RR21 no. 5756.9

CCAR RESPONSA

PESACH KASHRUT AND  REFORM JUDAISM

5756.9

Sheilah

What should be the standards of Pesach kashrut for Reform Jews? What foods should be prohibited? What is our position  regarding  rice and legumes (kitniyot)? How do we deal with the requirement of biur chameitz?  Do we destroy our chameitz,  sell it, or put it away? (Rabbi Lawrence Englander,  Mississauga,  Ontario)

Tshuvah

These questions  are dealt with in brief in Gates of the Seasons, one of a series of volumes published  in recent decades that testify to a renewed interest in ritual observance  among Reform Jews in North America.1 For many years, questions  of ritual observance  were deemed to be matters  of personal  choice and did not rank high at all on the communal agenda of the Reform Movement. That situation, of course, has changed.  Today, we acknowledge that an authentically Jewish way of life requires ritual as well as ethical expression. Reform Judaism perceives ritual practice as a mitzvah,  a matter  of central religious importance. Much pioneering work has been done, particularly in the published  works mentioned above, in describing and setting forth the principles and details of Reform observance.  The task of this t’shuvah on Pesach observance  is therefore  not so much to issue a ruling as it is to supply the background and discussion necessary for an understanding of the practice of Pesach kashrut in our movement.

1. CHAMEITZ,  RICE, AND LEGUMES

“It is a mitzvah to abstain  from eating leaven [chameitz]  during the entire seven days of Pesach.”2 By chameitz,  the tradition means those grains from which matzah  may be baked: wheat,  barley, oats, rye, and spelt.3  No other foodstuffs  are regarded as chameitz.  In this, the halachah rejects the opinion  of R. Yochanan ben Nuri,  who forbids the eating of rice and millet during Pesach because they “resemble chameitz.”4 Talmudic  law, rather,  forbids the use of rice and legumes (kitniyot) as flour for the baking of matzah  and therefore  permits us to eat them during the Festival.5

According to long-standing Ashkenazic custom,  however,  rice and legumes are forbidden for Passover consumption. This prohibition is first mentioned6 in the thirteenth century by two French authorities, R. Yitzchak of Corbeil7 and R. Manoach of Narbonne.8 R. Yitzchak writes that “our  teachers observe the custom” of not eating rice and legumes during the Festival, though  he adds that this custom is not universally accepted and that “great  sages” disregard  it. Among these was his own teacher and father-in-law, the great tosafist R. Yechiel of Paris, who argued that since the Talmud  ruled that these foodstuffs  are not chameitz,  there is no reason to prohibit them today.  R. Yitzchak, reluctant “to permit something  that for so long has been widely regarded as forbidden,” feels the need to justify the custom.  He does so not on the grounds  that rice and legumes are chameitz  (“since not even a beginning Talmud  student  would make that mistake”), but because these foodstuffs resemble chameitz  in that they are cooked in the same fashion.  Since this resemblance  can lead to confusion—people might mistake a chameitz mixture  for one of rice or legumes—the rabbis issued a decree forbidding the latter.9 R. Manoach, for his part,  suggests that the prohibition originates  in a widespread—but mistaken—belief that rice and legumes are forms of chameitz.  Unlike R. Yitzchak,  however,  R. Manoach does not attempt to defend this “errant” custom,  and he suggests a Talmudic basis for dismantling the prohibition altogether.

These sources tell us a great deal about  both the history and the halachic status of the custom to abstain  from rice and legumes during Pesach.

We learn that while the prohibition was well-known in France by the thirteenth century,10 some leading rabbis of those communities rejected it on clear halachic grounds.  We know that the custom did not spread beyond Ashkenazic Jewry; rabbis in Spain and elsewhere did not hesitate to express their astonishment against it.11  And although the prohibition did gain wide acceptance among the Ashkenazim,12 some leading Ashkenazic authorities, including R. Yaakov Emden, were still criticizing it as late as the eighteenth century.13 

The early Reformers  in Europe,  convinced that this observance  was both unnecessary  and burdensome, abolished  it altogether.14 The Orthodox opponents of the new movement  responded to this decision in much the same way as they responded to virtually all the innovations that the Reformers  introduced into Jewish religious life, namely by insisting upon the sanctity of the entire received tradition. They defended the prohibition of rice and legumes despite its halachic weakness and despite all the criticisms that had been leveled against it over the centuries.

