Question: I would like to have a better understanding of a practice that I and many others are a party to every year before Passover. How does the sale of chametz to the gentile take effect if it returned to the original owner within a very short period after the festival’s conclusion?
M. Goldblum
Miami Beach, FL
Synopsis: Last week we discussed the transfer of chametz from Jewish ownership to gentile ownership as practiced in earlier times. An explanation as to the acceptability of a sale or gift made with the understanding of the return of the chametz after Passover was discussed as well. Increasingly large quantities and different types of chametz, especially large stocks of grain-based liquors, presented new challenges through the years, for these stocks of chametz could not practically be moved to a gentile’s property. This week we discuss how the transfer of ownership for Passover was accomplished without physical transfer.
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Answer: We find one of the earliest mentions of such a mechirat chametz, a sale of leavened products before Passover, in the commentary of the Bach (Orach Chayyim 448 s.v. “ve’im machru…” – toward the middle of the text). We find there the reason for this leniency, as he states: “…and in this country, where most are engaged in the sale of liquor and spirits and it is impossible for them to sell all their stocks to a gentile [who will remove them from the storehouse], especially innkeepers [and mill keepers, whose holdings are vast, who lease the mills from landowners, as the Aruch HaShulchan, Orach Chayyim 450:15, explains], we are lenient in this matter. We allow the Jewish owner to sell to the gentile all the chametz contained within the walls. Moreover, the premises themselves should be sold to the gentile…”
The Bach then explains various types of kinyanim (sale transactions) that are utilized to sell the premises. The key should be handed over to the gentile as well.
The poskim who followed the Bach, such as Taz and Magen Avraham (and others), upheld the opinion of the Bach in this matter and concluded with many solid proofs – based on the Talmud and Rishonim (early halachic authorities) – that according to halacha there is no reason for strictness, for if we rule that a sale is valid when a Jew sold the gentile a specific place in the house where the chametz was contained, surely the sale would be valid if he sold him the entire room.
Since chametz liquors were a main product used for business in liquor distilleries and inns (where liquor was sold), it became difficult to find a gentile who would (or could) pay the actual cash value of the product. It became evident that another means of sale needed to be found. This had to be a sale that would satisfy the requirements of halacha and also constitute payment for value. The solution was a security deposit, with the balance as a “loan” payable after Passover.
This type of sale is found in the Talmud (Bava Metzia 77b), where one sells a field valued at a certain sum and takes a security for substantially less. The balance is owed and becomes a loan payable at a future date (Rashi ad loc., s.v. “Umachzir lo hasha’ar,” adds, “even after many years”).
Subsequently, when some people began to suspect that this type of sale was only a pretext for the Jew to circumvent the prohibition of owning chametz in a manner that seemed inherently false, the concept of a writ of sale was explored. Although, according to halacha, moveable objects are not ordinarily sold with a writ of sale, halachic authorities saw three reasons to accept this practice. First, so that the entire transaction would not appear to be a mere joke, the gentile now had in hand a signed writ of sale. Second, the sale of the premises was added to the actual chametz, and thus the chametz is sold “agav,” as an attachment to the land or premises sold with a document, the writ of sale. Lastly, since, according to civil law, products are also sold with a writ of sale, it can be considered a valid commercial transaction.
Rav Shlomo Zevin, whose Mo’adim BaHalacha chapter on this issue we have been reviewing over the past few weeks, then discusses some problems with the writ of sale, such as the stamp tax (which was similar to the tax we pay today on the delivery of a mortgage); if we are to transact the sale according to secular law, these levies must be paid. He relates an incident described by the Chatam Sofer (Orach Chayyim, Responsum 113). Informers had told the Kaiser (the ruler of the Austro-Hungarian Empire) that the Jews were selling their chametz (to gentiles) without paying the stamp taxes for the seal of the Kaiser. When the matter was brought to the attention of the benevolent and pious Kaiser, he brushed it off, saying that “everyone knows that this is not a commercial transaction but a religious one.” Therefore, the Chatam Sofer viewed such a transaction with suspicion.
The great innovation in this regard – which we follow to this very day – is that of the Ba’al HaTanya, R. Shneur Zalman of Lyady, zt”l, in Shulchan Aruch HaRav. There he established that all chametz was to be sold through an intermediary.
Today one gives the right to an individual, the rabbi, to conduct the sale to the gentile on one’s behalf. Thus, there is no direct transaction between the Jew and the gentile, and in no way is the gentile directly responsible to the individual Jew. Rather, the transaction is with the rabbi.
The text of the contract for this sale is found in the Chabad siddur, in Shulchan Aruch HaRav, and in Otzar Erchei HaYahadut of Rav Yosef Grossman (in the section on Mechirat Chametz p. 275), who notes that nowadays the householder sells only chametz she’eino be’ein – chametz ingredients (such as flour) that are not baked into discernible chametz. Owners of stores and factories sell even chametz be’ein, where not doing so would result in substantial financial loss. This is all done through a sh’tar harsha’a – a document that gives the rabbi permission to sell the products to a gentile (this document follows a kinyan sudar, which is the legal process of transferring possession with a scarf or handkerchief). The transaction also involves a second document, a sh’tar mechirat chametz, which is a writ of sale of the chametz.
Thus, be assured that if the transaction is done in the prescribed manner, and it surely is, you are not in violation of bal yera’eh and bal yimatzei, and the chametz products, upon their return to your possession, are not to be considered as chametz she’avar alav haPesach (chametz in Jewish possession throughout Passover), which would be forbidden.
May we merit to witness the redemption from our long galut and dance in the streets of Jerusalem with Moshiach, speedily in our days.
