Changing Times
Many generations ago, the number of Jews who sold their chametz on Pesach was relatively small. The enactment and general custom of selling one’s chametz does not appear in the Talmud, and it would seem that in the distant past there was little need for it.
In those times, each Jew would ensure that there almost no chametz remained in his possession when Pesach arrived. The small amount that was left over was burned or otherwise disposed of, as the Torah commands (Shemos 12:15): “Only on the first day shall you clear the leaven from your houses.”
Over the ages, there arose a need to provide a practical alternative to destroying their chametz for owners of manufacturing plants and breweries, for whom this aspect of the festival of Pesach raised a tangible threat of financial collapse. In particular, after the industrial revolution and the methods of mass production that emerged in its wake, the conventional means of dealing with chametz on Pesach became economically unviable. A new approach was called for.
The solution was to sell the chametz to a non-Jew before Pesach, and to buy it back after Pesach. As we will see, this approach is not actually new to modern times, yet its application on an extensive scale, and its institutionalization as part of the preparations for Pesach, are the product of circumstances that arose in recent generations. Today, there is barely a household among observant (and even many non-observant) Jews that does not sell their chametz before Pesach.
A Topic for Halachic Conversation
The custom of selling chametz on Pesach has prompted voluminous writings on the part of halachic authorities, and remains to this day a common topic for poskim to dwell upon.
One of the issues over which many quills have been worn out is the technical means by which the ownership of the chametz is transferred to the non-Jew. For most transactions, the technical kinyan, which transfers legal ownership to the buyer, is fairly straightforward and not necessarily significant. For food we eat throughout the year, for instance, the transfer of legal proprietorship is simple (achieved by carrying the item or by bringing the food home), and not important. Even if the legal transfer is flawed, the food may be eaten by the purchaser.
In the case of selling chametz, the kinyan is not simple, and the consequences are severe. Considering the great amounts of chametz that are sold, the non-Jew clearly cannot take all the chametz into his physical possession, raising the question of which is the most effective kinyan for transferring ownership to him. The significance, in turn, cannot be greater, for if the sale is void, the Jew will transgress the prohibition of having chametz in his possession over Pesach, and the chametz will have been rendered worthless.
In this two-part article we will leave aside the question of the right kinyanim, which is of primary relevance for the rabbi (who performs the actual sale) rather than the layman. Rather, our focus will be on the laws of selling chametz that are pertinent to the general community.
Primary Sources for Selling Chametz
The concept of selling chametz to a non-Jew in advance of Pesach first appears in the Tosefta (Pesachim 2:6-7). The Tosefta rules that if a Jew who is on a ship has chametz in his possession on dry land, he may sell the chametz to a non-Jew on the boat, and buy it back after Pesach. The only provision is that the sale should be an absolute and unconditional sale. The Tosefta adds that it is even permitted for the Jew to hint that he will buy back the chametz after Pesach.
Rav Amram Gaon (Otzar Ha-Geonim, Pesachim 48) extends this halachah beyond the specific scenario of a ship (in which the person requires the food after Pesach for his survival), stating that it is generally permitted to sell chametz to a non-Jew and to buy it back after Pesach. Yet, he limits the application of the halachah to an occasional basis, writing that one may not utilize this method on a regular basis.
As mentioned, the Tosefta permits the Jewish seller to hint that he will buy back the chametz after Pesach. This leniency is taken a stage further by the Terumas Hadeshen (130), who adds two important points. First, he writes that the sale need not be for the true price of the chametz, but can even be made for a nominal sum. Second, he writes that this can be done even in the knowledge that the non-Jew will sell the chametz back to the Jew after Pesach. A similar statement is found in the Beis Yosef (Orach Chaim 448), and ruled in Shulchan Aruch (448:4).
Keeping Chametz in the Home on Pesach
In the above sources, we find permission to sell chametz to a non-Jew for the duration of the Pesach festival, even under the assumption that the non-Jew will sell or give back the chametz after Pesach. Nevertheless, the sale must be absolute and unconditional, so that the chametz entirely leaves the Jew’s ownership for the duration of the festival.
However, we have yet to find permission to sell the chametz to a non-Jew and to leave it in the Jew’s domain (even if sold) over Pesach, as the prevalent custom today.
The first to mention the concept of selling chametz without removing it from the seller’s physical premises is the Bach (Orach Chaim 448), who suggests the leniency on account of the circumstances that prevailed in his locality: “In this province, where most of our business is with alcoholic beverages, which cannot be moved to non-Jews outside the house… it is permitted to sell all the chametz in the room to a non-Jew, or even to sell the room itself.”