Few of them, to be sure, attempted to justify the minhag (custom) on the grounds  of its original purpose.15 They argued,  rather,  that the very existence of the minhag is proof that it must be retained. They noted, for example,  that a Rabbinic  decree that prohibits something  in order to establish a “fence around the Torah” has the full force of law; we are not permitted to rescind it.16  Some claimed that once a minhag is widely accepted by a community, it acquires the status of a vow, which is valid under the law of the Torah.17 While this prohibition, as a minhag, does not enjoy the same status as that of chameitz,18 under normal circumstances Orthodox rabbis continue  to insist upon its observance.

Reform practice,  following the standard of the Talmud,  permits the eating of rice and legumes during Pesach. We do not take this stand because we disparage  custom and tradition. On the contrary: our “rediscovery” of the centrality  of ritual observance  to Jewish life, described at the outset of this t’shuvah,  demonstrates that we take the claims of tradition with the utmost  seriousness.  This Committee, in particular, in its approach to the answering  of the sh’eilot submitted to it, has tended to uphold  the standards of traditional practice except in those cases where good and sufficient cause exists to depart  from them. And our movement  has recognized for nearly two centuries that the prohibition of rice and legumes is just such a case. Yet as we have seen, this observance,  which presents a significant burden  upon Jews during Pesach, has no halachic justification:  the Talmud  clearly rejects the suggestion that rice and legumes are chameitz.  And the likelihood  that our people will confuse legume dishes with chameitz  dishes is too remote to be taken into serious consideration.

We do not accept the Orthodox argument that a customary observance, once widely adopted, can never be annulled. This notion  is questionable, in general, as a matter  of halachah,19 especially when the observance  is based upon a mistaken  interpretation of the law.20 In our specific case, moreover,  there is absolutely  no evidence that this customary prohibition was ever ratified by rabbinic  decree or accepted as binding in the form of a vow. Had a decree or a vow existed, after all, those authorities who criticized the practice down to the eighteenth  century would never have spoken so bluntly against it. We think,  rather,  that some rabbis resort to these arguments in order to support practices and customs whose original purpose—if  there ever was a legitimate original purpose—no longer holds. When a religious practice has outlived its purpose, when its retention is perceived by the community as unnecessary and burdensome, Reform Judaism affirms the right of the observant community to alter or annul that practice in favor of a new standard that better expresses our understanding of Torah  and tradition and the religious sensibilities of our age.

Our  position  does not,  of course,  prevent  Reform  Jews from  adopting the traditional prohibition as a matter  of choice. On  the contrary: Gates  of the Seasons notes  that  “Ashkenazi custom” adds rice and legumes to the list of prohibited foods  on Pesach, implying  that observance  of this custom  is a valid option  for Reform  Jews.21   The mere fact that  a traditional practice  is not  “obligatory” does not imply that  we should  not  follow  it or that  we should  discontinue it. Jewish religious  practice  draws  its strength  from  many  sources. Chief among  these, to be sure, is the “logic  of the law,”  the nature of our  observances  as these are defined in the classic sacred  texts.

Also important, and  in many  ways no less important than  the texts, however,  is the “living  law”  as it has developed  in the life of the religious  community. Minhag  is the concrete  expression  of the religious consciousness  of the people,  their  way of expanding upon and  adding  texture  to the more  abstract principles  derived  from  the texts.  For many  people  who  take  religious  living with  all seriousness, the abstention from  rice and  legumes is an integral  feature  of Pesach observance  precisely because  this is the way the holiday  has been observed  for many  centuries  within  their religious community. We do not  urge them  to abandon that  practice;  indeed,  a number  of members of this Committee observe  it as well. We say rather  that,  as a matter of Reform  communal practice,  our “standards of Pesach kashrut” allow  the observant Reform  Jew to eat rice and  legumes during  the Festival.

