– Author: Rav Yoel Kenigsberg

Anyone who has experienced the arduous days of cleaning leading up to Pesach is well aware that the Torah’s prohibition of chametz is like no other. Even the smallest crumb is forbidden for consumption, and alongside the ban on eating and deriving benefit, the mitzvot of bal yeira’eh and bal yimatzei dictate that no chametz may enter our possession.

The custom of mechirat chametz (along with bedika, biur and bittul) was established as a safeguard in order to prevent two possible problems:

  1. Transgressing the Biblical prohibitions of bal yeira’eh and bal yimatzei.
  2. Allowing the chametz for use after Pesach and prevention of the Rabbinic penalty of chametz she’avar alav haPesach.

While burning seems like a fully understandable method of eliminating one’s chametz, the custom of selling it to a non-Jew raises many questions. How can it be considered a serious sale when the buyer and seller never come into contact, and it is clear to all that the chametz will return to the possession of it’s original owners at the conclusion of the chag? Furthermore, the fact that the chametz never leaves the Jew’s home only compounds the halachic difficulties in performing such a sale.

In order to understand better just how and why this sale works, it is helpful to go back and explore its historic origins.

The Origins of Mechirat Chametz

Rav Shlomo Yosef Zevin, in his HaMoadim B’halacha, traces the development of the custom of mechirat chametz through four historical periods:

  1. The earliest mention of the idea of selling chametz to a non-Jew is found in the Mishna:[1] “During the hour that one may eat chametz he may feed it to animals and birds or sell it a non-Jew”. The Gemara explains that the Mishna comes to support the opinion of Beit Hillel that this sale is permitted even close to the onset of Pesach, when it is clear that the chametz will not be consumed before the chag. What emerges clearly from the Mishna and Gemara is the description of a regular transaction like any other between buyer and seller.[2]
  1. During the next stage, the sale retained its authentic form in that the non-Jewish buyer received his merchandise and the Jewish seller received his payment. However, both were aware that the chametz would be repurchased by the Jew at the conclusion of the chag. The Tosefta[3] brings the case of a Jew and a non-Jew who are together on a ship on Erev Pesach and allows for the Jew to sell his chametz to the non-Jew even when he plans to repurchase it after Pesach (so long as he performs a valid sale). Seemingly, this model is the basis for the halacha in the Shulchan Aruch which sanctions the sale of chametz to a non-Jew.[4] Nonetheless, the impression formed by the Tosefta is of a spontaneous sale on a case by case basis, far from the pre-organized ritual that exists today.
  1. Several hundred years ago the sale began to take on a more formal and even disingenuous appearance. Many of the Jews of Europe earned their livelihood through the manufacture of alcoholic beverages such as whiskey which constitute chametz. In addition, the chametz not used in the manufacture of the beverages would be used to feed their animals. The disposal of the chametz before Pesach would entail great monetary loss, and so the prearranged sale of chametz began to take shape. The chametz would remain in the home of the Jew, and the non-Jew’s ownership of it became more of a legal technicality than a tangible reality. In order to downplay the somewhat fictitious appearance and strengthen the authenticity of the sale, the signing of a document of sale became an integral part of the process as well. The sale was performed on an individual basis by members of the community.
  1. The complex nature of the sale described above (whereby the sold chametz remained in the home of the seller) led to a large number of cases where its halachic validity was called into question. Cases are recorded whereby the seller forgot to sign his name on the document or where the chametz was sold after the time when it had already become forbidden. The fact that many of those executing the sale were ignorant of the relevant halachot meant that while they thought they had sold their chametz, it remained fully in their possession. As a result, the practice which continues to this day was established: the local Beit Din would arrange a collective sale for all members of the community. Originally this sale took on the form of a collective sale of chametz to the Rav, who would then sell it to the non-Jew. Later this was changed to our current practice whereby the Rav does not himself purchase the chametz, but rather acts as an agent for the sale of the chametz belonging to the members of the community to the non-Jew.

Controversy of the Sale

Despite its widespread nature, the evolution of the sale into the form in which it exists today was not without controversy. The sale was, and remains seen by many, as a deliberate form of deception (ha’arama in halachic terminology). The Bechor Shor writes that mechirat chametz is undoubtedly to be considered ha’arama since the buyer never really intended to provide payment or purchase his goods, and the seller too never seriously planned to give up ownership. Consequently, the sale would be ineffective regarding the Biblical prohibition of chametz.[5]

The Bechor Shor writes that the sale is nonetheless valid under certain circumstances, since after performing bittul, the prohibition of chametz is only rabbinic in nature. Yet this approach raises even more questions. If the bittul is to be taken seriously how can one sell that which he has already nullified and is considered as dust of the earth? And if the bittul is meant to be done after the sale, if the sale is to be taken seriously, how can one affect the legal status of that which is not in his possession?[6]

The Bechor Shor, as a leading halachic authority of his day could not be taken lightly. However, his opinion was ultimately rejected by most poskim. [7] Some argued that since the sold chametz was by definition excluded from the bittul, any mechirat chametz would be coming to prevent a Biblical transgression. Others claimed that mechirat chametz is not to be considered ha’arama at all. Since theoretically the non-Jew could complete his payment and take up ownership of his newly bought goods, so long as the buyer and seller genuinely agree on the sale, and all other technical aspects are done properly, there is no reason not to consider the sale authentically binding.[8]

Outside of the House

As mentioned above, the contrived nature of the sale stems in no small part from the fact that the chametz never leaves the home of the Jew. In fact, the Shulchan Aruch[9] writes that one’s chametz may be sold to a non-Jew specifically on condition that it is removed from the Jew’s home. Exploring the rationale behind this condition can lend some insight into how today’s sale is nonetheless considered valid.

