Pesach: matzah and marror not delivered to levi and poor
If someone buys matzah and lettuce, which the owner named the ma'aserot but may have not delivered the ma'aserot to the appropriate destinations (ma'aser rishon to a Levi and ma'aser ani to a poor person).
If someone bought matzot and lettuce that the owners separated ma'aser from (and indicated names of each type of ma'aser), but perhaps did not give the ma'aser rishon to Levi'im and the ma'aser ani to the poor—can they be used to fulfil the mitzvot of matzah and maror on seder night?
Answer:
1. According to the Rosh (Pesachim 2 §18), just like the four species (arba minim) need to be in one's possession, following the law of lachem ("take for you"; Sukkah 29b), this law also applies to matzah; that is, that stolen matzah is disqualified (Pesachim 38a). Mishna Berura rules accordingly (§454:15). According to Rambam (Hilchot Chametz u-Matzah 6:7), while stolen matzah is not disqualified due to the law of lachem, it is nevertheless disqualified as it is a mitzvah performed by means of sinning (mitzvah haba'a ba-aveira). This is the ruling of the Makor Chayim ibid., §1 (note that the Shulchan Aruch, §454:4, clearly rules that stolen matzah is disqualified, but does not mention the rationale behind the ruling).
2. In this context, there is a dispute regarding the status of stolen maror, and whether or not it is disqualified due to the rule of lachem (see Makor Chayim). Mishna Berura (§473:33) rules that such maror is, indeed, disqualified for performing the mitzvah.
3. For this reason, in principle, one should not use matzah or maror on seder night when it is known that ma'aserot were not given to a Levi or poor person;[1] the matzah or maror then may very well belong either to a Levi or poor person, and thus be considered stolen. In this case, one cannot even recite a blessing over eating them.[2]
4. If one buys lettuce or matzah from the open market and does not know whether those who separated ma'aserot made sure to deliver them to a Levi and poor person, as required, one can be lenient for the following reasons:[3]
(1) After the purchase is made, the ma'aser is acquired by the buyer through yi'ush (giving up) and a change in domain.
(2) Since the wheat and lettuce purchased did not necessarily come from the portion designated as ma'aser rishon or ma'aser ani, but might of been from the other 90% of the produce, the owner essentially can say to the Levi and poor person: hamotzi mechaveiro alav hara'aya, "whoever claims possession of something in someone else's possession must bring proof to his claim."[4]
(3) The ma'aserot consist of only 18% of the wheat and this year, 9% of the lettuce (9% is ma'aser rishon, without teruma, and another 9% is ma'aser ani during the third and sixth year of the shemita cycle). As such, one can rely on the majority, which is certainly not designated as ma'aser.
For these reasons, one may be lenient in the matter, even according to those who hold that we are stringent when there is a doubt regarding money that may belong to the poor.[5]
5. Nevertheless, since it is the custom of the holy Jewish People to pursue the highest standards of kashrut with the mitzvah of matzah on Pesach, it is praiseworthy to ensure that one purchases matzah and maror from someone who gives the ma'aserot to levi'im and poor people.[6] If one did not do so, it is best to transfer ownership to the Levi and poor person their portions of the wheat (now we are in the year 5779: the wheat was harvested last year, which was the third year in the shemita cycle, a ma'aser ani year); and to the Levi his portion of the lettuce (and to the poor person during the relevant years- the third and sixth; this year is the fourth year in the shemita cycle and a ma'aser sheni year), and then buy them back.
6. Members of Beit HaOtzar have loan contracts with a Levi and poor person as part of this membership. As such, they can rely on this loan to fulfil the mitzvah of netina, giving the ma'aserot to the appropriate location. No further action is necessary.
Response: Rabbi Rafael Schwab:
The author writes that there is a dispute between the Rosh and Rambam regarding not fulfilling the mitzvah on stolen matzah. I do not believe this is so, for several reasons:
- The Rosh does not derive the rule of matzah shelo ("his matzah") from the law of lachem ("for you"; that is, that it has to belong to the person) as it relates to the arba minim. Rather, he learns this from the word lechem (לחם) appearing once in the context of challah and again in the context of matzah. The Rosh writes only that a stolen etrog is disqualified for the arba minim, but does not disqualify a ma'aser sheni etrog (he does not learn from here that a stolen matzah is disqualified).
- Mishna Berura is quoted, but no mention is made there of the arba minim. And this is also written by the Admor HaZaken, Shulchan Aruch HaRav (§454:9).
- Rambam does not cite the reason for the halacha. It is possible to explain that his reasoning follows that mentioned in the Bavli (the gezeira shava of lechem to lechem) or the Yerushalmi (a mitzvah performed through a sin).
- Moreover, from the Yerushalmi it seems that the matzah itself is not disqualified as matzah, but that there would be a problem saying a blessing on it (see Shulchan Aruch HaRav §10); and the Rosh states as follows: "And it is possible that this is a dispute among the Amora'im, since the making of [the matzah] does not adhere to the mitzvah [i.e. halachot involved], it is not considered a mitzvah and one does not fulfil one's obligation, but bedi'avad, one fulfills one's obligation with it." In conclusion, it is possible that there is a dispute between the Bavli and the Yerushalmi, but not between the Rosh and the Rambam.
[1] See the article by Rabbi Yaakov Ariel (Emunat Itecha, issue 3, p. 10 and HaTorah VeHa'aretz IV [5759] pp. 298-303), and see the response by Rabbi Yaakov Epstein, Emunat Itecha, issue 4, p. 25.
[2] According to the Shulchan Aruch (OC §25:14; §649:1)
[3] See an in-depth discussion on the use of etrogim that are ma'aser rishon as part of the arba minim (Emunat Itecha, issue 6, p.27).
[4] For more on this topic, see the article by Rabbi Yaakov Ariel, ibid., pp.11-12.
[5] Regarding an uncertain status of ma'aser ani, see Emunat Itecha, issue 12, pp. 19-20; and issue 13, pp.35-36.
[6] For example, see Emunat Itecha (issue 9, pp. 27-28), where it describes the order ma'aserot are given from lettuce in Chasalat—Aleh Katif's packaging house.