Today is October 21, 2017 / /
The Lindenbaum Center for Halakhic Studies at Yeshivat Chovevei Torah
QUESTION 1: I currently live with an apartment-mate who is Jewish but not at all observant. We have a good arrangement for the rest of the year but Pesach might present a problem. I’ll obviously get rid of my own hametz, but my apartment-mate doesn’t want to get rid of his cereal and bread for the week. He did offer to store his cereal and other hametz in his room for the week rather than in the kitchen. Is it necessary for him to have his hametz in his room? What do I do if he forgets and sticks something in the fridge or on a shelf in the kitchen? QUESTION 2: Can one drive an Uber or Lyft car on Pesach if there’s a distinct possibility that riders will leave hametz crumbs or uneaten hametz behind?
QUESTION 1: I currently live with an apartment-mate who is Jewish but not at all observant. We have a good arrangement for the rest of the year but Pesach might present a problem. I’ll obviously get rid of my own hametz, but my apartment-mate doesn’t want to get rid of his cereal and bread for the week. He did offer to store his cereal and other hametz in his room for the week rather than in the kitchen. Is it necessary for him to have his hametz in his room? What do I do if he forgets and sticks something in the fridge or on a shelf in the kitchen?
QUESTION 2: Can one drive an Uber or Lyft car on Pesach if there’s a distinct possibility that riders will leave hametz crumbs or uneaten hametz behind?
The Torah prohibits us from having hametz in our possession on Pesach. The issue underlying the two questions above is whether this applies to hametz that is not ours but is in our home, visible and accessible.
At first blush, it would seem that this is an explicit Biblical verse: שִׁבְעַת יָמִים שְׂאֹר לֹא יִמָּצֵא בְּבָתֵּיכֶם, “Seven days leaven shall not be found in your houses.” (Shemot 12:19). The simple sense of this is that no hametz may be in our homes regardless of whether we own it or not. Another verse, however, indicates that ownership might indeed be a factor: וְלֹא־יֵרָאֶה לְךָ חָמֵץ וְלֹא־יֵרָאֶה לְךָ שְׂאֹר בְּכָל־גְּבֻלֶךָ, “And no hametz shall be seen with you, neither shall leaven be seen with you in all your borders.” (Shemot 13:7). In this latter verse, the Torah uses the word לך, “with you,” which may also be translated as “belonging to you,” and indeed the Rabbis understood that the prohibition of this verse applies only to hametz that a person owns.
These verses differ in other ways as well: the first prohibits us from having hametz “found,” that is, present and accessible even if not visible, while the second only prohibits us from “seeing” hametz, that is, from having hametz that is visible. Additionally, the first verse mentions “your homes,” while the second mentions “all your borders.” In short, the first verse would seem to prohibit us from having hametz in our homes if the hametz is accessible, even if not visible; while the second would seem to prohibit us from having visible hametz anywhere in our borders, but perhaps only if we actually own it.
These differences indicate that – on the pshat level – we are dealing with two distinct prohibitions. The different character of these verses becomes clear once we realize that there are two distinct reasons not to have hametz on Pesach. The first reason is simple – we should not have hametz lest we come to eat it (Ran, Pesahim, 1a in Rif, s.v. umah, and see Tosafot 2a, s.v. or). But there is also another reason: hametz is the opposite of matzah and its presence undermines the identity of Pesach as Hag Ha’matzot. It seems that the prohibition in the first verse – having hametz in our homes – reflects this first reason, while that of the second verse – having visible hametz – reflects the latter reason.
The first verse juxtaposes the prohibition against having hametz in our homes with the prohibition against eating hametz, connecting them with the word כי, “because”: “Seven days no leaven shall be found in your houses because whosoever eats that which is leavened, that soul shall be cut off from the congregation of Israel…” (Shemot 12:19). The reason not to have hametz in our homes, the Torah is telling us, is rooted in the restriction against eating hametz; it is to protect us against coming to eat the hametz. The key element of this prohibition is not whether the hametz is visible but whether it is discoverable (yimatzei); if it can be found then one might come to eat it on Pesach. This prohibition would then only apply to hametz in a person’s home where she is likely to encounter and eat it and not to hametz on one’s non-residential property or anywhere else. Finally, it would not matter if one owned the hametz or not; either way, one might eat from it accidentally.
