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Pesachim 5


QUESTION: Rebbi Akiva proves that the obligation to destroy Chametz applies before Pesach begins, because the Torah commands us to *burn* the Chametz, and igniting a fire (an Av Melachah) on Yom Tov is forbidden.

RABEINU CHANANEL asks that even if igniting a fire was not an Av Melachah (for which one is Chayav Kares) but only an Isur Lav (a normal prohibition for which one is Chayav Malkus), it would still be forbidden to transgress the Torah's prohibition in order to burn the Chametz. If so, why does Rebbi Akiva say that igniting a fire is an Av Melachah, and therefore Bi'ur Chametz must be done before Pesach -- even if igniting a fire is an Isur Lav, Bi'ur Chametz must still be done before Pesach so that one does not transgress the Isur of lighting a fire!

Rabeinu Chananel answers that if igniting a fire was an Isur Lav, then it would be permissible to light a fire on Yom Tov in order to burn the Chametz, because burning the Chametz is a Mitzvas Aseh, and a Mitzvas Aseh overrides an Isur Lav ("Aseh Docheh Lo Ta'aseh"). Rebbi Akiva's proof that Bi'ur Chametz must be done before Pesach, therefore, is from the fact that lighting a fire on Yom Tov is an Av Melachah, which a Mitzvas Aseh does not override.

Even if lighting a fire on Yom Tov was an Isur Lav, how can the principle of "Aseh Docheh Lo Ta'aseh" apply in this case? The Lav of lighting a fire is done long before the Mitzvah of destroying the Chametz is fulfilled! The Rambam rules that one is Chayav for lighting any amount of fire on Yom Tov, while the Mitzvah of "Tashbisu" is fulfilled only when all of the Chametz has been destroyed. If so, the Lav is not being done at the same time as the Aseh, and in such a case the principle of "Aseh Docheh Lo Ta'aseh" does *not* apply (Beitzah 8b)!

ANSWER: HARAV MEIR SHAPIRO ( Lubliner Rav and initiator of the study of Dafyomi), cited in OR L'MEIR, answers that until all of the Chametz is burned, one is not Chayav for lighting a fire altogether, even though no Mitzvah was yet performed. The reason for this is because one is not Chayav for performing a Melachah which accomplishes no productive purpose ("Mekalkel"). When he lit the fire, no productive purpose was accomplished. Only once the fire completely destroys the Chametz, is the Mitzvah he performed considered to be the productive purpose of the fire (as Tosfos says in Shabbos 106a), but at that moment the Aseh is Docheh the Lo Ta'aseh!

(Rav Meir Shapiro, zt'l, adds (and proves) that Rebbi Akiva does not agree with Rebbi Shimon (Shabbos 106a) who says that although one is usually not Chayav for doing a Melachah which is Mekalkel, lighting a fire is different and one *is* Chayav for Melkalkel of Hav'arah. Rebbi Akiva argues and holds that even Mekalkel of Hav'arah is Patur. Therefore he had to emphasize that Hav'arah on Shabbos is an Av Melachah, and is accompanied by an Aseh and Kares on Shabbos and by an Aseh on Yom Tov such that it cannot be overriden by the Aseh of "Tashbisu.")


QUESTION: The Gemara learns from the wording of Rebbi Akiva that "Hav'arah l'Chalek Yatzas," that is, the Torah specifically mentioned the Isur of kindling a flame on Shabbos to teach that just as one is Chayav Kares and Chatas for doing the single Melachah of Hav'arah, so, too, one is Chayav for doing any one of the 39 Melachos (as opposed to being Chayav only when one has done all 39). He argues with Rebbi Yosi who says that "Hav'arah l'Lav Yatzas," that is, the Isur of kindling was mentioned separately because it is only a Lav and not a Chiyuv Kares. How does the Gemara see that from Rebbi Akiva's words?


(a) RASHI explains that since Rebbi Akiva calls Hav'arah an "Av Melachah" and not an "Isur Lav," it must be that it is an Av Melachah like any other and is a Chiyuv Kares.

(b) The RIVA, cited by TOSFOS (DH l'Chalek), explains that if Rebbi Akiva was of the opinion that Hav'arah was only a Lav on Shabbos, then on Yom Tov (such as Pesach, the subject of our Gemara) it would not be forbidden at all to light a fire. The reason for this is because the Torah only warns us not to do "Melachah" on Yom Tov. What is defined as Melachah? Melachah, explains Riva, is an act for which a person is Chayav Kares if done on Shabbos. An act which is only an Isur Lav on Shabbos is not considered a Melachah, and therefore it would not be forbidden at all on Yom Tov.

