Dear Kosher Spirit,
Why do we sell our chometz before Pesach and how is it done?
Rabbi Levi Y. Schapiro, Rabbinic Coordinator at OK Kosher, responds:
1. In addition to the prohibition of eating chometz on Pesach, the Torah prohibits the possession of chometz on Pesach. Although, according to Torah Law, one may remove his ownership of chometz by making it “hefker” (i.e. nullifying all chometz from his property), according to Rabbinic Law, we are required to remove all leavened products from our domain. Traditionally, the disposal is a physical one, removing all chometz from one’s home and burning it before Pesach. The Talmud (Tosefta Pesachim 2) records an option that if one has a lot of chometz and will need it after Pesach, he may sell the chometz to a non-Jew and buy it back after Yom Tov. The sale must be final without conditions; however, one is permitted to show interest in buying back the chometz after Pesach. Shulchan Oruch (Orach Chaim 448:3), allows this as a standard practice, not only as a last resort.
2. Selling chometz became the common practice during medieval times. Before Pesach, Jewish people would go to their non-Jewish neighbors and friends, and sell them beer, grains, and all other chometz items that they did not want to throw away. However, about four hundred years ago, the Jewish community became involved in the liquor industry, where the main ingredient was wheat. The amount of chometz that had to be sold was astronomical, and the monetary value of the chometz was very high. The Jewish businessmen could not find non-Jews willing to pay such a large sum for the chometz and store all the merchandise. To address these issues, the Acharonim introduced the practice of allowing the non-Jew to only give a small portion of the value of the chometz as a down payment and the rest would be paid at a later date. In addition, they instituted that the Jew will rent the space where the chometz is kept to the non-Jew, thereby considering the chometz to be in the possession of the non-Jew. This is the procedure followed today; the Jew locks up his chometz in a designated area in his home and the non-Jew rents the space and buys the chometz by giving a small token amount as a down payment. Because this is not the typical form of selling and renting, we perform a series of “kinyanim” to solidify the transaction. It is therefore traditional that one appoints the rabbi, who is knowledgeable regarding these requirements, to act as a power of attorney to perform the sale.
3. The Baal HaTanya requires an additional stringency for mechiras chometz. Because the non-Jew has not paid in full, there is a halachic concern that the sale is not valid. Many authorities explain that if the balance is
not directly related to the sale, the sale is still valid. They, therefore, proposed to transfer the debt from the sale to a loan. The Baal HaTanya instituted the practice of involving a 3rd party Jewish guarantor, which changes the structure of the debt obligation. Once the Jewish 3rd party takes primary responsibility (“orev kablan”) for the remaining debt from the sale, the sale is considered complete. Although the non-Jew is still responsible to the 3rd party Jewish guarantor, if the non-Jew fails to pay it would not invalidate the sale.
For a full presentation of Mechiras Chometz see
Kosher Spirit, Spring 2007.
http://www.ok.org/kosherspirit/spring-2007/
demystifying-the-mitzvah-of-mechiras-chometz/