Shabbat Parashat Vayikra| 5763
Moreshet Shaul
From the works of Hagaon Harav Shaul Yisraeli zt”l
The Rambam's Opinion on "Bal Yeira'eh, Bal Yimatzei" - Excerpts from Chavot Binyamin, siman 32
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The Rambam (Chametz U’Matza 1:3) states that one usually is not חייב מלקות on בל יראה ובל ימצא (= ביבי) because it is a לאו שאין בו מעשה, but if one actively bought or made חמץ on Pesach, he would get מלקות. The Mishna Lamelech (ad loc.) asks that since ביבי is ניתק לעשה (“removed” by a subsequent positive action), there should not be מלקות. The Mishne Lamelech’s editor quotes the Dvar Shmuel that the Rambam's halacha applies when one acquires חמץ on the seventh and last day of Pesach which falls on Shabbat. In that case, he cannot burn the חמץ or crush it into pieces, as required (Pesachim 21a), and therefore the לאו cannot be repaired. If the seventh day fell during the week, one could burn the חמץ. Even though one who inadvertently finds חמץ in his home need not and cannot burn it on Yom Tov (Shulchan Aruch, O.C 446:1), one who purposely violated ביבי on the last day would be permitted to burn it on Yom Tov as it is a צורך היום to "fix up" the לאו. [After much discussion, Rav Yisrael concluded that] the Dvar Shmuel is difficult since one should be able to indirectly (to avoid muktzeh) throw the חמץ into the sea or toilet and fulfill the positive commandment which eliminates the מלקות.
The correct explanation of the Rambam seems to be along the lines of R. Chaim of Brisk (ad loc.). First, some background. R. Yehuda rules that חמץ must be destroyed by fire, whereas Rabanan say that it can even be crumbled into small pieces and/or thrown to the sea (Pesachim 21a). The Tur rules that, according to Rabanan, the remains of חמץ are forbidden, and, according to R. Yehuda, they are permitted. R. Akiva Eiger asks that since by חמץ, Rabanan feel that "burying" the חמץ fulfills the mitzva, then what difference does it make whether it is burnt or reduced to insignificant remains in another way? R. Chaim answers that R. Yehuda and Rabanan have very different approaches to the mitzva of תשביתו (ridding oneself of חמץ). R. Yehuda understands that there is a positive mitzva to destroy חמץ (through fire). Fulfillment of the mitzva changes the status of the remnants and knocks off the לאו of ביבי. According to Rabanan (and halacha), תשביתו is accomplished passively (by the גברא) by ensuring, through any means, that no significant חמץ remains. Since no positive commandment devolves on the object (חפצא), its status does not change and there is no positive commandment to uproot the לאו.
While R. Chaim answers the Rambam well, it appears that R. Akiva Eiger's question on the Tur who follows the Rosh remains. The Rambam posits that תשביתו may be done by nullification of the חמץ in the owner’s heart. This concept is the same on Pesach, although practically, there is a need for physical means. However, according to the Rosh, the mitzva is on the גברא, to be a person who enters Pesach without חמץ in his possession. When Pesach comes, the active mitzva of תשביתו, which includes positive activity, kicks in. From that point on, R. Yehuda and Rabanan agree that the nature of the mitzva is positive and, therefore, it should bring about a change in the remnants of חמץ and knock off the לאו of ביבי..
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