The Sale of Chametz on Pesach

Misconception: Along with chametz food that one sells to his rabbi, one also sells chametzdik dishes for the duration of Pesach.

Fact: The rabbi does not buy the chametz but merely acts as an agent in the sale to a non-Jew. Dishes are usually not included in the sale.

Background: There are several prohibitions surrounding chametz (“leaven”) on Pesach. In addition to the prohibitions of eating and benefitting from chametz during Pesach, there are two Biblical prohibitions which one violates merely by possessing chametz over Passover: bal yira’eh and bal yimatzei—chametz shall not be seen nor found in one’s possession during Pesach (based on Shemot 12:19 and 13:7). There is also a positive commandment to dispose of one’s chametz on Passover eve (based on Shemot 12:15). Finally, post-Pesach there is a rabbinic prohibition against benefitting from chametz that was owned by a Jew during Pesach.

In order to comply with these injunctions, two methods of disposing of chametz are traditionally employed. The method used throughout much of history (when most people did not have pantries laden with food) was simply to destroy all of one’s chametz, preferably by burning. Out of the concern that one may not be aware of all extant chametz, Chazal instituted a search (bedikah) before destroying (biur) any found remnants of chametz. A second method used is bitul, a technical nullification of the chametz by which one declares his chametz to be ownerless and like the dust of the earth. In theory, either of these methods—biur or bitul—would suffice to avoid the Biblical prohibitions; in practice, both are used (Magen Avraham 431:2). Whatever method(s) is used, it must be carried out before the fifth halachic hour on Passover eve (Pesachim 21a; Shulchan Aruch, OC 434:2).¹

It would seem that an equally valid solution is to give or sell the chametz to a non-Jew.² That is exactly what Rebbi advised Yochanan of Chakukaah to do with someone else’s chametz for which he was responsible (Pesachim 13a). That Talmudic story involves a standard, irrevocable sale in which a non-Jew pays full market value for the chametz, takes it home and uses it.

A typical mechirat chametz today differs in that the non-Jewish buyer gives only a small down payment, leaves the chametz in the Jewish individual’s house and after Pesach ownership is transferred back to the original owner.³ The earliest source for such a transaction is the Tosefta (Pesachim 2:6), which records that a Jew on a boat may sell or give his chametz to a non-Jewish shipmate and buy it back after Pesach.⁴ This is codified by Rambam (Hilchot Chametz U’Matzah 4:6) and the Shulchan Aruch (OC 448:3). The Beit Yosef (OC 448:4) notes that selling chametz before Pesach and buying it back afterward constitutes ha’arama (subterfuge) but is nonetheless permitted as long as there was no ab initio condition that the non-Jew is obligated to sell it back.

The procedure used today for mechirat chametz developed in various stages.⁵ Originally, the sale of chametz was like any other sale, as described above. Later, it became common to include an unwritten agreement that the non-Jewish buyer would sell the chametz back after Pesach. Over time, as more Jews found themselves with considerable quantities of chametz on erev Pesach, it became impractical to physically transfer the chametz,⁶ and non-Jewish buyers became reluctant to lay out such large sums of money. One reason for this development was that Jews in medieval Europe were not permitted to own land. Thus, some got involved in selling beer. Had they been required to destroy their entire stock before Pesach, their businesses would have been ruined. At this point, rabbis began arranging sales for individual merchants. The sales were formal, but the chametz would remain in the Jewish-owned warehouses and the non-Jewish buyers would pay a fraction of the authentic value, leaving the remainder as a loan; after Pesach, the Jewish business owners would buy their merchandise back.

This method presented a new problem: how to deal with chametz that remained in the Jewish owner’s home or property. In the original method, the buyer removed the chametz from the Jewish individual’s house (Terumat Hadeshen 120) so that it should not appear that he has responsibility for it (MA, OC 448:4). Moreover, this way he would not come to accidentally eat it (Shu”t Radbaz 1:240). The Bach (OC 448:2) approved selling one’s stock of beer in conjunction with an innovation—together with the beer, the storeroom had to be sold or leased to the non-Jewish buyer.⁷ This phase lasted from about the early seventeenth century to the early nineteenth century when the final innovation was introduced.

