By Chaim Weber

Before Pesach, we say the passage of kol chamira, where we annul any chametz in our possession. This is done to avoid transgressing the Torah prohibition against owning chametz on Pesach.

Many Rishonim say that this annulment works through the general concept of hefker – that one can relinquish ownership over an item and declare it ownerless.

But herein lies a problem.

The Gemara in Nedarim (45a) states that the Rabanan required a hefker declaration to be made in the presence of three people so that one person can acquire the item and two others can be witnesses.

If so, how can bittul chametz work without three people? True, the reason of the Rabbinic enactment doesn’t apply, as nobody would want to acquire the chametz after bittul, but don’t Rabbinic enactments generally stand even when the reason doesn’t apply?

Many answers are given to this question.

Answer #1 – The Ritva

The Ritva answers that the Rabanan didn’t enact this stringency in a case of need, like by erev Pesach, where there’s an immediate need to get rid of chametz.

The Ritva uses this concept to explain another Gemara.

There’s a Torah prohibition forbidding one’s possessions from doing melacha on shabbos. This prohibition is known as shevisas keilim. The Gemara in Shabbos (18b) says that a person can declare his possessions hefker prior to shabbos to avoid the prohibition of shevisas keilim.

Why does such a hefker work? Shouldn’t the presence of three people be needed?

The Ritva explains that since there’s an immediate need, the Rabanan didn’t require hefker to take place in the presence of three in this instance.

Answer #2 – The Tosfos Shantz

The Tosfos Shantz answers that it’s impossible to say all cases of hefker need the presence of three. After all, the Gemara in Bava Metzia (30b) says that R’ Yishmael declared an item ownerless despite the simple reading of the Gemara indicating that only one other person was present!

The Tosfos Shantz explains that generally, the Rabanan required the presence of three for hefker, as it’s unusual for a person to give away possessions. However, in cases where there’s an anan sahadi (a clearly evident assumption of human behavior) that a person would want to make his possessions hefker, the presence of three people isn’t needed.

Chametz would fall into this category. Therefore, bittul chametz won’t require the presence of three.

Like the Ritva, the Tosfos Shantz uses this to explain the Gemara in Shabbos by shevisas keilim. There’s a clearly evident assumption that a person wouldn’t want his property to perform melacha on shabbos. Therefore, making those possessions hefker doesn’t require the presence of three.

Answer #3 – Tosfos in Pesachim

Tosfos in Pesachim (4b) gives a vague answer.

Tosfos asks how can bittul chametz work through the mechanism of hefker when hefker requires the presence of three. Tosfos answers that the requirement of three is only derabanan. Therefore, bittul chametz can still work on a Torah level.

However, the question remains: Isn’t there still a requirement on a derabanan level? Why should bittul chametz not require the presence of three like all other cases of hefker?

Some explain Tosfos that the Rabanan didn’t require the presence of three by bittul chametz because the Rabanan already told us that even after bittul, one should still do bedikas chametz and check for chametz. As we are only relying on the bittul to avoid the Torah prohibition of owning chametz, the Rabanan didn’t enact their requirement of needing three people as on a derabanan level, we are anyways not relying on bittul.

Answer #4 – The Shalmei Nedarim

The Shalmei Nedarim says the answer can be found based on a Ran in Pesachim.

The Ran in Pesachim says that when it comes to bittul chametz, the bar is lower than other cases of hefker. After all, chametz on Pesach is really no longer the property of its owner due to the fact that there’s a prohibition against benefiting from it. In fact, the Gemara in Pesachim (6b) compares chametz to a pit in a public domain – both are not really the property of their respective owners but the Torah considers it as if it remains in their domain.

The Ran uses this concept to answer a different question.

Ordinarily, hefker only works if it’s clearly enunciated. One cannot make something hefker through thought alone. And yet, we find that bittul chametz works without enunciation. How?

The Ran explains that since chametz is not really owned by it’s owner – it’s merely considered by the Torah as if it remained in its owner’s domain – a full hefker is not needed. In such a case, one only needs to reveal intent that he doesn’t wish to own the chametz any longer and that suffices to make the chametz hefker.

The Shalmei Nedarim applies this idea to the requirement of hefker needing the presence of three.

Although hefker requires the presence of three, a full hefker isn’t needed by bittul chametz. All that’s needed is for one to reveal intent that he no longer wishes to own the item. For this, the presence of three people isn’t needed.

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