We now think of the “sale of chametz” as a yearly pre-Passover ritual. But in the times of the Talmud and Rishonim, such a procedure was rare. Although the Mishna explicitly permits selling one’s chametz to a non-Jew before Pesach (Pesachim 2:1), expecting its return after the holiday was limited to unusual situations, such as the one described in the Tosefta:
“A Jew and gentile who were traveling by boat [shortly before Passover] and the Jew had some chametz, he may sell it to the gentile or give it as a gift, and re-acquire it from him after Passover – as long as he gives it to him as an absolute gift” (Pesachim 2:12, brought in Yerushalmi 2:2).
The Tosefta’s example of two seafarers makes clear that it is permitted for a Jew to repossess his formerly-owned chametz after Passover in a precarious situation with limited food. But does the Tosefta’s choice of this example imply that, under ordinary circumstances, such a procedure is unacceptable?
The first clear indication that there is a limitation on the use of the temporary sale of chametz is found in the early Geonic halachic treatise Halachot Gedolot. Instead of the words “as long as he gives it to him as an absolute gift,” Halachot Gedolot substitutes “as long as he does not engage in subterfuge [shelo ya‘arim]” (11; it is difficult to translate the term ha‘aramah and its verbal form ya‘arim. See Rabbi Daniel Feldman, Letter and Spirit, p. xxi).
But what, precisely, turns the transaction from a permitted sale into a forbidden “subterfuge”? The Ritva states that reacquisition of chametz after Pesach is only permitted as a one-off (Pesachim 21a s.v. umocher lenochri). If one makes a yearly habit of selling and repurchasing one’s chametz, the chametz is forbidden with the full severity of chametz owned by a Jew during Pesach, as “he intended it merely as a deposit, [not as a real sale], only he engaged in subterfuge.” According to the Ritva, mechirat chametz as practiced today does not even get off the ground.
Although the Ritva’s stricture is intuitively appealing, most authorities do not mention it. Indeed, Shulchan Aruch rules that selling or gifting one’s chametz to a non-Jew is always permitted even if both parties clearly expect the chametz to revert to the Jew’s ownership after Pesach (448:3). According to this approach, the only “subterfuge” one need avoid is conducting the transaction with strings attached. Both parties must recognize that the sale is absolute and unconditional, and there can certainly be no explicit stipulation that the chametz be returned after Passover.
It should also be noted that Shulchan Aruch is discussing a case where the Jew privately sells or gifts the chametz to a gentile, whereupon the latter removes the chametz and brings it into his home. In today’s widespread chametz sale, the chametz is sold by agent and remains in the Jew’s home (albeit covered or locked away), usually with its location rented out to the non-Jewish purchaser. A full discussion of the halachic sale-mechanisms in use in contemporary mechirat chametz is beyond the scope of this article, but suffice it to say that it smacks of subterfuge more than what is described in the Tosefta and Shulchan Aruch (Machatzit Hashekel 448:4; see a historical discussion at https://seforimblog.com/2022/04/kitniyot-and-mechirat-chametz-paradoxical-approaches-to-the-chametz-prohibition/).
Nevertheless, many poskim and common practice have made their peace with a mass-scale mechirat chametz executed by rabbis on behalf of their congregants. Famously, Rabbi Alexander Shor (Poland, 1673-1737) explains that a subterfuge-sale would not be sufficient to relieve one of the biblical prohibition of owning chametz. But since everyone fulfills the biblical command to rid themselves of chametz by nullifying their chametz before Passover (bittul chametz), any remaining chametz is only subject to a rabbinical prohibition, for which, in his view, a subterfuge-sale suffices (Bechor Shor, Pesachim 21a).
Rabbis Moshe Sofer and Yechezkel Landau (18th century), however, maintain that any unconditional sale of chametz executed by halachically recognized transaction methods is totally valid even if it smacks of subterfuge (Responsa Chatam Sofer 1:113 and Noda Biyhudah 1:18). Rabbi Sofer adds that since the main point is for the Jew to relinquish possession of the chametz, rather than for the gentile to acquire it per se, it is irrelevant whether the buyer is really interested in the chametz – by performing the sale, the seller divests himself of the leaven (2:310).
The Vilna Gaon, however, is reported to have completely invalidated the common mechirat chametz, to the extent of forbidding sold leaven after Pesach (Maaseh Rav 180-181). Although his reasoning is not explicit, most assume that he objected to the sale due to its totally perfunctory nature, which renders it an obvious subterfuge with no actual intent of the parties to conduct a full-fledged transaction (cf. Hilchot Chag BeChag, Pesach ch. 10 n. 14).1
While most poskim reject the chumra of avoiding sold chametz after Pesach,2 many do encourage people to refrain from relying on mechirat chametz for their own leaven (e.g., Va‘alehu Lo Yibbol 1:259 quoting Rabbi S. Z. Auerbach), at least for so-called “chametz gamur” – i.e., blatant chametz that all or most opinions forbid being owned on Pesach.