In contrast, the verse prohibiting having hametz visible is rooted in the concern that possession of hametz contradicts the identity of the hag as Hag Ha’matzot. This is strongly implied by the fact that the Torah precedes this prohibition with the command to eat matzah throughout the hag: “Matzah shall be eaten seven days; and no hametz shall be seen belonging to you, neither shall there be leaven seen belonging to you in all your borders.” (Shemot 13:7, and similarly Devarim 16:3-4). From this perspective, what matters is not that the hametz is in your homes per se, but that you are personally connected to it, that is, that you own it and that it is within your borders. Similarly, if the hametz is stored away, it would not undermine the identity of the hag. Thus, only hametz that was visible would be a violation of this verse.
All of this is as far as the pshat meaning of the verses are concerned. The Rabbis, however, did not see these verses as two distinct prohibitions. Rather, they understood that each verse informed the other, and that these two prohibitions were effectively one (Bavli Pesahim 5b, Yerushalmi Pesahim 1:3, Mekhilta Di’Rashbi to Shemot 12:19, Mechilta di’Rebbe Yishmael to Shemot 13:7). In doing so, they eliminated the distinct elements of each prohibition. For the Rabbis, both of these prohibitions apply:
For the Rabbis ownership is a necessary criterion, and if hametz is in one’s house, even if she might come to eat from it, the Biblical prohibition would not apply, provided that she does not own the hametz. This is true whether the hametz is owned by a non-Jew or the Temple – the cases directly dealt with in the Gemara – or whether it is owned by another Jew. The only remaining question is whether ownership alone suffices, or whether a person needs both to own the hametz and to possess it on her property in order to transgress.
Is there a Concern for Accidentally Eating Hametz that One Does Not Own?
What about the concern of accidentally eating hametz? Is there at least a Rabbinic restriction for a person to have hametz in her house even if she does not own it? Surprisingly, the answer is “no.” There is no formal restriction against having hametz in one’s house but rather a requirement that one take the necessary steps to ensure that she does not inadvertently eat from it, as the Gemara (Bavli Pesahim 6a) states:
תנו רבנן: נכרי שנכנס לחצירו של ישראל ובציקו בידו – אין זקוק לבער. הפקידו אצלו – זקוק לבער
ואמר רב יהודה אמר רב: חמצו של נכרי – עושה לו מחיצה עשרה טפחים משום היכר, ואם של הקדש הוא – אינו צריך. מאי טעמא – מיבדל בדילי אינשי מיניה
The Sages taught: If a gentile enters the courtyard of a Jew with his dough in his hand, the Jew need not destroy the hametz (or ask the gentile to leave). If the gentile entrusted it to the Jew (such that the Jew is financially responsible for it), the Jew must destroy it (because he is considered a quasi-owner of the hametz)…
And Rav Yehuda said that Rav said: If hametz belonging to a gentile [is in a Jew’s house], the owner should erect a mehitzah, a barrier, ten tefahim high around it. And if it belongs to the Temple, he need not do so. Why? Because people distance themselves from it regardless.
These passages demonstrate that one may have hametz of a non-Jew in her house provided that she is not financially responsible for its safekeeping. It is not clear, however, whether a barrier or other precautions to prevent accidental eating are always required. A number of Rishonim (Ittur, Biur Hametz, p. 121 and Ramban, Pesahim 6a, s.v. ha detanya) explain that a barrier is only necessary when the homeowner has accepted financial responsibility for the hametz. However, as a general rule, as long as the hametz belongs to someone else, we are not concerned that a person will come to eat from it and no precautions, or only very minor precautions, need to be taken. As Maggid Mishneh (Rambam, Laws of Hametz and Matzah 4:2), explains: “It is sufficient that one just put the hametz aside so that one does not come to inadvertently sin on account of it.”
Others (Rashi, s..v. hemtzo and Rambam, Laws of Hametz and Matzah 4:2) state that a physical barrier is always needed. For them, the reason that the non-Jew may carry his dough into the Jew’s yard is because the non-Jew will prevent the Jew from eating his hametz, not out of any concern for the Jew’s observance, but because it’s his food.
Shulkhan Arukh (OH 440:2) follows this latter, stricter approach, and requires that hametz left unattended by its owner be placed behind a barrier:
אם אינו חייב באחריותו אינו חייב לבערו… וצריך לעשות לפניו מחיצה גבוה י’ טפחים, כדי שלא ישכח ויאכלנו
If the Jew has not accepted financial responsibility for it (the hametz in his house), he need not destroy it… but he must erect in front of it a barrier that is 10 tefahim high, so that he does not forget and come to eat from it.
