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 is returned to the original owner within a very short period after the festival’s conclusion?
M. Goldblum
Miami Beach, FL
Synopsis: We are reviewing the development of the customs involved in transferring ownership of chametz from Jews to gentiles over Passover, which was done in various ways for different situations and the needs of individuals and communities over the years.
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Answer: We continue to cite Rav Zevin’s Mo’adim BaHalacha (the chapter on Pesach) as we explain our present-day custom of mechirat chametz.
“The very halacha found in the Tosefta, which has become the source of our usual practice and established custom, has been quoted by numerous Rishonim. The case cited by the Tosefta, ‘A Jew and a gentile who were traveling together on a ship…’ is looked upon, for the most part, as a circumstance at that particular time [this is the contemporary Sages’ manner of referring to the situation of a Jew resolving the dilemma of parting with his chametz and providing for his own post-Pesach needs]. However, the fact that this is the only case mentioned was not intended to give the impression that to do so [to sell to the gentile with the implied proviso that it be sold back] is forbidden in any other circumstance. It was just that at that particular time, there was no such need. In those days, people were much more cautious and took great pains so that there was no chametz left at the festival’s arrival [at the fifth hour]. However, when circumstances changed, it became normal practice to resolve the problem by means of a sale.
“In fact, the Tur (Orach Chayyim 448), when stating the rules of sale [of chametz] to a gentile, does not mention the case of ‘A Jew and a gentile who were traveling on a ship…’ Nor does the Mechaber make mention of the specific circumstance in the Tosefta, but he phrases the rules of sale [of chametz] thus: If he sells it or gives it to a gentile outside his dwelling (meaning that the chametz is removed from the house – see Taz and Magen Avraham ad loc.), even though the Jew is acquainted with the gentile and knows that the latter will not touch [what is essentially his] but will take care of it until after Passover, this [arrangement] is permitted, provided he gifted it to him without any preconditions, as a matana gemura (a complete gift), or, where the transaction was a sale, that such was done without any preconditions, as a mechira gemura.
“We see that the actual transaction [gift or sale] is flawless. The product is taken out of the possession of the seller [or gift-giver] not only formally, but it is physically removed as well. The intention of the parties is an unconditional transfer of ownership. The only [seeming] drawback here is that both parties are privy to an understanding that the seller or gift-giver is aware that at the festival’s conclusion the item will be returned either through a sale or as a gift. However, this understanding in no way undermines the original transaction.
“In days gone by, the removal of chametz from the Jew’s possession and its transfer to the gentile’s possession was not a difficult matter. What type of chametz was being dealt with? Grain or flour which were not watched [mishe’at ketzira – from the time they were cut or ground], and these are essentially not considered chametz. For in the event of dire need, one may bake matzah [for Pesach] even from flour sold in the market [and assume that it did not come into contact with any liquid which would render it chametz]. Watching was required from the time of kneading (thus grain or flour presented no problem of removal at all). Therefore, what was the type of chametz involved? Different types of cakes and rolls, grain liquors and, at times, grains that were known to have been leavened (as well as household utensils). These items are easily moveable from one place to another.
“However, over the course of time it became impossible to do so due to changed circumstances. Merchandising in the Jewish communities changed, both on the wholesale and the retail levels, and were more heavily concentrated in the liquor and spirits industry. [Jews were forbidden in many areas to own land, thus they found other means of earning a livelihood.] These liquors were largely based on grains which became leavened, and it was generally impossible to physically remove large stocks from Jewish property to a gentile’s property.
“Thus, the only solution was to sell the chametz [to a gentile], albeit without removal from the property of the Jew. But how was this done?”
(To be continued)