2. THE REMOVAL OF CHAMEITZ

“It is a mitzvah to remove leaven from one’s home prior to the beginning of Pesach.”22 This mitzvah is based on the biblical injunction in Exodus 12:15: “on the very first day23  you shall remove [tashbitu] leaven from your house.” The precise manner of this removal is the subject of a controversy that stretches back to Talmudic times. Some early Rabbinic authorities interpret the word tashbitu as “nullification,” an act by which the householder mentally renounces all ownership of the chameitz.24

The Talmud,  too, declares that “according to Torah law, a simple act of nullification suffices” to remove chameitz.25 According to this view, the practices of b’dikat chameitz,  the search for leaven conducted on the night before the seder, and biur chameitz,  the burning or other physical destruction of the leaven the next morning,  are requirements of Rabbinic law,26 instituted perhaps in order to prevent against the possibility that one might accidentally eat some of the chameitz stored in one’s home during the holiday.27 Other commentators disagree. In their opinion, the Torah requires biur, the physical removal of chameitz,  as well as its nullification.  Indeed, they hold, the requirement of tashbitu is fulfilled primarily through biur. If, as the Talmud says, “nullification suffices,” this may refer to chameitz in one’s possession that one does not know about and therefore cannot burn or scatter.28 A third interpretation is that the Torah itself permits the “removal” of chameitz in either manner,  through nullification or through physical destruction; the Rabbis, however, instituted the requirement that both procedures be performed.29 

The traditional practice observes both biur and bitul (nullification).  The “search” for chameitz  takes place on the night before the seder (or two nights before, on 13 Nisan,  when Pesach begins on Sunday and when it is forbidden to burn the chameitz  on Shabbat).  Following both the search and the destruction of the chameitz,  one recites the formula  of bitul, found in traditional Haggadot, which declares that “all chameitz in my possession . . . shall be as though  it does not exist and as the dust of the earth.”30 Thus, even if chameitz  inadvertently remains in one’s possession,  the process of renunciation succeeds in “removing” it in accordance with the Torah’s requirement.

To destroy one’s chameitz  becomes impractical and burdensome if one owns a large amount of leaven. The custom therefore  arose for a Jew to sell his chameitz  to a gentile before Pesach and to buy it back from him at the holiday’s conclusion.  The roots of this practice extend back to tannaitic times. We learn in the Tosefta  that “when  a Jew and a Gentile are travelling on board  ship, and the Jew has chametz  in his possession,  he may sell it to the Gentile and buy it back after Pesach, provided  that the sale is a full and unencumbered transfer  (matanah gemurah).”31 The development  of this law, which apparently deals with a special case, into a regular and normal  transaction is a long story that cannot  be recounted here. We can simply point to the Shulchan Aruch and its commentaries, which accept as a matter  of course that a Jew may sell chameitz  to a gentile “even though  the Jew knows the gentile and knows that the latter will guard the chameitz  and return  it to him after Pesach.”32 This custom is now universally practiced  in traditional communities. In its most common  form, all the Jews in a particular locale or congregation consign their chameitz  to the rabbi or other notable,  who then sells it all to a single gentile.33

This device of m’chirat (sale of) chameitz is effective because it is “full and unencumbered.” Although the leaven remains physically within the Jew’s property, its ownership is legally transferred to the gentile buyer in a transaction that meets all the formal halachic requirements of an act of sale. As such, it allows the householder to fulfill the mitzvah of the “removal” of chameitz,  not necessarily under the terms of Exodus 12:15, which as we have seen may demand the physical removal of leaven, but under Exodus 13:7, which is understood to permit one to “see” chameitz that belongs to a non-Jew even though it remains within one’s property.34

Therefore,  traditionally observant Jews hold that this form of sale is a perfectly valid means of discharging the Toraitic obligation to remove chameitz.

