The sale of chometz before Pesach is a common occurrence, practiced by Jews all over the world, but it didn’t start that way. The first sale of chometz was a regular sale1, where a Jewish man sold his chometz to a non-Jew, just like any other product, but perhaps for a cheaper price to make it more attractive. After the sale was completed, the non-Jew became the owner of the chometz and it did not revert to the Jew after Pesach.
There was a case where a Jew sold his chometz to a non-Jew with the understanding that it would be returned after Pesach. The Tosefta2 brings a case where the Jew needed to sell his chometz because he was on a ship in the middle of the sea during Pesach, but it seems that it was not done l’chatchila.
Since the times of the Rishonim, it has become a common practice to sell one’s chometz and expect to buy it back after Pesach. Though this is the Halacha3, codified in Shulchan Oruch, it is important to note that there are Rishonim who maintain that chometz can only be sold when there is no other viable solution4, as in the case of the ship in the above mentioned Tosefta.
In addition to the change in the sale’s intention, there has also been a change in the payment for the chometz. Where previously the non-Jew paid the full value of the chometz, the Terumas HaDeshen5 rules that the price does not have to be the real value of the chometz, it can even be sold for a token amount.
THE REQUIREMENT FOR A CONTRACT OF SALE
In the early 1600s, there was a significant change in the Polish-Jewish economy, which affected the Jewish community to a great extent. As a result, many Jews started producing and selling grain alcohols, which caused a new issue for Pesach. Until then, even when chometz was sold for a token payment, the chometz was removed from the Jew’s house until after Pesach. Needless to say, it was not very practical to do this with big warehouses of alcohol, which is meant to be stored for a long time in large quantities.
Following this, the Bach6 ruled that the chometz could be sold to a non-Jew, even if it never left the premises of the Jew, as long as the Jew also sold the room where the chometz was located. This was a major turning point in the practice of selling chometz and brought another element to the sale – selling through a contract – because some poskim require a contract when selling real estate. Examples of such contracts date back to the Noda B’Yehuda.
In Shulchan Oruch HaRav, there are two reasons as to why a contract of sale is required:
The Russian law at that time stated that, unlike the sale of cattle, when alcohol was sold but not handed over right away, a contract was required. Having a contract for the sale of chometz makes the sale a true legal sale.7
Since the Bach stated that the room where the chometz is stored must also be “sold”, the Shulchan Oruch HaRav says that one should make a contract when selling real estate (the Bach does not require a contract).8
PAYING FOR THE CHOMETZ
As mentioned, the price that the non-Jew pays for the chometz can even be a token value. This can be an issue when the chometz is of great value; perhaps the non-Jew will refuse to give it back. To tackle this issue, a different approach was taken. The chometz would be sold at or above market value, but the non-Jew would only pay a token amount at the time of the sale and the rest would be placed upon him as a debt. That way, if the non-Jew decided to keep the chometz, he would have to pay the full contracted price.
The Shulchan Oruch HaRav rules that this method of sale is acceptable as long as the non-Jew has a guarantor (ערב קבלן) who promises to pay the balance instead of the non-Jewish buyer. The Shluchan Oruch HaRav quotes the Gedolei HaRishonim who were worried that leaving the balance connected to the original sale as a debt could damage the integrity of the sale. [Other Poskim allow it as long as the balance is separated from the sale as a new loan.]
MAKING A KINYAN
There are very few ways in which a non-Jew can make a proper kinyan to finalize a purchase. The main way is that the non-Jew pulls or hauls away the item in question – משיכה. Since the Bach ruled that the non-Jew does not have to physically remove the chometz from the Jew’s property, it is important to remove any possible questions about the validity of the sale, so one should do as many methods of making a kinyan as possible:
Kinyan Kesef: The non-Jew pays for the chometz with money (down payment).
Kinyan Shtar: The transaction is recorded in a legal contract signed by the parties.
Kinyan Chalifin: An exchange (barter) of property, whereby the non-Jew hands over an object of his (i.e. his pen), upon which the chometz is transferred into his ownership.
Kinyan Chatzer: First, the non-Jew acquires real estate from the Jew. By dint of the chometz resting in his property, the chometz transfers as well.
Tekias Kaf (handshake) – a world-wide accepted gesture of purchase.9
Kinyan Odisa: a verbal affirmation signaling the completion of the transaction.
Handing over the key to the location of the chometz.
Kinyan Agav: Selling the chometz along with some real estate.
COMMUNAL SALE OF CHOMETZ
As we can see, one has to know all the intricacies of the law to be able to properly sell his chometz to a non-Jew. Indeed, the complexities of the laws have caused many mistakes and confusion for people who have sold their chometz privately. To prevent this, it has become a common practice for a prominent Torah figure (usually the Rav of the community) to sell the chometz for the entire town, so there will be no Halachic issues.
There are two ways for the Rav to sell the chometz for the entire community:
The Rav purchases the chometz from the townspeople and sells it to the non-Jew.
The Rav does not actually purchase the chometz, rather he serves as the middleman and a “messenger” (שליח) of the townspeople to sell their chometz to a non-Jew.
The common practice today is that the Rav becomes a “ מורשה ” – he receives an authorization (similar to a power of attorney) to sell the chometz to a non-Jew as in the second format where the Rav doesn’t actually purchase the chometz from each person individually, but is serving a messenger.
In the merit of our careful attention to fulfilling the prohibition against owning chometz on Pesach, may we be zoche to experience the Geulah Sheleimah this Pesach and celebrate in Yerushalayim with Moshiach.
- ריש פ”ב פסחים ושם דף י”ג א.
- פסחים ב’, ו’
- שו”ע תמ”ח סעיף ג’
- ריטב”א פסחים דף כ”א
- תשובה ק”כ
- סימן תמ”ח
- סדר מכירת חמץ
- שו”ע הרב תמ”ח, י”ב