Types of Mitzvot: 5. The “Tashbitu” Commandment (Column 418)

In the previous columns I discussed the differences between negative and positive commandments and the different kinds of positive commandments. In this column I wish to apply what we’ve seen to the commandment of “tashbitu” (removing leaven) on Passover, and to present another important distinction—between a commandment about an action and a commandment about a result—and to discuss how it relates to our earlier distinctions. This column is rather long because I wanted to wrap up the series, which in essence was a chavruta-style study with my teacher, Rabbi Tirgitz, shlit”a (high rating in quality).

Primary Sources

As is well known, on Passover there is a prohibition against eating chametz as well as against its being in our possession (“bal yera’eh u-bal yimatzei,” that it not be seen or found). Unusually, in the context of the prohibitions of chametz the Torah also commands its removal—namely, to cause the leaven to cease from our homes (Exodus 12:15):

“For seven days you shall eat unleavened bread; but on the first day you shall cause leaven to cease from your houses, for whoever eats leavened bread—that soul shall be cut off from Israel—from the first day until the seventh day.”

It is interesting that this command appears in the context of the eating prohibitions and not the possession prohibitions. Indeed, some early and later authorities understood that the possession prohibitions are fences around the eating prohibition (see, for example, R. Yosef Engel’s Lekach Tov, klal 8)—that is, the prohibition to eat chametz is exceptional,[1] and for some reason the Torah obligates us to distance ourselves from it extremely: not to have chametz in our possession and to remove any chametz that we do have. According to this view, the possession prohibitions and the obligation of removal (hashbatah) are two sides (a positive and a negative) of distancing from the eating prohibition. The possibilities and details regarding the relationship between the possession prohibitions and the obligation of hashbatah will be discussed later in the column.

The definition of the mitzvah is very unclear and complex, and many views exist about it—mainly concerning the modes of removal (nullification, burning, crumbling and scattering to the wind) and its timing (before the festival or during it, and perhaps both). Here, however, I wish to focus on the principled character of this commandment in light of what I wrote in previous columns, and—as I will try to show—this, too, has been much discussed and, in my opinion, much confused.

Different Understandings of the Mitzvah of Removal

In addition to the negative prohibitions on eating and possession, there is with chametz also a positive commandment. In the Rambam’s enumeration this is positive commandment 156:

“The one hundred and fifty-sixth commandment is that He commanded us to remove chametz from our houses on the fourteenth of Nisan; this is the commandment of causing leaven to cease (hashbatas se’or), as He, exalted be He, said (Bo 12): ‘But on the first day you shall cause leaven to cease from your houses.’ The Sages also call this the commandment of ‘removal’ (bi’ur), i.e., removal of chametz. And in the end of Sanhedrin of the Jerusalem Talmud (5:3) they said: ‘For chametz one is liable to both a positive commandment and a negative prohibition—positive for its removal, as it is written: “cause leaven to cease from your houses”; and negative: “leaven shall not be found in your houses” (Temurah 34a).’ The laws of this commandment are explained in the first chapter of Pesachim (4b–8a, 10a–15b, 20b).”

Already here the Rambam senses there is duplication between this positive commandment and the negatives, for leaving chametz present incurs both a negative and a positive. In light of what we said in the previous columns, it is easy to see that he explains the counting of the positive commandment as a duplication between a negative and a positive (as we saw in his Sixth Root), and not an ordinary duplication (discussed in the Ninth Root).

In light of our earlier discussion, there seem to be two possibilities—which are really four—for understanding the meaning of the “tashbitu” commandment:

• Result-oriented mitzvah: the negatives say that a state with chametz is bad, and the positive says that a state without chametz is good. According to this, “tashbitu” does not impose on me an obligation to perform an act of removal, but only an obligation to be in a positive state in which there is no chametz in my possession.
• Action-oriented mitzvah: the positive states that there is a law to perform an act of removal (and not merely that a state without chametz is positive). This is a commandment about an action and not about a state (the result of the action).

Each of these two possibilities itself splits into two shades.

A. If this is a positive commandment about a state (result) and not about an action, there are still two ways to understand it:

1. It is a negative that comes via a positive (“lo ta’aseh” derived from an “aseh”): if you have chametz, you have nullified the positive. In such a case there is complete programmatic overlap between the negative and the positive, and their both being counted is due to the Sixth Root.[2]

1. It is a positive commandment about the result: if you have no chametz, you have fulfilled a positive commandment.

B. If this is a positive commandment about an action (to remove), there are still two ways to understand it:

1. The action is conditional/existential: if you have chametz, you must remove it. If not—there is no obligation (though of course you have not fulfilled a mitzvah).

1. The action is absolute: if you have no chametz, you must acquire chametz in order to remove it. By this definition, the action—not the result—is the desired state which the positive commandment prescribes.

According to the latter two options, there is no duplication between the negative and the positive in this case, even without resorting to the Rambam’s Sixth Root.

