(2004/5764)
A standard component of our Pesach preparation is the sale of Chametz to a non-Jew. We appoint our Rabbi as our agent to sell the Chametz year after year, and it would seem to a casual observer that this procedure is as ancient as the eating of Matzah and Maror. The manner in which we currently perform Mechirat Chametz, though, is a relatively recent phenomenon. In the time of the Mishnah, if a Jew could not finish consuming his Chametz before Pesach, one of his options was to sell his remaining Chametz to a non-Jew (see Pesachim 21a). This Mishnah, however, refers to a permanent sale of the Chametz to a non-Jew.
The Tosefta
The Tosefta (Pesachim 2:6), though, speaks of a different type of arrangement between a Jew and non-Jew regarding a sale
of Chametz. The Tosefta records, “If a Jew and a non-Jew are traveling together on a ship, and the Jew owns Chametz (and Pesach is approaching, and he must dispose of the Chametz), the Jew may sell his Chametz to a non-Jew, and the Jew can accept the Chametz back from the non-Jew as a gift after Pesach.” The Aruch Hashulchan (Orach Chaim 448:16), concludes from this Tosefta, “Accordingly our practice to sell Chametz to a non-Jew [every year and repurchase it after Pesach] has a sound Talmudic basis.”
However, not all the Rishonim would agree with the Aruch Hashulchan's conclusion. Some Rishonim believe that the correct text to this passage from the Tosefta includes the following appendage, “This procedure is permissible provided that it is a genuine sale and not a mere legal fiction.” The Ritva (Pesachim 21a) explains this to mean that “if every year a Jew sells his Chametz to a non-Jew and repurchases it after Pesach, we penalize the Jew by declaring the Chametz that was ‘sold’ to be Assur Bihanaah, forbidden for any Jew to derive benefit from.” See the Tosefta Kifshuta, for a citation of a number of Geonim and Rishonim who agree with this assertion.
The Shulchan Aruch
Nevertheless, many Rishonim disagree with this assertion of the Ritva and the Ritva’s explanation is not accepted as normative. The Shulchan Aruch (Orach Chaim 448:3) cites this Tosefta, does not record the words that appears in the Ritva’s version of the Tosefta and does not quote the Ritva's assertion that it is forbidden to routinely sell Chametz to a non-Jew every year. The Shulchan Aruch does, however, write that “the Jew must give the Chametz to the non-Jew with full intention to transfer title of the Chametz to the non-Jew.” Accordingly, we must regard the sale of Chametz as a legitimate sale and not a Halachic trick. The Kitzur Shulchan Aruch (114:1) writes, “The matter of Mechirat Chametz should not be merely a routine habit, rather one should seriously intend to sell the Chametz to a non-Jew in a fully valid sale. The matter should not be regarded as a mere joke, but rather as a conventional business deal.”
Rav Kenneth Auman's (of the Young Israel of Flatbush) practice (that I saw in 1992) of selling his community's Chametz to a non-Jewish accountant, and Rav Mordechai Willig's (of Riverdale) practice of selling Chametz to a non-Jewish real estate agent serve to develop a proper attitude to Mechirat Chametz. These two Rabbis make sure that the non-Jews to whom they choose to sell the Chametz are people who have a sophisticated understanding of how business and sales are conducted, so that the Jewish sellers understand that a legitimate sale is being conducted (we should note that this is not the common practice and the sale is valid even if the purchaser is the janitor of the Shul, based on the Gilyon Maharsha that we shall cite later). Rav Yosef Eliyahu Henkin (Kitvei HaRav Henkin 2:41) writes that placing the Chametz in a specially designated area that one does not enter at all during Pesach serves to strengthen the seriousness of the sale in the eyes of the seller. Rav Henkin adds (ibid p. 39) that it is best for the Mechirat Chametz to be conducted in a manner that is valid by civil law standards. We should note, though, that the question of the necessity of Mechirat Chametz being valid by civil law standards is a matter that is discussed at length, see Teshuvot Chatam Sofer O.C. 113, Teshuvot Divrei Chaim 2:37, Teshuvot Shaarei Deah 1:5, and Rav Shlomo Yosef Zevin, Lior Hahalacha pp.120-122. We need not be concerned that the non-Jew is not serious about the sale, see the Gilyon Maharsha Yoreh Deah 320:6 s.v. Meshichah, that when the seller is serious about the sale, we are not concerned that the purchaser does not take the sale seriously.
