GEMARA PESACHIM 5771

Shiur #08 Chametz shel Hekdesh

by HaRav Aharon Lichtenstein Shlit”a

An abridged version, translated by Elisha Dickman.

            The gemara (Pesachim 5b) quotes a beraita which derives from pesukim that one is forbidden to see one's OWN chametz, but permitted to see that of others' (i.e., non-Jews) and of hekdesh (i.e., that which has been consecrated to the Beit Ha-mikdash).  Furthermore, it is forbidden to hide chametz or accept it as a deposit (pikadon) from a non-Jew, in accordance with the verse: "It shall not be found [at all] in your possession."  [Chametz belonging to hekdesh is not mentioned regarding pikadon.]

            There seems to be an inconsistency in the beraita: In the first part of the beraita, non-Jews and hekdesh are grouped together.  However, in the second part, only chametz of non-Jews is included in the prohibition of accepting a pikadon.  Why does the beraita omit a prohibition against accepting chametz belonging to hekdesh?  Does such a prohibition in fact exist?

            According to the Tzelach and the Pnei Yehoshua, if one accepts responsibility for the chametz in his possession (i.e., pikadon) he transgresses the prohibition(s) of bal yera'eh and bal yimatzeh, even if the chametz belongs to hekdesh.  They continue to explain why the beraita omitted chametz belonging to hekdesh [but this is beyond the scope of our shiur].

            The Rambam (Hilkhot Chametz u-Matza 4:3), however, mentions the issur of pikadon only with regards to a non-Jew, but does not relate to hekdesh.  Although the Or Sameach explains that the Rambam refers to chametz of hekdesh as well, it seems that the Rambam makes a clear distinction between chametz of hekdesh and that of a non-Jew.  What is the basis of this distinction?

            I once heard from my teacher and father-in-law zt"l in the name of his father, the Gaon Rav Moshe Halevi Soloveitchik ztz"l that, in theory, chametz of hekdesh and of non-Jews have equal status.  However, based on a technicality, it is impossible to accept responsibility for chametz of hekdesh and, therefore, this case is not mentioned by the beraita.  [This explanation involves a complex line of thought and certain doubtful assumptions which are beyond the scope of our shiur.]

            The possibility exists, however, to explain that there is an inherent difference between the chametz of a non-Jew and that of hekdesh (despite the fact that both are excluded by the same pasuk).

I.  Cheftza

            The mishna in Bava Metzia ‎(56a) and Shevu'ot (42b), lists all the different areas excluded from the law of ona'a (overcharging) such as land, slaves and hekdesh, yet omits non-Jews.  However, the gemara in Bekhorot (13b) excludes a non-Jew from the law of ona'a.  Why was the non-Jew not listed in the mishna in Bava Metzia?  The answer is simple.

            The mishna in Bava Metzia is ‎discussing ARTICLES (cheftza) which are excluded from the law of ona'a.  The gemara in Bekhorot, however, discusses PEOPLE (gavra) who are excluded from the law of ona'a.  There is no basic difference between land and objects as far as the owners (gavra) are concerned; land is‎ excluded solely because it is not movable (a problem in the cheftza).  However, articles belonging to non-Jews are excluded, not because they are inherently different to articles belonging to Jews (a problem in the cheftza); but rather because the Torah stipulates ownership by a Jew as a prerequisite to applying the law of ona'a (a problem in the gavra).  Therefore, although the law of ona'a does not apply in either instance, they are recorded separately.

            Since hekdesh was mentioned in Bava Metzia and not in Bekhorot, we can deduce the following: The law of ona'a does not apply to hekdesh objects as they are inherently different to other objects (cheftza).  A chair of hekdesh has a completely different identity then that of a normal chair, (including one belonging to a non-Jew).  This results from the kedusha (holiness) which ultimately defines an object of hekdesh and gives it unique characteristics ‎which, by definition, are different to ordinary items.  However, a non-hekdesh article retains its basic identity whether owned by a Jew or a non-Jew.  This is the first difference between hekdesh and non-hekdesh.