From the wording of the Jerusalem Talmud cited by the Rambam above in positive commandment 156, it seems there is duplication of the sort discussed in the Sixth Root, for it views “tashbitu” as a result-oriented commandment (that one should not have chametz), and therefore its practical content overlaps with “bal yera’eh” (although one is a positive and one a negative, and hence there is a conceptual difference, as explained in previous columns).

In light of the Ramban’s words in his novellae to Kiddushin 34a, which I cited in column 416, the relationship between “tashbitu” and the possession prohibitions can be understood in two ways: either the negatives come to bolster the positive, or the positive comes to bolster the negatives. It is unclear whether these differ essentially from the four options above or are the same possibilities from another angle. If it is an action-oriented mitzvah, it is more reasonable that the positive comes to bolster the negatives: one must remove the chametz so as not to transgress “bal yera’eh” and “bal yimatzei.” If it is result-oriented, both options remain open.

The Dispute About Modes of Removal

The Tannaim disputed how one removes chametz and fulfills “tashbitu.” In Mishnah Pesachim 21a we find:

“R. Yehuda says: There is no removal of chametz except by burning; but the Sages say: one may also crumble it and scatter it to the wind or throw it into the sea.”

According to R. Yehuda one is required specifically to burn the chametz, whereas according to the Sages one may also crumble and scatter to the wind or throw into the sea. In their view there is no specific required method for removing chametz. On 27b–28a the Gemara discusses why, according to R. Yehuda, one burns the chametz; it says he derives it from notar. And the Sages rule that chametz need not be burned (they do not derive chametz from notar).

At first glance, the investigation above regarding the nature of “tashbitu” depends on this Tannaitic dispute. According to R. Yehuda, it is clearly impossible to define the positive as result-oriented; for if only the result—that we not have chametz—were decisive, it would be possible to remove it in any manner. Why, according to him, must we specifically burn it? Therefore it is reasonable that for R. Yehuda this is an action-oriented mitzvah. And according to the Sages, who allow removal by various means, the possibility remains open that it is a result-oriented positive—i.e., a mitzvah that we be in a state without chametz.

In practice, the Rambam rules in Chametz u-Matzah 3:11 like the Sages:

“How is chametz removed? He burns it, or crumbles and scatters it to the wind, or throws it into the sea; and if the chametz is hard and the sea will not break it up quickly, he first crumbles it and then throws it into the sea. Chametz upon which a collapse fell and there are three handbreadths or more of dirt over it is considered as removed, and he must nullify it in his heart if the sixth hour has not yet entered. If he gave it to a gentile before the sixth hour, he need not remove it; and if he burned it before the sixth hour, it is permitted to benefit from its coals during Passover; but if he burned it from the sixth hour and onward, since it is prohibited in benefit, he shall not heat a stove or oven with it nor bake or cook with it; and if he did bake or cook, that bread or dish is prohibited in benefit; and likewise its coals are prohibited in benefit since he burned it after it became prohibited in benefit.”

The Rambam here adds a discussion of the prohibition to use the ashes. The basis of this law is in Temurah 34a.

Those Buried and Those Burned

In halakhah there are two modes of disposing of items prohibited in benefit: burial and burning. The Gemara discusses whether items whose law is burial may be burned or not. Thus we find in Temurah 34a:

“All that are to be buried shall not be burned, and all that are to be burned shall not be buried. R. Yehuda says: If one wishes to be stringent with himself and burn that which is for burial—he may. They said to him: It is not permitted to change.”

Why is this so? The Gemara continues:

“All that are to be buried shall not be burned… What is the reason? Because those to be buried—their ashes are prohibited, and those to be burned—their ashes are permitted.”

In other words, for those to be burned, the ashes are permitted; for those to be buried, if he burned them the ashes are prohibited. Therefore the Sages prohibited (rabbinically) burning items that are for burial, lest people come to be lenient about their ashes (thinking they are of the burnable sort).

So rules the Rambam as well (Pesulei ha-Mukdashin 19:14):

“All that are to be burned shall not be buried, and all that are to be buried shall not be burned; for although in burning them he is being stringent, he is being lenient regarding their ashes, since the ashes of those for burial are prohibited.”

Why is there a difference between the ashes of those buried and those burned? Tosafot, s.v. “hanisrafim,” Temurah 33b, write:

“Those to be burned—their ashes are permitted; those to be buried—their ashes are prohibited. The reason needs analysis. My teacher RMR says: with those to be burned, since Scripture commanded to burn them, once one has done so it is as if their command has been performed, and there is nothing whose command has been performed that one may still misuse; so too here, once its command has been performed its prohibition departs. And that which is said that an asherah is forbidden forever even though Scripture required burning it (Deut. 12) is because it is written (Deut. 13) ‘nothing of the banned property shall cling to your hand.’ But those to be buried, for which Scripture did not require burning, their prohibition remains forever.”

