A striking talmudic passage asserts that it is biblically permitted to eat the ḥametz of a non-Jew on Passover. How are we to explain this strange claim? What might this development teach us about the dynamics of rabbinic texts?
Dr. Joshua Kulp and Dr. Jason Rogoff
The Strict Prohibition of Not Eating Ḥametz
Jewish law is extraordinarily strict in its prohibitions concerning ḥametz (leavened bread) and se’or (leavening agent) on the festival of Passover. The rabbis maintain that:
- It is prohibited to eat ḥametz after the sixth hour on the day before Pesaḥ, until the end of the holiday (m. Pesaḥim 1:4);
- It is prohibited to derive any benefit from ḥametz during Passover (m. Pesaḥim 2:1).
- Ḥametz owned by a Jew during Passover is prohibited after Passover. On the other hand, ḥametz that had been owned by a non-Jew during Passover is permitted immediately upon the conclusion of the festival (m. Pesaḥim 2:2; t. Pesaḥim 1:12).
The Talmudic Reversal of Tannaitic Halakhah
Despite universal acceptance of these laws among tannaim and amoraim alike, the Babylonian Talmud outlandishly claims that according to one tanna, it is biblically permitted to eat the ḥametz of a non-Jew during Pesaḥ!1
בבלי פסחים כט ע”א
….שאור דאכילה: שלך אי אתה אוכל, אבל אתה אוכל של אחרים ושל גבוה.
b. Pesaḥim 29a
…With regard to eating leaven: you may not eat your own leaven, but you may eat leaven belonging to others (non-Jews) or to the Temple.
Here is how the great medieval commentator, Rashi, explains this text:
ומותר חמצו של נכרי אף באכילה ואפי’ בפסח מן התורה:
|Ḥametz belonging to a non-Jew is permitted for consumption even on Pesaḥ, according to Torah law.|
How could the Talmud entertain such a counter-intuitive notion that flies in the face of the Torah’s explicit warning that “whoever eats leavened bread from the first day to the seventh day, that person shall be cut off from Israel” (Exodus 12:15)?
In this essay, we will demonstrate how the Talmud’s surprising position does not reflect a fundamental legal change in the halakhot of ḥametz on Passover. Instead, it is the result of a series of literary and interpretive impulses, which carry unintended, and in this case extreme, consequences. Tracing the development of this remarkable talmudic assertion will give us a window into how complex chains of rabbinic literary processes can sometimes lead to strange conclusions.
The Mishnah’s Reworking of the Tosefta
The earliest formulation of the rabbinic laws of ḥametz can be found, as expected, in the two primary compendia of tannaitic law, the Mishnah and Tosefta. Corresponding to research by Shamma Friedman,2 the Tosefta on these laws preserves an earlier, more verbose expression, which later evolves into the Mishnah’s typically brief formulation.3
m. Pesaḥim 2:2
[א]חמץ של נכרי שעבר עליו הפסח – מותר בהנאה.
[A] Ḥametz owned by a non-Jew on Pesaḥ–it is permitted to derive benefit from it [after Pesaḥ].
[ב] ושל ישראל אסור בהנאה שנאמר לא יראה לך שאר (שמות יג:ז).
[B] But that owned by a Jew [on Pesaḥ], it is prohibited to derive benefit from it [after Pesaḥ] as it says, “You shall not see any leaven” (Exodus 13:7).
t. Pisḥa 1:12
[א]חמץ של נכרי מותר אחר הפסח מיד.
[A] Ḥametz owned by a non-Jew—it is permitted after Passover immediately.
t. Pisḥa 1:8
[ב] האוכל חמץ אחר חצות וחמץ שעבר עליו הפסח הרי זה בלא תעשה ואין בו כרת דברי ר’ יהודה.
וחכמים או’ כל שאין בו כרת אין בו בלא תעשה.
[B] One who eats ḥametz after mid-day [on the fourteenth of Nissan], and [one who eats after Pesaḥ] ḥametz owned on Pesaḥ, has transgressed a negative commandment, but there is no penalty of excision (karet), the words of R. Yehudah.
The Tosefta’s Formulation
The Tosefta, teaches two separate laws about ḥametz after Passover:
[A] If it was owned by a non-Jew it is permitted immediately after Passover;
[B] If it was owned by a Jew during Passover, it is prohibited even after Passover. The rabbis also debate the level of prohibition for consuming Jewish-owned ḥametz.