Reform Jews, of course, might well object to the fictitious aspect of this device. The sale may be fully “legal,” but it is not serious: neither the Jew nor the gentile intend that the chameitz be transferred to the latter’s permanent ownership. We might also ask whether the “sale” of chameitz is a better and more serious means of fulfilling the mitzvah than the process of bitul, nullification,  described above. As is the case with sale, chameitz that is “nullified” remains within one’s physical—though not one’s legal—possession.  Many authorities hold that the renunciation of chameitz fully meets the requirements of Exodus 12:15 and/or 13:7.35

The traditional halachah, it is true, does draw a distinction: while a Jew may make full use of chameitz “bought back” from a gentile after Pesach, leaven that is “renounced” is forbidden for use.36  The logic of this distinction, however, escapes us. The objection to bitul, say the authorities,37 is that one might declare falsely that “I annulled  my chameitz before Pesach” when in fact one did not do so; therefore, although renouncing chameitz fulfills the Toraitic requirement, the Rabbis impose this penalty to forestall the possibility that one might evade the law. Yet what is bitul but a formal legal act that effects the legal—but not the physical—removal of chameitz from our possession? Is the “sale” of chameitz any different in its purpose and substance? It may be true that some Jews do not seriously intend to “renounce” their chameitz; it is certainly true, however, that none of them seriously intend to “sell” it.

We might also object to the sale of chameitz  on the grounds  that it requires the participation of a non-Jew in order that we can fulfill our own religious requirements. While Jews have for centuries relied upon gentiles to serve in such a capacity (the institution of the “Shabbos goy” comes readily to mind), the practice is inelegant at best and demeaning at worst.  We prefer to fulfill our mitzvot on our own, especially in this case, when most authorities agree that the method  of bitul allows us to meet the Torah’s demand  that we remove our chameitz  without incurring severe financial loss.

Therefore,  “Reform Jews rarely resort” to the sale of chameitz;  rather, they “make  leaven inaccessible in their homes.”38 This is our way of renouncing our possession of chameitz,  and we believe that we can do so with full seriousness and sincerity. While Reform Jews may wish to sell their chameitz,  perhaps,  again, out of solidarity  with traditional Jewish practice,  the standards of Reform Jewish observance  do not require that they do so.

NOTES

1. Peter S. Knobel, ed., Gates of the Seasons (New York: CCAR Press, 1983).  The other volumes, all published  by the CCAR Press, are W. Gunther Plaut, A Shabbat Manual (1972),  Simeon J. Maslin,  ed., Gates of Mitzvah (1979),  and Mark  Dov Shapiro,  Gates of Shabbat (1991).

2. Gates of the Seasons, 68. According to tradition, the prohibition against eating chameitz  begins at midday on 14 Nisan (BT P’sachim 28b, from a midrash  on Deut. 16:3). The Rabbis extended  the starting  point of this prohibition to an earlier hour as a “fence around the law” (cf. M. Avot  1:1; Yad, Chameitz Umatzah 1:8–9).

3. BT P’sachim 35a, again based upon Deut. 16:3, which mentions  both the words chameitz  and matzot. By the midrashic  principle of hekeish (comparison), the Rabbis deduce that only those grains that are chameitz—that undergo  fermentation (chimutz)—may be used for matzah.

4. See, however,  David Halivni,  Mekorot Umesorot, Pesachim (Jerusalem: Jewish Theological  Seminary of America, 1982),  371–72,  who argues that in the original version of his statement (see Tosefta  Challah 1:1 and JT P’sachim 2:4, 29b) R. Yochanan b. Nuri refers in this context  not to rice and millet but to karmit,  another type of grain altogether. If so, then one could argue that no known  Talmudic  sage ever ruled that rice and kitniyot are leaven.

