Mechirat Chametz – The Art of the Deal: Part III by Rabbi Chaim Jachter



Last week, we began to describe the procedure for selling Chametz to a non-Jew.  We discussed the Halachic means of conveying title to the Chametz to a non-Jewish purchaser, Kinyan.  We discussed three of the Kinyanim used for selling Chametz: Kesef, Agav, and Sudar.  We will complete this discussion by describing the other Kinyanim used: Situmta, Shtar, and Chatzer.  We will also discuss two other suggested Kinyanim - Kinyan Odita and Hefker Beit Din Hefker. 

Kinyan Situmta - A Kinyan Established by Society

The Gemara (Bava Metzia 74a) explains that not only do the Torah and Chazal determine what actions are considered to constitute a Kinyan, but every society can determine what is considered to be a Kinyan.  They can determine that by performing a certain action, that title is transferred from one party to another.  Situmta is an example of a Kinyan that is established by society.  The word Situmta refers to a stamp placed on a wine barrel.  If placing the stamp on a wine barrel in a particular society is considered to signify that a deal is finalized, the Halacha considers this action to be a Kinyan.

The logical foundation of this rule is the fundamental character of a Kinyan.  A Kinyan is a concrete expression of intention (Gemirut Daat) to transfer title from one individual to another.  The Torah and Chazal have presented us with actions that express intention to transfer title.  However, if an action is recognized in a society as an expression of intention to transfer title, then that action also constitutes a Kinyan.  This idea is especially cogent according to Tosafot (Ketubot 102a s.v. Aliba) who state that when there is unambiguous Gemirut Daat, then a concrete Kinyan is essentially unnecessary.  Accordingly, since one has established his Gemirut Daat by engaging in a Kinyan established by society, then there is no need to engage in a Torah mandated Kinyan.

The act of Situmta that is commonly employed by Rabbis today is a handshake.  Both the Mishnah Berurah and Aruch Hashulchan mention a handshake as part of the protocol of Mechirat Chametz.  They view a handshake as a contemporary application of the idea of Situmta.  Indeed, even today a handshake is a Situmta in certain business circles and Rabbis continue to use it as part of the sale of Chametz.

There are a number of reasons, however why a "handshake" agreement is insufficient by itself.  First, it is not universally recognized as a means to transfer title.  Second, the Netivot (201:1) rules that Situmta is effective only on a Rabbinic level, (the Pitchei Teshuva there cites the Chatam Sofer who asserts that Situmta is effective on a Torah level and suitable for Mechirat Chametz [and see Mishnah Berurah 448:19]).  Third, some opinions believe that Situmta is effective only for conventional commercial transactions and not transactions conducted for ritual purposes.  The reasoning behind these opinions is that the Situmta reflects a society's business practice, namely, transfers that take place in a business setting and not in a ritual setting.  The other opinions point out that Mechirat Chametz is a business transaction and not a ritual transfer.  For a summary of the debate on this issue, see Biur Halacha (448:3 s.v. Bidavar) and Mechirat Chametz Kehilchato pp. 266-271.

Kinyan Shtar -- Contract

One may ask why a contract is used, if, according to Halacha, a contract can be used as a Kinyan to acquire real estate (Karka) but not movable items (Metaltelin) as explained in Kiddushin 26a.  The Aruch HaShulchan (O.C. 448:21) writes that since written contracts are what society recognizes means as of transferring title, a written contract constitutes a Situmta.  Rav Yosef Eliyahu Henkin (one of the premier Halachic authorities of the twentieth century) writes, accordingly, that Kinyan Shtar is of primary importance in the sale of Chametz today.

The second purpose of the Shtar is to bolster the effectiveness of Kinyan Kesef.  This is based on the Gemara (Kiddushin 26a), which explains that Kinyan Kessef does not take effect without a written contract accompanying the transfer of money.

Kinyan Chatzer -- Property

The Mishnah Berurah makes no mention of using Kinyan Chatzer for Mechirat Chametz, but the Aruch Hashulchan (448:21) does.  The Kinyan of Chatzer differs subtlety from Kinyan Agav.  Kinyan Chatzer means that any item located in one's real property (Karka) is automatically transacted along with the property.  In Mechirat Chametez the non-Jew acquires the shelves upon which the Chametz is stored by Kinyan Kesef, and since the shelves belong to the non-Jew, the Chametz items on those shelves become his automatically.  One of the advantages of Kinyan Chatzer for Mechirat Chametz is that it is undoubtedly from the Torah (see Bava Metzia 10b and Gittin 78a).  The problem of using Kinyan Chatzer for Mechirat Chametz is that most authorities believe it is not effective for transfers between a non-Jew and a Jew (see Ketzot 194:3 and Mechirat Chametz Kehilchato pp. 88-93).  The reason for this is that the Gemara (Bava Metzia 10b) explains that Chatzer acts as one's agent and the concept of agency does not apply to a non-Jew (Ein Shlichut Liakum, Bava Metzia 71b).  Others reply that a Jew may not serve as an agent for a non-Jew or vice versa, but a non-Jew may serve as an agent on behalf of another non-Jew.  Therefore, some argue that since a Chatzer is of course not Jewish, it can serve as an agent to acquire items resting upon it, one behalf of a non-Jew.