Rema (ibid.) agrees with this, and states explicitly that a minor protection, such as placing a vessel over the hametz, would not suffice. That being said, many Ahronim (Magen Avraham 440:5, Arukh Ha’shulkhan, 440:17 and Shulkhan Arukh Ha’Rav, 440:6, among others) state that a barrier is only required when the hametz will be in the house for 24 hours; if it will be there less than a full day, covering it suffices.
Additionally, as we have seen in the passage from the Gemara, a barrier is not required if the non-Jew is present with his hametz. Shulkhan Arukh (OH 440:3) rules accordingly:
אינו יהודי שנכנס לבית ישראל וחמצו בידו, אינו זקוק להוציאו אעפ”י שהישראל רואה חמץ של א”י אין בכך כלום
If a non-Jew enters into the home of a Jew with his hametz, the owner is not required to eject him. Although the Jew sees the hametz of the non-Jew, this is not a matter of concern.
In summary, a Jew can have the hametz of a non-Jew or even of another Jew on his property if he is not responsible for it financially, and if it is behind a barrier (when it will be there for 24 hours or more), covered up (for when it is there only briefly), or protected by its owner.
How would these rules apply to our two cases? The case of the Uber or Lyft driver is relatively straightforward. If a non-Jew brings hametz into the car, there is no need for the Jewish driver to do or say anything. This is a direct application of the case of the non-Jew entering into the home of a Jew while carrying his hametz (OH 440:3).
If there is a concern that some leftover food might be left in the car after the passenger exits, the driver should pull over, check the back seat, and remove and destroy any hametz that may have been left behind. When a person is in the process of removing hametz for the purpose of destroying it, we are not concerned that he will come to inadvertently eat from the hametz that he is handling (see Bavli Pesahim 11a, and Shulkhan Arukh OH 446:1). Also, given that in most cases the driver or his family will not be in the back seat until the end of his shift, it is probably sufficient that he clean out the back seat when his shift is over. However, as he might have other passengers who are Jewish and who might eat from the leftover food, it would be best to clean out the back seat immediately after the current passenger exits.
Most of the time, if there is food left in the backseat it will only be crumbs and not substantial hametz. In such a case, strictly speaking, there is no need to remove these crumbs, as we are not concerned that a person will come to eat crumbs which are tiny and, most of the time, disgusting (see Bavli, Pesahim 6b, Magen Avraham OH 460:2 and Taz OH 460:3). Nevertheless, as our pre-Pesach cleaning demonstrates, it is our custom to be careful even regarding crumbs, and thus it is best if the driver also remove any crumbs that may have been left behind (it would be a good idea to have a handheld vacuum in the car).
For some Ahronim allowing passengers to eat in the back of the car is less than ideal. They state that one should not allow a non-Jew to eat hametz in his domain if the non-Jew will leave crumbs on the table or leave any of his food behind in the house (Pri Megadim, Eshel Avraham, 440:6, in the name of Hok Yaakov; and Shulkhan Arukh Ha’Rav OH 440:4 and 7). Similarly, Rav Moshe Feinstein (Iggrot Moshe EH 4:81) rules that if a business owner has non-Jewish workers who bring their own hametz food to work, the owner should ensure that they remove all their leftover food and dispose of it offsite. [He also requires that they eat in a designated place, but this seems to be so that they do not eat together with the Jewish workers, in keeping with Shulkhan Arukh OH 440:3.] Following this, the driver should either ask passengers to refrain from eating in the car or, if it is not feasible for him to make this request, to ask those who are eating in the car to please make sure that they remove their trash when leaving the car. If it is not practical for him to make even this request, it would be permitted to allow the passenger to continue to eat his hametz as long as the driver is careful to clean the back seat after the passenger leaves (see Shulkhan Arukh Ha’Rav OH 440:4).
Let us now turn to the case of an observant Jew – let’s call him Reuven – who is sharing an apartment with a non-observant Jew, let’s call him Shimon. Here, too, since Shimon is keeping his bread and cereal in his own room and Reuven has no right to enter the room without permission, the barrier requirement is obviously satisfied. There is no problem for Reuven to stay in the apartment.
Shimon could even keep his hametz in a cabinet or closet as long as it was taped over (and even better if a sign reading “hametz” or “Shimon’s food – Do Not Touch” was put on it). Shimon may not put the hametz in a closet without taping it over as employing a formal mehitzah of 10 tefahim that does not prevent one from accidentally eating the hametz does not suffice (see Mishnah Brurah, 440:12, who, among others, states that a curtain that one will easily walk through does not count as a mehitzah for this reason). By the same token, Shimon could put the hametz in a low cabinet that was sealed or taped, even if it were not 10 tefahim high, since access to the hametz is fully blocked. Thus, if necessary, Shimon could keep his perishable hametz in the fridge if it were placed in one of the fruit bins and the fruit bin was taped over (ideally with a sign affixed as well).