5. BT P’sachim 35a; Yad, Chameitz Umatzah 5:1; SA, OC 453:1.

6. By the time of its “first mention,” the custom is spoken of as a long-standing practice. On its (possible) historical  origin, see Yisrael Ta-Shema, Minhag Ashkenaz Hakadmon (Jerusalem: Magnes,  1995),  pp. 271–82.

7. Sefer Mitzvot Katan, chap. 222. See also Sefer HaMordechai, P’sachim, chap. 588, which cites the same ruling in the name of R. Yitzchak of Corbeil.

8. In his commentary to Yad, Chameitz Umatzah 5:1.

9. The Tur, OC 453, offers a different explanation for the custom: the possibility that kernels of chameitz  grain are often found mixed in sacks of kitniyot.

10. Just how long it was known  there, however,  is unclear.  For example,  the twelfth- century Sefer HaPardes (ed. Ehrenreich,  46– 47), emanating from the “school  of Rashi,” permits rice and legumes and mentions  no custom which prohibits them.

11. See R. Yosef Karo, Beit Yosef,  OC 453: “Nobody pays attention to this matter except for the Ashkenazim”; his Shulchan Aruch (OC 453:1),  an authoritative guide to Sephardic practice,  permits the consumption of rice and legumes. The Tur (who, though writing in Spain, was of Ashkenazic descent) dismissed the prohibition as a superfluous stringency (chumra yeteirah) that is not widely observed (v’lo nahagu kein; OC 453). R. Yerucham  b. Meshulam (fourteenth-century Provence and Spain) declared it a “senseless custom” (minhag sh’tut; Toldot Adam  V’Chava, netiv 4, part 3).

12. Isserles, OC 453:1.

13. Mor Uk’tziah,  453. Emden speaks of his own efforts and those of his father,  R. Zvi Ashkenazi (the “Chacham Zvi”),  to “annul” the “erroneous custom” (minhag ta-ut).

14. The decision was issued on January  18, 1810,  by the Royal Westphalian Jewish Consistory under the signature  of its president,  Israel Jacobson.  The Consistory noted that the prohibition created a hardship for Jewish soldiers stationed in far-flung wartime  outposts who could not obtain  sufficient quantities of matzah  for the holiday. (A similar hardship argument was raised by Emden, Mor Uk’tziah, 453.) See B. H. Auerbach,  Geschichte  der Israelitischen Gemeinde Halberstadt (Halberstadt, 1866), 215–16.

15. An exception  is Aruch HaShulchan, OC 453:5.  Even he, though, puts most of his emphasis upon the very existence of the minhag as an a priori standard of Jewish observance:  “Those  who are lenient in this regard testify thereby that they lack the fear of heaven and the fear of sin” (453:4).

16. See Shaarei T’shuvah and Biur HaGra to OC 453:1.  This subject has a long halachic history,  starting  with the interpretation of Deut. 17:11.  See M. Eduyot 1:5; BT Beitzah 5a–b; Yad, Mamrim 2:2 and the commentaries thereto.  One of the first authorities to apply this principle to the prohibition against rice and kitniyot is R. Yaakov Molin (fifteenth-century Germany),  Sefer Maharil, Hil. Maachalot Asurot BaPesach, no. 16.

17. The most notable  is the great opponent of Reform,  R. Moshe Sofer; see Resp. Chatam  Sofer, YD 107, and especially OC 122, where he applies this theory to the present issue.

18. For example,  the Rabbis allow the consumption of rice and legumes during years of drought when its observance  would bring great hardship upon the people. See Chayei Adam  127:1; Mishnah  B’rurah 453:6,  and Shaar HaTziyun ad loc.