The Mishnah’s Splicing and Adaptation
For its part, the Mishnah combines the two separate halakhot found in their more original form in the Tosefta into a single two-part law. According to the Mishnah:
[A] It is permitted to benefit from ḥametz owned by a non-Jew during Passover after Passover (Parallels Tosefta 1:12).
[B] Jewish owned ḥametz during Passover is biblically prohibited after Passover (Accords with R. Yehudah’s position in Tosefta 1:8).
However, upon splicing together these originally separate halakhot, the Mishnah changes the language of its first ruling, stating that it is permitted to derive benefit from ḥametz owned by a non-Jew – in contrast with the formulation in the Tosefta that states that after Passover it is simply permitted, clearly implying that one may not only derive benefit from such ḥametz, but one may also consume such ḥametz.
Presumably, the Mishnah makes this change in order to parallel the formulation of the second half of the Mishnah that prohibits even the derivation of benefit from ḥametz and not merely its consumption. It is not unusual for the Mishnah to abbreviate earlier sources in order to preserve literary parallelism.4
The Talmud’s Rereading of the Tannaim:
Who is the Author of the Mishnah?
As is common in talmudic discourse, the Talmud asks whose opinion is reflected in the Mishnah, and then quotes a baraita (tannaitic legal text not preserved in the Mishnah) with various tannaitic views for consideration (b. Pesaḥm 28a-b):5
|*R. Yehuda: Ḥametz prohibited by negative commandment before and after Passover
*R. Shimon: Ḥametz not prohibited by negative commandment before or after Passover
דתניא :חמץ בין לפני זמנו בין לאחר זמנו – עובר עליו בלאו,
תוך זמנו – עובר עליו בלאו וכרת, דברי רבי יהודה.
רבי שמעון אומר: חמץ לפני זמנו ולאחר זמנו – אינו עובר עליו בלא כלום, תוך זמנו – עובר עליו בכרת ובלאו.
|As it was taught in a baraita: Ḥametz before its time [of prohibition, i.e. eve of Passover after midday] or after its time – [one who eats it] has transgressed a negative commandment.
[If he ate it] during its time [of prohibition], he transgresses a negative commandment punishable by karet, the words of R. Yehudah.
R. Shimon says: Ḥametz before its time [eve of Passover after midday] and after its time, [one who eats it] does not transgress anything; during its time [on Passover] he transgresses a negative commandment punishable by karet.
Both R. Yehudah and R. Shimon agree that eating ḥametz on Passover is punishable by karet. They disagree about the consumption of ḥametz after the sixth hour on the eve of Passover and about the consumption after Passover of ḥametz owned by a Jew during Passover. R. Yehudah maintains that one who eats such ḥametz has transgressed a negative biblical commandment; R. Shimon argues that he or she has not.6
It is crucial to note that the question of which opinion in the baraita is reflected in our Mishnah is mostly likely directed at the second half of the Mishnah. The topic of the first half of the Mishnah was not debated by the tannaim—no tanna ever raised the possibility that ḥametz owned by a non-Jew on Passover was prohibited after Passover.
Even before discussing the matter further, it seems clear that the Mishnah, which cites a biblical prohibition for eating Jewishly owned ḥametz after Passover, accords with R. Yehuda’s view, which maintains that this act violates a negative commandment.
Nevertheless, the Talmud proceeds with an amoraic dispute over whether our Mishnah accords with R. Yehudah or R. Shimon. This talmudic debate appears with stammaitic (the Talmud’s anonymous, editorial layer) glosses that flesh out the discourse. However, in order to highlight the textual development of this source, we will first quote only the amoraic statements, without the glosses.
אמר רב אחא בר יעקב:
רבא אמר: לעולם רבי שמעון היא, ורבי שמעון קנסא קניס הואיל ועבר עליה בבל יראה ובל ימצא.
|R. Aha b. Yaakov said:
It is actually R. Yehudah
Rava said: It is actually R. Shimon. And R. Shimon penalizes [him] for having transgressed the prohibitions of seeing and possessing ḥametz.
