A standard component of our Pesach preparation is the sale of Chametz to a non-Jew. We appoint our Rabbi as our agent to sell the Chametz year after year, and it would seem to a casual observer that this procedure is as ancient as the eating of Matzah and Maror. However, this is a relatively recent phenomenon. In the time of the Mishna, if a Jew could not finish consuming Chametz before Pesach, one of his options was selling his remaining Chametz to a non-Jew (see Pesachim 12a). This refers to a permanent sale of the Chametz to a non-Jew.
The Tosefta (Pesachim 2:6) speaks of a different type of arrangement between a Jew and non-Jew regarding a sale of Chametz. The Tosefta records, "if a Jew and a non-Jew are traveling together on a ship, and the Jew owns Chametz (and Pesach is approaching, and he must dispose of the Chametz), the Jew may sell his Chametz to a non-Jew, and the Jew can accept the Chametz back from the non-Jew as a gift after Pesach." The Aruch Hashulchan (Orach Chaim 844:61), concludes from this Tosefta, "accordingly our practice to sell Chametz to a non-Jew [every year and repurchase it after Pesach] has a sound Talmudic basis."
However, not all the Rishonim would agree with the Aruch Hashulchan's conclusion. Some early authorities (including the בה"ג) believe that the proper text to this passage from the Tosefta contains the following appendage "ובלבד שלא יערים", "this procedure is permissible provided that it is a genuine sale and not a mere legal fiction." The Ritva (Pesachim 12a) explains this to mean "that if every year a Jew sells his Chametz to a non-Jew and repurchases it after Pesach, we penalize the Jew by declaring the Chametz that was "sold" to be אסור בהנאה, forbidden for any Jew to derive benefit from." Rabbi Saul Lieberman, in his תוספתא כפשוטה, cites a number of Geonim and Rishonim who agree with this assertion.
Nevertheless, many Rishonim disagree and in addition, this assertion of the Ritva is not accepted as normative. The Shulchan Aruch (844:3) cites this Tosefta, does not record the words "ובלבד שלא יערים," and does not quote the Ritva's assertion that it is forbidden to routinely sell Chametz to a non-Jew every year. The Shulchan Aruch does, however, write "ובלבד שיתננו לו מתנה גמורה," that the Jew must give the Chametz to the non-Jew with full intention to transfer title of the Chametz to the non-Jew. Accordingly, we must regard the sale of Chametz as a legitimate sale and not a halachic trick. Rabbi Kenneth Auman's (of the Young Israel of Flatbush) practice of selling his community's Chametz to a non-Jewish accountant, and Rabbi Mordechai Willig's (of Riverdale) practice of selling Chametz to a non-Jewish real estate agent are examples of such an attitude. These two Rabbis make sure that the non-Jews to whom they choose to sell the Chametz are people who have a sophisticated understanding of how business and sales are conducted, so that everyone involved understands that a legitimate sale is being conducted.
Although the Tosefta serves as a source for our sale of Chametz, there are two significant differences between the sale of Chametz described in the Tosefta and our practice today. The first difference is that in the Tosefta's case the Chametz is removed from the Jew's home and given to the non-Jew. Today, of course, the non-Jew is given title to the Chametz, but the actual Chametz remains on the premises of the Jewish seller. Second, the Tosefta involved an individual Jew selling to a non-Jew. Today, the community Rabbi sells the Chametz on behalf of everyone in the community. These two practices have developed over the past for five centuries.
The great sixteenth century authority Rav Yoel Sirkes, the Bachסימן תמ"ח ד"ה ואם מכרו( ), records that in his time it was necessary that the Chametz remain in the Jew's home even after the sale of that Chametz to the non Jew. He writes, "in this country, the main business is selling liquor (mostly because it was one of the few businesses the Polish authorities permitted Jews to engage in) and it is impossible to remove all the liquor and equipment from the premises of the Jew; it is permitted for the non-Jew to acquire the Chametz, and the Chametz may remain on the premises of the Jew." He describes the manner in which a non-Jew takes title to the Chametz without actually bringing the Chametz into his premises. The Bach also emphasizes that the sale should be conducted seriously and not merely as a trick to avoid violating the prohibition of owning Chametz. He stresses that the non Jewish purchasers should also understand that it is genuine sale, and not "halachic fiction."
Rav S.Y. Zevin (whose essay on this topic in מועדים בהלכה is the basis for this article) estimates that this practice continued for about 052 years. The sales were conducted by individuals and not by the community Rabbis. The great Rabbis of these generations such as the Noda BiYehuda and the Baal HaTanya composed documents to be used for these individual sales. Copies of these documents are printed at the end of the contemporary work מכירת חמץ כהלכתו"".