Selling the House Along with the Chametz

Several approaches are offered by the Acharonim to explain the requirement to remove the chametz from the Jew’s home. Ordinarily there is no prohibition against the presence of chametz belonging to a non-Jew in the home of a Jew, so long as two conditions are met:

  1. A partition should be established lest the Jew accidentally come to eat from the [10]
  2. The Jew may bear no monetary responsibility for the chametz in the event that it becomes lost or stolen.[11]

Nonetheless, the case of mechirat chametz is different since the chametz belonged to the Jew to begin with and hence there is more reason for concern. The Bach writes that leaving the chametz in place makes it appear as if the Jew received a deposit of chametz from the non-Jew, accompanied by monetary liability.

The Bach does provide a solution for situations where it would be impractical to remove the chametz, such as where the quantity is too large. Rather than removing the chametz itself, the room which contains the chametz may be sold to the non-Jew, along with its contents. In order for the sale of the room to be effective the key would also have to be transferred to the non-Jew. Alternatively, writes the Mishna Berura, it should be explicitly stated that the non-Jewish buyer may approach the Jewish seller at any time to receive the key in order to access his chametz. Indeed, in the sale performed today in many communities, such a condition is written into the document of sale. In order for the sale to be taken seriously, it would seem fitting that the Jew selling his chametz should be aware of this condition.[12]

This solution itself is not without its problems, however. A dispute exists among the Acharonim as to whether the location of the chametz should be sold or leased.[13] According to the Mekor Chaim, a sale is necessary to avoid transgressing the Biblical prohibitions of bal yeira’eh and bal yimatzei. However, the Noda BiYehuda and Chatam Sofer write quite the opposite. They prefer leasing rather than an outright sale as this seems more authentic.[14]

Ma’aseh Kinyan[15]

The Chok Ya’akov explains the necessity of removing the chametz from the Jew’s home as a technical rather than an intrinsic requirement. Removing the chametz and bringing it to the buyer would allow meshicha to be performed as a ma’aseh kinyan.

Accordingly, if another valid means of performing the kinyan could be found, there would no problem with leaving the chametz where it is and transferring ownership to the non-Jew. The difficulty here is that the poskim struggle to agree on an acceptable means of kinyan regarding transactions involving non-Jews. Below we provide a brief overview of some of the possible methods listed by the Mishna Berura,[16] as well as the questions raised by each one.[17] (The methods of meshicha and hagba’a are excluded from this discussion, since we assume that circumstances dictate that it is not possible to remove the chametz physically.)

The Gemara (Bava Metzia 48b) records a dispute between Rabbi Yochanan and Reish Lakish regarding how transfer of ownership is effected halachically. According to Reish Lakish, meshicha is necessary by Torah law. For Rabbi Yochanan, the transfer of money would suffice Biblically, but Chazal established that a ma’aseh kinyan such as meshicha would be necessary as well.

The Gemara in Bechorot (13b) explains that the machloket between them only applies regarding transactions between Jews.[18] However, regarding transactions involving non-Jews the halacha would be reversed. Therefore, since Rabbi Yochanan rules that money suffices Biblically to enact a transaction between Jews, where a non-Jew is involved it would not suffice. And since most poskim rule like Rabbi Yochanan, the transfer of money would not be a valid ma’aseh kinyan. Rashi, though, does rule like Reish Lakish, and so if we rely on his opinion, we could effect the sale of chametz through monetary payment.[19]

Other possible kinyanim include chalifin (exchange) – whereby an object (other than the goods which are being sold) is given from the buyer to the seller in order to create the transfer of ownership, agav – whereby the sale of land is expanded to include the moveable objects (in this case the chametz) as well, and kinyan chatzer – whereby any objects located in the domain of the buyer are automatically acquired to him.

Yet while all of these are valid as methods of transferring ownership between Jews, it is unclear if they hold validity with non-Jews as well. The Shach[20] claims that chalifin is not a valid form of transaction regarding non-Jews. A kinyan agav may only be effective Rabbinically and not Biblically,[21] and several opinions hold that a kinyan chatzer is based on shlichut (agency),[22] a law which does not apply to non-Jews.

Another possible solution would be a kinyan situmta – an agreed upon method of purchase between merchants. Yet the problem here is that it is not clear if such an agreed upon method exists for the sale of chametz. The Bi’ur Halacha writes not to rely on a kinyan situmta alone, but rather to perform an additional kinyan along with it. And because of the doubts expressed by the poskim regarding each form of kinyan, whenever several kinyanim are performed together, it should be stated that each kinyan stands alone.