That is, the permissibility of the ashes of items to be burned is because their command has been performed, in line with the rule in Yoma 59b and parallels:

“There is nothing whose command has been performed with which one may still commit me’ilah (misuse).”

Rashi explains there:

“‘It’—‘for the blood makes atonement by the life’ (Lev. 17): ‘it’ as it is, before atonement as after atonement. After atonement there is no me’ilah, for since its command has been performed, it is no longer called ‘holy of the Lord.’”

Others explain that the entire prohibition is until its command is performed; once performed, there is no reason for it to remain prohibited.

So much for burning what is normally buried. Conversely, there is also a prohibition to bury what is normally burned. Rashi there in Temurah explains:

“All that are to be burned shall not be buried—lest someone come and find them and eat them.”

That is, the requirement to burn is out of concern that if one merely buries, they might be found and eaten. It is not clear whether this is rabbinic or biblical (since the derivation from notar appears biblical).

Thus, items that are to be burned are not to be buried lest they be eaten. Regarding items to be buried, there is a Tannaitic dispute whether one may be stringent and burn them or whether it is prohibited (rabbinically, lest one come to permit their ashes). The halakhah follows that it is prohibited.

Application to Chametz: The “Tur”

The Mishnah in Temurah there states that chametz is among those to be burned, and the Gemara explains this is according to R. Yehuda. The Sages apparently hold that it is among those to be buried. The question is: Why, according to the Sages, do we not bury chametz? Why must one crumble it to the wind or cast it into the sea; why is burial insufficient? Moreover, according to the Sages the Mishnah says “also crumble and scatter to the wind,” which implies that burning is also permitted. But if chametz is among those to be buried, burning it should be prohibited.

Now, the Tur (O.C. 445) brings a dispute among the Rishonim on how to rule regarding “tashbitu”:

“R. Yehuda says there is no removal of chametz except by burning, and Rashi rules like him, as does Sefer ha-Mitzvot. But the Geonim ruled like the Sages, who say ‘he may crumble and scatter to the wind or cast into the sea’—meaning he should also crumble it when throwing into the sea, and not cast it in whole; so wrote the Rambam and Ba’al ha-’Itur.”

“And even R. Yehuda did not say ‘specifically by burning’ except not at the time of its removal; but at the time of its removal—its cessation can be by anything. Rashi explained: ‘Not at the time of its removal’ means the sixth hour—then specifically by burning; and ‘at the time of its removal’ means from then and on. And Rabbeinu Tam explained the reverse: ‘At the time of its removal’ is the sixth hour—then its cessation can be by anything; and from then and on—specifically by burning. According to this, even according to R. Yehuda one need not burn it, for most people remove before the end of the sixth hour.”

“My father the Rosh wrote that even according to Rashi, in the fifth hour its cessation can be by anything, since benefit is still permitted; but this does not appear from his explanation, for he explained that according to R. Yehuda, even one who is setting out on a caravan must specifically burn; and when he burns it during the time of its prohibition, everyone agrees one may not benefit from it. Therefore it is best to make a bonfire and burn it separately.”

From here he draws a halakhic conclusion:

“But to benefit from its ashes after he burned it—this depends on the dispute of R. Yehuda and the Sages: according to R. Yehuda, since it is to be burned, its ashes are permitted, for we hold that ‘all that are to be burned—their ashes are permitted’; but according to the Sages they are prohibited, for ‘all that are to be buried—their ashes are prohibited.’ And if he cooked a dish or baked bread with them: according to R. Yehuda, who permits its ashes, the dish or bread is not prohibited unless the baking or cooking was done while the body of the chametz still existed or the coals were still glowing; but if they had gone out, it is permitted. And according to the Sages, who prohibit its ashes, it is prohibited in any case. And the Rambam wrote simply: if he baked bread or cooked a dish with them, they are prohibited—and this follows his view that rules like the Sages.”

That is, according to R. Yehuda, the ashes of chametz are permitted in benefit, since it is among those to be burned; and according to the Sages, who hold chametz is among those to be buried, its ashes are prohibited—and seemingly burning it would be forbidden as well.

The Sages’ View: The Magen Avraham’s Question

We saw that from the Sages’ formulation “also crumble and scatter to the wind,” it sounds like one may also burn. Indeed, so infers the Magen Avraham (O.C. 445:1):

“‘He burns it’—In our Gemara we read: ‘And the Sages say: also crumble…’; certainly burning is preferable, but crumbling also suffices (Bach). But in the texts of the Rif and Rosh it reads: ‘And the Sages say: crumble…,’ which implies specifically crumbling; and so it appears from the Tur, who writes that according to the Sages it is among those to be buried, whose ashes are prohibited; and we learn at the end of Temurah that all that are to be buried shall not be burned, out of concern that one may come to benefit from their ashes.”

