Volume 39 Number 22
Produced: Tue May 13 6:19:23 US/Eastern 2003
Subjects Discussed In This Issue:
Housing chametz
[c.halevi]
Kitniyot on Pesach
[David Shabtai]
Mechirat Chametz Contract
[Bernard Raab]
Passover corn syrup, and how about corn in general?
[Dov Bloom]
Repurchase of Chometz - Notification
[Raphi Cohen]
Safek D'Rabbanan- Minhagim, Vol. 39 #19
[Allen Gerstl]
Two Dishes for the Seder Plate
[Jonathan Baker]
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From: c.halevi <c.halevi@...>
Date: Tue, 6 May 2003 21:09:48 -0500
Subject: Housing chametz
Shalom, All:
Ari Trachtenberg asks >>... consider purchasing a house. The
formula is very similar [to selling chametz to a non-Jew] ... you sign
a purchase and sale with a 5-10% deposit, and then pay the rest at
closing some time thereafter (or else the purchase and deposit is
forfeited). What happens then if this is done around Pesach? For
example, you sign a purchase and sale before pesach and intend to close
after Pesach. Who owns the chametz in the house?<<
Having purchased three houses in my life, I think I can answer
this. Unless stipulated otherwise in a contract, ALL possessions in the
house remain the seller's property and he or she is obligated to remove
them before the buyer moves in. Indeed, many real estate contracts say
that if the seller does not remove them and give the new owner a
(reasonably) clean house, there is a penalty clause.
The only common exceptions to this that I can think of are
refrigerators, washers and dryers -- but those must be clean.
Furthermore, since one only pays earnest money when one signs a
purchase contract -- **not** in my experience 5%-10%, as Reb Ari says --
the house isn't owned by the buyer until closing time.
Ergo, IMHO, chametz in a purchased house, prior to the new owner
moving in, is not owned by the buyer.
Yeshaya (Charles Chi) Halevi
<halevi@...>
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From: David Shabtai <dys6@...>
Date: Tue, 06 May 2003 16:11:43 -0400
Subject: Kitniyot on Pesach
Following up on the question of kitniyot derivatives - why should
kitniyot that are mixed in with other foods be a problem?
In any food that has kitniyot mixed in with it (avoiding the question of
whether 'efshar le'sochto' - whether you can separate the kitniyot from
the mixture - assume we cannot) - the kitniyot can be batel be'rov to
the other ingredients. As such, the food item should be muttar on
Pesach since there is no problem of chozer ve'neior except by chametz.
This should be a further heter for drinking regular Coca Cola for
example on Pesach (I am clearly not advocating this, just wondering
aloud).
I came up with several answers. Rabbi Daniel Goldstein (Kingsway Jewish
Center) thought that the original minhag was to assur all ta'aruvot
kitniyot as well as kitniyot proper and there should be no problem.
This could in effect mean several things: we treat kitniyot like regular
chametz - which would mean it is assur be'mashehu - which I don't think
he meant, because we know that Ashkenazim can eat off Sefardim's dishes
on Pesach. It could also be that we don't hold of heter be'heter batil
by kitniyot - not sure why, unless you say it is assur be'mashehu which
gives you the problem raised previously - but I think this is what he
meant - even though it is not assur be'mashehu, the minhag is not to
allow heter be'heter batil.
What do others think?
David Shabtai
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From: Bernard Raab <beraab@...>
Date: Tue, 06 May 2003 21:00:11 -0400
Subject: Re: Mechirat Chametz Contract
Zev Sero wrote:
>>The form of contract with which I'm familiar states that the chametz is
sold for its fair market value, and both sides agree that after Pesach a
professional assessor will be hired to go around and work out how much
it's all worth, and the goy will then have a reasonable period in which
to pay that amount and pick up his merchandise. What's more, the
contract specifies that even if he defaults on the payment, the chametz
will still be his, and the sellers will sue him for the money. Under no
circumstances will the chametz revert to the sellers. Then, after
Pesach, a new contract is signed, saying that the goy is selling us all
the merchandise which he bought last week, for fair market value as
would be determined by an assessor, plus some fixed amount of profit.<<
I must say I never heard of an assessor being part of the plot! Every
Rabbi I have ever used to sell my chametz asked us to assess the value
ourselves. If the goy agrees to the purchase at the asking price the
deal is done. Now to another question: What is wrong with asking the
goy to sign the second contract, with the proper effective date and
time, at the same time as the first, thus eliminating the uncertainty as
to whether the goy was actually contacted and the time of repurchase? I
believe there is nothing in US civil law which would invalidate either
contract. Probably if the IRS could demonstrate that this was done to
avoid taxes in some way they could seek to have the contracts voided,
but if not done for some nefarious purpose, what could be the objection?
