1) TWO HOUSES, TWO OWNERS, AND ONE MOUSE
QUESTION: The Gemara discusses a case in which a mouse took Chametz into one of two houses, and it is not known which of the houses now needs another Bedikas Chametz. The Gemara says that this case is the same as the case of "two paths."
In the case of "two paths," one path is Tamei (due to an item of Tum'ah in it) and one path is Tahor. One person walked on one path, and another person walked on the other path. According to the conclusion of Rava (or Rebbi Yochanan), if each person asks Beis Din about his status (whether he is Tamei or Tahor) independently of the other, both are deemed Tahor. If, however, they come and ask together, both are deemed Tamei. If one of them asks Beis Din on behalf of both of them, Rebbi Yehudah rules that they are both Tahor, and Rebbi Yosi rules that they are both Tamei.
The logic behind this Halachah is the principle that "Safek Tum'ah b'Reshus ha'Rabim Tahor" -- when there is a doubt about Tum'ah in Reshus ha'Rabim, the person or object in question is deemed Tahor. (This is a Halachah l'Moshe mi'Sinai. It is not based on a logical resolution of the Safek. Rather, it is a rule that instructs Beis Din how to approach the Safek: as long as the case that Beis Din is addressing involves a question of Tum'ah in Reshus ha'Rabim, they must rule that it is Tahor.) Since each person has a different, independent question (each one walked through a different path), Beis Din rules that each one is Tahor. Only when they come together to Beis Din and present their two questions together do we treat their questions as one general case that involves both persons. In such a case, it is not possible to say that both are Tahor, because one of them is definitely Tamei.
TOSFOS here (DH b'Vas Achas) asserts that when the Gemara rules that they are both Tamei when they come together to ask about their status, it means that they are Tamei only mid'Rabanan. Tosfos explains that mid'Oraisa they are Tahor even if they come together to Beis Din. This is because their two questions are viewed as two independent cases, since each Safek (was the path upon which this person walked Tamei, or was the other path Tamei) involves only one of the two persons.
Tosfos in Nidah (60a, DH Banu) says that the reason why the Rabanan were stringent and enacted that both people are Tamei is because it would look very odd for Beis Din to issue a self-contradictory ruling (that both are Tahor). When they come separately, though, there is no fear that the ruling of Beis Din will appear contradictory, because there is no single verdict that involves both of them, but rather two completely separate verdicts.
According to the reasoning of Tosfos in Nidah, it is difficult to understand why Rebbi Yehudah maintains that if one person asks on behalf of both of them, they are both deemed Tahor. In this case, too, the ruling of Beis Din that they are both Tahor is self-contradictory!
(a) TOSFOS in Kesuvos (27a, DH b'Ba) answers this question and says that Rebbi Yehudah refers only to a case in which one person asked about himself, and only after he received his ruling did he ask about his friend. Since both questions were posed separately, there is a basis for Beis Din to rule that both of them are Tahor, and the ruling is not a single, self-contradictory one.
(b) RASHI here, on the other hand, says that Rebbi Yehudah is lenient even in a case where one person presents both of their questions together. Rashi explains that Rebbi Yehudah agrees that if both come to Beis Din together, Beis Din cannot issue a ruling per se that both are Tahor. In contrast, when the second person did not actually come in person to ask his question, but his question was raised merely as part of the first person's question, Beis Din does not have to issue a ruling that involves both of them. Rather, Beis Din merely rules that the first person is Tahor, and we infer that the second one is also Tahor.
Tosfos disagrees with Rashi's reasoning. Tosfos learns that as long as Beis Din is presented with a case that involves both parties, they may not issue a ruling that either one of them is Tahor, since it might be inferred from that ruling that the other one is also Tahor, and that inference itself would be viewed as a self-contradictory ruling (as it is not possible for both of them to be Tahor). Accordingly, Tosfos maintains that there is no difference whether both people involved come together and present their questions, or whether one person presents the whole story on behalf of both of them. Therefore, Tosfos explains that Rebbi Yehudah is lenient only because the person did not present both of their questions at the same time.
The TUR derives from the Gemara's comparison of the case of the two houses and the mouse to the case of the two paths that if the owners of both houses come to the Rav together and ask if they are required to search their houses again for Chametz, they both must perform another Bedikah. If they come to the Rav separately, then neither of them needs to perform another Bedikah.
The Tur quotes the RAMBAM, who does not differentiate between the case in which they come together and a case in which they come separately. The Tur questions the Rambam's view from the Gemara here that equates this case with the case of "two paths." (The MISHNEH L'MELECH explains that the Rambam's opinion is based on the Gemara in Kesuvos (27a). According to the principle established by the Gemara there, in the case of the mouse it is possible that the mouse ate the Chametz, and thus neither house has any Chametz in it; see Insights there.)