“It is astonishing that the Rambam rules that its ashes are prohibited and yet also rules that it is permitted to burn; and at the end of Pesulei ha-Mukdashin he rules that all that are to be buried shall not be burned, for although in burning them he is being stringent, he is being lenient regarding their ashes, since the ashes of those for burial are prohibited. One could say he means: he shall not burn in a way that accords them the status of ‘to-be-burned’ so as to permit the ashes; but if they wished to burn without benefiting from the ashes—it is permitted, and we do not decree that he may come to benefit. So wrote the Maharil: he burns and buries the coals.”

He notes there are two textual versions in the Gemara. For most poskim the Sages’ version is “he crumbles and scatters to the wind,” without “also,” implying that burning is not included. Why, then, must one crumble and scatter—why is burial not enough? Seemingly that is only a rabbinic rule. He then questions the Rambam, who rules like the Sages that its ashes are prohibited, yet reads the Mishnah with “also,” permitting burning. If the ashes are prohibited, we should prohibit burning it, lest one come to be lenient with the ashes.[3]

It appears that the Rambam does not tie the laws of chametz to the discussions in Temurah; therefore, although he rules like the Sages, he permits burning and (elsewhere) permits ashes.

Answers of the Acharonim

Later authorities (see Avnei Milu’im Responsa 19 at the end of the book, and Mekor Chaim and R. Akiva Eiger to O.C. 445) answer that according to the Sages, per the Rambam, the ashes of chametz are permitted; for that which the Rambam wrote—that the coals are prohibited (if burned after the time of its prohibition)—proves it is only the coals and not the ashes.[4]

The upshot of these Acharonim is that there is a difference between chametz and other items that are to be buried. For regular “to-be-buried” items, there is no mitzvah to remove them; we bury only to prevent eating them. But with chametz there is a mitzvah to remove it—not merely a prohibition to eat it. This is the meaning of “tashbitu”: the Torah itself says to remove the chametz. This of course applies even according to the Sages; but whereas R. Yehuda holds specifically burning, the Sages allow multiple modes—burning or “burial” (with crumbling). Here, the crumbling is a mode of removal, unlike “burial,” which for other prohibitions is rabbinic to prevent eating. Therefore, even regarding chametz: if one chose to remove by burning, its command has been performed, and the ashes are permitted. Accordingly, there is no reason to ban burning out of concern that people might permit the ashes—for even if they do, no prohibition ensues.

It is important to understand this is not an after-the-fact answer, but the straightforward view. It is obvious that even according to the Sages, chametz is not a standard “to-be-buried” item. We saw that the category of “to-be-buried” items prohibited in benefit does not, biblically, entail any command to bury; burial is rabbinic to prevent eating. Biblically there is no category per se of “to-be-buried”; rather, it is simply “anything not in the ‘to-be-burned’ category.” If the Sages instruct to crumble (and do not say to bury), it is clear that even in their view there is a mitzvah to remove chametz—just not specifically by burning. Hence the Rambam writes that if one burned it, its command has been performed. In contrast, with regular “to-be-buried” items there is no mitzvah to remove; thus, if one burned them, their command has not been performed.

This argument rests on conceiving “tashbitu” as a bona fide positive commandment. It is not merely an “if-so” mechanism to ensure we lack chametz; there is an obligation to remove. Therefore, when one burned the chametz, its command has been performed. If “tashbitu” were a result-oriented command, burning would be merely an instrument to attain the state of having no chametz, and we could not say that by burning it he has “performed its command,” for there would be no command to burn. The negatives of “bal yera’eh” and “bal yimatzei” are what warn us against possession of chametz. But the positive “tashbitu” does not command us to be without chametz; it commands us to act to remove it. Thus the relationship between the positive and the negatives is not like the Sixth Root, since there is no duplication in content.

The View of the Tur and Magen Avraham

The Magen Avraham, who questioned the Rambam, apparently understood that, for the Sages, chametz is among the ordinary “to-be-buried” items. Seemingly the Tur implies likewise, for he makes the law of ashes depend on the dispute between R. Yehuda and the Sages. The question is how they understood “tashbitu.” Indeed, R. Akiva Eiger asks the Tur accordingly: he rules like the Sages and says that according to them the ashes are prohibited—so how does he explain “tashbitu”?

It is unavoidable to conclude that, according to the Tur and Magen Avraham, there is no positive commandment to cause chametz to cease, but only a positive prohibition about its being present. “Tashbitu” does not aim at the state of “no chametz,” nor does it instruct us to perform an act of removal. It merely states that one who did not remove—besides transgressing “bal yera’eh” and “bal yimatzei”—has also nullified the positive of “tashbitu.” In the terms of column 417 we can say that “tashbitu” is a mitzvah one can nullify but not fulfill. Here “tashbitu” is defined as a positive about an action, but it is a negative that comes via a positive.

Another possibility is that the Tur and Magen Avraham understood “tashbitu” as a negative-via-positive about the result—that one who has chametz nullifies this positive, but one who removes chametz does not thereby fulfill a mitzvah. Again, because this is a negative-via-positive, performing removal is not a fulfillment; therefore, if the chametz was burned, its “command” has not been performed.

