No Prohibition Against Selling Chametz

Not only does the law not prohibit eating chametz, it does not prohibit it from being served or sold, but only from being displayed 'for sale or consumption.'

The Festival of Matzot (Prohibition of Leaven) Law, 5746-1986, better known by the paradoxical name the Chametz Law, is not a religious law. The main religious prohibition of Passover is against eating chametz. It is one of the 36 prohibitions in the Torah whose violation is punishable by death ("For whosoever eateth leavened bread from the first day until the seventh day, that soul shall be cut off from Israel." Exodus 12:15).

The law, however, does not prohibit eating chametz. Instead, it prohibits the public display of chametz for sale or consumption. Take note! Not only does the law not prohibit eating chametz, it does not prohibit it from being served or sold, but only from being displayed "for sale or consumption."

Furthermore, the law does not prohibit the public display of all leavened products. It explicitly indicates that the "leavened product" whose display is forbidden "means bread; rolls; pita" and "any other leavened flour products." The law does not prohibit the display of leavened products not made of flour, such as beer or whiskey, even though they also are chametz.

Among the criticisms levied against the ruling by Jerusalem Magistrate's Court Judge Tamar Bar-Asher Zaban, which permitted the display of chametz during Pesach inside business establishments, is the argument that even the prohibition against displaying chametz originates in halakha, religious law. The proponents of this position cite the prohibition "And there shall no leavened bread be seen with thee, neither shall there be leaven seen with thee, in all thy borders" (Exodus 13:7). This injunction, however, applies to the owners of the chametz, and prohibits possessing it. It does not prohibit a person from seeing chametz that is not his own. The Talmud states: "As it is said, neither shall leaven be seen with thee" - "You shall not see to you - your own you shall not see but you may see that of others."

In the same vein, some cite the prohibition, "Leaven shall not be found in your homes," but once again - this is a prohibition against the presence of chametz in a person's possession. The difference between "lest it be seen" and "lest it be found" is that the former applies to ownership and the latter to having chametz in one's possession, even if it belongs to someone else. Neither of these prohibitions refers to chametz that is neither in the ownership nor possession of the person. Thus, a religiously observant person is not transgressing by viewing chametz in the public domain.

And so, in presenting the Festival of Matzot Law to the Knesset, its sponsor, MK Avner Shaki, did not need religious arguments. Instead, he noted, "Leavened products are displayed in public, which deeply injures the feelings of the majority of the religious, nationalist and traditional public." He added: "This law is not intended to hurt non-Jews; it does not intend to hurt nonbelievers, secular people, atheists; it does not intend to keep anyone from conducting his private life as he sees fit. But we have the right to request that even our most principled ideological rivals lend a hand in insuring that during the seven days of this holy festival, chametz shall not be seen in the public domain in Israel; chametz, which offends the religious and nationalist public, which sees itself as linked to the tradition of Israel, shall not been seen in the main streets."

Shaki named another reason for prohibiting the public display of leavened products: "the effort to insure the Jewish image of the State of Israel," which is "an effort common to the vast majority of Israeli Jews, irrespective of their views, religious stream or community." The chairman of the Knesset Interior Committee issued a clarification: "The State of Israel is not only the homeland of the Jewish people. It is also the showcase of the people, and its behavior is edifying for the entire Jewish people. The public display of chametz injures the image of the State of Israel as the state of the Jewish people, as a Jewish state, as a state that for generations has preserved the character of the Festival of Matzot."

The ruling by Judge Bar-Asher is a reasoned judgment, and it conforms with the logic on which the law is based. The judge refused to accede to the argument of the defendants that the law should be struck down because it violates their fundamental rights and is not in keeping with the values of the State of Israel. She did not accept their argument that the law represents religious coercion. The only thing she did was examine the definition of the "public" place in which the display of leaven is prohibited. She concluded that the interior of a business is not considered a public place according to the legal code, and therefore displaying chametz there does not violate the law, whose intent is not to offend the sensibilities of observers of Torah and mitzvot.

These people will in any case not enter a store or restaurant where nonkosher products are sold and served, and as such they will not be exposed to chametz and their sensibilities will not be offended. On the other hand, as long as there is no law prohibiting selling and serving leavened products to those who want them, why prohibit their display inside a place of business that is permitted to sell them?

The writer teaches at the Tel Aviv University Faculty of Law.