According to Tosfos, who says that whenever Beis Din is asked a Safek that involves both persons, both Rebbi Yosi and Rebbi Yehudah agree that Beis Din must rule stringently for both persons, in the case of the mouse the Halachah should be that even if only one of the homeowners comes to ask the question, he is required to perform another Bedikah. This is in contrast to the Tur who differentiates between a case where they come to ask together and where they come separately. It seems that the Tur follows the approach of Rashi. (See Insights to Kesuvos 27:1
2) BEDIKAS CHAMETZ ON PESACH AND AFTER PESACH
OPINIONS: The Mishnah says that according to Rebbi Yehudah, the time to perform Bedikas Chametz is until the sixth hour of the day on the fourteenth of Nisan, when Chametz must be destroyed. According to the Chachamim, if one did not search for Chametz at the proper time on the fourteenth of Nisan, one may search during the "Mo'ed" or even after the "Mo'ed." What does "Mo'ed" refer to in the Mishnah?
(a) TOSFOS and other Rishonim explain that "Mo'ed" means literally during Pesach itself. If one did not check before Pesach arrived, then one must check even on Yom Tov. If one failed to check during Pesach, then one must check after the festival because of the rabbinical prohibition against using Chametz after Pesach that was in the possession of a Jew during Pesach.
(b) RASHI explains that "Mo'ed" refers to the sixth hour on Erev Pesach. If one did not check for Chametz before the sixth hour, he may check after the sixth hour, until nightfall. However, if he failed to check after the sixth hour and did not remember until nightfall, on Pesach itself he may not perform Bedikah.
Rashi argues with Tosfos on two points. First, Rashi understands that the Mishnah teaches that there is no obligation to check after Pesach for Chametz that was in one's possession during Pesach. Second, according to Rashi, one does not have to check for Chametz on Pesach itself, even when he did not check for Chametz before Pesach. What is Rashi's source for these two Halachos?
1. TOSFOS explains why Rashi maintains that there is no obligation to check for Chametz after Pesach. Rashi follows his own opinion as expressed elsewhere (2a), where he says that the purpose of Bedikah is to prevent one from transgressing the prohibitions of Bal Yera'eh and Bal Yimatzei. After Pesach, the prohibitions of Bal Yera'eh and Bal Yimatzei do not apply. The Rabanan prohibited only eating Chametz after Pesach, and thus there is no reason to require Bedikah. (Tosfos there (2a, DH Or) argues and maintains that the purpose of Bedikah is to prevent one from eating Chametz, and therefore it applies after Pesach as well.)
2. What is the source for Rashi's opinion that one does not need to check for Chametz on Pesach itself? The Gemara implies the contrary. The Gemara clearly states that the Rabanan were not concerned that one might eat Chametz that he finds during the Bedikah. Accordingly, even on Pesach itself, and not just on Erev Pesach, one should be required to perform a Bedikah to avoid transgressing Bal Yera'eh and Bal Yimatzei!
The RASHASH answers that Rashi derives this Halachah from the text of the Mishnah. Rashi explains that "after the Mo'ed" means after the sixth hour, but only until Pesach arrives, because if the Mishnah means after the sixth hour until after Pesach departs, then why does the Mishnah say only that one should check for Chametz "the evening of the fourteenth, [and if he forgets, then] on the morning of the fourteenth, [and if he forgets, then] during the sixth hour, and [and if he forgets, then] after the sixth hour"? If it is true that one checks for Chametz even during Pesach itself, then the Mishnah should have added that if he can, he must check for Chametz before Pesach arrives rather than wait until after Pesach has arrived. It certainly is better to check before Pesach arrives, when there is no Isur Kares for one who eats Chametz, than to check after Pesach arrives when there is an Isur Kares for one who eats Chametz. Why does the Mishnah leave out this extra stage? It must be that this extra stage does not exist, because one may not check for Chametz on Pesach itself.
Although the Gemara says that the Rabanan are not concerned that one might eat Chametz while he searches for it, the RAN explains that this is true only before Pesach, when there is only an Isur Lav not to eat Chametz. However, when there is an Isur Kares (on Pesach itself), the Rabanan did not rely on the reasoning that when one searches for Chametz in order to destroy it, he will not eat it.
3) EXEMPTING A PERSON FROM BEDIKAS CHAMETZ MID'RABANAN
QUESTION: According to Rebbi Yehudah, one does not perform Bedikas Chametz on Pesach itself if he neglected to do so before Pesach, lest he eat the Chametz that he finds during the search.