A third possibility: “tashbitu” is a positive commandment about the result—its aim is that we be in a state with no chametz in our possession. Even according to this, burning is not a fulfillment, because there is no command to remove; the mitzvah is that we not have chametz. If so, one need not burn it; and if he did, the ashes are prohibited, for its command has not been performed.

R. Akiva Eiger, who questions them, implicitly assumes that “tashbitu” must be a positive commandment to perform an act of removal. He overlooks the three options I suggested here to explain their view.

R. Chaim’s Explanation

In R. Chaim’s novellae to Chametz u-Matzah 1:3, he resolves R. Akiva Eiger’s question as follows:

“It seems that the mitzvah of ‘tashbitu,’ when its cessation can be by anything, is not comparable to the mitzvah of burning; for the essence of ‘tashbitu,’ according to those who allow any mode, is that the owners have no chametz; whereas if the mitzvah were burning, it would be a mitzvah that applies to the object of the chametz, such that there is a law of burning on it. And regarding the permissibility of ‘its command has been performed,’ we require specifically that the mitzvah be performed on the object; then the object becomes permitted; but when the owners simply fulfilled a mitzvah that rests on them, the object does not thereby become permitted. Therefore the Tur properly distinguishes between ‘its cessation can be by anything’ and burning: if its cessation can be by anything, the owners fulfilled a mitzvah (that they have no chametz), but the ashes are not permitted; whereas if the mitzvah is burning—then the mitzvah is performed on the object, and since ‘its command has been performed,’ the ashes are permitted.”

He distinguishes between a mitzvah on the object (cheftza) and a mitzvah on the person (gavra). Plainly, this corresponds to the distinction I made above between an action-oriented and a result-oriented mitzvah, and this is one of the three options I raised to explain the Tur. One could also read him as referring to a negative-via-positive, i.e., that there is no positive to be without chametz, only a nullified positive for one who has chametz. His wording suggests the first possibility.

Later in that passage he attempts to reconcile the Rambam’s view that one can incur lashes for “bal yera’eh” and “bal yimatzei” if the violation is accompanied by an action (e.g., one who purchases chametz on Passover). R. Chaim asks: do not these negatives become “linked” to the positive of “tashbitu” (see Pesachim 95a), in which case lashes should not be given? In light of his earlier distinction he explains:

“Accordingly, the Rambam is well understood in ruling that one receives lashes for ‘bal yera’eh’ and ‘bal yimatzei.’ The reason they are not considered negatives linked to a positive is that, in his view, ‘tashbitu’ is primarily a positive prohibition that one not have chametz; and it is like all prohibitions that consist of both a positive and a negative, which are not considered ‘linked.’ This only follows if we say that ‘its cessation can be by anything’; for according to that view, the essence of ‘tashbitu’ is that they not have chametz. But if we say its mitzvah is burning, then it is a mitzvah performed on the object; and then, certainly, it would be considered ‘linked to a positive,’ like burning notar and the like.”

“[…] Thus the Rambam is set: the sugya in Pesachim 95 that we cited proceeds according to R. Yehuda, as is explicit there. For R. Yehuda, who holds the mitzvah is burning, it is indeed ‘linked to a positive.’ But the Rambam, who rules in 3: that ‘its cessation can be by anything,’ holds there is in ‘tashbitu’ only a positive prohibition that they not have chametz; therefore he rules it is not ‘linked to a positive,’ and lashes apply, as explained.”

He explains that the sugya in Pesachim 95 follows R. Yehuda; for him, “tashbitu” is a positive on the object; but the Sages, who dispute him, hold it is on the person. Note that here he explicitly calls “tashbitu” a positive prohibition, i.e., a negative that comes via a positive. This formulation differs from the three I suggested for the Tur. It is not clear why he needed this, for even as a result-oriented positive one could explain that it does not “unlink” the negative: the presence of chametz in one’s possession and the nullification of the positive overlap (as in the Rambam’s Sixth Root), and in such a case the positive does not unlink the negative. It seems he does not clearly distinguish between these two kinds of positives: a negative-via-positive vs. a (positive) commandment about a result. As we saw previously, they are, simply speaking, two quite different types of positive commands.[5]

This direction, however, is problematic, since the Rambam’s language at the start of chapter 2 is as follows:

“It is a positive commandment from the Torah to remove chametz before the time of its eating prohibition, as it is said (Exodus 12), ‘On the first day you shall cause leaven to cease from your houses.’ By tradition they learned that this ‘first’ is the fourteenth day [of Nisan]. The proof is what is written: ‘You shall not slaughter My sacrifice with chametz’—that is, you shall not slaughter the Passover while the chametz still exists; and the slaughtering of the Passover is on the fourteenth after midday.”

