Selling the Chametz - Part 1
Question: Why do we sell chametz before Pesach?
Discussion: A Jew is not allowed to own chametz on Pesach, and if he does, he transgresses several Torah laws. Additionally, even after Pesach, one may neither eat nor benefit from any chametz that was owned by a Jew on Pesach.1 Thus, all chametz must be eliminated from one’s possession before Pesach, either by burning it or discarding it. If a person has expensive chametz that he does not wish to forfeit, he may instead sell his chametz to a non-Jew, whom he knows will sell it back to him after Pesach.2 Classic examples of this include someone who owns a warehouse or a grocery store full of chametz that he will not be able to sell before Pesach, someone who owns stock in a corporation that owns chametz,3 and someone who has expensive whiskeys that are chametz-based. Essentially, however, any chametz may be sold.
Question: Isn’t this sale fictitious?
Discussion: When the sale of chametz is performed properly, it is absolutely legal and not fictitious. Although the non-Jew’s obvious intent in purchasing the chametz is simply to help the Jew out, and not to obtain the chametz for himself, he nevertheless does acquire this chametz legally, and the Jew is therefore not considered as owning chametz on Pesach. In fact, the concept of selling chametz to a non-Jew in order to avoid the financial loss is rooted in Tosefta (Pesachim 2:6,7), and is recorded in Shulchan Aruch (458:3) as the law.
Question: Is it preferable to burn chametz rather than to sell it?
Discussion: One should keep some chametz to burn on erev Pesach,4 but essentially, one may sell all the rest of his chametz to spare himself the financial loss. However, some are meticulous not to sell true chametz.
Question: Why do some people avoid selling true chametz?
Discussion: Some maintain that the way the sale is done today makes its validity questionable. Some of the reasons for this concern are:5
The key to the area containing the chametz is not handed over to the non-Jew.6
The contemporary method of selling immense quantities of chametz to an individual non-Jew raises concern that he has no true intent to purchase it, and is approaching it merely as a ritual. This is especially so if the sale is not done in a manner that is recognized by secular law.
The Rav will commonly be assigned to act as one’s agent to sell the chametz well in advance of Pesach, and his sale is assumed to cover any chametz that one will have in his possession by the time Pesach arrives. However, if one purchased additional chametz after appointing the Rav as his agent, it is questionable whether the Rav’s sale can then include that chametz.7
The sale of chametz to the non-Jew is usually performed as close as possible to the time that chametz becomes prohibited. At that time, it is quite likely that the owner would have already performed bittul chametz. Since bittul chametz renders the chametz ownerless (hefker), it emerges that the original owner actually does not own the chametz at the time that his agent (the Rav) wishes to sell it on his behalf. This could mean that neither the owner nor the Rav are empowered to sell the chametz at this point.8
Therefore, many Poskim are of the opinion that one should not rely upon mechiras chametz to keep true chametz when there is no great need to do so.9 It can be complicated, however, to determine which products are true chametz and which are not.10 Therefore, a competent halachic authority should be consulted when there is any doubt.
Question: Must a person who got rid of all his chametz, also perform mechiras chametz?
Discussion: Selling the chametz is not technically required, even by rabbinic law. However, it has become customary for everyone to sell their chametz. There are two reasons why someone should perform this sale, even if he does not want to rely on it for true chametz:11 1) During Pesach, or even after Pesach, one might find chametz that he missed earlier and, after the fact, would prefer to keep it. If it was not sold, he would have to discard it. 2) One might own various types of products whose Pesach status is unclear. In order not to be forced to discard these products, one sells them and puts them away with the chametz (see footnote12).
Question: Does the Rav actually purchase my chametz at the time of sale?
Discussion: Usually, the Rav is merely an agent to sell the chametz to a non-Jew on one’s behalf. In many instances, the Rav is not even the agent who sells the chametz. Rather, he simply facilitates the necessary steps to appoint some other person or persons as his agents to sell the chametz to a non-Jew.
Question: Can one send someone else to the Rav to handle mechiras chametz on his behalf, or must one appoint the Rav in person as his agent?