Again, R. Aha b. Yaakov remains faithful to the historical antecedent of the Mishnah found in the Tosefta. Our Mishnah most easily accords with R. Yehudah, for R. Yehudah is the tanna in the Tosefta who rules that ḥametz owned by a Jew on Passover is prohibited by the Torah after Passover. Rava’s opinion is more puzzling. Why would he say that the Mishnah accords with R. Shimon and need to claim that R. Shimon penalizes the owner when it so easily fits R. Yehudah?
Ḥametz of a Non-Jew After Passover
Although R. Aha b. Yaakov and Rava’s dispute about the Mishnah addresses only the issue of ḥametz that had been owned by a Jew during Passover, the Talmud continues with another dispute between them, this time about the status after Passover of ḥametz owned by a non-Jew during Passover:
איתמר, האוכל שאור של נכרי שעבר עליו הפסח, לדברי רבי יהודה:
רבא אמר: לוקה.
|It was stated: One who eats leaven ]after Passover[ that belonged to a non-Jew on Passover, according to R. Yehudah:
Rava said: He is lashed.
According to Rava, R. Yehudah holds that one who eats after Passover ḥametz owned by a non-Jew during Passover has transgressed biblical law and therefore is punished by lashes. In contrast, R. Aha b. Yaakov holds that this is not a biblical transgression.
Again, R. Aha b. Yaakov maintains the more straightforward reading of the tannaitic sources: Such a person is not lashed because ḥametz owned by a gentile on Passover is completely permitted after Passover. As we saw above, while the Mishnah states only that it is permitted to benefit after Passover from ḥametz owned by a non-Jew during Pesaḥ, the Tosefta clearly held that it was permitted to eat such ḥametz immediately upon the festival’s end. There is no hint of any disputing opinion in any tannaitic source.
Rava’s position, as above, is problematic. The entire corpus of tannaitic literature presupposes that one can eat after Passover ḥametz that was owned by a non-Jew during Passover. Did the amora Rava really think that any tanna, even the stricter tanna R. Yehudah, would maintain that eating ḥametz owned by a non-Jew after Passover is prohibited by the Torah?
Here too, Friedman suggest that the dispute between R. Aha b. Yaakov and Rava is not authentic; rather, it was invented by the editors of the sugya as a result of their reframing of the amoraic dispute about the second half of the Mishnah and their application of it to the first half of the Mishnah.9
The editor understood that Rava attributes the whole Mishnah to R. Shimon. Thus if R. Shimon holds along with the Mishnah that ḥametz belonging to a non-Jew is permitted after Pesaḥ, R. Yehudah must hold that it is prohibited.10 Accordingly, they created the pseudepigraphical dispute found in our Talmud.
The Stammaitic Layer of the Sugya
Working with this new dispute, the editors of the stammaitic11 layer of the Talmud go further and offer a midrashic explanation for R. Aha b. Yaakov’s opinion that ḥametz owned by a non-Jew on Passover is permitted after Passover.
רבא אמר: לוקה, לא יליף רבי יהודה שאור דאכילה משאור דראייה.
ורב אחא בר יעקב אמר: אינו לוקה, יליף שאור דאכילה משאור דראייה.
|Rava said: He is lashed, for R. Yehudah does not derive eating leaven from seeing leaven.
And R. Aha b. Yaakov said he is not lashed, for he does derive eating leaven from seeing leaven.
According to this exposition, just as one is allowed to see ḥametz owned by a non-Jew during Pesaḥ, one can eat such ḥametz after Passover. Tellingly, this midrash is not found anywhere else in the rabbinic corpus, because up until this point, there was no need to defend the permissibility of ḥametz owned by a non-Jew after Pesaḥ, since it was unanimously accepted.12
A Powerful Stammaitic Midrash
Looking at the debate over the attribution of the Mishnah, now presented with its stammaitic overlay, we can see how this midrash further impacts the sugya:
(1)אמר רב אחא בר יעקב: לעולם רבי יהודה היא,
ויליף שאור דאכילה משאור דראייה. מה שאור דראייה – שלך אי אתה רואה, אבל אתה רואה של אחרים ושל גבוה – אף שאור דאכילה: שלך אי אתה אוכל, אבל אתה אוכל של אחרים ושל גבוה.
