Shabbat Parashat Tazria | 5768

Must One Own His Own Matzot on Seder Night?

Ask the Rabbi

Question: Someone showed me a gemara that says that one has to own his matza on seder night. Yet I have never seen people being careful to acquire ownership when they have the seder in someone else’s home. Can we reconcile the practice with the sources?

Answer: The gemara (Pesachim 38a) does appears to say that one must own his matza. In discussing matza that is made from ma’aser sheni (produce that can be eaten only in Yerushalayim when it possesses a status of kedusha), it says that according to the opinion that ma’aser sheni is considered Hashem’s property, one cannot use it to fulfill the mitzva of eating matza. This is derived from the textual comparison between matza and challa taken from dough, which applies to one’s own dough. We accept the opinion that ma’aser sheni is owned by its human owner, and thus the question is moot in that regard. However, the concept finds expression in the halacha that one does not fulfill the mitzva with stolen matza, which, according to the Mishna Berura (454:15), is due to a lack of ownership over stolen matza. Therefore, even if one “steals” matza unintentionally and no one cares (e.g., two people mix up their matzot), there is a problem to rectify (ibid.).

Why then do we not find people being careful to make a halachic acquisition (kinyan) on the matza? In regard to general approach to halacha, it is crucial not only that standard practice ignores the issue but also that the classical poskim are silent on the subject. This phenomenon, called setimat haposkim, is also a major halachic factor. Therefore, we do not suggest going out of one’s way to be stringent and make a kinyan because creating a chumra that is clearly a new one on a common matter is not warranted. (Regarding unusual occurrences, it is more reasonable to say that the lack of a source or a minhag of stringency is due to a dearth of discussion about rare cases … but that cannot be said here). Let us, then, explore why there is no problem.

The Sefat Emet (Sukka 35a) suggests that we can apply the Rosh’s position that when a groom borrows a ring to effectuate a marriage, we assume it was given to him to halachically acquire it, for if not, the marriage cannot take effect. This explanation is somewhat difficult, as many people are not aware that they need to own matza and so the assumption of intention may be unreasonable.

Another idea is that one acquires matza when he makes a change to it by chewing it. He fulfills the mitzva later when swallowing. This does not help for stolen matza (Shulchan Aruch, Orach Chayim 454:4) because there, the chewing, which begins the mitzva, is forbidden. Since the chewing is necessary to acquire the matza, the entire mitzva is disqualified (see Mishna Berura 649:3). This explanation is difficult because changes to an object alter ownership only in cases like that of a thief, who already did an action of bringing the object into his control; this is missing here.

Some poskim (Imrei Bina, Pesach 23; Tzitz Eliezer II, 37) argue with the premise that one needs to own matza. They argue, based on the comparison to challa, that one needs only full permission to freely eat the food, not ownership. Guests and family members certainly have this.

The Mishna Berura (454:15) hints at a strong answer. Intention for acquistion is pertinent when one could either be acquiring or borrowing. If the object will return to its original owner, it is borrowing unless something makes it an acquisition. When one receives matza with permission to eat it, the piece will not return; thus there is effective intention to acquire it. Putting food into or onto one’s body is a kinyan (see Gittin 77a). Thus one acquires matza before he swallows it.

So as long as you’re not stealing someone’s matza, eat it without worries on this account.

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