19. Though  we cannot  undertake an extensive analysis of the subject here, we would point to citations  in halachic literature that suggest that once the reason for a Rabbinic decree has disappeared, the decree itself may be annulled. See Tosafot, Beitzah 6a, s.v. ha-idena, and Rabad,  hasagah to Yad, Mamrim 2:2. For a more extensive analysis, see Reform Responsa  for the Twenty-first Century,  no. 5759.7, section 2 (vol. 1, pp. 53–56).

20. When a matter  that is permitted is mistakenly  regarded  as forbidden, the Sages are empowered to rule it permissible (i.e., no vow exists that would reinforce the prohibition on its own). See BT Chulin 6b; JT Taanit 1:6, 59c; Tosafot, P’sachim 51a, s.v. ‘i atah rasha’i; SA, YD 214:1.

21. Gates of the Seasons, 67 (B-2).

22. Gates of the Seasons, 67.

23. In BT P’sachim 5a, the Rabbis argue by various means that “the very first day” must refer to 14 Nisan,  the day before Pesach, and not to 15 Nisan,  the first day of the Festival itself. See Yad, Chameitz Umatzah 2:1.

24. Thus Onkelos,  in his Targum  to Exod. 12:15,  renders tashbitu  as tevatlun,  “you shall nullify.”

25. BT P’sachim 4b. Rashi,  s.v. bevitul  be`alma, explains  this rule on the grounds that  the Torah  does not  say tevaaru,  “burn the chameitz” but  rather  “remove” (tashbitu)  it, which  may be done  by “removing” it from  our  consciousness. Tosafot, P’sachim 4b, s.v. mid’oraita,  disagrees,  on the basis of Talmudic  evidence that tashbitu  is understood as physical  destruction. Nonetheless, “nullification” is sufficient under  the terms  of Exod.  13:7:  you may not  “see”  your  own  chameitz,  but you are permitted to see chameitz  that  belongs  to others  and  that  is ownerless (BT P’sachim 5b).

26. Yad,  Chameitz Umatzah 2:2–3,  in the printed  texts  and  in the manuscripts (see R. David  Kafich’s edition  of the Mishneh  Torah  [ Jerusalem,  1986],  ad loc.); Tur, OC 331.

27. Tosafot, P’sachim 2a, s.v. or. Others  explain  the requirement of biur as a precaution against  the possibility  that  one’s renunciation of chameitz  is not  entirely done  with  full sincerity,  in the absence  of which  the chameitz  is not  annulled  and  one would  retain  ownership of it during  Pesach (R. Nissim  Gerondi  to Alfasi, P’sachim fol. 1a).

28. Yad, Chameitz Umatzah 2:2, according  to the reading preserved in Kesef Mishneh ad loc.; R. Menachem HaMeiri to M. P’sachim 1:1.

29. Chidushei  HaRamban, P’sachim 2a (although he asserts that biur is the preferable method);  Chidushei  HaRitva, P’sachim 2a; R. Nissim Gerondi  to Alfasi, P’sachim fol. 1a.

30. BT P’sachim 6b: one who searches out the chameitz  must still nullify it afterwards; Yad, Chameitz Umatzah 3:7.

31. Tosefta  P’sachim 2:6 (p. 146, Lieberman  ed.). See also M. P’sachim 2:1.

32. SA, OC 448:3; see especially the Shaarei T’shuvah, whose long note indicates the extensive discussion this subject receives in the responsa  literature.

33. The first authority to institute  this practice,  apparently, was R. Shneur Zalman of Liady, in his Shulchan Aruch,  Hil. M’chirat Chameitz. See also Aruch HaShulchan, OC 448: 27. The “consignment” is effected by means of a sh’tar harshaah, a document that appoints a second party as one’s agent in the selling of one’s chameitz.

34. BT P’sachim 5b; Yad, Chameitz Umatzah 4:1ff.

35. See above at notes 24 and 25.

36. SA, OC 448:3,  448:5.

37. Magen Avraham 8; Mishnah  B’rurah 25.

38. Gates of the Seasons, 128 n. 144.

If needed, please consult Abbreviations used in CCAR Responsa.