The final stage in the development of mechirat chametz is more or less what exists today: a rabbi arranges a general sale of the chametz for the members of his community. In this sale, the non-Jew does not take possession, does not pay the full value of the chametz and he sells it back after Pesach. This mass sale is only about 200 years old and was originally opposed by many authorities who viewed it as blatant ha’arama. It has since been widely accepted and is normative practice today.⁸ Rabbinic authorities continue to modify various aspects, ensuring that the transaction is a legal and fully binding sale, and not a mere formality.⁹ It has become so accepted that the Mishnah Berurah (433:23) even suggests selling certain areas in one’s home that may be too difficult to check for chametz.

Now that we explored the background of mechirat chametz, we must ask,¹⁰ what must be sold? Clearly, there is no need to sell kitniyot (legumes), whose consumption is only forbidden by Ashkenazic custom.¹¹

Some authorities prefer not to sell pure chametz (e.g., bread, pasta; see Haggadat Minchat Asher, Sha’arei Teshuvah:1). Rabbi Yosef Dov Soloveitchik (Rabbi Hershel Schachter, Nefesh HaRav [Jerusalem, 1994], 177) advised his students and the congregants of the Moriah Shul in the Upper West Side of Manhattan not to sell pure chametz but only mixtures containing chametz. The Gra did not sell chametz unless it was a permanent sale (Ma’aseh Rav, no. 180) and advised not buying items after Pesach that had been sold (Ma’aseh Rav, no. 181). Rabbi Moshe Feinstein advised his grandson not to sell pure chametz (Masoret Moshe [5773], 147). Through his shul rabbi, Rabbi Shlomo Zalman Auerbach (Halichot Shlomo 135-138 and Shalmei Moed 321) performed the custom of mechirat chametz, but stated that ideally one should consume all of the actual chametz in one’s house before Pesach. He maintained that selling chametz is completely valid and that one could buy chametz after Pesach even from stores owned by irreligious Jews. He had a personal chumrah of not eating sold chametz but insisted others should not follow that practice.

The Tzitz Eliezer (20:51[2]) views the sale of actual chametz as halachically acceptable. Others note that it is preferable not to buy chametz before Pesach in order to then sell it so that they will have chametz available immediately after Pesach (Shevet Halevi 4:49).

Regarding chametzdik utensils,¹² there are three categories of concern: “adhered chametz” (that is, chametz that tends to harden and to adhere to a surface such as the insides of pans, pots and cooking utensils), absorbed chametz and the utensil itself.

The Shulchan Aruch and Rema (OC 442:11) discuss kneading bowls and flour bins which are difficult to clean and, due to the quantity of chametz that invariably remains even after a thorough cleaning, recommend giving these utensils away as a gift to a non-Jew before Pesach, with the understanding that they will be returned after Pesach. The current practice is to sell “adhered chametz” since it is actual chametz.¹³

Generally, authorities do not find it necessary to sell absorbed chametz, and one would not violate the prohibitions of bal yira’eh and bal yimatzei with absorbed chametz. However, some halachic authorities, such as the Steipler, explicitly included absorbed chametz in the sale contract.¹⁴

The utensils themselves present more of a challenge. The question of what to do with chametzdik, non-kasherable dishes is discussed in the gemara (Pesachim 30a). Rav rules that all chametzdik utensils must be destroyed and may not be used after Pesach.¹⁵ Shmuel disagrees and maintains that they may be used after Passover. The halachah follows Shmuel, and the Shulchan Aruch states (OC 451:1) that there is no need to sell or otherwise dispose of one’s chametzdik utensils. They simply need to be scrubbed clean of any visible chametz and locked away. After Pesach they may be used. The common practice is thus not to sell dishes. Such dishes, however, may not be used for food preparation on Pesach—not even for cold food (Rema, OC 451:1). They may be used for non-food purposes (Rema, OC 450:7) and sold to a non-Jew on Pesach (Shoneh Halachot 450:12). The discussion above pertains to chametzdik dishes; vessels that do not contain any absorbed chametz but are merely being used to store chametz are often sold in the contract used for mechirat chametz, similar to the way warehouses that store chametz are sold.¹⁶

