Question: Do we change the language of bitul chametz when it is performed on Shabbos?
Short Answer: Most poskim hold that the language of bitul chametz always stays the same, and the word hefker is still included when the bitul is performed on Shabbos.
Explanation:
I. Bitul on Shabbos
The Gemara (P’sachim 7a) states that one may not perform bitul chametz after six hours into the day of the 14th of Nisan. At this point, the chametz is already out of your possession. The Gemara then asks from a baraisa that states that if a person is in shul and he remembers that he has chametz in his house, he should be m’vateil it from shul, regardless of whether it is Shabbos or Yom Tov. While Shabbos could be dealing with the 14th of Nisan in the morning (before six hours), Yom Tov must be referring to AFTER the six hours. This contradicts our earlier ruling that you cannot be m’vateil after six hours on the 14 Nisan. The Gemara answers that we are discussing a case on Yom Tov where the person is m’vateil dough before it became chametz.
The upshot, however, of this Gemara is that one may be m’vateil chametz on Shabbos, the 14th of Nisan. Indeed, the Shulchan Aruch (Orach Chayim 444:6) and the Rama (Orach Chayim 444:2) are clear that when Erev Pesach is on Shabbos, the bitul is still performed at its normal time, on Shabbos morning.
But why is it permitted to be m’vateil chametz on Shabbos? To determine the answer, we need to understand the nature of bitul.
II. What Is Bitul?
The pasuk in Parshas Bo (Sh’mos 12:15) says “tashbisu s’or mi’bateichem” – that you must perform “tashbisu” on your chametz on Erev Pesach. Further, the Gemara (P’sachim 4b) writes that mi’d’Oraisa, it is sufficient for a person to merely do bitul chametz, as b’dikah/biur chametz is only d’Rabbanan.
Rashi (P’sachim 4b) explains that bitul is sufficient because it satisfies “tashbisu,” which merely requires a “thought,” not an action. Rashi (4a, s.v. chovas) elaborates how bitul works. The person is “meisiach daas” – removes his focus/mind – from the chametz and treats the chametz like dust of the earth. In other words, Rashi interprets bitul as a mentality of treating the chametz as worthless. Even if the person technically still “owns” the chametz, it is rendered “ridded” because it is viewed as ownerless, hence tashbisu is satisfied. This appears to be the view of the Rambam (Chametz 2:2), that tashbisu/bitul is satisfied by mentally treating the chametz as dust of the earth.
Tosafos (P’sachim 4b, s.v. d’Oraisa), on the other hand, writes that mi’d’Oraisa it is sufficient for a person to merely do bitul chametz because bitul works as hefker, that the person removes the chametz from his possession. In other words, bitul does not work as a tashbisu but, rather, by removing the chametz from being owned by the person, thereby ensuring that he does not have any chametz on Pesach.
III. The Question from Shabbos
The Ramban (P’sachim 4b) challenges the opinion of Tosafos, asking a few questions on his explanation that bitul is really hefker.
First, we never find that the Gemara uses hefker interchangeably with bitul. Indeed, throughout P’sachim, the Gemara constantly refers to bitul without ever mentioning hefker. Second, the term bitul r’shus by Eruv Chatzeiros certainly does not mean hefker, as the Jewish person who forgets to participate in the Eiruv does not give up his property like hefker but merely nullifies and withdraws his rights to walk into the chatzeir. Third, the Tana’im in N’darim debate how hefker works – whether something is truly ownerless before someone else acquires it. Accordingly, if bitul works as hefker, the person would only not violate owning chametz after someone else (i.e., an akum) acquired the chametz, which is unrealistic and not true. Fourth, based on the Gemara Beitzah (36b) that states that it is forbidden to make something hekdeish on Shabbos (lest you come to do business), it should be forbidden to make something hefker on Shabbos. Fifth, hefker requires a verbal declaration, but the Gemara always refers to bitul as “bitul b’lev” (a thought). [The Ramban also asks a few more questions.]
Based on the above, the Ramban adopts Rashi’s understanding, that bitul means rendering the chametz worthless like dust. But it is not a transaction forbidden on Shabbos. How does Tosafos, however, deal with these problems, and in particular, how this hefker bitul is permitted to be performed on Shabbos?
Interestingly, the Meiri (Magen Avos, inyan 18) answers for Tosafos all the questions of the Ramban. In particular, for questions 1 and 2, he answers that bitul is not exactly hefker, and thus the Gemara does not use them interchangeably, and bitul r’shus is also like hefker (and not real hefker). Also, for question 3, we do not pasken like the opinion that holds that hefker requires someone else to acquire it. For question 5, the Meiri holds that hefker may, in certain circumstances, be done without a verbal declaration.
But, most importantly, for question 4, the Meiri holds that hefker may be done on Shabbos. Specifically, the Meiri proves from the Gemara (Shabbos 126b) that you can move d’mai on Shabbos, as it is not muktzah because you can always be mafkir your items to become a pauper and eat the d’mai on Shabbos. Moreover, the Meiri writes that hefker is different from hekdeish. Hefker does not require a kinyan at all.
Thus, there is a clear machlokes between the Meiri and the Ramban whether bitul is performed via hefker, and it is partly based on whether hefker may be done on Shabbos.
IV. Practical Ramification
Based on the above, should the word “hefker” be used as part of the bitul?
The Shulchan Aruch (Orach Chayim 434:2) does not mention the word hefker, but merely “k’afra d’ar’a.” The Mishnah B’rurah (Orach Chayim 434:8) cites the Bach who holds that it is preferable to add the word “hefker” into the bitul. Indeed, the Bach explains that we add this word to include the opinion that bitul is a form of hefker, i.e. Tosafos.
V. This Year
But, what about this year, when Erev Pesach falls out on Shabbos. Should the word hefker still be included in the bitul?
The Chut HaShani (Pesach, p. 172) holds that the word hefker should still be included, and you are not violating an isur according to the Ramban, because the term “hefker” simply means hefker that results from bitul. You are not actually referring to real hefker (presumably, just according to the Rambam).
The sefer U’V’Yom HaShabbos (p. 407) likewise holds that the word “hefker” is still recited when Erev Pesach falls out on Shabbos. He cites R’ Moshe Sternbuch shlita, who agreed. However, U’V’Yom HaShabbos gives a novel reason. Even the Ramban agrees that “hefker” should be recited in such a case when it is a mitzvah and you have no other choice, as the Ramban only forbade bitul as hefker on Shabbos in the case of the Gemara, where the person could have gone home and physically gotten rid of the chametz because he KNEW about it. Here, however, you cannot physically remove chametz you do not know about!
The Ohr L’Tziyon (3:7:15), on the other hand, writes that when Erev Pesach falls out on Shabbos, one should remove the word hefker from the bitul on Shabbos and instead “think” about hefker without saying it. [Note, though, that in general the Ohr L’Tziyon follows the Chida, who holds that the bitul is repeated three times –at night and again in the morning – with the word hefker only added into the third time it is recited.]
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
