of possession" is an important aspect of this decision.  It enables arrival at a specific state of a chametz-free home.

            R. Chayim in his Chidushim on the Rambam (Hilkhot Chametz U-matza 1:3) asks: Why does the Rambam rule that one would receive makkot for bal yera'eh [possession of chametz on Pesach], if it is nitak le-asseh [i.e., there is a positive mitzva of tashbitu which should allow one to correct one's transgression and, thus, avoid punishment]?  He answers that if one would concur with R. Yehuda, that only burning constitutes tashbitu, a specific positive action would be mandated to dispose of one's chametz - in which case it could be nitak le-asseh.  However, the Rambam rules that tashbitu can be done in any manner, even mentally.  This indicates that the nature of the mitzva is that the owner ensure that the home be chametz-free.  This type of asseh would not categorize the prohibition as nitak le-asseh.

            Although R. Chayim does not directly discuss our query, it would appear that he rejects the Minchat Chinukh's view that one can necessitate chametz to be burnt, yet still explain tashbitu as merely a requirement to reach a state of a chametz-free home.

C.  The Rambam writes in halakha 1: "It is a mitzvat asseh from the Torah to annihilate ("le-hashbit") the chametz BEFORE THE TIME of the prohibition to eat it, as it is said 'ba-yom ha-rishon tashbitu se'or mi-bateikhem.'"  This seems to indicate that the nature of the obligation is to reach the state of a chametz-free home BY noon of the 14th.  However, it is possible to counter this point by explaining that the mitzva is kum ve-asseh with no specific moment of action - only a deadline for the deed to be done.

II.

            A striking illustration of a view which understands tashbitu as a kum ve-asseh is the Or Zarua (Pesach, siman 256, p. 58a).  He mentions that it was the practice of R. Yitzchak b. Avraham to save a piece of chametz until precisely midday in order to fulfill "bi'ur chametz" mi-de'oraita and would also make a blessing "al bi'ur chametz" before burning it.  He explains that according to the prevalent minhag, our bi'ur is not a mitzva rather "only mi-derabbanan in order to remove a stumbling block from the road."

            This illustrates both of the above points.  The Or Zarua felt:  a. He must wait until a specific time.  b. Simply having his home chametz-free at that specific time was not enough.

            Note that the above two points, the timing and the act of the mitzva, are obviously essential differences in the very character of the mitzva.  The following are some practical differences which stem from these points mentioned by the Minchat Chinukh:

A.  Women's obligation

            If the mitzva has a specific time, then it is a mitzvat asseh she-hazman grama, and thus, women would not be obligated.  (Obviously, the other three mitzvot, bal yera'eh, bal yimatze, and issur akhila, apply!)

B.  Kavana

            There is a discussion if, in general, a person is required to have specific intent of fulfillment, while doing the mitzva.  If simply being in a non-chametz state is the fulfillment, obviously there is no act and no need of intent.

C.  10 Gold Pieces

            There is a knass (fine) levied on a person who "steals" a mitzva from another.  (For instance, if someone performs berit mila on a baby without the permission of the father).  The fine is to pay him 10 gold coins.  In our case, if there is no specific act - there is also no fine.

III.

            At this point, I would like to offer an additional explanation which might fall between the two main possibilities.  It is possible that the mitzva is not fulfilled by existing in a state of being chametz-free by midday nor the sole act of annihilating all your chametz at midday, but rather ACTIVELY bringing oneself, through any array of actions, to a chametz-free status.

            Thus, we split the two main elements of our query - time and action. 

Nafka mina A would remain unchanged because the time is a deadline.

Nafka mina B: A person who never owned chametz could not fulfill the mitzva because he could not do ANY action to bring himself to a state which he is already in!  Yet, it would not have to be burnt exactly at midday.

Nafka mina C: It would be difficult to come to a conclusion as for women's obligations.  There is now an action required, but with no specific time.  On the other hand, it IS caused by time.

Nafka minot D and E: According to our last suggestion, there IS activity to the mitzva, both the law of 10 gold coins and the question of intent are relevant.

IV.

            In summary, we have posed the query: Is tashbitu kum ve-asseh or a passive state?

            The first part of the shiur dealt with possible understandings in R. Akiva, Rashi, Tosafot and the Rambam as to this issue.  We concluded that R. Akiva and Tosafot hold it to be kum ve-asseh.  The Rambam and possibly Rashi and Abbaye hold it to be a passive state.

            I raised two additional possibilities: First, that the mitzva might have a dual nature with a possible preference to kum ve-asseh.  An additional middle-of-the-path understanding that the nature of tashbitu is to do any action that will bring to a state of a chametz-free home.  This would have an active nature, but with a deadline as opposed to a specific time.

            At the end of the shiur, we saw a number of nafka minot to both illustrate and perhaps re-define the nature of tashbitu.

            Next week's shiur will deal with the sugya on 5b.  The gemara focuses on the prohibitions of bal yera'eh and bal yimatzeh, and concentrates on the halakhot derived from the actual biblical verses.  The shiur will analyze the various accounts in the Torah in which owning chametz is prohibited, from a perspective of "peshuto shel mikra."  This analysis will hopefully enlighten us regarding Chazal's approach to these prohibitions as expressed in Torah she-be'al peh.

Sources for next week's shiur:

1. Pesachim 5b "Tanu rabanan ... ve-shel gavoha," Ritva s.v. Ne'emar.

2. Rambam Hilkhot Chametz U-matza 4:1-2, Sefer Ha-mitzvot shoresh 9 "Umnom ke-shelo yihiyeh shum inyan nosaf ... yirbu ha-mitzvot."

3. Shemot 12:1-20; 13:1-10; Devarim 16:1-8.

Questions:

1. According to the conclusion of our sugya, is there any distinction between bal yera'eh and bal yimatze?

2. If there is no difference, should both prohibitions be enumerated as part of the 613 mitzvot?

3. What are the different nuances expressed in the three accounts of the prohibition of retaining chametz?  What possible reason can explain these differences?