Is there a halachic problem? If so, could it not be overcome by some
conditional clause such as: "...if the purchaser does not take
possession before this date..."?? I was told many years ago by a rav
that this can be done and have wondered why it is not the usual
practise.
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From: Dov Bloom <dovb@...>
Date: Tue, 06 May 2003 17:25:30 +0200
Subject: Passover corn syrup, and how about corn in general?
The sub-minhag of not eating kitniot but eating "liquid derivatives"
better known as "totzeret kitniot" is well documented and probably more
prevelant in Israel than in the Peasach-humra-atmoshphere in the US. The
tshuva of Rav Yitzhak Elchonon, pre-eminent posek in Europe about 120
years ago, deals with a liquor made from some kitniot. There is also a
famous tshuva of Rav Kook on Sesame oil. Both thsuvot revolve around the
fact that the reasons for the "minhag" (/gezera/takana) of kitniot do
not apply in these cases. Another major posek , R Eigess of Vilna early
1900's in his sefer Marheshet, allows kitniot oil on a number of other
grounds. A minhag is like a neder, and if you forbid a fruit to
yourself with a neder, the juice (or other liguid extract) are muttar!
So kitniot oil is not forbidden by the no-kitniot minhag!
On the subject of corn-as-kitniot, I have heard from a number of
excellent sources that Rav Shaul Yisraeli, member of Israel's
Beit-Din-Hagadol for many years and a Rosh Yeshiva at Mercaz HArav, held
that kitniot that were not found in Europe were not included in the
minhag (gezera/takana), and so soy and corn, which came from the
Americas well after the 1600's to Europe therefore aren't part of the
no-kitniot minhag, and he himself consumed them on Pesach. I searched
R. Yisraeli's published sefarim (Eretz Hemda, Amud HaYemini and Havvat
Binyamin, but found no published tshuvot on this. Is anyone aware of
R. Yisraeli or anyone else writing on this?
I know there is more extensive material on peanuts, for instance
R. Moshe Feinstein's tshuva where he pretty much says there is no
"established" peanuts-are-kitniot minhag from Europe (peanuts came from
South Africa and were unknown in Europe until relatively recently.) Also
Rav Aviner in Am KeLavi wrote a tshuva on peanuts.
On kitniot in general: -
For a survey historically/halachikly of various kitniot questions, see
Moadim BaHalacha of Rav Zevin, editor of Encyclopedia Talmudit.
Some "bon mots" about the no-kitniot minhag from the Rishonim:
"humra yeteira" (the Tur, son of the Ashkenazi Rosh!)
or "minhag shtut" (Rabeinu Yeruham).
However the Rama and most all Acharonim follow the minhag. A notable
exception is the independent minded R. Yaacov Emden who states his
father the Hacham Zvi didn't like the minhag, and he (R Yaacov ) begged
other poskim to join him in nullifying the minhag which Emden says is a
stringency which leads to leniencies "humra deAtya lidei kula".
Dov A Bloom
<dovb@...>
02-9963196
058-903727
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From: Raphi Cohen <raphi@...>
Date: Thu, 8 May 2003 08:21:43 -0700 (PDT)
Subject: Re: Repurchase of Chometz - Notification
<Haim.Snyder@...> replies to my previous post:
> In all cases, a special sale must be made to account for the entire
> period when he is forbidden to own hametz. In Israel, there are
> rabbis who are aware of the problem and have made the proper
> arrangements.
I definitely agree that the solution you suggest is valid. My original
post only concerned people who are less particular than you (and Zev,
who did the same as you): namely, many people come from chu"l to spend
Pessach in Israel, and only sign the standard Rabbanut form which is
designed for Israelis. The problem is that the chametz they possess in
chu"l will return to their ownership about one day too early. I do not
know what status will have that chametz once they travel back to chu"l,
but your choice to make a special arrangement and avoid this lechatchila
is certainly appropriate. Unfortunately, I know people visiting from
Europe who (this year too) didn't bother and only filled the standard
form.
> If an Israeli spending Pessah west of Israel sells his hametz in
> Israel, then it reverts back to his possession while it is still
> Pessach where he is and then it becomes "hametz she'avar alav hapesah"
Very good objection, I take your point.
<zsero@...> asks:
> what is the problem if an Israeli who is in chu"l, and has chametz
> stored in Israel, sells it in chu"l? So it will spend an extra day in
> the goy's hands - so what? Until he gets back home, what difference
> does it make whose it is?