It should be noted that if the hametz is being stored in the common area, Reuven may have some responsibility to make sure that something is done to it to protect Shimon from transgressing the prohibition against owning hametz over Pesach. This concern comes up in the case of hametz of a Jew which has been entrusted to another Jew for safekeeping (see Shulkhan Arukh OH 443:2, Mishneh Brurah 443:12, and Shulkhan Arukh Ha’Rav 443: 7). It is questionable if this applies in our case, for although the hametzis being stored in the common area, it has not been entrusted to Reuven, and therefore his responsibility towards it is more questionable. Nevertheless, it would be ideal if Reuven were to sell Shimon’s hametz on his behalf, with or even without receiving Shimon’s permission to do so. Although there is some question as to the efficacy of this, it is the best course of action given the realities of the situation.
There is also no problem if Shimon takes his cereal or bread out to the table to eat it there, since he is present with his hametz. Shulkhan Arukh Ha’Rav (440:4) goes further and states that as long as the owner of the hametz is in the house, even if he is not eating from or holding onto the hametz, we can assume that his presence will ensure that others do not eat from his food. When Shimon is eating hametz on the table, Reuven may not eat at the same table, even were he to put his food on a separate placemat, out of a concern that some crumbs may transfer from Shimon’s food to Reuven’s (Shulkhan Arukh OH 440:3). After Shimon finishes eating, Reuven should clean the table from any crumbs, which he should then dispose of immediately, and he may then use the table for his own eating (Shulkhan Arukh Ha’Rav 440:4). Of course, it would be best if Reuven can get Shimon to remove the crumbs and clean the table himself, and given the general stringencies that we adopt when it comes to kashering for Pesach, Reuven should ideally put down a Pesach tablecloth or placemat and not eat directly on the spot where Shimon had been eating hametz.
Things are a little more complicated if Shimon places hametz on a shelf in the kitchen or in the common space in the fridge. As mentioned above, Shulkhan Arukh Ha’Rav rules that as long as Shimon is present in the apartment there would be no problem. What if Shimon is not present? Here we can rely on those poskim cited above (Magen Avraham, Arukh HaShulkhan, Shulkhan Arukh Ha’Rav) who state that a temporary cover will suffice if the problem will be rectified within 24 hours. So in cases when Shimon will return in 24 hours, Reuven can cover up the hametz with a towel or the like. If Shimon will not return within 24 hours, Reuven can pick up the hametz and move it to Shimon’s room; as stated earlier, we are not concerned for accidental eating when one is in the process of getting rid of hametz. Since technically one is not actually destroying the hametz in this scenario, I would recommend wrapping it in a towel and then bringing it to Shimon’s room; covering the hametz works for the short time that one is transporting it.
 See, however, R. Yerucham Perla, on Sefer HaMitzvot Li’Rav Sadyah Gaon, Negative Mitzvot 166-7, where he argues that for Rambam, as well as for a number of other Rishonim, these two prohibitions remain distinct, although there is a great deal of overlap. Even for him, however, the criterion of ownership remains central to both prohibitions.
 See Meiri, Pesahim 4a, Bah, OH 443:2; Magen Avraham, ad. loc. no. 5; and Sha’agat Aryeh, no. 83.
 Rashi, Pesahim 6a, s.v. Yichad, and Rambam, Laws of Hametz and Matzah 4:1-2, state that one transgresses by virtue of ownership alone. Ramban, Commentary on Torah, Shemot 12:19 and Commentary on Talmud, Pesahim 6a, s.v. aval peirush states that both ownership of the hametz and its presence on one’s property are necessary to transgress.
In summary, while the pshat of one of the Biblical verses reflects a concern for having hametz in our homes lest we come to eat from it, the Rabbis understand that the Biblical prohibitions apply only to cases where a person actually owns the hametz. The Rabbis did not prohibit a person from having hametz that she does not own (and is not financially responsible for) present in her house, provided that she take the appropriate measures to ensure that she will not accidentally eat from it. Thus, a person may stay in her apartment even if her non-Jewish or non-observant apartment-mate is keeping hametz in the apartment, if she ensures that the hametz remain in a separate room or is otherwise inaccessible, as detailed above. It is similarly permitted to drive an Uber or a Lyft, even if a passenger may leave behind some hametz, as long as the driver takes the necessary care, as detailed above, to clean out the car afterwards.