Last week we discussed the Halachic basis for the sale of Chametz and what can be sold. This week we will discuss how the appointment of the Rabbi to sell the Chametz and the sale of Chametz to a non-Jew is conducted.
Appointing the Rabbi As An Agent.
We mentioned last week that the accepted practice for at least the past hundred years has been to appoint the Rabbi as an agent to sell the Chametz on one's behalf. Although simply telling the Rabbi "I appoint you as my agent to sell my Chametz to a non-Jew" is sufficient, the practice is to demonstrate our seriousness of intent of our appointment of the rabbi as our agent by two acts. Firstly, we fill out a form )שטר הרשאה( which states we are appointing the rabbi as our agent to sell the Chametz. Second, we engage in what is called a "kinyan sudar" (literally, an acquisition done by a cloth)with the Rabbi. This involves the Rabbi giving a garment or "utensil" (usually a handkerchief or pen) to the individual appointing the Rabbi and that individual lifting the garment or utensil. This procedure is not halachically necessary (or effective, since it is a קנין דברים, an intangible agreement), but, as the Rambam (הלכות מכירה ה:יא-יד) notes, it has been the practice to conduct a "kinyan sudar" to express seriousness of intent, when appointing an agent.
However, since simply stating "I appoint you as my agent" is essentially sufficient, Rav Moshe Feinstein rules (cited by Rav Shimon Eider, Halachos of Pesach, p.221) that an appointment by telephone can be done in a situation of great need. If one has access to a fax machine, one can fax the Rabbi the authorization form (שטר הרשאה) in this case (this author has seen documents of authorization to write a Get faxed from Rabbinic courts in the southern republics of the former Soviet Union to the Rabbinic court in Yerushalayim). When appointing the Rabbi as agent on the phone, one can say "בלב שלם אמרתי וגמרתי לעשות דבר זה" With a faithful heart, I have resolved to carry out this matter" as an alternative to the Kinyan Sudar (see Shulchan Aruch, Even HaEzer 141:62 - this is the practice in Rabbinic courts when appointing an agent to deliver a Get).
Some Rabbis require that an individual who wishes to sell Chametz to fill out a separate authorization form. Others simply request that each individual add his name and address to the list of people in the community who are authorizing the Rabbi to make the sale. The advantage of filling out individual forms is that each individual can list the types of Chametz they wish to sell, the location of the Chametz in the home, and the approximate value of the Chametz. This fulfills the requirement of the Aruch Hashulchan (תמח:כז) that each seller should specify the types of Chametz he is selling. By describing the Chametz and its value the seller demonstrates his seriousness of intent (גמירות דעת) and the non-Jew sees the seriousness of intent of the Jews selling the Chametz.
Rav Moshe Feinstein (אורח חיים א:קנ) defends those who do not list the types of Chametz that is being sold. He writes that if only an individual or a few people are selling Chametz, then the seller must specify what they are including in the sale. Otherwise, the non-Jew does not know what he is buying, and it is difficult to regard this as a legitimate sale. However, if a community is selling Chametz to a non-Jew, then the non-Jew understands that he is purchasing all types of Chametz. Hence it is implicitly understood that he is purchasing a wide range of products and does not require a specified list of what he is acquiring.
The Sale of Chametz to the Non-Jew
Both the Mishna Berura תמח :יד() and Aruch Hashulcan (תמח:יז) describes our practice of performing many קניינים (acts which are Halachic demonstrations of the transfer of the title from one individual to another) to effect the sale of Chametz to the non-Jew. These include the קניינים of כסף (money), שטר, (contract), אגב, (acquiring movable property as an adjunct to acquiring real estate), חצר, (acquiring any movable property that is found in one's real property), and קנין סודר (described earlier).
We perform all of these קניינים, because halachic authorities disagree regarding which of these קניינים are effective with a non-Jew. In addition Mechirat Chametz must be valid on a דאורייתא (biblical) level according to many authorities (see שלחן ערוך הרב סדר מכירת חמץ) who argue that since the Jew intends to repurchase the Chametz after Pesach, the Chametz he sells to a non-Jew is not included in the ביטול חמץ (Nullification of Chametz procedure). Therefore, the קנין that is used to effect the sale must be effective on a Torah level. Halachic authorities disagree about various קניינים whether they are effective on a Torah level or only a Rabbinic level. Because of the disagreements regarding these two issues, we perform many קניינים in order to accommodate as many opinions as possible.
Kinyan Kesef = (Money).
When מטלטלין (moveable items) are purchased in a conventional situation, money is given by the purchaser to the seller מעות() and the purchaser takes the object from the seller משיכה(). The Mishna in Kiddushin 62a states that one takes title to מטלטלין by taking the object (משיכה). Rav Yochanan and Reish Lakish (בבא מציעה מו:) disagree whether this rule is of biblical or rabbinic origin. Rav Yochanan argues דבר תורה מעות קונות, that Biblically, giving money is what establishes title, but the Rabbis instituted that one does not acquire the item until משיכה is performed. Reish Lakish asserts that משיכה is sufficient both on a Biblical and Rabbinic Level.