The Development of the Current Practice
Although the Tosefta serves as a source for our sale of Chametz, there are two significant differences between the sale of Chametz described in the Tosefta and our practice today. The first difference is that in the Tosefta's case the Chametz is removed from the Jew's home and given to the non-Jew. Today, of course, the non-Jew is given title to the Chametz, but the actual Chametz remains on the premises of the Jewish seller. Second, the Tosefta involved an individual Jew selling to a non-Jew. Today, the community Rabbi sells the Chametz on behalf of everyone in the community. These two practices have developed over the past for five centuries.
The great sixteenth century authority Rav Yoel Sirkes, known as the Bach (O.C. 448), records that in his time it was necessary that the Chametz remain in the Jew's home even after the sale of that Chametz to the non-Jew. He writes, “In this country, since the main business is selling liquor (mostly because it was one of the few businesses the Polish authorities permitted Jews to engage in) and it is impossible to remove all the liquor and equipment from the premises of the Jew; it is permitted for the non-Jew to acquire the Chametz, and the Chametz may remain on the premises of the Jew.” He describes the manner in which a non-Jew takes title to the Chametz without actually bringing the Chametz into his premises. The Bach also emphasizes that the sale should be conducted seriously and not merely as a trick to avoid violating the prohibition of owning Chametz. He stresses that the non-Jewish purchasers should also understand that it is genuine sale, and not “Halachic fiction”.
Rav Shlomo Yosef Zevin (see his essay on this topic in Hamoadim Bihalachah along with the writings of Rav Gedalia Felder on this topic, Yesodei Yeshurun 6:241-331) estimates that this practice continued for about 250 years. The sales were conducted by individuals and not by the community Rabbis. The great Rabbis of these generations such as the Noda Biyehudah and the Baal Hatanya composed documents to be used for these individual sales. Copies of these documents are printed at the end of the contemporary work Mechirat Chametz Kehilchata.
However, problems arose with these sales since many of these transactions were executed by individuals who were not experts in Halacha. The mistakes that were commonly made were the seller's forgetting to sign the Shtar Mechirah (bill of sale), selling Chametz on Erev Pesach after the time it is forbidden to benefit from Chametz, and forgetting to sell the places upon which the Chametz was placed. Therefore, starting from the early 19th century, the sale of the Chametz by the Rabbi, on behalf of everyone in the community, gradually became the standard practice. Having the sale conducted by a Halachic expert greatly reduced the occurrence of errors, and thus our practice emerged in which everyone in the community appoints his Rabbi as his agent to sell the Chametz on his behalf. Some Rabbis today use a power of attorney form printed in English to emphasize the seriousness of both the appointment of the rabbi as an agent and the actual sale of the Chametz.
The change to a communal sale did not escape criticism from some of the great authorities of the nineteenth century. The great Rav Yosef Shaul Natanson (Teshuvot Shoel Umeishiv 2:2:77) objected to this communal method of the sale of Chametz. It appeared to him not to be genuine sale, rather a clear subterfuge of the Halacha (Haaramah). Nevertheless, Rav Zevin notes that by the end of the nineteenth century the communal sale had become the norm (Rav Zevin outlines the locations and times of the epicenters of this controversy and the places where this change was received without dispute). Indeed, the Aruch Hashulchan (O.C. 448:27), writing at the turn of the twentieth century, notes that the practice has been for quite a number of generations for communities to appoint their rabbi to sell Chametz. In fact, the Chatam Sofer (Teshuvot O.C. 113) writes that “the sale is effective and one who casts doubts on its validity should be castigated.” Moreover, Rav Yosef Adler relates that he heard Rav Yosef Dov Soloveitchik tell about his visit to Brisk before Pesach one year when he attended the Mechirat Chametz that was conducted by the famed Dayan of Brisk, Rav Simcha Zelig Riegeur. One individual, recalls the Rav, began to ridicule the sale of Chametz, whereupon Rav Simcha Zelig threw the individual out the room. When the Rav related the incident to his grandfather Rav Chaim Soloveitchik (who served as the Rav of the town), Rav Chaim applauded Rav Simcha Zelig’s actions. Rav Chaim asserted that just as Rabbeinu Tam issued a ban on anyone who casts frivolous doubts on the validity of an executed Get (see Shulchan Aruch Even Haezer 154:22), so too it is forbidden to ridicule the accepted practices of Am Yisrael.
Selling Actual Chametz
However, some authorities continue to maintain that it is preferable not to sell actual Chametz and to include only mixtures of Chametz (in which Chametz is not a majority of the contents of the particular item). The Vilna Gaon (cited in Maaseh Rav 180) felt that one should sell actual Chametz, unless he does not intend to repurchase it from the non-Jew. Rav Aharon Kotler (cited by Rav Shimon Eider, Halachos of Pesach p. 123) followed this view.