Discussion: Although there are instances where one can only appoint an agent in person,13 for mechiras chametz, if the agent merely knows the owner’s wishes, that his chametz should be sold, it is sufficient. Therefore, one may indeed, by means of an intermediary, appoint the Rav as one’s agent to sell one’s chametz.14
1 Shulchan Aruch 448:3
2 Classically, this method is employed for chametz that one already owns and does not wish to get rid of. As for purchasing chametz in the first place with intent to sell it for Pesach, Shevet Halevi (IV, 49) rules that it is essentially permitted, and may be done if necessary (many stores will have to do this in order to have sufficient supply after Pesach), but it is frowned upon as a first choice.
3 Hilchos Chag B’chag Chapter 11:5, Kovetz Halachos 8:25, Teshuvos Vehanhagos (Pesach) pp. 651 - 666. Teshuvos Vehanhagos (p. 652) stresses that one must sell the stocks themselves, not merely the share of chametz that he may own, because the average stockholder is not authorized to sell the chametz of the corporation. The issue with stocks is two-fold: 1) Owning stocks in a company that owns chametz may be considered as owning the chametz, such that one would transgress the prohibition of owning chametz on Pesach. 2) One profits from the business done with the chametz on Pesach, such that one may be transgressing the prohibition of benefiting from chametz on Pesach. Note that the precise status of a stockholder vis-à-vis halachic ownership is complex and somewhat ambiguous. For further discussion, see Cheshev Ha’efod I, 62; Minchas Yitzchok III, 1 and VII, 26. See also Yeshurun, XX, pp. 534—581, for lengthy discussion of the status of corporations and stocks in halachah, in perspective of contemporary reality and secular law.
4 Rema 434:2.
5 See Toras Hamo’adim p. 278-279, for a list of thirteen points of questionability regarding the classic sale of chametz.
6 See Mishnah Berurah 448:12
7 See Mechiras Chametz Kehilhaso Chapter 17:23
8 See Piskei Teshuvos 448:12 for a number of suggested justifications for considering the sale as valid, even after the owner has performed bittul.
9 The Vilna Gaon would sell chametz to a non-Jew only as a final sale, without buying it back after Pesach. Additionally, after Pesach, he would avoid buying chametz from a Jew who had sold it over Pesach (Ma’aseh Rav 180, 181). This was also the practice of the Chazon Ish (cited in Dinim V’hanhagos Chazon Ish 18:20); and R’ Shlomo Zalman Auerbach stated that, indeed, the meticulous do not utilize mechiras chametz in order to retain true chametz (Halichos Shlomo pp. 137-138). See Sha’ar Hamo’adim, Chapter 9, footnote 46, for additional citations to this effect; and see Hilchos Chag B’chag Chapter 11, footnote 31, for a lengthy discussion of the history of the sale of chametz, and how it evolved to its present procedure.
9Note: the recommendation to refrain from selling true chametz only means that one should not consciously keep true chametz in his possession needlessly. The sale itself, however, includes all chametz that one may own. Therefore, if true chametz did accidentally remain in one’s possession, it will have been included in the sale even if one did not mean to utilize the sale for true chametz.
10 The 2019 Star-K Passover Directory, pp. 62-63, provides a list delineating the status of various items in this regard.
11 See Halichos Shlomo Chapter 6:3, and Mechiras Chametz Kehilchaso Chapter 1:11, and p. 349, for additional reasons.
12 Toras Hamo’adim p. 283 rules that, if one who wishes to sell an item that might be chametz, he must sell it unequivocally, intending the sale to be valid even if it in fact is not chametz; otherwise, the sale may be invalid (see there for his reasoning). He notes, however, that R’ Yosef Shalom Elyashiv seems to indicate the contrary.
13 See Shulchan Aruch, Choshen Mishpat 244.
14 Chut Shani p. 105; Siddur Pesach Kehilchoso I, Chapter 11, footnote 25. [Thus, it is similarly sufficient to make the request over the telephone (ibid.).]