Chametz She’avar Alav Ha-Pesach

March 24, 2008

The general rule is that any chametz for which a Jew violated the Biblical prohibitions of Bal Yiraeh U’bal Yimatzei becomes forbidden forever as chametz she’avar alav ha-Pesach. This penalty applies whether the transgression was violated knowingly or unknowingly, and even if the Jew was completely unaware of the prohibitions of chametz or the Yom Tov of Pesach1.

Chametz which is owned by a company should be viewed as though it is owned in partnership by its shareholders. Therefore, even large publicly traded companies can be subject to the penalty of chametz she’avar alav ha-Pesach. However, if less than 50% of the shares are owned by Jews, and no single Jew owns enough shares to be considered to have a voice in the company then we follow the opinion of Rav Moshe Feinstein Zt”l that in regards to issurim di’rabbanan we can view the company as being owned by non-Jews. We must therefore require any company which has a major Jewish interest to sell their chametz and cease operations for the duration of Pesach. It is permitted to have the Jewish partner sell his stake of the company to his non-Jewish partners for those 9 days, provided that the sale is taken seriously and the Jewish partner refrains from involvement in the operations of the company.

Which products are subject to the penalty of chametz she’avar alav ha-Pesach and become forbidden?

Any product that is inherently chametz such as bread and crackers, or has a mixture of real chametz that is greater than 1/60th of the product, is subject to the Biblical prohibition of Bal Yira’eh U’bal Yimatzei and the penalty of chametz she’avar alav ha-Pesach2. If the mixture is min b’mino, such as chametz flour and matzah flour, then so long as the heter is the majority, the product is not subject to the penalty of chametz she’avar alav ha-Pesach.

If there is less than a kezayis of chametz in the entire mixture then the according to many authorities the penalty of chametz she’avar alav ha-Pesach does not apply3.

Even if the percentage of chametz is less than 1/60 of the product, if the chametz is an essential ingredient in the product the product is forbidden after Pesach4. One common example of this is when the chametz is a davar hama’amid. However, if the amount of chametz in the product is less than a kezayis then it is subject to the leniency mentioned above.

If a product was cooked or was kavush in a chametz tank before Pesach, the product is not subject to the penalty of chametz she’avar alav ha-Pesach. According to many opinions this would be considered a Nat bar Nat diheteira. One can therefore hold this product until after Pesach in a non-chametz container.

If the product was cooked in a ben yomo chametz tank on Pesach, although the owners would be required to destroy the product on Pesach, bidieved the product is permitted after Pesach5.

Chametz she’avar alav ha-Pesach is an issur dirabbanan. As such in situations of safek, we apply the rule safek dirabbanan likula. So long as we can safely assume that less than 50% of the merchandise in stock is chametz she’avar alav ha-Pesach then one may purchase from such a vendor. One exception to this rule is when doing business with a chashud. This includes anyone who is suspected of intentionally misrepresenting the kashrus of a product. When dealing with a chashud, one can not apply the rule safek dirabbanan likula, but rather one must assess that there might not be any chametz she’avar alav ha-Pesach left in his stock. Igeros Moshe (O.C IV:96) is lenient not to consider supermarkets as chashudim. Distributors that sell to OU certified companies probably would not be included in this heter 6.

Some products are produced primarily from non-chametz sources. For example, most alcohol and vinegar on the market are not derived from a chametz source. Never the less, we must investigate the sources of these items. If it takes more than an hour to ascertain whether the item is chametz, we may permit a company to use these products on Pesach in their non-kosher l’Pesach products.

There is a category of chametz called chametz nuksha. Chametz nuksha is chametz that had something wrong with its fermentation; either it did not become completely fermented, or it was not of quality for human consumption (only edible b’shas hadchak). Medicines, cosmetics and glues even if they contain chametz are commonly referred to as chametz nuksha because the chametz that they contain was never really fit for human consumption. Non-chametz flour mixed exclusively with mei peiros is at worst chametz nuksha. If a small amount of water is added then according to some opinions it is chametz nuksha7. If there is more water than mei peiros then all opinions agree that it is chametz gamur. All non-Pesach flour is tempered and is considered safek chametz gamur which is forbidden to eat after Pesach8.

On chametz nuksha one does not violate the Biblical violation of Ba’al Yiraeh Uba’al Yimatzei. If chametz nuksha is present in a mixture, in a concentration of less than a kezayis bichdai achilas pras 9, though one may not eat it on Pesach, one may own it and derive benefit from it on Pesach. If the chametz nuksha is nosain ta’am lifgam then it suffices if it is less than 50%10.

The Magen Avrohom (O.C. 447: 46) says that even chametz nuksha that is not in a mixture is not subject to the penalty of chametz she’avar alav ha-Pesach. The Mishna Berura 447:107 says that most Achronim disagree with the Magen Avrohom and only permit chametz nuksha to be eaten if it was bita’arovus.

In summary:

Chametz She’avar alav Ha-Pesach does not apply to products if:

– Company has majority non-Jewish ownership and no Jewish partner has a voice in the company
– Chametz is less than 1/60th of the product min bishe’aino mino (except for essential ingredients)
– Chametz is less than ½ of the product min b’mino
– There is less than a kezayis of chametz
– Non-chametz product is made on chametz equipment
– Its status is a safek, and one is not purchasing the chametz from a chashud
– Most of that product on the market is non-chametz and it takes a large effort to verify its source
Chametz nuksha which is nosain ta’am lishvach that is less than a kezayis bechdai achilas pras of the product
Chametz nuksha which is noasin ta’am lifgam that is less than 50% of the product

Notes:

1 We do not accept the opinion of שאילת דודthat views chametz of a מומר like that of a non-Jew, but rather we accept the opinion of הג“ר איצלה מפוניבז’ בתשובתו שבזכר יצחק (סימן ח’ ) (P-52).

2 Shulchan Aruch O.C. 442:1.

3 The Biur Halacha (O.C. 447 s.v. bain) seems to side with this opinion, though he leaves the question unresolved. The Chazon Ish 116:10-11 is machmir.

4 Mishna Berura 447:14

5 The Chok Ya’akov 442:1 says that m’ikar ha’din, ta’amo blo mamasho is permitted after Pesach. Although he says that one should be machmir not to eat it after Pesach, here there are more tzdadim l’hakel.

6 I asked Rav Belsky about this and he agreed.

7 Biur Halachah 462 s.v. Mimaharim

8 Mishna Berura 453:24, however, he is lenient after Pesach to allow selling this to a non-Jew.

9 Chazon Ish 116:10

10 Pri Migadim A.A. 442:2