Rebbi Yehudah's opinion is difficult to understand. We know that one who has Chametz in his possession during Pesach transgresses the Isurei d'Oraisa of Bal Yera'eh and Bal Yimatzei. The fear that one might eat Chametz that he finds is only a concern mid'Rabanan. How can a rabbinical concern override an Isur d'Oraisa of Bal Yera'eh and Bal Yimatzei? It should be preferable to suspend the rabbinical concern (that one might eat Chametz that he finds) in order to perform Bedikah and avoid transgressing the Isurei d'Oraisa of Bal Yera'eh and Bal Yimatzei!
This is especially difficult to understand in light of the fact that Rebbi Yehudah exempts a person from Bedikas Chametz even during the sixth hour of the day before Pesach, when eating Chametz is only an Isur Lav. Why is it more important to prevent a person from the possibility of eating Chametz (by prohibiting him from searching for it on Pesach) than to ensure that he does not transgress the Isurei d'Oraisa of Bal Yera'eh and Bal Yimatzei?
(a) The MAHARSHAL explains that the Gemara refers to a case in which one was already Mevatel his Chametz; he merely failed to perform the Bedikah at the time of the Bitul. In such a situation, one who owns Chametz on Pesach (after he was Mevatel it before Pesach) transgresses only an Isur d'Rabanan. Rebbi Yehudah therefore rules that it is preferable not to perform Bedikah after the time at which Chametz becomes prohibited, lest he find Chametz and eat it, and thereby transgress an Isur d'Oraisa.
(b) The MAHARSHA writes that even if one was not Mevatel the Chametz before Pesach, he may still not perform Bedikah on Pesach according to Rebbi Yehudah. This is because even without Bitul one does not transgress an Isur d'Oraisa of Bal Yera'eh and Bal Yimatzei if he does not perform Bedikas Chametz. Why is that? TOSFOS later (21a, DH v'Iy) explains that a person does not transgress Bal Yera'eh and Bal Yimatzei when he is unaware that there is Chametz in his house. Accordingly, if he fails to do Bedikas Chametz and there is Chametz in his house which he does not know about, he does not transgress Bal Yera'eh and Bal Yimatzei. For this reason he should not do Bedikas Chametz on Pesach; if there is Chametz in his house, it is better that he remain unaware of it.
Why, then, is Bedikas Chametz performed before Pesach? Without Bedikas Chametz, one might transgress an Isur d'Oraisa if he finds Chametz on Pesach and allows it to remain in his possession. Accordingly, Rebbi Yehudah's opinion is justified. One should not search for Chametz during Pesach, because doing so will increase the chances that he will transgress another Isur d'Oraisa, that of eating the Chametz.
(The words of Tosfos (on 21a) do not provide clear proof to the Maharsha's principle. It is possible that Tosfos maintains that Chametz left in a place in which Chametz is normally brought ("Makom she'Machnisim Bo Chametz," which has a Chezkas Chametz) is Chametz that the owner is aware of.)
The argument between the Maharsha and Maharshal with regard to whether one transgresses Bal Yera'eh and Bal Yimatzei when he does not perform Bitul is also the subject of dispute among the Poskim. The MAGEN AVRAHAM (OC 434:5) writes that one does transgress an Isur d'Oraisa, as the Maharshal maintains, while the TAZ (434:3) sides with the Maharsha and says that one does not transgress an Isur d'Oraisa.
(c) Perhaps once the Rabanan enacted that Bedikah cannot be done, then even though one did something wrong in the first place by not doing Bedikah before Pesach, during Pesach he may not do Bedikah even though the Isurim of Bal Yera'eh and Bal Yimatzei normally do apply to Chametz that one is unaware of. The reason for this is that in this particular case, the person certainly will not transgress the Isur d'Oraisa of Bal Yera'eh because he is forced to leave the Chametz there due to circumstances beyond his control ("Ones"), since the Rabanan prevented him from searching for Chametz on Pesach.
Similar logic is expressed by TOSFOS in Shabbos (4a, DH Kodem). The Gemara there discusses the enactment of the Rabanan that prohibits a person who put a loaf of bread into an oven on Shabbos from removing it before the bread is baked. Even though one who intentionally bakes a loaf of bread on Shabbos transgresses an Isur d'Oraisa and is punishable with death, in this case he is exempt from punishment because he is an "Ones," as he cannot remove the bread from the oven due to the enactment of the Rabanan that prohibits him from removing it. (M. KORNFELD)