We see there is a mitzvah to remove, not merely a positive prohibition. Moreover, if it were a positive prohibition, it would make no sense to say the mitzvah is “before the time of the eating prohibition,” for the prohibition would be that one has chametz in his possession—relevant only on Passover itself. In his Sefer ha-Mitzvot (positive 156) he likewise writes that the mitzvah is before the time of prohibition, and he begins Hilkhot Chametz with “there is a mitzvah to remove on the fourteenth.” From all of these it is proven that even for the Rambam, who rules like the Sages, there is a mitzvah to remove; it is not merely a positive prohibition.

And in halakhah 2 there he writes:

“What is this ‘removal’ mentioned by the Torah? That he nullify the chametz in his heart, consider it as dust, and resolve in his heart that there is no chametz in his possession at all, and that any chametz in his possession is like dust and like something of no use at all.”

We see that the mitzvah is bitul (nullification). If it were merely a positive prohibition, bitul would be only one way to comply; it would be incorrect to identify bitul as the desired removal.

We are thus forced to conclude that for the Rambam this is a positive commandment—not a negative-via-positive—but it is a result-oriented positive rather than an action-oriented one. Therefore it does not unlink the negatives. For those who hold that for the Rambam the ashes are prohibited—that would be because burning is not itself a fulfillment. For those who permit the ashes—perhaps even a result-oriented fulfillment counts as “its command has been performed” (achieving the result)—but this is strained.

A Similar Note on Tosafot

Tosafot, s.v. “behadi,” 21a, write:

“‘While he is burning it, he may benefit from it’—for according to R. Yehuda, who says chametz must be burned, its ashes are permitted, as it says in the last chapter of Temurah (34a) that ‘all that are to be burned—their ashes are permitted’; and we therefore thought that while he is burning it he may benefit. But according to the Sages, since its mitzvah is not burning and it is among those to be buried—as we say in the last chapter of Temurah—its ashes are prohibited; and for them, it is obvious that while he is burning it he may not benefit.”

We see that for the Sages chametz is among those to be buried, as the Tur wrote.

On the other hand, in Tosafot s.v. “mi-de’oraita,” 4b, they state there is a mitzvah to remove, not merely a positive prohibition:

“‘Biblically, nullification alone suffices’—Rashi explained from ‘tashbitu’ and not ‘tiv’aru’ (burn), which implies that removal is in the heart; and R. Yitzchak found this difficult: that ‘tashbitu’ is ‘burning’ and not nullification, for it is taught in our sugya: ‘R. Eliezer says one need not [search], as it is said “tashbitu,” and we find that ‘burning’ is an av melakhah’; and furthermore, ‘tashbitu’ we say below is derived from the word ‘ach’—that it is from the sixth hour and on; and after the prohibition begins, nullification does not work. Rather, Biblically, nullification alone suffices because by nullifying he renders it hefker (ownerless) and it leaves his possession and is permitted, as we say, ‘You may see that which belongs to others or to the Temple’ (Pesachim 5b). And that which we say in Nedarim 45 that hefker requires three is not Biblically required.”

From his second question it is clear that there is a mitzvah to remove, for he asks that after the sixth hour nullification does not help (and so infers the Minchat Chinuch, mitzvah 9). And indeed the Ran there notes on Tosafot’s question:

“Unless we force the reading and say that when they derive ‘ach,’ it means it should already be removed from midday and onward.”

That is, the simple reading is that there is a mitzvah to remove, and understanding it as a positive prohibition is forced. True, that possibility emerges only as a forced reading in the Ran; thus it seems that even according to Tosafot one should say as I said above regarding the Rambam.

The “Chinuch”

In Sefer ha-Chinuch, mitzvah 9, he writes:

“The mitzvah of removing chametz:

To clear all bread and chametz from our dwellings on the fourteenth of Nisan, as it is said (Exodus 12:15), ‘But on the first day you shall cause leaven to cease from your houses’—and ‘first’ means before Passover.”

His language suggests there is a mitzvah to remove chametz, not merely a positive prohibition. One could argue he means that we must remove so that on Passover itself there not be any, i.e., a positive prohibition; the requirement to remove on the fourteenth is only to ensure it won’t be there on the festival. His remark “and ‘first’ means before Passover” alludes to the Gemara 4b that we will see below.

“The roots of this mitzvah are to remember the miracles in Egypt, as is written regarding the Passover offering.”

Here, too, I would have expected him to say the root is to prevent the presence of chametz. This seems to indicate an action-oriented mitzvah—performing an act that recalls Egypt. It is not conclusive, for regarding “bal yimatzei” he writes similarly.

He now lists legal particulars:

“The laws of the mitzvah—its time during the day, what constitutes ‘removal,’ in which places one must search and in which not, from when the mitzvah is imposed if one is traveling, what the law is when the fourteenth falls on Shabbat, the verbal nullification required in addition to removal, and other details—are explained in Pesach Rishon (Pesachim chs. 1–2).”

This, too, suggests an action-oriented mitzvah—for why discuss what ‘removal’ is and where one must search if one need not search at all? Again, it is not decisive.

