The Selling of Chametz

The sale of chametz began due to the distress of whiskey merchants in Europe * After the rabbis established the sale of chametz for merchants, the custom expanded to the general public * Today, the sale of chametz is essential for the marketplace, and for the food industry * Despite the claims that this is a fiction, the vast majority of poskim rule that the sale is valid * In principle, every individual may sell all chametz, but ideally, it is recommended to use the sale only for doubtful products, or to prevent a significant financial loss * Since it is possible to sell chametz in situations of uncertainty, many halakhic questions can be avoided * According to halakha, chametz that was sold is permitted to be eaten after Pesach

The Roots of the Sale of Chametz

By midday of the fourteenth of Nisan, every Jew must have disposed of the chametz in his possession. In the past, Jews would plan their food purchases and their meals so that by Pesach they would have finished consuming any chametz foods and thus not have to dispose of large quantities. They would leave only a small amount of chametz with which to fulfill the mitzva of bi’ur chametz in the best possible manner: by burning it.

However, occasionally one’s plan would backfire and he would find himself possessing a large quantity of chametz when Pesach arrived. In such a case, if he did not mind losing the chametz, he could burn it or give it as a gift to a decent and deserving gentile. If he did not want to lose the value of his chametz, he could sell it to a gentile before Pesach, since, as long as the prohibition has not gone into effect, it is permissible to sell the chametz and receive its full value. The prohibition against deriving benefit from chametz goes into effect on the sixth hour on the day of the fourteenth of Nisan, and until that time it is permissible to sell the chametz.

This was especially important for food merchants who would remain with large stocks of chametz before Pesach and had no choice but to sell to a gentile, in order to avoid great financial loss. Even if a gentile could not be found who was sincerely interested in buying all of the chametz, our Sages teach that it is permissible for a Jew to say to a gentile, “Even though you do not need so much chametz, buy all of my chametz for the full price, and if you want, I will buy it back from you after Pesach” (based on Tosefta Pesachim 2:7).

The Problem of Whiskey Merchants

About 400 years ago, many Jews living in Europe began to support themselves through the production and sale of whiskey. This was because the barons, the landowners, would often contract Jews to manage their affairs, and it was common for them to lease their distilleries and inns to Jews in exchange for a fixed price and/or a percentage of sales. This whiskey, which was made from barley and wheat, is considered chametz gamur (absolute chametz, in which the leavening process has been completed). To prevent the great financial loss that would come each year with its disposal before Pesach, it became necessary to sell it to a gentile before Pesach and buy it back again immediately thereafter, in order to continue selling the whiskey as usual.

How the Practice of Selling Chametz Spread

Over time, rabbinic leaders noticed that the sale was sometimes carried out improperly, leading to serious problems. If the sale is improper, the chametz remains in the possession of the Jew, and with every hour that passes he violates bal yera’eh (the prohibition against chametz being seen in one’s possession on Pesach) and bal yimatzei (the prohibition against chametz being found in one’s possession on Pesach). Additionally, it is forbidden to derive benefit from such chametz after Pesach, and it must all be completely destroyed. Therefore, rabbinic authorities began to oversee the sale of chametz, in order to ensure its proper sale. Seeing that the sale was being carried out in an orderly manner, other Jews began to participate in the transaction, in order to save their own chametz from being lost. This is how mekhirat chametz began to spread and become increasingly common.

The Sale is Essential for Manufacturers and Dealers

In recent generations, new storage methods have been introduced that allow us to preserve food products for long periods of time. As a result, food manufacturers and dealers are in constant possession of large inventories of food, and they need to sell their chametz before Pesach in order not to lose the value of their stock. Moreover, if food manufacturers were to make a point of exhausting their entire inventory before Pesach, it would take days and even weeks to restock and market their products, and in the meantime, they would lose business. Even if no competitors were to seize the opportunity, it would cause a great inconvenience to buyers, who would be unable to purchase chametz foods during the weeks after Pesach. Therefore, factory owners, food chains, and stores sell all of their chametz to a gentile before Pesach, and as soon as Pesach passes, they buy it back again and remarket it.

Claims against the Sale

However, about four hundred years ago, some of the Gedolei Yisrael, foremost the author of ‘Tavu’ot Shor‘, who himself was a whiskey maker, claimed that mekhirat chametz was not a real sale, but merely a fiction. In the first place, it is clear that after Pesach the chametz will return to the Jew. Moreover, no sales tax is paid to the government on this sale. Thirdly, in a normal sale the buyer pays for all of the chametz and physically takes it into his possession, but here the gentile neither pays the full price, nor takes the chametz with him. In addition to the principle claim that this is not a sale but a fiction, they also argued about the manner in which the sale was actually performed, such as the acquisition was not performed according to halakha, or that it was done with a gentile who did not understand its legal ramifications.

In practice, some poskim wrote that only in extreme situations, in order to prevent a significant loss, it is permissible to rely on the sale. Some even instructed not to rely on it at all (Gaon from Vilna).