Since the chametz is sold to a non-Jew, and/or even the room in which the chametz is present is sold, the chametz is considered as having left the Jew’s domain in the legal sense. Therefore, the (Jewish) former owner is absolved from any chametz transgression.
The Magen Avraham (448:4) emphasizes that it is sufficient to sell the chametz alone, without selling the room where the chametz is present. The only condition that must be fulfilled is that the Jew may not accept responsibility for the safekeeping of the chametz. Yet, he agrees that it is preferable if one sells the room containing the chametz. This is also the ruling of some later authorities (Mishnah Berurah 448:12).
Critics of the Sale
Poskim clearly regarded the leniency of selling chametz in the manner described above as applying to extraneous circumstances alone. The Eliyah Rabba (448:7) writes that under ordinary circumstances one may not rely on this leniency, even making a distinction between whisky (which may be sold) and beer (which may not be sold). The reason for this distinction is that in contrast with whisky, it is relatively easy to control the amount of beer in one’s possession.
Shut Ori Veyish’i (121) writes that in his day sale of beer was permitted, because of the large amounts of beer that pubs work with. Once again, he is careful to avoid a blanket leniency, and writes that his ruling is only on account of “grave financial loss among Israel.”
Because of the reservations mentioned by authorities, several poskim have written that one should not rely on the sale of chametz for actual chametz (see next week’s article for which items should be sold). The Vilna Gaon (quoted in Maaseh Rav) went even further, and refrained after Pesach from purchasing items of chametz that were sold over Pesach. [See however below, where we explain why today’s sale might be superior to that of previous generations. It is therefore hard to determine how the Vilna Gaon and others would have related to it.]
Yet, in spite of these reservations, it has become a widespread custom to perform a chametz sale in advance of Pesach. Some rely on the sale for actual chametz, selling even items such as whisky and beer. Other utilize the sale solely for items where there is only a slight chance that they contain chametz. Still others do so only ‘for safety’s sake,’ meaning to ensure that if some chametz was missed, it should be included in the sale (Takanas Mechiras Chametz, Chap. 1, note 17, writes that this is a worthy practice).
The Collective Sale of Chametz
Initially, anyone who had chametz in his possession, which he couldn’t dispose of before Pesach, would make an individual contract with a non-Jew to purchase his chametz. However, on account of the many pitfalls that arose from private sales of chametz, communities began to sell their chametz collectively, by means of the local rabbi. As a result, the sale was made in the most proper manner for all members of the community.
In a letter sent by Rav Shlomo Kluger to Rav Moshe Toibes, which is printed in Shut Naos Desheh (end of vol. 1), the writer disagrees with his contemporary on this subject. The thrust of the argument is that Rav Toibes only favored a personal sale of chametz because he was unfamiliar with the ways of large communities. If he would have been aware of the pitfalls involved in this practice for large communities (where individual contracts cannot be supervised), he would surely have preferred the communal method.
There are two basic approaches on how to conduct a ‘communal sale’. One method is for individuals to transfer their chametz to the ownership of the rabbi. The rabbi then proceeds to sell the chametz of the entire town to a non-Jew. However, some authorities voiced objections to this model (see Amudei Kessef, Introduction to Laws of Selling Chametz 5): Why should the rabbi “place himself into a tight corner without any need?” Accepting large amounts of chametz into his ownership on the eve of Pesach cannot be a pleasant experience for local rabbis!
The other model involves the appointment of the rabbi (or somebody else), by means of a specially prepared authorization form, as an envoy to sell the chametz. The rabbi thus becomes an envoy (shaliach) to sell the chametz on behalf of others. This is the model recommended by the Aruch Hashulchan (448:27), and it has become the virtually universal custom.
Whose Chametz are You Burning?
Does a person fulfill the mitzvah of burning or getting rid of chametz by selling it to a non-Jew?
According to many authorities, the answer to this question is positive. The Mishnah writes that until the time when chametz becomes prohibited, it is permitted to sell it to a non-Jew. It is thus clear that no prohibition of owning chametz is transgressed when chametz is sold. Extending this, several poskim write that because the sale of chametz to a non-Jew effectively removes it from one’s possession, one even fulfills the positive commandment to remove all chametz—the mitzvah of tashbisu—by means of the sale (Chelkas Yaakov, Orach Chaim 20; Peri Yitzchak 1:19, among others).