“It applies in every place and time, to men and women.”

“One who neglects it and does not remove has nullified the positive of ‘tashbitu.’ And if there is chametz in his dwellings, he also transgresses a negative prohibition, as it is said (Exodus 12:19), ‘Leaven shall not be found in your houses.’ But one does not receive lashes for this negative unless he performed an action, for the rule is that a negative without an action does not incur lashes.”

Here he speaks of nullifying the positive if one does not remove; and if chametz remains, he also violates the negative. This implies that “tashbitu” is the failure to act, regardless of whether chametz remains or not. Once again this indicates an action-oriented positive, not merely a positive prohibition. One can push back and say he is merely emphasizing its overlap with the negative.

Bottom line: if we wish to avoid various forced readings, it appears that in his view this is an action-oriented mitzvah, not a negative-via-positive.

The Minchat Chinuch’s Formulation

The Minchat Chinuch (there, §1) discusses whether this is an action-oriented mitzvah and writes:

“It would seem there is a doubt whether the positive commandment is that the chametz be ‘ceased’; if he has chametz, besides transgressing the negatives of ‘bal yera’eh’ and ‘bal yimatzei,’ he also transgresses the positive; and if he has no chametz, he is not in violation of the negatives and also fulfills the positive by inactivity—just as on Shabbat and Yom Tov there is a positive of ‘rest’ regarding melakhah, and if he performed melakhah he violated both a positive and a negative, and if he did not, besides not violating the negative, he fulfilled the positive of ‘rest.’ So, too, here—the essence of the mitzvah is that the chametz not be in his possession, that it be ‘ceased’ from his possession. This is unlike a negative-via-positive, where one does not fulfill the mitzvah by inactivity; rather, when he violates the negative he also violates the positive. On Shabbat that is not so: the Torah wrote a positive in binding language; therefore he fulfills the positive, and it is considered an independent positive. Not so a negative-via-positive (see the Rambam’s Sefer ha-Mitzvot and the Ramban’s critique), where one only violates the positive upon transgressing the negative but does not ‘fulfill’ it. Accordingly, here too, if he had chametz he violates both a positive and a negative; and if he has no chametz, he fulfills the positive of ‘tashbitu’ even though it is by inactivity.”

Up to here he explains that this is a mitzvah fulfilled by shev ve-al ta’aseh (inactivity). He is careful to note it is not a positive prohibition (a negative-via-positive), for such a positive cannot be fulfilled; whereas this mitzvah can be fulfilled—albeit by inactivity. That is, if the festival arrives and he has no chametz, he fulfilled a positive commandment.

His main proof is from the Ramban’s critique to the Sixth Root, where the Ramban explains that we do not count a negative-via-positive alongside its corresponding negative; although the Rambam does count such positives, which is because a negative-via-positive is a positive. The Ramban does not delete all such positives from the Rambam’s count; he seems to say this only in defense of the Ba’al ha-Halakhot Gedolot.

In any case, in his view this is a positive fulfilled by inactivity—apparently a result-oriented mitzvah. Are all positives fulfilled by inactivity necessarily result-oriented? Not necessarily: for example, the “rest” on Shabbat or “affliction” on Yom Kippur are fulfilled by inactivity, yet they are commands on the person to rest or to afflict oneself; one might define them as passive action commands rather than result-oriented.

The Minchat Chinuch brings several ramifications of his formulation:

“Accordingly, one need not be particular to have chametz before Passover in order to remove it—unlike tzitzit, where there is a mitzvah for every Jew to wear a four-cornered garment to fulfill the mitzvah actively. Here the mitzvah is fulfilled ‘automatically’; there is no need to seek chametz. Another ramification: if he wished to remove his chametz on Passover and another came and snatched it and removed it—Choshen Mishpat (§) rules that one who prevents his fellow from performing a mitzvah (e.g., by snatching his mitzvah of covering the blood) must pay; but here, since there is no actual obligation upon him to act and the mitzvah is fulfilled automatically, it is not considered that he ‘snatched’ anything—for in any case, as long as the chametz is absent from the world, the owner fulfills the positive, just like the positive of ‘rest’ on Yom Tov.”

The comparison to tzitzit is because the alternative explanation of “tashbitu” is that if he has chametz he must remove it—i.e., an action-oriented conditional positive. If so, there might be room to say one should acquire chametz in order to be able to remove it—but that would be only a recommended “practice” (as some Rishonim wrote regarding tzitzit nowadays, when one does not wear four-cornered garments regularly). If it were an absolute positive, then strictly speaking (not merely as a recommendation) he would be obligated to obtain chametz to remove it.

Thus, the “action-oriented” reading admits two interpretations: (1) a conditional positive; (2) an absolute positive. Presumably, if it is conditional, the mitzvah is on the object (if it exists, remove it); if absolute, it is on the person (to perform an act as a memorial to the Exodus). These may correspond exactly to the two formulations cited above (gavra vs. cheftza). In the Minchat Chinuch it is certainly the first formulation, for he compares it to tzitzit.