However, problems arose with these sales since many of these transactions were executed by individuals who weren't experts in halacha. The mistakes that were commonly made were the seller's forgetting to sign the שטר מכירה (bill of sale), selling Chametz on Erev Pesach after the time it is forbidden to benefit from Chametz שעה חמישית(), and forgetting to sell the places upon which the Chametz was placed. Therefore, starting from the early 91th century, the sale of the Chametz by the Rabbi, on behalf of everyone in the community, gradually became the standard practice. Having the sale conducted by a halachic expert greatly reduced the occurrence of errors, and thus our practice emerged in which everyone in the community appoints a Rabbi as his agent to sell the Chametz on his behalf. Some Rabbis today use a power of attorney form printed in English to emphasize the seriousness of both the appointment of the rabbi as an agent and the actual sale of the Chametz.
This last modification did not escape criticism from some of the great authorities of the nineteenth century. The great Rav Yosef Shaul Natanson (תשובות שואל ומשיב ב:ב:עז) objected to this communal method of the sale of Chametz. It appeared to him not to be genuine sale, rather a clear subterfuge of the halacha (הערמה). Nevertheless, Rav Zevin notes that by the end of the nineteenth century the communal sale had become the norm. Indeed, the Aruch HaShulchan (תמח:כז), writing in the beginning of the twentieth century, notes that the practice has been for quite a number of generations for communities to appoint their rabbi to sell Chametz.
However, some authorities continues to maintain that it is preferable not to sell actual Chametz and to include only mixtures of Chametz (in which Chametz is not a majority of the contents of the particular item). The Elya Rabba (אורח חיים סימן תמח) points out that if the Chametz will remain on the Jew's premise, then it should be sold only in case of great need. He notes that the Bach took this position.
Rav Hershel Schacter (ספר נפש הרב p.771) writes that Rav Soloveitchik essentially agreed with the opinion that actual Chametz should not be included in the sale. If the food contains less than 05% Chametz (תעורבת חמץ) then the Rav agreed that it might be sold to a non-Jew. In this case, the Rav felt that it would be appropriate to rely on the opinion of Rebbainu Tam (פסחים מב. תד"ה ואלו עוברין) that it is only Rabbinically forbidden to possess תעורבת חמץ on Pesach. Hence, since תעורבת חמץ is only Rabbinically forbidden, it would be permitted to engage in a הערמה (a "halachic trick"), based on the Gemara in Shabbat (קלט:). However, since we are forbidden by the Torah to own actual Chametz, it would be forbidden to employ a הערמה such as the sale of Chametz to a non-Jew, to avoid a Torah prohibition.
Rav Yosef Eliyahu Henkin (כתבי הגרי"א הענקין ב: מג), takes a somewhat similar approach. He writes that it is appropriate for a pious Jew to try not to include "actual Chametz" in the sale of Chametz. However, in case of significant monetary loss, Rav Henkin writes, one may rely on the accepted practice to sell even actual Chametz to a non-Jew. Rav Moshe Feinstein (cited by Rav Shimon Eider, Halachos of Pesach page 123) believes that even actual Chametz may be included in the sale. This also appears to be the opinion of the Mishna Berura and Aruch HaShulchan, as they do not discourage the inclusion of actual Chametz in the sale to the non-Jew.
Since the prevalent practice is to follow this opinion of Rav Moshe Feinstein, it is appropriate to point out a possible basis for the common practice. It is possible that the sale of Chametz should not be regarded as an halachic trick or "הערמה." Rather, it is a fully legitimate way of avoiding violating the prohibition to own Chametz. In fact, one could argue that according to Tosafot (פסחים ד. ד"ה מדארייתא), בטול חמץ (nullification of Chametz) is based on an halachic mechanism similar to the sale of Chametz. Unlike Rashi, who believes that בטול חמץ constitutes a fulfillment of the mitzvah to destroy Chametz (תשביתו), Tosafot believe that בטול חמץ merely avoids the prohibition of owning Chametz by declaring the Chametz ownerless. One could argue that the sale of Chametz similarly avoids the prohibition to own Chametz by selling the Chametz to a non-Jew.
Furthermore, the fact that the Tosefta and Shulchan Aruch sanction the sale of Chametz without stating that it should be limited only to mixtures of Chametz seems to strongly support the view of Rav Feinstein and the common practice. Nevertheless, since the issue of what should be included in the sale is debated by the great contemporary Halachic authorities, one should ask his Rav for Halachic guidelines regarding what opinion to adopt in practice.