Shabbat Parashat Shemini | 5769

Ask the Rabbi: Chametz That One Forgot About After Pesach

Question: I spent time in Hong Kong in the fall of 2007 and, planning to return the next summer, I left some things there, including a bottle of scotch. I forgot about it until I returned in May 2008. Is it chametz she’avar alav haPesach (=chshaalhap; chametz owned by a Jew over Pesach)? While I did not include it in my mechirat (sale of) chametz, did my bitul (nullification of) chametz help?

Answer: We accept Rabbi Shimon’s opinion (Pesachim 30a) that chshaalhap is a rabbinic injunction forbiding one to eat or benefit from chametz owned by a Jew because one (could have) violated bal yeiraeh bal yimatzei (=byby; the prohibition to possess chametz). When byby does not apply, neither does chshaalhap (ibid.). One might think that if he did bitul chametz, thus removing the Torah prohibition of byby, chshaalhap should not apply. The Yerushalmi (see the Rosh, Pesachim 2:4) cites a machloket on the matter. We accept R. Yochanan’s ruling, who forbids it due to concern that one will abuse the system (Shulchan Aruch, Orach Chayim 448:5). The Rambam (Chametz U’Matza 1:4) and Shulchan Aruch (ibid.:3) says that chshaalhap is forbidden even when one left the chametz b’shogeg (accidentally) or b’oness (due to extenuating circumstances). The Biur Halacha (to 448:3) seriously considers the view that when combining the grounds for leniency (i.e., bitul and the fact that one did not purposely violate byby) chshaalhap doesn’t apply. However, he focuses primarily on a case of oness, whereas your case of shogeg is likely more stringent.

There is, however, an important point of leniency in your case. Since you left Hong Kong more than 30 days before Pesach and did not have intention to return until after Pesach, you were not required to do bedikat (search for) chametz before leaving (Pesachim 6a; Shulchan Aruch, OC 436:1). There is a major machloket whether this exemption is only from bedika or whether one is even exempt from removing known chametz (see Mishna Berura 436:5). According to the lenient opinion (including the Ritva, Pesachim 6 and Pri Chadash 436), you did nothing wrong, as such a person may rely on bitul wherever he will be (although we would recommend mechira). If so, there certainly would not be a problem of chshaalhap.

What should be according to the opinion that you should have taken care of the chametz you knew about? When you were removing the chametz from your regular house, whether by formal bedika or other preparations (including mechirat chametz) you should have sold the chametz in Hong Kong or got someone to get rid of it. Your failure to remember the Hong Kong chametz is not fundamentally different than doing bedika but forgetting to look under the couch. Regarding a case that one did an imperfect bedika and a bitul, the Mishna Berura (448:25) brings strong indications in either direction whether chshaalhap applies. He concludes that in a case of significant loss, one can sell the chametz to a non-Jew, which is usually forbidden for chshaalhap but is permitted according to some opinions when one did bitul.

Depending on your location (Western US?) and when you did bitul on the night of bedika, there could be a complication because Hong Kong is 13 hours ahead of US’s Eastern Time. Bitul can only be done until an hour before chatzot (halachic midday) (Shulchan Aruch, OC 434:2). Although most poskim say that in such matters, we follow the owner’s place, not the chametz’s, the Igrot Moshe (OC, IV 94) says that if the chametz is in a place where the timing doesn’t work out, it becomes forbidden (see Mechirat Chametz K’hilchato 3:17 and Living the Halachic Process, D-17). However, given the other indications for leniency (including one we did not mention), we still say that if the loss of some (expensive?) scotch is significant to you, you may sell it to a non-Jew.

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