He now presents the other side of his inquiry:

“Alternatively: the mitzvah is an active one—that the chametz be ‘ceased’; and if he has no chametz he did not fulfill the positive, like one without a four-cornered garment—true, he is not in violation, but he has not fulfilled the mitzvah. So too here: there is a mitzvah to seek that he have chametz before Passover and remove it on the fourteenth in order to fulfill an active positive.”

Note that he seemingly defines this as an absolute positive—i.e., one is obligated to acquire chametz and remove it, and otherwise he has not fulfilled the mitzvah. It is clear that this is not his intent. He explicitly compares it to tzitzit, where the “obligation” to wear a four-cornered garment is not absolute but a recommendation to enter the conditional mitzvah. His phrasing sounds like a full obligation, but plainly he means a conditional positive with a practice of seeking to fulfill it.

In any case, on either of these two “active” readings, if he did not take chametz he has no mitzvah fulfilled. The question is whether there is any claim against him. He writes “he did not fulfill a positive commandment,” and clearly does not mean “he nullified a positive,” just as with tzitzit.[6]

He now brings further ramifications:

“Accordingly, if another snatched the mitzvah from him—he must pay a penalty, as in Choshen Mishpat there; further, if we say the mitzvah is active, then if he ‘removed’ chametz on Passover by eating it, he has not fulfilled the mitzvah, for it would be a case of ‘a mitzvah that comes through a transgression,’ which biblically does not discharge the obligation (as brought many times). But if the mitzvah is by inactivity, then even if he ate it, in any case it is not in his possession, and he has fulfilled the positive, since he has no chametz.”

This parallels his famous example regarding eating in a stolen sukkah (see column 417).

Further on he brings another ramification:

“…Another ramification: if the mitzvah is by inactivity, no intent is required to discharge it (as in mitzvah §1); but if it is active, then intent is required according to those who require intent.”

His assumption is that kavvanah (intent) is required only for action-oriented mitzvot, not for result-oriented ones. But according to my distinction above—that a passive-action mitzvah is possible—there may be room to require kavvanah even for positives fulfilled by inactivity (e.g., “rest” on Shabbat or “affliction” on Yom Kippur).

[1] The exceptional nature of the chametz prohibition may stem from either its severity (it entails karet) or the high likelihood of stumbling in it (since chametz is not an intrinsically forbidden food; it is eaten year-round, so people do not naturally abstain from it).

[2] In his critique to the Rambam’s Sixth Root, the Ramban elaborates on the duplication between a regular negative and a negative that comes via a positive. This will be mentioned again below.

[3] It is not necessarily difficult regarding the Mishnah, for perhaps it speaks before the time of removal (when chametz is still permitted); then it is certainly permitted to give it to a gentile, and certainly to burn or crumble it, etc. But the Rambam speaks about the time after the prohibition sets in; there, the ashes are no longer permitted in benefit, and consequently burning should be prohibited. See the dispute of Rashi and Tosafot (s.v. “eimatai”), Pesachim 12b, whether we are dealing with before the prohibition (Rashi) or also after (Tosafot).

[4] Why then are coals permitted before the time of removal? Presumably because what was already coal at the moment the prohibition began is not “chametz.” Only burning chametz down to the level of coals (and not ash) does not remove its “chametz” identity. One can still ask why coals are not considered as “its command has been performed,” for it is no longer chametz. According to the Rambam, apparently “its command has been performed” is not enough; there must also be “new faces,” and coals still retain the original form of the chametz. Ashes, however, are pulverized like sand and thus constitute “new faces,” and are therefore permitted.

[5] Note that he cites the discussion in the Tur to reconcile the Rambam—i.e., in his view there is no dispute between the Rambam and the Tur. He somehow ignores the fundamental difficulty that launched the whole discussion: why, according to the Rambam, is it permitted to burn chametz (and its ashes permitted), when here its command has not been performed? See Kehillot Yaakov (Pesachim §13), who explains that indeed one may burn chametz, but its ashes are prohibited (the obligation to burn is not due to its prohibition in benefit, but is an independent mitzvah).

[6] As we saw in column 417 (regarding a stolen sukkah), the Minchat Chinuch distinguishes between nullifying a positive and merely not fulfilling it. Incidentally, I did not note there that, according to the Minchat Chinuch, there is a ramification for one who eats stolen matzah on the other days of Passover. With sukkah there is a verse that invalidates a stolen sukkah, so there the distinction is only a theoretical possibility. But on the other days of Passover there is no verse that invalidates stolen matzah and makes it “chametz”; thus we are left with his principle that although it is a ‘mitzvah that comes through a transgression’ (according to the Gra there is a mitzvah to eat matzah all seven days), there is no eating of chametz and no nullification of the positive of eating matzah (since that is a conditional positive); and, as noted there, the Minchat Chinuch distinguishes between a conditional positive and a regular absolute positive.