The Source of the Deal by Rabbi Howard Jachter

5756/1996

                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 21a).  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 present after Pesach."  The Aruch HaShulchan (Orach Chaim 448:16), 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 (medieval authorities) would agree with the Aruch HaShulchan's conclusion.  Some early authorities (including the ") believe that the proper text to this passage from the Tosefta contains the following appendage "  ", "this procedure is permissible provided that it is a genuine sale and not a mere legal fiction."  The Ritva (Pesachim 21a) 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  , forbidden for any Jew to derive benefit from."  Rabbi Saul Leiberman, in his  , 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 (448:3) cites this Tosefta and does not record the words "  ," 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 "    ," that the Jew must be given 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 to sell his community's Chametz to a non‑Jewish accountant, and Rabbi Mordechai Willig's (of Riverdale) practice to sell Chametz to a non‑Jewish real estate agent are examples of such an attitude.  These two Rabbis make sure that the non‑Jew they choose to sell the Chametz to, is a person who has 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 in 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 Bach (  "  ), records that it was necessary in his time that the Chametz remain in the Jews home even after the sale of that Chametz to the non Jew. He writes "in this country that 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 in to 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 purchase should also understand that it is genuine sale, and not "Halachic Fiction".

                Rav S.Y. Zevin (whose essay on this topic is the basis for this essay, see his  ) estimates that this practice continued for about 250 years. The sales were conducted by individuals and not by the community Rabbis. The great Rabbis of these generations such as the Noda Beyehuda 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 "  ".

                However, problems arose with these sales since many of these transactions were executed by individuals who are not expert in halacha. The mistakes that were commonly made were the seller's forgetting to sign the   (bill of sale), selling Chametz on Erev Pesach after the time it is forbidden to benefit from Chametz ( ), and forgetting to sell the places upon which the Chametz was placed. Therefore starting from the early 19th 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 committed, and thus our practice emerged that everyone in the community appoints their Rabbi as their agent to sell the Chametz on their behalf. Some Rabbi's 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 (   ::) 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 ().  Nevertheless Rav Zevin notes, by the end of the nineteenth century the communal sale became the norm.  Indeed, the Aruch HaShulchan (:), 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 continue 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 (   ) points out that if the Chametz will remain on the Jews' premises, then it should be sold only in case of great need.  He notes that the Bach sanctioned the practice of selling Chametz, even when it remains on the Jews' premises, only in the case of great need.

                Rav Hershel Schachter (   p.177) writes that Rav Soloveitchik basically agreed with the opinion that actual Chametz should not be included in the sale. If the food contains less than 50% Chametz ( ) then the Rav felt it may be sold to a non‑Jew. In this case, the Rav felt that it would be appropriate to rely on the opinion of Rabbeinu Tam ( . "  ) that it is only Rabbinically forbidden to possess   on Pesach. Hence, since   is only Rabbinically forbidden, it would be permitted to engage in a  (a "halachic trick"), based on the Gemara in Shabbat (:).  However, since we are forbidden by the Torah to own actual Chametz, it would be forbidden to employ a  such as the sale of Chametz to a non‑Jew, to avoid a Torah prohibition.

                Rav Yosef Eliyahu Henkin ( "  : ), 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 a halachic trick "."  Rather, it is a fully legitimate way of avoiding violating the prohibition to own Chametz.  In fact, one could argue that according to Tosafot ( . "   (the nullification of Chametz) is based on a similar halachic mechanism as the sale of Chametz.  Unlike Rashi who believes that   constitutes a fulfillment of the mitzvah to destroy Chametz (), Tosafot believe that   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 may 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.

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