Modern Technology – Sales via the Internet

In recent years, the concept of authorizing a Rav to perform mechirat chametz on one’s behalf via the internet has become more and more prevalent, raising new halachic questions. It is important to stress though that the process of sale described in the previous paragraphs is what takes place between the Rav (as representative of the community) and the non-Jewish buyer of the chametz. It would seem difficult to argue that the sale could be effected with a non-Jew via the internet (Trying to reconcile the long list of possible kinyanim above with the intricacies of modern technology is no easy feat.). Indeed, the rabbi selling the chametz generally finds a local non-Jew with whom it is easy to interact personally.

By contrast, when the members of the community approach the Rav to sell their chametz, the purpose here is not to perform the halachic transfer of ownership but rather to appoint the Rav as a shaliach to sell the chametz. The Rambam[23] writes that no ma’aseh kinyan is necessary to appoint a shaliach, but merely a clear statement of intention. The completion of an online form including one’s name, ID number, address and contact details, surely fulfills this requirement.

Conclusions – To Rely on the Sale or Not?

As we have seen, the custom of Mechirat Chametz is not without its controversy or complications. The Gaon of Vilna writes[24] not to perform any sale of chametz which the seller intends to repurchase. The appearance of ha’arama and the difficulty in finding a valid ma’aseh kinyan are two of the most significant factors which have led several of the Acharonim to question the validity of the practice.

As a result of these concerns, many are stringent and choose not to rely on the sale for items which are chametz gamur. Yet even among those who are stringent for themselves, many will purchase chametz after Pesach from those who did rely on the sale. In this context we can draw two distinctions:

  1. Great monetary loss is an important consideration in deciding the halacha. So the sale of chametz may be improper for the individual consumer, yet acceptable for large supermarket chain.
  2. The possession of chametz during Pesach involves the infringement of Biblical prohibitions, as we have seen. By contrast, the ban on deriving benefit from chametz which was owned by a Jew on Pesach is a penalty of Rabbinic nature and as such there is more room for leniency.[25]

The custom of Mechirat Chametz has become entrenched in Jewish communities around the world as an integral part of the preparations for Pesach, and those who rely on the sale certainly have valid halachic grounds for doing so. The custom developed not in order to replace the physical destruction of the chametz in our possession, but in order to help those who found themselves in a position of great monetary loss to fulfill the halacha nonetheless. With proper planning and forethought in the weeks leading up to Pesach we can ensure that we all arrive at the chag chametz-free.

[1] Pesachim 21a

[2] See also Pesachim 13a for a description of the sale of chametz in a similar context.

[3] Brought by the Beit Yosef, Orach Chaim 448

[4] Shulchan Aruch, Orach Chaim 448:3

[5] A full treatment of the topic of ha’arama is beyond the scope of this essay. The validity of this mechanism is subject to a dispute among the Rishonim and the view of the Bechor Shor is that ha’arama is a valid mechanism only to overcome transgressions of rabbinic origin.

[6] See Shut Chatam Sofer, Orach Chaim 62.

[7] See Shut Oneg Yom Tov 28, Mekor Chaim, Orach Chaim 8, Sedei Chemed, Chametz U’matza 9:3.

[8] See Rav Moshe Shternbuch’s Teshuvot V’Hanhagot 5:112 for an alternative explanation in rejection of the Bechor Shor‘s approach. It should be noted, though, that Rav Shternbuch questions the validity of the sale on other grounds.

[9] Orach Chaim 448:3

[10]  Pesachim 6a and Shulchan Aruch, Orach Chaim 440:2.

[11] Shulchan Aruch, ibid.

[12] In instances where the seller is travelling overseas for the duration of the chag, it may be necessary to leave a key with a neighbor or provide other contact information so that theoretically the buyer would still have access to his chametz should he choose to use it.

[13] See Teshuvot V’hanhagot 5:112 for a summary of the various opinions.

[14] The current practice is to lease out the location of the chametz. It is worth noting that those who rent their property would be unable to sell the location in any event.

[15] A ma’aseh kinyan is a physical act which demonstrates transfer of ownership and is necessary in order for a transaction to be halachically valid. Examples include meshicha (pulling the object) and hagba’a (lifting the object).

[16] Mishna Berura 448:17

[17] Sha’ar HaTziun 448:42

[18] The Gemara learns from the verse “או קנה מיד עמיתך” that the kinyanim being referred to are only between Jews.

[19] Even without paying the entire amount for the goods in question, the sale can still be implemented. A partial payment or down-payment is received from the buyer and the rest of the sum is converted into a loan.

[20] Choshen Mishpat, siman 123

[21] See Ketzot HaChoshen, siman 194.

[22] Emunat Shmuel as quoted by the Sha’ar HaTziun.

[23] Hilchot Mechira 5:12

[24] Ma’aseh Rav, Siddur HaGra 180-181

[25] As expressed by the Mishna Berura 448:17.

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