(2016/5776)

A dear Talmid of mine posed the following dilemma: His parents were planning on visiting his family in Israel two weeks after Pesach. His parents had told him a week before Pesach that they had purchased six large boxes of oatmeal to bring to Israel after Pesach. My Talmid's children love American oatmeal and are unable to purchase a similar product in Israel. A problem emerged, since the parents are not Torah observant (the father is not Jewish) and were not planning to sell their Chameitz. The son was very uncomfortable asking his parents to sell their Chameitz, or at least the oatmeal, to a non-Jew. The parents have always been kind and supportive of his observance of Torah Law and he was very desirous of protecting their dignity by not impinging on the way they conduct their life. My Talmid asked if there was a Halachic mechanism thay could avoid offending his beloved parents and allowing his children to eat the oatmeal his parents brought to their home. The problem is that it seemed that the oatmeal would become “Chameitz SheAar Alav HaPesach,” meaning Chameitz owned by a Jew on Pesach. From such Chameitz it is forbidden for a Jew to eat or gain any benefit, even after Pesach. Although this Chameitz would Halachically be forbidden, the parents would be mortified if their grandchildren would not eat the oatmeal that they made such a great effort to bring from the United States.

Oats as Chameitz

Oats are regarded as one of the Chameishet Minei Dagan, the five species of grain which have the potential to become Chameitz. Posekim follow Rashi's translation of Shibolet Shu'al as Avenu, which is Old French for oats (many are familiar with Aveno, an oat based shampoo). Almost all Rishonim follow Rashi's opinion. Although there has been some discussion about this matter in recent decades among certain circles, most Posekim follow Rav Eliashiv's affirmation (cited by his Talmid, Rav Yosef Efrati, Mesorah 13:66-71) that oats are undoubtedly one of the Chameishet Minei Dagan regarding all matters of Torah Law. For example, Rav Hershel Schachter visited Torah Academy of Bergen County a number of years ago and was served a bowl of Cheerios (an oat based cereal). Rav Schachter recited “Borei Minei Mezonot” before eating the cereal and “Al HaMichyah” after finishing the Cheerios.

Dried Oatmeal as Chameitz

One might argue that the oatmeal in its uncooked state is unfit for human, or even a dog’s, consumption (“Eino Ra'ui LeAchilat Kelev”) and thus is not classified as Chameitz. However, since the uncooked oatmeal is easily transformed into an edible item and is intended to be rendered edible, it is considered to be “Ra'ui LeAchilat Kelev” and thus defined as Chameitz. This is parallel to the Gemara (Eiruvin 28b) which notes that bitter almonds are considered to be edible since they are readily made edible and are intended to be rendered as such; simply roasting them makes them edible.

Does the non-Jewish Husband Own the Chameitz?

The Halachah states (Gittin 77b) that "Mah SheKanetah Ishah Kanah Ba'alah," meaning that whatever a woman acquires belongs automatically to her husband. There is considerable discussion among Posekim as to whether this rule applies to non-Jews (Maharsha Megillah 15b believes it does, but Rav Yosef Engel, in Gilyonei HaShas to Kiddushin 23b, and Maharsham, in Da’at Torah to Orach Chaim 448 disagree). However, even according to those who believe this rule applies to non-Jews as well, it is doubtful that it applies in the United States currently. Civil law regards marital property as jointly owned by husband and wife, and thus, the wife in our case is an owner of the Chameitz. The civil law would seem to constitute Minhag HaMedinah, common commercial practice, which sometimes overrides Halachah regarding financial matters, especially in this case, which deals with a financial relationship between a Jew and a non-Jew. Thus, we cannot assume that the husband in our case owns the oatmeal.

Selling Chameitz without the Owner's Authorization

A possible solution might be for the son to authorize me[1] to sell his parents’ Chameitz, or at least the oatmeal. There is great Halachic discussion and controversy about the validity of selling another individual's property without his or her consent, even if the sale is entirely in the best interest of the property owner.

Zachin LeAdam vs. Zachin MeiAdam

The Halachah (Ketubot 11a) articulates the principle of “Zachin LeAdam SheLo BeFanav,” meaning that one may confer a benefit upon another even without the latter’s consent and awareness. The source for the concept is the head of each tribe acting on behalf of tribe members in the distribution of their respective shares in Eretz Yisrael (Kiddushin 42a, citing BeMidbar 34:18)

There is a well-known dispute among the Acharonim about whether we may expand the concept of “Zachin LeAdam SheLo BeFanav” to a case where one takes and/or sells another's item without the owner’s permission. The basis of the dispute relates to the nature of “Zachin.” Tosafot (Ketubot 11a s.v. Matbilin) explain that “Zachin” is rooted in the law of Shelichut, agency. Rashi (Gittin 8b s.v. Yachzor) adopts a similar approach. Since one’s action benefits the other person, one is considered a “self-appointed” agent. Based on Tosafot, one could argue that just as one can be an agent to acquire for someone's benefit, one can also serve as a “self-appointed” agent to sell someone’s property for the owner's benefit. The Rama (following the Terumat HaDeshen 188) rules, on this basis, that a Jewish maid can separate Challah from the dough if the lady of the house is not available, and the dough would ruin if not baked immediately (Yoreh Dei’ah 328:3). The Taz (ad loc. 2) fully endorses the Rama's ruling and expands the ruling even to a case where the dough would not be ruined absent the maid's intervention. The Terumat HaDeshen argues that since it is obvious to us that the lady of the house would be happy with the Challah separation, it is as if she consents to the appointment of the maid as her agent to separate the Challah. Even though the Gemara (Bava Metzia 22a) specifically requires Da'at (consent) for the appointment of a Shaliach, in a case of a Zechut, it is as if such an appointment occurs automatically.

