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Pesachim 38

1) CALLING THE YOM TOV BY NAME

QUESTION: Rav Asi cites the argument between Rebbi Meir and the Chachamim whether Ma'aser Sheni is considered the property of Hashem ("Mamon Gavoha;" -Rebbi Meir) or it is the property of man ("Mamon Hedyot;" -Chachamim). Rav Asi states that based on this argument, Rebbi Meir and the Chachamim will also differ regarding whether or not one can fulfill the Mitzvah of eating Matzah on Pesach with Ma'aser Sheni, since the Torah requires that the Matzah belong to the person who is eating it ("Lachem"). According to Rebbi Meir, one cannot use Ma'aser Sheni, because it belongs to Gavoha, while according to the Chachamim, one may use Ma'aser Sheni because it belongs to man. Similarly, Rav Asi says that Rebbi Meir and the Chachamim will argue whether one may use an Esrog of Ma'aser Sheni on Yom Tov, since an Esrog must also be "Lachem."

Why does Rav Asi mention the name of the Yom Tov with regard to using Ma'aser Sheni for Matzah on *Pesach*, but he says only "Yom Tov" when discussing using an Esrog of Ma'aser Sheni on *Sukkos*? He should have either mentioned the specific name of the Yom Tov for both statements, or he should have use the generic "Yom Tov" for both! Why was he inconsistent?

ANSWER: The RESHASH and RAV YOSEF ENGEL (Gilyonei ha'Shas) suggest that the reason why Rav Asi refers to Sukkos as "Yom Tov" when it discusses using an Esrog of Ma'aser Sheni is because the requirement to personally own the Esrog ("Lachem") applies only on the first day of Sukkos, and not on the rest of Sukkos (Sukah 30a). Therefore, he said "Yom Tov" to imply that the argument concerning an Esrog of Ma'aser Sheni applies *only* on Yom Tov but not Chol ha'Moed.

But if so, why did he mention "Pesach" -- which implies the entire festival including Chol ha'Moed -- if the Mitzvah to eat Matzah applies only the first day?

(a) The RESHASH suggests that Rav Asi said "Pesach" in order to also include *Pesach Sheni* in his statement. Pesach Sheni is not a Yom Tov, yet there is a Mitzvah of eating Matzah on Pesach Sheni for one who did not bring the Korban Pesach on the fourteenth of Nisan. "Pesach" refers to both Pesach Rishon and Pesach Sheni.

(b) RAV YOSEF ENGEL suggests that this Gemara provides support for an opinion we find in the Rishonim. The CHIZKUNI (Parshas Bo) (this was also the practice of the VILNA GA'ON according to the HANHAGAS HA'GRA #185) says that although the Torah obligates us to eat Matzah only on the first night, nevertheless one *fulfills the Mitzvah of eating Matzah* every time he eats Matzah throughout all of Pesach. That is, when one eats Matzah on any day of Pesach, he fulfills a Mitzvah d'Oraisa. (This does not seem to be the opinion of Rashi, 28b, DH K'siv.) If so, it is appropriate for Rav Asi to say that the argument whether one can fulfill the Mitzvah of eating Matzah by eating Matzah of Ma'aser Sheni applies throughout all of *Pesach* and not just on Yom Tov. (Rav Asi uses the phrase "Yedei Chovaso" merely because the first night of Pesach is also included in his statement, but not because he is only referring to the first night.)

(c) We may add another, simple solution to our question. The reason Rav Asi says "Pesach" and not "Yom Tov" is because when it comes to Pesach, we will not make a mistake and think that he is referring to all of Pesach, because there is no Mitzvah to eat Matzah any time other than the first night. When he says "Yedei Chovaso b'Pesach" he *must* be referring to the first night. Regarding Esrog, though, even though "Lachem" does not apply for the rest of the festival, the *Mitzvah* of Esrog does apply, and therefore Rav Asi must be specific and say "Yom Tov" to emphasize that the argument between Rebbi Meir and the Chachamim applies only to the first day, when "Lachem" is a requirement. (M. Kornfeld)

QUESTION: The Gemara states that there is a principle of "Lachem" regarding the Mitzvos of Chalah, Matzah, and Esrog. "Lachem" teaches that in order for dough to be Chayav in Chalah, the dough must belong to a Jew, and not to Hekdesh (such as Ma'aser Sheni, which is Mamon Gavoha, according to Rebbi Meir). The requirement that Matzah, too, must belong to a Jew is derived through a Gezeirah Shaveh from Chalah.

The SEFAS EMES (Sukah 35a, DH Asya) raises an interesting point. We know that an object is not considered owned by someone unless he has full rights to do whatever he wants with it (sell it, be Makdish it, Mafkir it, etc.). When food is placed in front of a guest, does he own that food, or does it remain the host's food, which he happens to be eating? The Gemara in Nedarim (34b) seems to say that when a guest eat a loaf of bread that is served to him, the guest is *not* considered to be the owner of the bread. (This source is cited by Rav Tzvi Pesach Frank, MIKRA'EI KODESH, Pesach II p. 158). Likewise, a guest who is eating Matzah at the Seder of his host on Pesach night should not be the owner of the Matzah served to him.. If so, the guest should be required to acquire the Matzah from the host by having the host be Makneh to him the Matzah; otherwise, the guest will not fulfill the Mitzvah when he eats the host's Matzah!

