Question
I am going away for Pesach and so the most convenient time for me to sell my chametz to my rabbi is on Sunday, a little over a week before Pesach. I know that one can’t sell what he doesn’t yet own so is it okay for me to sell that early since I intend to buy chametz after that time?
Answer
You are correct that there is an issue, but it is not exactly the way you presented it. In fact, you don’t sell your chametz to your rabbi but rather you appoint him to be your agent (shaliach) to sell your chametz on your behalf.
In order to understand the problem, it is important to understand the concept of shlichus-an agent who acts on another person’s behalf.
The concept of shlichus in the Torah enables a person to empower a different person to act on his behalf. One can empower a third party to give a ring to a woman and to say that he is giving her the ring so that the woman will be married to the one who sent him. After the agent does this the woman is legally married to the one who sent him. If there were no concept of shlichus, if one wanted to marry a woman, he would have to give a ring to the women by himself.
The problem in your situation is based on the Gemara in Nazir (12A) that rules that one is not capable of appointing a shaliach to act on his behalf to do something if, at the time of appointment, he cannot do it himself. In your case, since you cannot sell chametz that you do not yet own, you should not be able to empower your rabbi to sell chametz that you do not yet own.
One approach to understanding the problem is presented by Rav Shimon Shkop (Sha’arei Yosher 6, 17, 3). He explains that empowering someone to act on one’s behalf is in itself doing something. Therefore, just like you cannot sell an object that you do not yet own, so too you cannot broaden your capability to sell an object you do not own by empowering someone to eventually sell it on your behalf.
Your problem is a very serious issue and since many were faced with this problem it has been discussed for centuries. We note further that this is an everyday issue for kashrus organizations that supervise bread baking since only the owner of the dough or his agent can set aside challah on the dough, and the owner is generally not present when his workers make the dough. Since the usual solution for the owner’s absence is for the owner is to appoint a worker as his agent, this raises a problem similar to yours, since it seems that the owner can only appoint the worker as his agent after the dough was formed.
One approach that was suggested by the Oneg Yom Tov (res. 38) and many others is based on the ruling of the Gemara (BM 67B) that even though one cannot sell an object that does not yet exist, however if the eventual owner sold the object prior to its existence and the buyer had possession of the object after it came into existence, the sale is valid, bedi’eved. The reason the sale is valid is because the object is in the buyer’s possession after it came into existence and the buyer becomes the legal owner of any object that is in his possession by virtue of a kinyan of chotseir.
Based on this, he says that since one sells to the gentile before Pesach not only the chametz but also the place where the chametz is situated, we can solve the problem. Since the place where the chametz is situated later on Pesach already belongs to the Jew before Pesach, the Jewish owner can appoint an agent to sell or rent that place to the gentile. Thus, the sale or rental to the gentile of the place is valid. As far as the chametz is concerned, since the sale of the chametz only takes effect after the seller owns the chametz, and then the seller leaves the chametz in the gentile’s possession in the place the he sold or rented to him, the sale will be valid.
However, the Oneg Yom Tov himself, as well as others, point out that there are difficulties with this approach when the buyer is a non-Jew, since many maintain that gentiles only acquire objects with a kinyan of chotseir if they are near the object they are acquiring at the time of acquisition. Since the gentile to whom the rabbi sells your chametz will not come near your property, this solution is problematic.
The Divrei Malkiel (4, 22, 17) offers various solutions to solve your problem. The main solution, he says, is that if one pays the rabbi for his efforts, the rabbi can sell the chametz since if he is being paid, the rabbi has the status of your employee. Even though he was hired before the seller (who is his employer) owned the chametz, the status of an employee is very different from the status of an unpaid agent. Only an agent has the limitation that he cannot be appointed to act on behalf of a person who himself cannot perform an action at the time when the agent is appointed. However, one can hire an employee to perform an action on his behalf even if the employer is incapable of performing that action at the time of the employee’s hiring. The reason is that when one is hired, he obligates himself to perform all the tasks that will eventually be assigned to him by his employer. Therefore, those actions that the employee eventually performs are legally effective when they are performed. We note that if you wish to use this approach you must pay the rabbi something when you sell your chametz.
A third approach was suggested by the Aruch Hashulchan (448, 28). His approach is based on the statement of the Gemara (Pesochim 6A) that since the Torah forbade deriving benefit from chametz, the chametz really becomes ownerless at the moment when benefit from it becomes prohibited, according to the normal laws of ownership. The only reason we must explicitly relinquish possession of our chametz is because the Torah instituted a special extension of ownership to allow us to own chametz in spite of the fact that we may not derive any benefit from the chametz.
The Aruch Hashulchan rules that in order to relinquish this special type of ownership, it suffices to perform an act that shows a lack of desire to retain ownership of the chametz on Pesach. Therefore, even though according to the normal rules of ownership the rabbi is not your agent to sell chametz that you did not own when you appointed the rabbi to act as your agent, nevertheless, since by appointing the rabbi as your shaliach you showed that you do not wish to retain ownership of this chametz on Pesach, you will not violate the prohibition of owning chametz on Pessach.
Other poskim (Tsemach Tsedek (Lubavitch) 46, Bigdei Yesha 4) follow the approach of the Aruch Hashulchan that showing a desire to sell suffices. However, they say the reason it suffices is because the sale is totally beneficial for the seller since otherwise the chametz will become permanently forbidden. Therefore, based on the rule of zechiya – that one may perform a beneficial act on another’s behalf even if he was not appointed – the usual rules limiting the appointment of an agent to objects which one already owns are relaxed. The Tzemach Tsedek says that it is better if the document that you sign by the rabbi states explicitly that you are empowering him to sell even the chametz that you will only subsequently purchase.
We note that the above resolutions, with the exception of the Divrei Malkiel’s approach, only solve the problem in the case of chametz but do not help mashgichim who need to set aside challah. However, the following approach of the Mirkeves Hamishne (Gerushim 6, 3) was utilized by Rav Eliashev zatsal for bakeries.
This approach is that if one appoints an agent in writing, and the agent has the letter of appointment in his possession at the time when he wishes to act, he is successfully empowered by the letter of appointment even though it was written and given to the agent at a time when it could not empower the agent to act. Since when one sells his chametz he gives the rabbi a document that appoints him to act and sell all his chametz, and the rabbi has this paper in his possession at the time when he sells the chametz to the gentile, the letter empowers the rabbi to act. Even though the rabbi’s appointment at the time of the sale was ineffective for the items not owned at the time, it will take effect at the time he sells to the gentile because at that time all the chametz is in the Jew’s possession.
In conclusion: Your problem was discussed by many gedolim who suggested various approaches to resolve the difficulty and one may rely on these solutions. However, if possible, one should postpone his signing by the rabbi until after he concluded all his chametz purchases.