The Gemara in בכורות יג. points out that whatever קנין is effective on a Biblical level between two Jews, the opposite קנין is effective for a transaction between a Jew and a non-Jew. Thus according to רבי יוחנן since on a Torah level, כסף (giving money) is the קנין for a sale between a Jew and another Jew, משיכה is the קנין for a sale between a Jew and a non-Jew. According to Reish Lakish since משיכהis the קנין on a Torah level for a sale between a Jew and another Jew, then כסף is the קנין for a sale between a Jew and a non-Jew.
Rabbeinu Tam and most Rishonim rule in accordance with רבי יוחנן that משיכה is the קנין when purchasing מטלטלין from a non-Jew. This ruling is in harmony with the general principle that the halacha follows רבי יוחנן in a dispute between רבי יוחנן and ריש לקיש. Rashi is the most prominent of the minority of Rishonim who rule in accordance with ריש לקיש. They believe that קנין כסף is the קנין for a sale between a Jew and a non-Jew (see Rashi and Tosafot to Bechorot 3b).
If the actual Chametz would be transferred to the non-Jew, then we require both כסף and משיכה to accommodate the opinion of both Rashi and Tosafot (see Rosh to Bechorot 1:2 and Rema Yorah Deah 023:6 and Shach Y.D. 023:8). However, since the non-jew does not take physical possession of the Chametz he purchases, he does not perform the קנין of משיכה. We perform the קנין of כסף but this only satisfies the minority opinion led by Rashi (also see ערוך השלחן חושן משפט קצד:י). Therefore, we must perform a קנין besides כסף.
2. Kinyan Agav
Another קנין that is performed during the sale of Chametz is Kinyan Agav. The Mishna in Kiddushim (כו.) articulates how אגב works -נכסים שאין להם אחריות נקנין עם נכסים שיש להם אחריות בכסף ובשטר ובחזקה, "Movable property (מטלטלין, such as Chametz) can be acquired 'along with' (אגב) real estate (קרקע)." קנין אגב can be accomplished by the same means as acquiring land - money (כסף), a document (שטר, which spells out that the sale of land), or חזקה (making physical improvement to the land). Rashi on the Mishna explains how קנין אגב works "if מטלטלין are sold with קרקע, once the purchaser makes a קנין on the קרקע he acquires the מטלטלין along with the קרקע. In our case, that non-Jew would give money to rent the shelves on which the Chametz is located (shelves are קרקע, because they are attached to the house) and would acquire the Chametz אגב the shelves.
The Shulchan Aruch (יורה דעה שכ:ו) and the Taz (יורה דעה שכ:ז) rule that the קניינים of כסף and אגב can accomplish a transfer of title from a Jew to a non-Jew. However, not all authorities agree. The Ketzot (חושן משפט קצד:ג) cites Tosafot (בבא קמא יב. ד"ה אנא) who assert that קנין אגב is merely of Rabbinic origin and is not effective on a Biblical level. As mentioned previously, many authorities believe that the sale of Chametz must be valid on a Biblical level. In addition, the תומים (קכב:יב) believes that קנין אגב works only in a transaction between Jews and not between a Jew and non-Jew. Although there are authorities who defend the use of קנין אגב for Mechirat Chametz (see שדי חמד מערכת חמץ ומצה ט:ל) we do not rely on קנין אגב alone and even when it is coupled with קנין כסף.
Kinyan Sudar - קנין חליפין
Some authorities suggest the use of קנין סודר (as explained previously) as a קנין to transfer title to the non-Jew. In fact, the great Rav Yechezkel Landau writes in the דגול מרבבה (שלחן ערוך תמח:ג) that he believes that the best option of all the of all the קניינים to use for the sale of Chametz is קנין סודר. Tosafot (קידושין ג. ד"ה ואשה) rule that קנין סודר is effective between a Jew and a non-Jew. In fact, Tosafot record that Rabbeinu Tam used קנין סודר to effect a transaction with a non-Jew (Rabbeinu Tam was also a highly successful businessman who had extensive business interactions with non-Jews).
However, there is no consensus regarding this issue. Rav Landau concludes his remarks regarding the use of קנין סודר for Mechirat Chametz, "what can I do, since the Shach (חושן משפט סימן קכג סעיף ל) soured the idea." The Shach questions the proof of Rabbeinu Tam that קנין סודר can transfer title from a Jew to a non-Jew. The Shach also is troubled by the fact that the Gemara and other Rishonim do not mention קנין סודר as a קנין between a Jew and a non-Jew. Once again, our practice is to perform כסף, אגב, and חליפין; but these קנינים by themselves are insufficient. Next week, God willing, we will conclude our discussions of Mechirat Chametz as we will discuss other options to use as קנינים - חצר, שטר, סיטומתא, אודיתא, and הפקר בית דין הפקר.