We should also recognize that mechirat chametz as it is performed today was originally intended for sh’at hadchak – it was an emergency measure necessitated by Jews owning large quantities of chametz, which was a particular problem once Jews had entered the liquor business. Nowadays, the sale has, in the eyes of many, become the primary and default method of dealing with one’s leaven before Passover. Whether or not the sale is technically effective, one could question the propriety of a sh’at hadchak procedure essentially supplanting the destruction of leaven as mandated by the Torah. After all, today there is certainly no sh’at hadchak for most private individuals. We should instead focus on how the greater affluence of today’s society and greater availability of food enables us to better fulfill the mitzvah of divesting ourselves from leaven in a more authentic manner.
Nevertheless, some individuals feel that mechirat chametz is an ideal, to the extent that they stock up on chametz before Pesach and sell it. The reason for this eyebrow-raising practice is that they are very stringent about where they purchase chametz after Pesach, due to a concern that merchandise may have passed through the hands of Jewish wholesalers over the holiday and is thus forbidden as chametz she‘avar alav hapesach.3 These individuals wish to have chametz products available after the holiday that were included in their own – in their minds unassailable – mechirat chametz.
Besides the fact that such behavior is intuitively improper (as expressed by my rebbi, Rabbi Mordechai Willig), acting this way casts aspersion on the sincerity of such individuals’ mechirat chametz. In the normal case, where one sells to a non-Jew whatever chametz happens to be left over in one’s possession, one has no particular attachment to the sold items and would basically not mind if the gentile would decide to take physical possession of the chametz and complete the payment. But if one stocks up on leaven before the holiday, it is obvious that the sale is insincere – after all, one specifically wants to use this after Pesach and would not happily part with it (the same would apply, e.g., to chametz with sentimental value). While some may still permit this chametz after Passover post facto,4 it is wrong to be stringent about the rabbinic prohibition of chametz after Pesach at the expense of the biblical proscription of owning leaven on the holiday.
Although, generally, modern life has rendered mechirat chametz less appropriate, there is one development that proves mechirat chametz’s continued relevance. Years ago, the availability of processed food products was less common; most of the time, people knew what was in their food. Today, food production is far removed from the average consumer, and many products contain ingredients that may possibly be derived from chametz sources (or are possibly chametz, such as flour). It would seem to be an excessive stringency to throw all such products away, but most people would not want to have such items in their full possession over Pesach (even if, in some cases, there would technically be room to permit this due to principles of safek, rov, etc.). It seems like a reasonable compromise to limit mechirat chametz to such products.
Most people stipulate in their document of mechirat chametz that the sale covers any chametz in their possession, even if they have no known chametz remaining in their homes on Erev Pesach. Halachically speaking, this is certainly not necessary, as all that is required is to search for chametz to the best of one’s ability and nullify the remainder. Nevertheless, many people are discomfited by the possibility of having overlooked some chametz and wish to be “stringent” and sell anything that may possibly remain.
There are, however, disadvantages to doing so. First, the knowledge that one’s chametz is to be sold could compromise the sincerity of one’s bittul chametz (Or LeTziyon 3:9 n. 1). Second, selling “any remaining chametz” (including any tiny bits of chametz – like minute crumbs and dough stuck to utensils – that no one is really interested in buying) makes the sale seem amorphous, whereas the goal should be to concretize the sale as much as possible in the eyes of buyer and seller. Thus, one who does not wish to rely on mechirat chametz for real chametz would be better off stipulating explicitly that the sale does not cover blatant chametz but only items whose permissibility to own on Pesach is questionable.
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- Rabbi Eliyahu Buhbut argues that the Vilna Gaon in fact only objected to the sale because individuals were selling their own chametz without full knowledge of all the halachic methods of transaction (Tzohar, vol. 14, pp 431ff.). This argument produces the novel conclusion that the Vilna Gaon would approve of today’s mechirat chametz which is performed by competent rabbis.
- The Chazon Ish reportedly advanced an interesting (but not entirely unassailable) reason that sold chametz should not be forbidden after Pesach even for those who question the validity of sale: The rabbinic prohibition of post-Passover-leaven is a penalty for the sin of owning chametz during Pesach. When someone acts in accordance with his own competent rabbinic authority, he is committing no sin and indeed acting religiously correctly. Thus, there is no room to penalize such an individual even if one personally disagrees with his rabbi’s ruling (Hilchot Chag BeChag, Pesach, ch. 10, n. 14).
- Some of these merchants perform mechirat chametz, but many poskim invalidate a sale of chametz conducted by those who continue to do business with the chametz during the holiday.
- Cf. Kovetz Halachot, Pesach, p. 81, although we are here discussing the issue from the angle of an insincere sale rather than the issue of rotzeh bekiyumo (wanting the chametz’s existence) as presented there.