The Rabbis’ Consent to Rely on the Sale

Nevertheless, the opinion of the vast majority of poskim is that mekhirat chametz may be relied upon and is as valid as any sale. By law, the gentile can refuse to sell the chametz back to the Jew after Pesach, consequently, it is a bona fide sale, not a fiction.  Nevertheless, in order to avoid even the appearance of a fiction, the rabbis made a practice of being very meticulous about all details of the sale. Since there are different halakhic opinions regarding the proper mode of purchase when a gentile buys from a Jew, the rabbis are careful to execute the sale using all forms of acquisition, so that it is clear that the sale is effective according to all opinions. In addition, they make sure that the sale is effective according to state laws as well (see MB 448:17, 19, and BHL ad loc.).

Every Jew, before selling chametz, should read the authorization contract he will be signing, so that he understands that he is empowering the rabbi to sell his chametz, and that the sale is absolute. Nonetheless, if instead of reading the contract one simply relied on the rabbi, the sale is valid, for, if the gentile comes during Pesach to take the chametz, and the rabbi tells the Jew that the chametz indeed belongs to the gentile and that he must give it to him, the Jew will do so.

A Proposal to Strengthen the Matter

It would be fitting for the Chief Rabbinate, together with the television networks, to randomly select ten people each year who sold their chametz to a gentile, and film the gentile knocking on the door of the Jew’s house when coming to pick up the chametz he had bought, and the response of the members of the household. If there was an argument, the rabbi who mediated the sale would be brought in. They would then estimate the extremely low price the gentile must pay as determined in the sale, seeing as the sale is done at floor prices – as normal for products already found in one’s home – and conclude the story with the gentile eating some of the food and taking the rest home. Thus, on each day of Chol Ha’Moed, two visits would be arranged. By doing so, the understanding that the sale is indeed valid would be strengthened.

Is the Sale Intended for an Individual?

In principle, anyone may sell his chametz to a gentile via the mekhirat chametz organized by his local rabbis. He may do so even if he only wishes to sell a small amount of chametz – for example, a package of pasta – because once it has been sold, the Jew no longer violates the prohibitions relating to chametz.

Some are stringent and prefer not to rely on mekhirat chametz since it appears fictitious: the chametz remains in the Jew’s house, the gentile will almost certainly not come to take it, and the Jew resumes eating the very same chametz as soon as Pesach is over. According to these poskim, it is only possible to sell chametz in order to prevent a great loss; concerning a small loss, one should not sell his chametz, in order to avoid possible transgression.

A Recommendation for All – Sell Uncertain Products

Nowadays, all are advised to participate in mekhirat chametz, because some food products and flavored medicines may contain small amounts of chametz, and they should not be destroyed just because of this possibility. On the other hand, these must not be kept because they may actually contain chametz. Therefore, to avoid all doubt, the best thing to do is to sell them. Similarly, there are those who maintain that one who has money invested directly or indirectly in stock of companies that produce chametz must sell these shares before Pesach. Consequently, all chametz sale documents include clauses regarding stocks and shares in these types of companies.

Concerning chametz gamur, people are advised not to sell insignificant amounts of chametz, so as not to use the mekhirat chametz for small needs. However, when a significant loss is involved, it is permitted, even le-khatchila, to sell the chametz.

Not to be Meticulous about Questions Concerning Uncertain Chametz

There are people who, because of their concern about the opinion of the stringent poskim who claim the sale is a fiction, wish to avoid it as much as possible. As a result, they often bother rabbis with various questions: first, about all the products in their home that do not have kashrut for Pesach – are they considered actual chametz or uncertain chametz, and whether they should be sold or not. Second, after they realize they contain uncertain chametz, whether their value justifies relying on the sale.

However, there is no point in bothering rabbis with such questions, for today, the sale is designed to resolve them. In other words, any uncertain product should be included in the sale.

When is it Permissible to Use Chametz after Pesach?

After Pesach, it is best not to use the chametz that was sold until one can assume that the Chief Rabbinate has bought it all back for all. When necessary, though, one may take out some chametz immediately after Pesach with a willingness to pay the gentile for it, were he to request this. It is best that the beit din make an explicit condition with the gentile that the Jew will be obligated to pay for any sold chametz he takes, if the gentile so desires. Thus, there will be no question about the Jew taking chametz immediately after Pesach.

Chametz That Was Sold – The Stringent Poskim, and the Halakha

Some people are strict and do not eat chametz that was sold because, according to stringent poskim, such a sale is not legitimate and this chametz has the status of chametz she-avar alav ha-Pesach (chametz that belonged to a Jew during the holiday), which one may neither eat nor derive benefit from.

In practice, however, one need not be concerned about complying with this stringency, because the prohibition of chametz she-avar alav ha-Pesach is rabbinic, and whenever there is uncertainty about a rabbinic law, halakha follows the lenient opinion. This is all the more true where only a small number of poskim are strict, while the overwhelming majority permit. Indeed, there were eminent rabbis who, after Pesach, would make a point of eating chametz that had been sold through mekhirat chametz, in order to demonstrate that the sale was done in keeping with halakha.

This article appears in the ‘Besheva’ newspaper and was translated from Hebrew. For a further study of the laws of Pesach and its meanings, Rabbi Melamed’s “Peninei Halakha: Laws of Pesach” can be found at: https://ph.yhb.org.il/en/category/pesah/

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