2) ובדין הוא דאיבעי ליה למיתנא
3) ובדין הוא דאיבעי ליה למיתנא
|(1) R. Aha b. Yaakov said: [The Mishnah] follows R. Yehudah,
who derives eating leaven from seeing leaven. Just as with seeing leaven—you may not see your own leaven, but you may see leaven belonging to non-Jews and to the Temple, so too with eating leaven: you may not eat your own leaven, but you may eat leaven belonging to others or to the Temple.
(2) And the Mishnah should have taught that even eating [such ḥametz] is permitted, but since it taught that it is forbidden to derive benefit from [ḥametz] belonging to a Jew, it also taught that it is permitted to derive benefit from [ḥametz] belonging to a non-Jew.
(3) And it should have taught that it is permitted even during Pesaḥ, but since it taught after Passover concerning ḥametz owned by a Jew, it taught after Passover concerning ḥametz owned by a non-Jew.
Again, the stam assumes that for R. Aha b. Yaakov, R. Yehuda relates to the entire Mishnah—namely, the permission to derive benefit after Passover from ḥametz owned by a non-Jew during Passover, and the prohibition of eating after Passover ḥametz that had been owned by a Jew during Passover. The first section enlists the same midrash used to explain the other statement of R. Aha b. Yaakov—“for he (R. Yehudah) derives eating leaven from seeing leaven.” Just as one can see ḥametz owned by a non-Jew during Passover, one can eat such ḥametz after Passover. This, as we have seen, accords with all tannaitic halakhah.
Section two accurately reflects the literary development of the Mishnah. The Mishnah could have simply taught that it is permitted to eat such ḥametz. However, in order to serve as a foil to the prohibition in its second clause, the Mishnah stated that it is permitted to derive benefit after Passover from ḥametz owned by a non-Jew on Passover.
The third section finally introduces the strange notion that just as a Jew can see ḥametz owned by a non-Jew during Pesaḥ, a Jew can eat ḥametz owned by a non-Jew during Pesaḥ! While this is a possible logical outcome of the midrashic equation of seeing and eating ḥametz, it is obviously not something any sage would have ever dreamed of saying.
The idea that ḥametz owned by a non-Jew on Passover could be eaten by a Jew on Passover is the result of the creation of this midrash.13 The midrash was originally created to defend a halakhah about which there was universal agreement—ḥametz owned by a non-Jew on Passover is permitted after Passover. But once this midrash linked seeing with eating, logic would dictate that any ḥametz one can “see” during Pesaḥ, one can eat even during Passover.
A Step by Step Development of the Sugya
To summarize, the stammaitic assertion that R. Yehudah would allow one to eat on Passover ḥametz owned by a non-Jew is the result of a chain of literary processes.
 The first step was the editor of the Mishnah combining two separate toseftan halakhot into one source that addresses both ḥametz owned by a Jew and that owned by a non-Jew. This combination entailed the creation of a parallel structure between the two halves of the Mishnah—the first clause “permitted to derive benefit after Passover from ḥametz owned by a non-Jew on Pesaḥ” was designed to mirror the second section “forbidden (even) to derive benefit from ḥametz owned by a Jew on Passover.”
 Subsequently, the amoraim argued over the attribution of the second clause of the Mishnah, based on tannaitic opinions expressed in a relevant baraita. R. Aha b. Yaakov argued that it accords only with R. Yehudah, and Rava argued that it accords even with R. Shimon. The amoraim did not need to address the first clause of the Mishnah, because it represented the consensus opinion, and all of the sources that constitute this sugya refer only to ḥametz owned by a Jew.
 However, in the wake of the Mishnah’s combination of both topics into one source, the stam (incorrectly) assumed that the amoraim addressed both halves of the Mishnah.
 Furthermore, the stam (incorrectly) assumed that Rava attributes the Mishnah only to R. Shimon. This leads to the strange notion that R. Yehudah would disagree with the first clause and hold that ḥametz owned by a non-Jew on Passover is prohibited after Passover.
 This in turn leads to the creation of a midrash used by R. Aha b. Yaakov to justify why such ḥametz is permitted. The intent of the midrash in equating seeing and eating ḥametz of a non-Jew was to permit eating such ḥametz after Passover.
 Once this midrash was created, its forceful logic overwhelmed all tannaitic halakhah—if the permission to see ḥametz is equated with the permission to eat such ḥametz, then a Jew could theoretically eat on Passover ḥametz owned by a non-Jew. We can imagine R. Yehudah might have been surprised to see that his stringency produced this leniency!