Rav Hershel Schachter (Nefesh Harav p.177) writes that Rav Yosef Dov Soloveitchik essentially agreed with the opinion that actual Chametz should not be included in the sale. If less than half of the food consists of Chametz (Taarovet Chametz) then the Rav agreed that it might be sold to a non-Jew. In this case, the Rav felt that it would be appropriate to rely on the opinion of Rabbeinu Tam (cited in Tosafot Pesachim 42a s.v. Vieilu) that it is only Rabbinically forbidden to possess Taarovet Chametz on Pesach. Hence, since Taarovet Chametz is only Rabbinically forbidden, it would be permitted to engage in a Haaramah (a “Halachic trick”), based on the Gemara in Shabbat (139b), which teaches that we tolerate a Haaramah when dealing with matters that are only rabbinic law. However, since we are forbidden by the Torah to own actual Chametz, it would be forbidden to employ a Haaramah such as the sale of actual Chametz to a non-Jew, to avoid a Torah prohibition. Rav Schachter writes that the Rav stated this point repeatedly to both his students at Yeshiva University and in the Shiurim he delivered to the general public. The Rav did not feel that this was a stringency that should be limited to the very learned and the very pious.
Rav Yosef Eliyahu Henkin takes a somewhat similar approach. He writes that it is appropriate for a pious Jew to try not to include “actual Chametz” in the sale of Chametz. However, in case of significant monetary loss, Rav Henkin writes, one may rely on the accepted practice to sell even actual Chametz to a non-Jew. Rav Moshe Feinstein (cited by Rav Shimon Eider, Halachos of Pesach page 123) believes that even actual Chametz may be included in the sale. This also appears to be the opinion of the Mishnah Berurah and Aruch Hashulchan, as they do not discourage the inclusion of actual Chametz in the sale to the non-Jew. Rav Eider notes that the commonly accepted practice reflects the view of Rav Moshe.
Since the prevalent practice is to follow this opinion of Rav Moshe Feinstein, it is appropriate to point out a possible basis for the common practice. It is possible that the sale of Chametz should not be regarded as a Halachic trick or Haaramah. Rather, it is a fully legitimate way of avoiding violating the prohibition to own Chametz. In fact, Rav Hershel Schachter once argued that according to Tosafot (Pesachim 4b s. v. Midioraita), Bittul Chametz (nullification of Chametz) functions with essentially the same Halachic mechanism as the sale of Chametz. Unlike Rashi (ad. loc. s.v. Bevitul), who believes that Bittul Chametz constitutes a fulfillment of the mitzvah to destroy Chametz (“Tashbitu”), Tosafot believe that Bittul Chametz merely sidesteps the prohibition of owning Chametz by declaring the Chametz ownerless. One could argue that the sale of Chametz similarly avoids the prohibition to own Chametz by selling the Chametz to a non-Jew.
Furthermore, the fact that the Tosefta and Shulchan Aruch sanction the sale of Chametz without stating that it should be limited only to mixtures of Chametz seems to strongly support the view of Rav Feinstein and the common practice. Moreover, the original practice of Mechirat Chametz that was initiated by the Bach was intended for the sale of alcohol, which is Chametz B’ein (actual Chametz) according to the ruling of the Mishnah Berurah (442:4). We should note, though, that there is some controversy about this point, as some Acharonim (cited in the Shaarei Teshuva 442:3, Biur Halacha 489:10 s.v. Af, and Aruch Hashulchan Yoreh Deah 293:18) argue that alcohol is “mere sweat” (Zeiah Bialma”, see Berachot 38a and Tosafot ad. loc. s.v. Hai) and thus does not constitute Chametz B’ein (also see Shaarei Teshuva 448:8 for another possible lenient approach to justify the sale of liquor). Nevertheless, since the issue of what items are permitted to be included in the sale is debated by the great contemporary Halachic authorities, one should consult his Rav for Halachic guidelines regarding what opinion to adopt in practice.
We should note that there are quite a number of areas in Halacha where Chazal tolerate (and sometimes encourage) a sale to avoid certain prohibitions (see the list in Rav Zevin’s Lior Hahalacha p.112). Indeed the sale of Chametz is modeled to a great extent on the sale to a non-Jew of a portion of an animal that is about to give birth for the first time, in order to avoid the restrictions of Bechor Beheimah. See Shulchan Aruch Y.D. 320:6 and its commentaries for a full discussion of this sale and see Techumin (20:88) for a copy of the document that Israeli farmers currently employ in this context today. Next week we shall continue in our discussion of the details regarding Mechirat Chametz.