08 Apr WHO OWNS THE MATZAH?

When you eat matzah
at the Pesach Seder,
you have to eat matzah
that you own. How
much do you have to
own it? The Gemara
(Pesachim 38a) equates
the mitzvos of eating
matzah and of taking challah regarding
ownership. Just like you must take challah
from dough that you own, similarly you
must eat matzah that you own. Based on
this passage, the Rosh (Pesachim, ch. 2 no.
18) rules that you cannot fulfill the mitzvah
of eating matzah with stolen matzah, and
the Shulchan Aruch (Orach Chaim 454:4)
follows likewise. Mishnah Berurah (ad loc.,
15) adds other situations to avoid because
you might end up eating matzah that you
do not technically own (borrowing is fine
because if you borrow something to eat,
clearly the lender does not intend that you
return it).
What if you are a guest in someone’s home
for the Seder and eat matzah provided by
your host? Do you fail to fulfill the mitzvah?
Authorities and commentators offer varying
answers. Rav Yosef of Trani (Maharit, 17th
cen., Greece; Responsa Maharit 1:150)
says that we can assume that a host intends
to gift the matzah to guests but each guest

must have specific intent to acquire the
matzah. Without this conscience intent, you
do not acquire the matzah and therefore
do not fulfill the mitzvah. Rav Yehudah
Aryeh Leib Alter (Sefas Emes, 19th cen.,
Poland; Commentary to Pesachim 38 s.v.
asya) concludes that the host must actively
give the matzah to each guest — intent is
not enough. Rav Meir Auerbach (19th cen.,
Israel; Imrei Binah, Pesach, no. 23) argues
that a guest acquires any food he takes to eat,
and therefore fulfills the mitzvah of eating
matzah without needing an extra intent or
acquisition.
I would like to offer an argument that a
guest does not need to acquire the matzah
from a surprising opinion in the Gemara
that was subsequently retracted. Rav Acha
bar Ya’akov (Pesachim 29a) compares the
prohibition against owning chametz on
Pesach to the prohibition against eating it.
The Torah (Ex. 13:7) says that we may not
“see” our own chametz on Pesach, which the
Gemara (Pesachim 5b) interprets as meaning
that (on a biblical level) we may not maintain
our own chametz on our property on Pesach
but we may maintain chametz that belongs
to a gentile. Rav Acha bar Ya’akov says that
this applies to eating chametz also — we
may not eat our own chametz but we may
eat chametz that belongs to a gentile.

Rashi (Pesachim 29a s.v. ve-yalif) reads
this simply — according to Rav Acha bar
Ya’akov a Jew is allowed to eat chametz on
Pesach as long as that chametz is owned by
a gentile. As mentioned above, Rav Acha
bar Ya’akov subsequently retracted this
shocking position. Be that as it may, I would
like to focus on Tosafos’ analysis of Rashi’s
interpretation. Tosafos ask how it is ever
possible, from a technical perspective, for
a Jew to to eat chametz owned by a gentile
on Pesach. If the gentile gives it to a Jew,
the Jew acquires it. If a Jew steals it, he
also acquires it to some degree because he
is liable for damage to the stolen property.
If so, there is never a case in which a Jew
can eat gentile-owned chametz — the food
always belongs to the person eating it.
Because of this question, Tosafos offer other
explanations that I think fit better into the
flow of the Gemara. Maybe Rav Acha bar

Ya’akov permitted benefitting from gentile-
owned chametz on Pesach or maybe he was

discussing eating the chametz after Pesach.
Be that as it may, why doesn’t Tosafos
answer that, according to Rashi, a Jew who
eats chametz at a gentile’s table is able to
eat gentile-owned chametz? Tosafos assume
that there is no possible case in which a Jew
can eat gentile-owned chametz. Tosafos
must understand that a guest acquires the

food he eats at a host’s table. If so, the same
should apply to a guest eating matzah — he
acquires the food he eats so that the matzah
is considered his. I later found that the
Devar Shmuel sees the same implications in
Tosafos. This would mean that a guest does
not have to acquire the matzah he eats to
fulfill the mitzvah.
In practice, Rav Shmuel Kamenetsky
(Kovetz Halachos, Pesach 17:6) rules
that preferably a guest should make an
acquisition on the matzah but if he does not,
he still fulfills the mitzvah. Piskei Teshuvos
(454:2) quotes more authorities who approve
of the common practice not to be concerned
with this issue but suggests that guests and
married children pay (before Yom Tov) a
token amount to acquire the matzah they
will eat.