I can think of several problems. I'll just mention a couple:
a) Somebody in Israel might have access to the house of the Israeli who
spends Pessach in chu"l. That somebody (a neighbour, family remaining in
Israel, guests) does not know that the chametz was sold in chu"l. During
one day AND a few hours (due to the time lag with chu"l, if the Israeli
spent Pessach West of Israel) they think Pessach is over and use the
sold chametz, which technically belongs to the goy.
b) The Israeli comes back to Israel during second day of yom tov
(whether we agree with this is a different topic). He/she is still not
allowed to use the chametz sold in chu"l. For one day AND a few hours
(if the Israeli spent Pessach West of Israel) the chametz must not be
used. If the Israeli is aware of both the above problems (second day AND
time lag), there is no problem. If he didn't think at even one of them,
he is eating the goy's property.
I had decided against adding all these details in my original post, but
I probably should have...
Raphi Cohen
<raphi@...>
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From: Allen Gerstl <acgerstl@...>
Date: Fri, 09 May 2003 06:39:48 -0400
Subject: Re: Safek D'Rabbanan- Minhagim, Vol. 39 #19
On Tue, 6 May 2003 Danny Skaist <danny@...> Wrote
[Yehonatan Chipman wrote:]
>>The Rav said that, in light of the fact that there were two
>>separate uncertainties involved in this issue: an uncertainty as to
>>whether peanuts were considered kitniyot, and the dispute as to whether
>>the rule applied to oils altogether, a strong case could be made for
>>using peanut oil. ...
>>Nevertheless, anyone deciding to be lenient on this question should
>>probably make a hatarat neder, a formal release from the "vow" implied
>>by this custom, which was accepted by his ancestors.
>...Why is this [dispute as to a minhag] not just considered a safek
>d'rabbanan and permitted ? Why hold that a safek in a minhag is the
>same as a safek d'oraisoh ?
>[I know of many families that 3 or 4 generations ago never ate milk
>products on pessach. (Because they didn't exist.) Does this become an
>"implied custom" requiring hatara ??
I believe that Danny has answered his own question. Kitniyot is a
minhag and not a gezera.
AIUI, minhagim derive their authority from the laws of nedarim (see YD
214-Laavor Al Minhag Tzarich Hatarah-[A Person Who Wishes To Invalidate
A Minhag Must Invalidate the Vow] ).
KT
Eliyahu
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From: Jonathan Baker <jjbaker@...>
Date: Thu, 8 May 2003 09:53:25 -0400 (EDT)
Subject: Two Dishes for the Seder Plate
From: Sam Saal <ssaal@...>
> So I guess at least Rav Huna was a Sphardi.
Yes, of course - he was a Bavli, and Bavel is the origin of Oriental Judaism.
Here's my take on the "beets and rice" (from SCJM):
...sources brought in Ta-Shma's article on the origins of kitniyot. 3
sources from the 13th century, the Sefer Mitzvot Katan, the Or Zarua,
and Rabbenu Manoach. Each of them describes kitniyot as
a) something clung to by the amaratzim;
b) my rebbe was mattir;
c) well, we don't want to permit something that people have forbidden
on themselves, even if it's a minhag ta'ut.
From day one, kitniyot has been driven by the fears of the mob.
If I may be permitted some wild speculation...
First, some groundwork:
The mishna in the Bavli Pesachim 114a says they bring "shnei tavshilin"
after the first cup. To this is hooked a piece in the Gemara about Rav
Huna serving rice davka to spite R' Yochanan b. Nuri's opinion that rice
can become hametz. The parallel mishna in the Yerushalmi doesn't have
that phrase. They both refer back to a mishna in the 2nd perek, on the
five grains. The Bavli's discussion of the passage mentions several
tannaim by name who rejected R' Yochanan b. Nuri's opinion. The
Yerushalmi does not, and in fact seems to give greater credence to R'
Yochanan b. Nuri's claim, recording an experiment made whether rice
(karmit in this passage, which the meforshim say was some kind of grass)
became chametz, and each side said the experiment went their way (the
rabbis said the experiment proved it did not become chametz, RYbN said
it proved that it did become chametz). The Semag, R' Moshe me-Coucy,
says in the mid-1200s that kitniyot is OK, but Rabbenu Manoah, writing
about 1200, records the conflict. The Semag's endorsement of kitniyot
could just be part of the rabbinic rejection of this minhag ta'ut.
So here's the wild speculation: the Bavli used its version of the mishna
in the 10th perek as a hook on which to hang the story of the Bavli R'
Huna serving beets & rice to demonstrate that R' Yochanan b. Nuri was
wrong. The Y'mi version of that mishna doesn't provide the hook for
discrediting RYbN, which, combined with the more serious treatment of
RYbN in the 2nd perek, without the list of dissenting tannaim, might
hint at the existence of some people avoiding rice/karmit already in the
time of the Y'mi, in Israel, whose minhagim (and problems) then went
over into northern Europe.
Jonathan Baker
<jjbaker@...>
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End of Volume 39 Issue 22