Hefker Beit Din Hefker - Transfer by the Rabbinic Court

The Mishnah Berurah (at the conclusion to the Biur Halacha (s.v. Bidavar Miut) writes that the Jewish seller should declare in front of a Beit Din (rabbinic court) that if all of the Kinyanim to the non-Jew have not effected a transfer of the Chametz to him, then the Chametz should be considered ownerless.

Rabbi S. Siff of the Young Israel of Manhattan reports (in the Pesach 5753 issue of Chavruta, published by the Rabbinic Alumni of Yeshiva University) that Rav Moshe Feinstein had a variation of this practice.  He writes that Rav Moshe would put in effect the rule that "Hefker Beit Din Hefker" to transfer title from the Jewish seller to the non-Jewish purchaser.  "Hefker Beit Din Hefker" means that a rabbinic court is empowered by Halacha to declare an object owned by anyone within their jurisdiction to be ownerless (see Gittin 36b).  This rule is considered to be effective on a Torah level (see Ramban in Hasagot Lisefer Mitzvot Shoresh Bet) and Encyclopedia Talmudit 10:96).  Moreover, the Rashba (Chidushim to Gittin 36b) in a celebrated comment, asserts that Hefker Beit Din Hefker also means that Beit Din can transfer title from one individual to another and not just that they can strip someone of title to an object.

In light of this rule Rav Moshe Feinstein along with two other Rabbanim, besides performing the standard Kinyanim, would transfer title of the Chametz from the Jew to the non-Jew by means of Hefker Beit Din Hefker.  Rav Moshe apparently believed that the people who appointed him to sell Chametz have recognized his judicial jurisdiction and thereby gave him the right of Hefker Beit Din Hefker regarding their Chametz.

There are two problems with this approach.  First, some Rishonim believe that Hefker Beit Din Hefker rule only empowers Beit Din to declare something ownerless, but not to actually transfer ownership (see Encyclopedia Talmudit 10:99 note 49). Second there is a major question of whether the rabbi who is appointed to sell Chametz is empowered by those who appoint him to convene a Beit Din to transfer title of the Chametz being sold.  Rav Zalman Nechemia Goldberg told this author that because of this consideration, he did not consider it to be worthwhile to introduce an innovation to follow this practice of to Rav Moshe Feinstein.  Indeed, this author is unaware of any record of Rav Moshe encouraging others to follow this practice.

Kinyan Odita  - Acknowledgment

The Gemara in Baba Batra 149a discusses a problem of how to transfer title in a particular circumstance.  After the Gemara exhausted a number of possibilities, the Gemara finally suggests "Odita."  This means, let the items (money in the Gemara's case) be transferred by "Odita," acknowledging that the object belongs to the party one wishes to transfer title to.

The Ketzot (194:3) asserts that Odita is a legitimate and full-fledged Kinyan, which is effective even for a transfer that must be valid by standards of ritual law (Issurin) such as Mechirat Chametz. The Mechirat Chametz Kehilchato (p. 395) adopts the use of Kinyan Odita in the sale of Chametz.

However, the Mishnah Berurah and Aruch Hashulchan do not mention Odita as a Kinyan to be used as part of Mechirat Chametz.  There appears to be a number of reasons for this.  First, the Aruch Hashulchan (Choshen Mishpat 194:12) rules that "Odita" is not a Kinyan but is an assertion which is up to the discretion of the Rabbinic judges to determine if the acknowledgement is true and whether to act on the acknowledgement.  Furthermore, some authorities believe that Odita can transfer title only in a case of a present (such as in the case recorded in Bava Batra 149a) and not a case of a sale.  Finally, many authorities believe that Odita is only effective on a rabbinic level (see Mechirat Chametz Kehilchata pp. 100-102).  Rav Mordechai Willig suggested (in a Shiur delivered at Yeshiva University) that the reason Odita is not commonly employed as a Kinyan is because Odita can be accomplished by an individual on his property.  However, he suggests that Odita cannot be accomplished by a Shaliach (agent).  Odita is an intensely personal Kinyan that is inconceivable for someone else to perform on his behalf.  Hence, the Ketzot advocates Odita as a viable option for Mechirat Chametz because he was speaking of a sale performed by individuals.  However, we do not employ this because rabbis sell the Chametz as the agents for their communities and cannot perform Odita on their behalf, unlike all of the other Kinyanim that he performs.

One may wonder why the Rabbis are so strict in utilizing many or all of these different Kinyanim.  It seems that there are two basic reasons for this.  First, to strengthen and emphasize the seriousness of the sale, that it is not a mere religious ritual or legal fiction, but a true transfer of title.  Second, because (as we know full well) we are extraordinarily strict when it comes to the Halachot regarding Pesach.  This attitude is referred to in the Halachic literature as Chumra Dichametz (see, for example, Tosafot Pesachim 30a s.v. Amar).  Since Pesach represents the acceptance and acknowledgement of many fundamentals of Torah such as God's existence and God's ongoing involvement with the world, we take extraordinary precautions in our observance of Pesach.  This is because the ideas and messages that Pesach is teaching are of extraordinary importance and have monumental implications regarding how we live and who we are (see the Ramban’s comments to the end of Parshat Bo). 

The Mitzvah of Heseiba by Rabbi Chaim Jachter

Mechirat Chametz - The Art of the Deal by Rabbi Chaim Jachter