The Chayei Adam (Nishmas Adam 112:8) disagrees with this position, maintaining that the mitzvah is not performed by selling the chametz to a non-Jew. He thus writes that the sale should only be performed under highly limited circumstances. We have already noted that there is no prohibition of selling chametz (as clear from the Mishnah). Therefore, it is probable that the Chayei Adam only objects to a person who sells all of his chametz, and doesn’t leaving anything with which to fulfill the mitzvah of burning the chametz.[1]
A similar idea is suggested by the Chasam Sofer (hagahos 448, Magen Avraham 8), who writes that a person should exclude from the sale the chametz he finds in the search for chametz (bedikas chametz), in order to fulfill the mitzvah of burning chametz. The advice he gives (quoting from Rabbi Daniel Prosnitz) is to give away the chametz he plans to burn to another Jew, so that the chametz is not in his possession when the sale to the non-Jew takes place. After the sale takes place, the chametz is taken back from the Jewish recipient in order to burn it before Pesach.
Some contracts for the sale of chametz adopt a similar approach by explicitly excluding the chametz that will be found during the search for chametz (at least the ten pieces of chametz that are traditionally prepared for the event) from the sale (Kelach Shel Eizov 25). This ensures that when the chametz will be burned, it will be the Jew’s chametz that is being burned, and not the non-Jew’s!
Certain authorities have criticized this method (see Teshuvos Vehanhagos 293), and a simpler option is to ensure that one burns the chametz before the time that the sale takes effect. The precise time can be ascertained from the rabbi, and it is usually close to the time when the prohibition of chametz comes into effect. However, this ‘simple’ method will not help those who sell their chametz on the 13th of Nissan since one only burns on the fourteenth. (See next week’s article, which addresses the correct time for the sale.)
The Non-Jew’s Access to the Chametz
One who sells his chametz to a non-Jew must ensure that the non-Jew has free access to the chametz. This can be arranged by means of giving a key to the non-Jewish buyer, as the Bach (448) advises. It can also be achieved by informing the non-Jew of where he is able to find the key (Misnah Berurah 448:12; Aruch Hashulchan 448:23).
Some write that if the keys are not handed over to the non-Jew and he is not informed of where they are found, the sale is null because a sale in which the buyer cannot access his purchase is inherently void (see Taz 448:4). However, the majority of authorities rule that post factum, the sale remains valid (see Biur Halachah 448, citing from Peri Megadim). According to the Aruch Hashulchan, the status of the sale depends on whether the seller failed to transfer the keys inadvertently, or whether he did so willfully.
One who sells chametz may not prevent the non-Jewish purchaser from entering. If the non-Jew’s access is denied specifically at the time of the sale, the Mishnah Berurah writes that the sale is revealed as being fictional, and is inherently void. However, if access was possible at the time of the sale, and was only denied later, the sale remains valid, even though the Jew acted unlawfully in preventing the non-Jew from entering.
Erecting a Partition in Front of Chametz
If chametz that is sold to a non-Jew is present in specific places in the house, and the seller continues to live in the house over Pesach, the seller is obligated to erect a ten-tefach (approx. one meter) partition in front of the chametz. This serves to cordon off the chametz, and ensures that nobody will inadvertently come to eat it over Pesach (Shulchan Aruch 440:2).
However, the obligation of erecting a partition applies only to edible items that are actual chametz, and not to items that are not fully considered chametz, or to inedible items (Eishel Avraham 440).
For the purpose of this obligation, it is sufficient to put up a [ten-tefach tall] sheet, or even a sheet of paper, and nail (or staple) it to the place of the chametz (for instance, a closet). Some advise sellers to place a label on the closet door, warning that there is chametz inside, and that the contents have been sold to a non-Jew. This method has become fairly customary (Siddur Pesach Kehilchaso 17).
We are yet to discuss a number of issues pertaining to the sale of chametz. When should the sale be executed? What is the difference between a sale on the 13th and a sale of the 14th of Nissan? Which items and foodstuffs should one be sure to sell? Can an ‘overseas sale’ be arranged? Can one buy new chametz after appointing the rabbi to sell one’s chametz? These questions, and more, will please G-d be discussed in next week’s article.
[1] Another possibility is that the Chayei Adam understands that the sale of the Mishnah refers to a sale in which the chametz is removed from the seller’s house, whereas the sale referred to by the Chayei Adam is a sale in which the chametz remains in the seller’s domain. Although a sale whereby the chametz entirely leaves the domain fulfills the mitzvah of burning chametz, a sale where the chametz is not removed does not fulfill the mitzvah, and should be avoided.