The topic of how literary impulses in rabbinic literature sometimes lead to sui generis halakhic conclusions is one that is garnering increasing attention in scholarly literature. Over the past generation, scholars have come to appreciate talmudic rabbis not only as halakhic decisors or academic scholastics but as literary composers. Factors such as parallelism, literary borrowing, the formation of organizational patterns and the creation of discourse contribute significantly to the halakhic record and even impact post-Talmudic halakhic understanding.14
- In fact, in the passage in which this claim is made (b. Pesaḥim 28b-29a), the Talmud departs in three respects from the rabbinic consensus regarding hametz. We hope to address the other surprising statements in a future publication. ↩
- Scholars have long debated the relationship between these two major compilations. Despite the Tosefta’s name, which reflects its apparent secondary, supplemental relationship to the Mishnah, Shamma Friedman, has demonstrated that frequently, the Mishnah is a later, abbreviated form of the Tosefta. See his ground-breaking Tosefta Atiqta (Ramat Gan: Bar Ilan University Press, 2002), especially pp. 156-167. ↩
- This is an excellent example of the different literary styles of the Mishnah and Tosefta, the latter verbose and the former more succinct. As we shall see, the Mishnah’s propensity to create generally shorter literary patterns may come at the expense of clarity. ↩
- See Joshua Kulp, “Organisational Patterns in the Mishnah in Light of their Toseftan Parallels,” JJS 58, 1 (2007), 52-78. ↩
- The composite nature of this baraita is a fascinating story in its own right. For analysis, see Friedman, ibid. 212-218. ↩
- R. Shimon is disagreeing with R. Yehudah only on the claim that hametz was prohibited by the Torah. R. Shimon does not state that such hametz is actually permitted in practice. ↩
- Ibid.,164, n. 36. ↩
- In the Yerushalmi, R. Yirmiyah states that R. Shimon maintains that such hametz is prohibited by the Torah, whereas R. Yonah and R. Yose hold that it is prohibited by the rabbis. Rava would agree with the latter position. ↩
- Ibid., 164 n. 36. ↩
- The major difficulty with Friedman’s understanding of the sugya is that creating an entire amoraic dispute to summarize the consequences of another dispute between the same two amoraim represents a particularly unusual and convoluted type of literary activity for the stammaim. Friedman cites this example in his article concerning amoraic statements that were actually the creation of the stam. See Shama Friedman, Sugyot Beheker Hatalmud Habavli, (New York: JTS Press, 2010), 68. ↩
- The stammaim, or anonymous voice of the Talmud, composed discourse between sages, created transitions between sources, and interpreted the meaning of earlier sources. For an introduction to the role of the stammaim see Joshua Kulp and Jason Rogoff, Reconstructing the Talmud, 2nd ed., (New York: Hadar Press, 2016), 36-43. ↩
- Again, tannaim and amoraim allowed eating after Passover ḥametz that had been owned by a non-Jew during Passover. They also allowed Jews to see ḥametz owned by a non-Jew during Passover. This halakhah was also anchored in tannaitic midrash (Sifre Deuteronomy 131, p. 188; Mekhilta de-R. Shimon b. Yohai 13:6, p. 39). But they did not create any midrash connecting the two ideas. No tanna ever said that the permission to eat hametz owned by a non-Jew after Passover was connected to the permission to see such hametz during Passover. ↩
- Rashi is the only medieval commentator who explicitly explains what the midrash clearly implies—one may eat hametz owned by a non-Jew on Pesaḥ. Most commentators balk at the notion that a talmudic sage would allow a Jew to eat any hametz on Pesaḥ. Therefore, they disagreed with Rashi, reasoning that it is physically impossible to eat hametz without first owning it. Once one picks up the hametz, it is no longer in the possession of the non-Jew. Therefore, there is really no way for a Jew to eat hametz while it is simultaneously owned by the non-Jew. Nevertheless, even this disagreement is basically an admission that if one could somehow eat hametz without first owning it, he would not have transgressed. In other words the problem with eating hametz is ownership and not really the prohibition of consuming it. ↩
- This is a topic that we will address at length in our forthcoming volume II of Reconstructing the Talmud. ↩