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 a gentile take effect if it is returned to the original owner within a very short period after the festival’s conclusion?
M. Goldblum
Via Email
Synopsis: Last week we focused on the prohibition of chametz on Passover – bal yera’eh ubal yi’matzei – namely, that anything leavened may neither be eaten nor be found or seen in our dwellings during the seven days (eight days in the Diaspora) of Passover. The Talmud (Pesachim 5b) bases this prohibition on Scriptural verses (Exodus 12:19-20 and 13:7). We then analyzed the practice of mechirat chametz, the sale of chametz, as described by Rav Shlomo Yosef Zevin in his Mo’adim BaHalacha. The Gemara mentions one incident of sale of chametz to a gentile (see Pesachim 13a), but the practice became entrenched when it was no longer possible for tradesmen and manufacturers to destroy all the chametz in their possession without severe financial losses.
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Answer: We continue our discussion citing Rav Zevin, as we delve into the source of our present custom:
“Now our question is: When did it happen that the style of the sale of chametz changed from a simple sale, i.e., transfer of ownership through payment, to a sale which might be seen as a mere formality, though backed by various documents, where some might view the property as not fully transferred. Yet the property does transfer sufficiently that one is not in violation of ‘bal yera’eh u’bal yi’matzei’ when such a sale is transacted.”
Most probably there was a transition period when, without doubt, there was an actual sale between Jew and gentile, one receiving payment and the other receiving merchandise. However, in all truth, the Jew would not sell to just any gentile, but rather to one with whom he had an ongoing business relationship, and he was confident that the product would be sold back to him after Pesach.
“The source for this type of sale stems from the following Tosefta (Pesachim 2:6): ‘If a Jew and a gentile were traveling together on a ship, and the Jew had chametz in his possession [on the eve of Passover], he shall sell it to the gentile or give it to him as a gift, and he may buy it back from him at the conclusion of the Pesach festival; but [regarding a gift] it is predicated that he [the Jew] give it to him [the gentile] as an unconditional gift.’
“We see from here that at the outset, at the time of the sale, the Jew’s intent was to buy it back from the gentile. Nonetheless, we see that such a sale is only referred to in an out-of-the-way, unusual circumstance.
“From ‘a Jew and a gentile on a ship’ we would correctly infer that when a Jew was in his home [at that same time], there would not be any need for such a sale. Obviously, before the arrival of the Pesach festival, Jews would be sure to consume all that is to be eaten, and sell, while there was still sufficient time, that which they estimated to be beyond their present needs, and finally destroy all that remained prior to Pesach [at the fifth hour]. Thus, the violations of ‘bal yera’eh u’[b]al yi’matzei’ were dealt with in their literal sense [and in this manner no Jew would transgress these rules].”
Rav Zevin also notes the second halacha of the Tosefta: “A Jew is permitted to tell a gentile, ‘If you take [from me] the amount of a maneh [i.e., 100 dinars’ worth], take instead two maneh, for perhaps I will need it and I will come after the festival to take it from you.’” This, too, Rav Zevin notes, is perhaps only a statement of an incidental situation, but not the usual, set course in this matter.
Rav Zevin inclines to Rabbeinu Mano’ach’s interpretation of the Tosefta (Rabbeinu Mano’ach is a Rishon, an early authority cited by Rav Lieberman in his work Tosefet Rishonim): “The situation refers to a Jew and a gentile who wished to travel by ship on the eve of Pesach, and the Jew was unable to take along chametz for his after-festival needs due to the [strictures of] the Pesach festival. Therefore, he tells the gentile, ‘If until now you have planned on taking 100 dinars’ worth of food for your travel needs, take double that for [both] your needs and mine.’ According to this interpretation, there is no discussion here of a sale [whatsoever] between the Jew and the gentile.”
Rav Zevin further notes, “Even according to the interpretation of the other Rishonim, who view this Tosefta as describing a sale between Jew and gentile – since the Jew openly states, ‘For perhaps I will need it…’ – this was still only viewed as a mere occurrence, but not the usual circumstance.
“Even more so, we find that the Ba’al Halachot Gedolot and other Rishonim conclude the text of the first halacha in the Tosefta with the following addition: ‘provided that he does not create a false pretense.’ According to the interpretation of Rav Amram Gaon and Ritva, ‘if he creates such a false pretense and does so habitually, year after year, namely, to sell to the gentile in this manner before Pesach, we are to fine him.’ That shows how great their aversion was to such a practice.
“Yet we find that the Beit Yosef (Orach Chayyim 448) states regarding this textual addition: ‘I do not understand his words [it was obvious to the Beit Yosef that this textual addition was just that, an addition the Ba’al Halachot Gedolot, and not part of the original text], for it is surely permitted to give it [the chametz] to the gentile in the form of a gift, and then take it back from him after the Pesach festival, and there is no greater pretense than this. Yet notwithstanding, such is permitted since he takes [the chametz] out of his possession completely.’”
Rav Zevin now cites Responsa Chatam Sofer (Orach Chayyim 103), who understood that the above questions were not those of the Beit Yosef, but that he was citing the Rishon Rabbeinu Yerucham, who had asked this question: “We must say that his [Rabbeinu Yerucham’s] understanding is that such a ‘pretext sale’ is perfectly permissible, without any reservations, according to the Torah, as he makes this sale with one of the methods through which a gentile makes acquisition. Nevertheless, both parties understand that there is a desire for the chametz to be returned to its original owner at the festival’s conclusion. Still, at the present time it is sold, and the purchaser may in turn sell it, eat it, or sanctify it [a gentile may sanctify items to hekdesh, see Arachin 6b]. He may even destroy the chametz and the seller may not protest. However, since they are close acquaintances, he would surely not do so but rather take great care of the purchased items and resell them to the Jew at the festival’s conclusion.
“This is a perfectly permissible sale without any reservations. In fact, the Jew may expressly tell the gentile, ‘If the chametz remains in your possession after Passover and you wish to sell it back, it is almost a sure thing that I will take it back with payment matching its value [post-Passover].’”
To be continued