II.  Gavra

            However, according to the ‎gemara in Bekhorot, there IS a parallel between hekdesh and non-Jews, and thus, even when hekdesh buys an object the laws of ona'a apply.  This cannot be due to the unique status of hekdesh objects (before the object is bought it does not belong to hekdesh).  Thus, we must explain that hekdesh is excluded from the law of ona'a as result of a deficiency in the required ownership (i.e., a problem in the gavra).  Thus, hekdesh is excluded from the law of ona'a on two counts.

Nafka Minot

            There are cases where one exclusion is applied and not another:

1. Cheftza of hekdesh but not gavra: Rashi in Bava Metzia (daf 54a s.v. Ve-hahekdeshot), states that the law of ona'a does not apply when pesulei ha-mukdashim (sanctified animals that became disqualified to be offered as a sacrifice) are sold by their owner.  Hekdesh itself is not involved in the sale as it is the owner of the animal conducting the sale.  Nevertheless, the law of ona'a does not apply.  This must result from the animals' inherent state of kedusha, acquired when it was sanctified.

2. Gavra of hekdesh but not cheftza: If one donated‎ an object to hekdesh on the condition that it does not become holy, and the treasurer of hekdesh then went ahead and sold that object, the laws of ona'a would still not apply [according to some Rishonim].  This is because the treasurer - a representative of hekdesh - is a partner in the sale and not because the identity of the object.

            Since there are two separate exclusions when it comes to hekdesh, cheftza and gavra, we must relate separately to each case in order to determine whether the exclusion relates to the object, to the owners, or perhaps to both.  Sometimes, the distinction is clear as two verses are used to exclude hekdesh.  For instance, in Bava Kama the gemara states that the law of kefel (double payment by a thief to recompense the owner) does not apply to hekdesh.  On daf 62b, hekdesh is excluded by virtue of the term "re'ehu;" yet, on daf 76a, it is excluded from the words "and it was stolen from the man's house" (the gemara derives from this: "from the man's house and not from the house of hekdesh.")  Tosafot in Bava Kama (daf 63a s.v. Re'ehu) question the necessity of two separate verses to exclude hekdesh from the law of kefel and offer several  explanations.  However, according to our distinction, the reason seems clear: The word "re'ehu" excludes hekdesh when it is the owner of the stolen object (problem in the gavra).  The phrase "and it was stolen from the man's house" excludes an object which is defined as hekdesh due to its inherent holiness (problem in the cheftza).

            Not only when there are two separate verses, but even when there is only one, hekdesh is still multi-dimensional (cheftza and gavra) and, therefore, may be excluded‎ on two different levels.

            Using this understanding, let us return to our sugya:

Chametz of a non-Jew

            Rav Acha bar Yaakov (Pesachim 29a) raises the possibility that it is permissible to eat the chametz of a non-Jew on Pesach.  This is understandable only if we view the chametz of a non-Jew as a different entity (cheftza) to the chametz of a Jew.  However, R. Acha retracts his radical viewpoint and it is, thus, unanimous that the ownership of a non-Jew does not affect the cheftza of the chametz.  The chametz of a non-Jew may be retained on one's property on Pesach provided that the Jew does not form an attachment to the chametz by accepting responsibility to look after it (pikadon).

Chametz shel Hekdesh

            Chametz of hekdesh, however, exhibits two aspects:

1. A lack of connection to the individual Jew (parallel to chametz of a non-Jew).

2. A different identity (cheftza) than that of non-hekdesh chametz.

            Thus, even if a Jew creates a connection to the chametz of hekdesh by accepting it as a pikadon, he will not transgress the injunction against possession of chametz as the Torah did not forbid ownership of this type of chametz.

            The difference between chametz of hekdesh and that of non-Jews is now understood: Acceptance of responsibility creates a connection between the holder of the chametz and the chametz and overcomes the lack of ownership by a Jew.  This problem exists with regards to chametz of a non-Jew.  However, regarding chametz of hekdesh, aside from the lack of ownership, there is an additional exemption due to its inherent sanctity.

