Chometz Sheavar Alav HaPesach

June 20, 2008

Pesach is a period full of kashrus related halachos. During this unique time we observe various dietary restrictions, which are part of the holiday’s special “halachic diet”. However, kashrus issues associated with Pesach do not end with havdalah after the last day of yom tov. Chometz sheavar alav hapesach, a term that describes chometz that was possessed or controlled by a Jew during Pesach, is strictly forbidden after yom tov is over. This issue is unfortunately quite relevant, since many food manufacturers, distributors, and retail stores may have either full or partial Jewish ownership. In each of these sectors, unless the party or parties involved are shomrei Torah u’mitzvos, any chometz in their possession may very well be forbidden after Pesach.

The prohibition of chometz sheavar alav hapesach was enacted by Chazal as a penalty for violating the issur deoraisa of possessing chometz on Pesach . Chometz shevar alav hapesach is prohibited to eat, and also derive benefit from, after yom tov. However, unlike minute amounts of chometz that falls into a food on Pesach and prohibit the entire mixture, chometz sheavar alav hapesach is nullified in a food with shishim (60x) of heter in the mixture vis-à-vis the chometz.

One very common method of avoiding the prohibition of chometz on Pesach is by selling any chometz to a non-Jew before Pesach. However, some authorities objected to executing a sale with an understanding the chometz will purchased back after yom tov. The Vilna Gaon for example, objected to these sales, as well as using any chometz sold through these methods after Pesach. The primary argument against this practice is that it amounts to he’aramah (trickery), which should not permissible to circumvent an issur deoraisa (torah prohibition). Nevertheless, sales to avoid issurei chometz in many communities have become an accepted practice, which has support from numerous authorities that disagreed with the Gaon’s concern .

Some poskim distinguished between issurei deoraisa and issurei derabanan (rabbinic prohibitions) regarding this issue . For example, a common practice of not selling chometz gamur, but selling chometz be’taroves (chometz that is part of a recipe, which is not principally chometz) may be based on Rabeinu Tam , who takes the position that in a mixture, there is no Torah prohibition of possessing chometz. Moreover, Rav Yackov Kaminetzky zt’l ruled that people who do not sell chometz because of he’aramah may still accept chometz after Pesach from someone who relied on a sale. Rav Yackov’s reason was that since chometz sheavar alav hapesach is an issur derabanan, it may be permissible to rely on he’aramah after Pesach to avoid a rabbinic prohibition.

What if a Jewish owned business does not sell its chometz before Pesach? Unfortunately, this dilemma has not been an uncommon phenomenon. These kinds of situations have been addressed and discussed by poskim for generations.

Rav Dovid Friedman zt’l once suggested a very novel approach to permitting chometz that was in the possession of a nonobservant Jew during Pesach . The gemara in maseches Chullin (5a) rules that a mechalel Shabbos’ status in halacha is akin to a nochri. Classically, this halacha is applied stringently in several contexts; for example, if a mechalel Shabbos would touch non-mevsuhal wine, it would become prohibited. However, Rav Friedman suggested that perhaps this principle may be applied leniently in the case of chometz she’avar alav hapesach, since chometz of a nochri is permitted after Yom Tov. Therefore, it would be permissible to purchase chometz from a nonobservant Jewish storeowner, who is a mechalel Shabbos, or schnapps from a partially Jewish owned company , as was the case discussed in the teshuva. However, although very original, this line of reasoning was not accepted by other poskim.

Rav Friedman also suggested that if Jewish ownership only constitutes a minority interest, the minority percentage would be considered botel and nullified vis-à-vis the non-Jewish ownership of the company. This approach was also supported by Rav Itzele Ponovezher zt’l, in order to permit chometz after Pesach from companies that were partially Jewish owned. However, this approach has also not been accepted by contemporary authorities.

Rav Moshe Feinstein zt’l addressed a similar question regarding corporations, and took a lenient position with different reasoning. Rav Moshe held that if a minority interest of Jewish ownership is not actively involved in company operations, halachically there is no legal Jewish ownership or control, which would render the chometz prohibited after Pesach. According to Rav Moshe, stocks that represent a minority equity interest do not translate into ownership of actual company assets, which would present a Pesach issue. However, if a business is majority Jewish owned, or a minority interest is actively involved in the business, the business relationship is viewed as a partnership and chometz sheavar alav hapesach could be an issue.

In the food distribution chain, there are usually three basic links before food reaches an end user: 1) the manufacturer, 2) the distributor, and 3) the retail store. In the case of a Jewish owned manufacturing company, nowadays the issue of chometz should be addressed by the Rav Hamachshir who certifies the company. The standard practice is to arrange for a sale of chometz to a non-Jew. Whether the business operates during that time, and if it does, under what conditions, will vary depending on the Rav Hamachshir.

In the case of a retail store, if the owner is shomer Torah u’mitzvos presumably all chometz would be sold to a non-Jew before Pesach, and none of that chometz will be sold until after Pesach. However, if the Jewish store owner is not shomer Torah u’mitzvos, did not arrange for a reliable sale of chometz prior to Pesach, and there is no acceptable Rav Hamachshir to address the issue, any chometz in the store’s possession during Pesach becomes prohibited. This is problematic even if a kosher certification symbol appears on the product label. The product was perfectly kosher before Pesach, but becomes prohibited afterward.

Rav Moshe Feinstein wrote a famous teshuva about a large Jewish supermarket chain that arranged for mechiras chometz prior to Pesach, but nevertheless continued to sell chometz throughout the holiday itself. In that teshuva, Rav Moshe assumed that the mechira remained valid, and the inventory sold during Yom Tov should be viewed merely as merchandise stolen by the store from the new non-Jewish owner. However, the fact that the company was operating business as usual would not invalidate the sale of chometz for inventory remaining on store shelves after Pesach. Therefore, according to Rav Moshe it was permissible to shop in that supermarket immediately after Pesach . However, some earlier authorities disagree with Rav Moshe’s reasoning, and argue that a sale executed in the form of ha’aramah is invalid since the original owner repossessed and sold goods to a third party . Along these lines, some contemporary authorities directly disagreed with Rav Moshe’s psak as well.

Nonetheless, manufacturers or retail stores are usually not sources of confusion with regard to the area of chometz sheavar alav haPesach. The difficult part of the equation is distributors, who are middle men between manufacturers and retail stores. Some distributors, including those that might supply large supermarkets, have Jewish ownership. This is also very relevant with distribution of hard alcoholic beverages, such as whiskey and scotch. Distributors who are shomeri Torah u’mitzvos cease operations during Pesach and sell their chometz beforehand. However, those who are not, very likely would not sell their chometz, or might arrange to sell their chometz and continue to operate their business normally during Pesach. The distributors that supply different retail stores will vary between each store. Frum store owners presumably are aware of this issue and should carefully take into account obtaining merchandise from acceptable sources after yom tov. In some cases, the distributors themselves may be frum and would have sold their chometz before Pesach.

When addressing this issue, it is important to bear in mind that chometz sheavar alav hapesach is an issur derabbanan. In cases of rabbinic prohibitions, there is room to be lenient when there is sufficient doubt. Rav Moshe Feinstein writes that if based on a calculation of days most of a store’s inventory would not be chometz sheavar alav hapesach, it is permissible to shop in that store. However, due to numerous complexities involved, especially with large supermarkets, consumers are best off turning to local rabbanim for direction as to where they may shop immediately after Pesach.