Ketzot HaChoshen (243:7-8), however, respectfully disagrees with the Terumat HaDeshen, Rama, and Taz, and maintains that a person cannot be considered an agent unless specifically appointed by the owner. He understands the rule of “Zachin” as a Halachah separate from Shelichut that relates only to acquiring on behalf of someone but not to taking something on behalf of someone without his or her authorization. This distinction is referred to by Torah scholars as “Zachin LeAdam,” acquiring for a person, not “Zachin MeiAdam,” acquiring from a person (this phrase was coined by the Mirkevet HaMishneh, Hilchot Geirushin 6:3, who agrees with the Ketzot). 

The Ketzot argues, following Ramban (Kiddushin 23b), Rashba (Kiddushin 42a) and Ritva (Kiddushin 42a), that “Zachin” is not a function of Shelichut but rather a “Gezeirat HaKatuv” (divine decree) that provides an alternative means to confer ownership without the beneficiary being considered the performer of an action of acquisition (Kinyan). Since the principle of “Zachin” emerges from a Gezeirat HaKatuv, it cannot be expanded beyond its specific formula on conferring a benefit to taking from someone on behalf of another.

The Ketzot bases his opinion on Rashba (Nedarim 36b), who explains that the Gemara's discussion as to whether or not one may separate Terumah on behalf of another applies only when one takes from his own property as Terumah for his colleague's produce. Rashba argues that it is unthinkable that one could take from his friend's produce to separate Terumah on his own behalf, since he is not authorized to do so.

Ketzot argues that just as the Gemara rules in accordance with Abayei that “Yei’ush SheLo MiDa'at Lo Havi Yei'ush,” meaning that one is not considered to have given up hope on retrieving a lost item (thereby enabling finders to take it) unless the owner has actually given up hope (even though it is obvious that the owner will eventually do so). So too, we follow Abayei’s rules that “Shelichut SheLo MiDa'at Lo Hav Shelichut,” meaning that one is not considered to have appointed a Shaliach even if it is obvious that the owner would later be happy that a certain action was done on his behalf.

Rav Shimon Shkop (Chidushei Rav Shimon Shkop, Volume Four Kunetress HaShelichut number 25) counters that since people wish to be benefited, Halachah regards it as if everyone has issued an all-embracing appointment as agent of anyone who would confer a benefit upon him or her, whether by granting someone else an item or taking it from him or her. This differs from Yei'ush, where people do not wish to relinquish ownership of an item unless they have no alternative. Thus, one may not presume Yei'ush until it actually occurs.

Rav Yitzchak Elchanan Spektor (Teshuvot Be'eir Yitzchak 1) cites Pesachim (13a) as evidence for the Terumat HaDeshen. The Gemara sanctions a Shomeir (watchman) to sell immediately before Pesach the Chameitz that he was given to guard on behalf of the owner, even without his authorization. This is done in order to avoid the owner sustaining a financial loss. Imrei Binah, however, responds that the Ketzot would agree that a Shomeir is empowered by the owner to take any steps necessary to preserve the item he is given to guard, including selling the item.

Rav Yitzchak Elchanan, in the aforementioned Teshuvah, addressed our issue - whether one may sell Chameitz without authorization if it is undoubtedly in that person's best interest to do so. Rav Yitzchak Elchanan concludes that although one, LeChatchilah, should not do so (in deference to the opinion of the Ketzot), one may follow the approach of the Terumat HaDeshen in a case of great need (BiShe’at HaDechak). Piskei Teshuvot (5:77) notes that the consensus amongst the Posekim concurs with Rav Yitzchak Elchanan. Among the authorities he cites are Teshuvot Divrei Chaim (2:46), Chazon Ish (Even HaEzer. 45:11), and the many Posekim cited in the Sedei Chemed Ma'arechet Chameitz UMatzah (9:2).

Moreover, the Mishnah Berurah (309:27), citing the Magen Avraham, sanctions taking someone else's item even without permission in order to spare the owner a financial loss. He permits someone taking another's bowl even without the owner's permission and placing it beneath a candle so that the candle will fall into the bowl and not create a fire (the Mishnah Berurah discusses this in the context of the bowl becoming a “Basis LeDavar HaAsur,” which normally cannot be created without the consent of the owner; in our case, it is permitted since the individual was acting in the best interest of the owner, and it is considered as if the owner created the “Basis LeDavar HaAsur”). The Mishnah Berurah notes that many Acharonim agree on this point. The Mishnah Berurah thus appears to reject the Ketzot in favor of the Terumat HaDeshen, Rama and Taz.

Conclusion

I sold the parents’ oatmeal to a non-Jew prior to Pesach, following the approach of the Terumat HaDeshen and Rav Yitzchak Elchanan. An additional support to this ruling is the possibility that the non-Jewish husband might be regarded as the Halachic owner of the oatmeal, as was discussed earlier. Moreover, the prohibition of “Chameitz SheAvar Alav HaPesach” is a rabbinic prohibition. Although Chazal and Posekim are quite strict regarding this area of Halachah (as is common regarding the Halachot of Pesach), it seems that we have the right and obligation to follow the well-founded approaches of the Terumat HaDeshen and Rav Yitzchak Elchanan, in our case, in order to preserve the dignity and family harmony (Shelom Bayit) of a loving family that maintains its deep love despite significant differences amongst family members in observance of Halachah.  One should consult with a leading Rav as to whether one may rely upon this approach.

[1] I have enjoyed a very positive relationship with the student’s parents for many years.