The Sefas Emes writes that perhaps a person should make this his practice, but he adds that he does not know why people are not normally careful to do this. The IMREI BINAH (Hilchos Pesach, end of #23) reaches the same conclusion.

Why indeed are guests not careful to be Koneh the Matzah from the host before they eat it on Pesach night?

ANSWERS:

(a) The SEFAS EMES alludes to the Halachah mentioned in Even ha'Ezer 28:19, where we find that if a person asks his friend for a ring and tells him that he wants it in order to be Mekadesh a woman to be his wife, when his friend gives him a ring we assume that the friend was Makneh it to him and was not merely lending it to him -- since otherwise, it would not serve its purpose. Similarly, when a person invites a guest to his Seder and he serves him Matzah, it is understood that the host is Makneh the Matzah to the guest, because the guest must own it in order to fulfill the Mitzvah.

RAV MOSHE STERNBUCH (Teshuvos v'Hanhagos 2:240; Mo'adim u'Zemanim, vol. 3, p. 155), however, questions this. People do not realize that their guest will not fulfill the Mitzvah unless he owns the Matzah. If they do not know that they have to be Makneh the Matzah to the guest, how can we assume that they do so?

(b) RAV STERNBUCH (Mo'adim u'Zemanim loc. cit.) writes instead that perhaps we rely on the ruling of the RAMBAM (Hilchos Chametz u'Matzah 6:7) who does not mention the principle of "Lachem" with regard to Matzah, but writes only that one cannot fulfill his obligation with stolen Matzah because of the principle of "Mitzvah ha'Ba'ah b'Aveirah." Since he does not say that the reason is because one must own the Matzah, it must be that he maintains that there is no requirement that the individual own the Matzah with which he fulfills the Mitzvah.

However, how does the Rambam understand our Gemara, which says that the principle of "Lachem" applies to Matzah? The YAD HA'MELECH explains that the principle of "Lachem" does not mean that each individual must be in possession of his own Matzah. Rather, "Lachem" means that the Matzah must belong to *Jews* and not to Gavoha or to gentiles. This is clear since the need for "Lachem" when eating Matzah is learned from Chalah, and one certainly *is* required to separate Chalah even from borrowed or stolen bread. It is considered Lachem since it belongs to a Jew, even though it does not belong to the person performing the Mitzvah. The only bread which is exempt from Chalah is bread that does not belong to a Jew but belongs to Gavoha (such as Ma'aser Sheni) or to a gentile. Likewise, as long as the Matzah belongs to any Jew and not to Gavoha or gentiles, one fulfills the Mitzvah with it.

The TOSFOS (DH Asya) and other Rishonim seem to equate the "Lachem" of Matzah to the "Lachem" of Lulav. If so, just as a Lulav must be owned by the person performing the Mitzvah, so too with Matzah. According to them, our question remains unanswered.

(c) The MIKRA'EI KODESH (loc. cit.) points out that TOSFOS earlier (29a, DH b'Din) says explicitly that when a guest eats food that belongs to his host, he is certainly Koneh it at the moment that he eats it. If so, at the moment that a guest eats the Matzah that is given him, he is Koneh the Matzah, and thus our question does not begin!

(It should be noted that RASHI (29a) argues with Tosfos and asserts that a Jew who eats a gentile's Chametz is *not* considered to be eating Chametz that belongs to a Jew; it remains the gentiles. This is no proof, though, that the Jew is not Koneh the food at the moment that he eats it. Rather, Rashi might mean that when the Torah prohibits the Chametz of a Jew, it means that one may not eat Chametz that belongs to a Jew *at the moment* that one begins to eat it -- that is, while he is holding it in his hand and beginning to bite from it. In the case of a Jew who eats the Chametz of a gentile, when he starts to eat it it belongs to the gentile.)

But what about the Gemara in Nedarim (34b) that implies that a guest does not own the food that his host gives him? Although the Mikra'ei Kodesh does not discuss this point, several reasons may be suggested why the Gemara in Nedarim does not actually show that what a guest eats is not his:

1. First, the MEFARESH there educes the *opposite* point from the Gemara. He understands that the point of the Gemara is that a guest *is* the owner of the food that his host places before him.

2. Second, the ROSH there suggests that the Gemara just means that a guest does not own the food that is *served* to him -- that is, *before* he eats it. Therefore, if a person makes an vow saying, "As long as this bread is mine, it is forbidden to you," he may not invite that person to his home to eat from it, since when the guest sits down at the table in front of the bread he derives pleasure from it, and at that point he does not own it.

3. Finally, the NIMUKEI YOSEF and the RITVA there understand that the Gemara is just discussing a question concerning the *intention* of the person making the vow. It is not discussing the technical question of what belongs to whom. Even if the guest who eats the bread *is* Koneh it when he eats it, if someone makes an vow saying, "As long as this bread is mine, it is forbidden to you," his intention is that the other person should not eat the bread as a guest in his house, even though the act of eating will transfer the ownership of the bread.

HALACHAH: The common practice is not to require one to own the Matzah which he eats to fulfill the Mitzvah. Some, though (Teshuvos v'Hanhagos, ibid.), are stringent, and either make sure to bring their own Matzah to their host's Seder or specifically ask the host to be Makneh them their portion of Matzah.

38b