An interesting implication of the argument between Rashi and the Riva is the Halachah of Shevisas Behemah (Mechamer) and Shevisas Avadim on Yom Tov. On Shabbos, the obligation to let one's animal rest on Shabbos is only an Aseh, and the prohibition against making one's servant or animal work on Shabbos is a Lo Ta'aseh, but not a Chiyuv Kares. On Yom Tov, then, what is the Halachah?

(a) The BEIS YOSEF (OC 246) infers from the words of RAV HAI GA'ON that there is no Isur of Shevisas Behemah on Yom Tov, and the REMA rules like that as well (OC 246:3).

(b) However, the Beis Yosef elsewhere (OC 495) questions Rav Hai Ga'on's opinion, asking how it can be that there is no Isur of Shevisas Behemah on Yom Tov. Why should it be different from any other Melachah that is prohibited on Shabbos? Even though the Torah does not specifically prohibit Mechamer on Yom Tov, all of the other Melachos were also not specifically prohibited on Yom Tov but they nevertheless apply! In fact, the RIF and ROSH (Beitzah 36b) clearly rule that Shevisas Behemah and Mechamer *do* apply even on Yom Tov.

The argument seems to depend on the argument between Rashi and the Riva. According to Rashi, even something which is only a Lo Ta'aseh on Shabbos (like Hav'arah) would be forbidden on Yom Tov, even though it cannot be called an Av Melachah. Accordingly, Rashi would agree with the Rif and the Rosh. However, Rav Hai Ga'on, who says that Mechamer does not apply on Yom Yov, might rule like the Riva who says that anything which is only forbidden because of a Lav is not called a Melachah and would not be forbidden on Yom Tov at all. (Even according to the Riva, though, there exists an Isur d'Rabanan of Shevisas Behemah on Yom Tov, as the Magen Avraham in OC 246:3 points out, because making one's animal work is an Uvda d'Chol, a weekday activity.)
OPINIONS: The Gemara says that if a Jew accepts responsibility for Chametz entrusted to him by a gentile, he is obligated to get rid of it before Pesach. Even though he does not own the Chametz, the fact that he is responsible for it makes it as if he owns it and he will transgress Bal Yera'eh and Bal Yimatzei if it stays in his property over Pesach.

What extent of responsibility ("Kabalas Acharayus") for Chametz that is in one's possession must one accept in order to be responsible to destroy it before Pesach?

(a) The BEHAG (cited by the ROSH) says that even one who is a Shomer Chinam, who is not responsible for anything that happens to the Chametz (such as theft, loss, and anything beyond his control) except for damage or loss due to his own negligence ("Peshi'ah"), is considered to have enough responsibility that the Chametz is considered to be in his domain and he must get it out of his possession prior to Pesach.

(b) The RI (cited by the ROSH; see also TOSFOS in Bava Metzia 82b and in Shavuos 44a) and the RAMBAM (Hilchos Chametz u'Matzah 4:3) rule that in order to be obligated to get rid of a gentile's Chametz which one is entrusted with, one must be responsible for theft and loss as well. This is implied by the Gemara here which says that Rava told the people of Mechuza that they must get rid of the Chametz in their domains because "if it is stolen or lost, you will be responsible for it." A Shomer Chinam, though, will not be obligated to destroy the Chametz he is watching.

(c) The RID (in the Shiltei Giborim) and TOSFOS in Shavuos (44a) and in Bava Metzia (82b) infer from Rashi that the obligation to destroy Chametz applies only if one accepted upon himself to be responsible even for any uncontrollable loss or damage that occurs ("Ones").

(d) From the words of RASHI here (6a, DH l'Olam a'Seifa) it seems that only if is able to *use* the Chametz, does he have sufficient liability to make him obligated to get rid of the Chametz. If he cannot use the Chametz then he is not obligated to get rid of it.

HALACHAH: The SHULCHAN ARUCH (OC 440:1) writes that l'Chatchilah, one should be stringent like the Behag and even if one is a Shomer Chinam, he should get rid of it. B'Di'eved, if he cannot return the object to the gentile before Pesach, he does not have to destroy it, but he may rely on the second opinion; since he did not accept liability for theft and loss he does not have to destroy it.
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