            A careful analysis of the gemara on daf 5b, however, seemingly contradicts our thesis: According to R. Shimon - the first opinion at the bottom of daf 5b [see Rashi s.v. Le-man de-amar] hekdesh is excluded from regular monetary laws (e.g., ona'a and kefel) only when under the care of the treasurer.  However, if an individual takes responsibility for an object of hekdesh, the laws that are applicable to non-hekdesh objects take effect once more.  The reason is: Davar ha-gorem le-mammon ke-mammon dami - If something happens to the object the individual will be responsible to compensate hekdesh.  We, therefore, currently view the object as belonging to him.

            The concept of davar ha-gorem le-mamon ke-mamon dami would seemingly overcome only the lack of ownership.  If R. Shimon claims that one responsible for hekdesh violates bal yera'eh and bal yimatzeh, apparently he rejects our thesis, that chametz is exempt due to its inherent kedusha.  Furthermore, the gemara seems to indicate that even Rabbanan (who generally argue with R. Shimon regarding the status of davar ha-gorem) agree that davar ha-gorem le-mammon ke-mammon dami regarding chametz.

            Thus, it would seem that the prohibition to maintain chametz in one's possession if one has accepted responsibility over it extends to chametz of hekdesh.  This is contrary to the conclusion we reached above.

            However, it‎ seems that the conclusion of the sugya is no proof, and that the distinction between hekdesh and non-Jews still exists.  In the gemara it only said that the‎ basis of the law that responsibility creates a type of ownership, is to be‎ connected with R. Shimon's opinion.  From R. Shimon we show that one who merely accepted responsibility over chametz of a non-Jew on Pesach is culpable.  But there is no explicit indication that this ruling applies to hekdesh.

            However, the Yerushalmi states that the prohibition to maintain a pikadon of chametz in one's possession applies to hekdesh as well.  This is only according to R. Shimon and only in a case of kodashim that one is responsible for.  Thus, according to R. Shimon, there is no difference between hekdesh and non-Jews concerning bal yera'eh and bal yimatzeh.  According to R. Shimon the identity of the chametz shel hekdesh is determined, not by its kedusha, but rather by who has a monetary relationship with it.  In order to relate the chametz to the Jew, we are satisfied with the fact that there will be a monetary loss on his part if something happens to the chametz.  Neither the kedusha of the chametz (which still exists even according to R. Shimon), nor the ownership of hekdesh exclude the chametz from the prohibitions of bal yera'eh and bal yimatzeh.

            However, according to Chakhamim, and according to the Bavli (even according to R. Shimon), the basic identity of the chametz is determined on the basis of its present situation; and so, even where one is oveir on the chametz of a non-Jew, there would be an exemption with regards to chametz of hekdesh.

SUMMARY

            It is forbidden to maintain a pikadon of chametz belonging to a non-Jew on Pesach.  According to the Tzelach and Pnei Yehoshua, a similar prohibition applies to chametz of hekdesh.

            It seems from the Rambam that hekdesh is NOT included in the prohibition.  According to R. Moshe Soloveitchik zt"l this is due to a technicality.  However, it is possible to suggest that chametz of hekdesh has a different identity to that of non-hekdesh and is, therefore, not included in the prohibition.  This difference is relevant to other areas of halakha such as ona'a and kefel.

            According to the Yerushalmi, R. Shimon includes hekdesh in the prohibition; Chakhamim do not.

This version was not reviewed by Rav Lichtenstein.

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Sources for next week's shiur: 5b-6a: Kabalat Achrayut

            We will be discussing the prohibition of "lo yera'eh" in regard to chametz of a nokhri which is held by a Jew.  We will use this case to determine exactly what is the nature of the relationship prohibited by "lo yera'eh lekha" and "lo yimatzeh."  Try and come up with acceptable formulations, taking into account the restriction of "lekha" and the inclusion of "lo yimatzeh."

1. 5b, "Amar mar..." until 6a, "... she-eino matzui be-yadkha."

2. Rambam, Hilkhot Chametz 4:1-4.

3. R. David 5b, s.v. Keivan.

4. Rosh, sec. 4, "yesh min ha-geonim..."