Lest one desire to be overly stringent, selling dishes may result in an additional obligation—one would have to immerse the dishes in a mikvah upon repossessing them, as all metal and glass utensils acquired from a non-Jew¹⁷ require immersion.

A significant dissenting opinion is the Shulchan Aruch HaRav (Rav Shneur Zalman of Liadi, the first Lubavitcher Rebbe). In his contract,¹⁸ he explicitly included the sale of those utensils that have actual chametz on them. The Lubavitch custom is thus to sell the utensils, but because the chametzdik utensils are never actually transferred to the non-Jewish buyer’s domain, they do not require immersion once they are returned to the original owner.¹⁹ The Ben Ish Chai (Tzav: 9) also states that the utensils should be sold. This is not the standard practice.

The story is told²⁰ that on Motzaei Pesach 1933 the Chazon Ish had a dream in which he was told to immerse all of his pots. The next morning he found out that the rav through whom he had sold his chametz had erroneously sold the pots.²¹

The sale of chametz must be fully binding under Jewish law, and some authorities require that it meet local legal standards as well. It is a complex and technical transaction involving intricacies of Jewish commercial law in which an error can lead to the violation of two Biblical prohibitions. Thus, the custom has developed to have a communal sale administered by a competent and experienced rabbi. The way it is performed today, the rabbi serves as an agent²² to sell the chametz, but at no point does the rabbi own any of the chametz that he is selling on behalf of others.²³

Notes

1. If a person travels and is in a different location than his chametz, this must be taken into account. The burning should take place before the bitul so one can perform the mitzvah with his own chametz (Rema, OC 434:2). Regarding the timing of the sale with respect to bitul, see Minchat Yitzchak 8:41.

2. According to Beit Shammai, this would not work, because all chametz owned by a Jew must be consumed or destroyed before Pesach (see Pesachim 21a). The mishnah (Pesachim 2:1) implies that the halachah is not like Beit Shammai.

3. On this modern sale, see: Rabbi Shmuel Eliezer Stern, Mechirat Chametz K’hilchato (Hebrew) (Bnei Brak, 5749); Rabbi Steven Gottlieb, “Mechirat Chametz,” Journal of Halacha and Contemporary Society XXXI (5756): 94-116; Rabbi Shimon D. Eider, A Summary of Halachos of Pesach (Lakewood, 1980), 30-35 and Rabbi Baruch Simon, Imrei Baruch (New York, 5775), 273-283. Note that this complex topic is addressed by many posekim, and this is obviously not a comprehensive study.

4. The Tosefta includes the stipulations that it be a complete transfer and that it not be subterfuge. See Tosefta k’Peshuta, vol. 4, 494-6, for some of the opinions regarding these crucial stipulations.

5. For an excellent summary of the historical development and halachic issues of mechirat chametz, see Rav Shlomo Yosef Zevin, HaMoadim B’Halacha (Jerusalem, 1980), 294-304.

6. A related modern issue involves whether one must sell stocks one owns in companies that involve chametz. On this issue, see: Melamed L’ho’il l, OC: 91; Shu”t Haelef Lecha Shlomo 238; Minchat Yitzchak 3:1 and 7:26 and Moadim u’Zemanim 3:269 (which deals with improvements to make in the sale contract), n. 1.

7. This solved another halachic problem—the method of kinyan used to transfer ownership (MB 448:12, 17). To prevent one from accidentally eating from the chametz on Pesach, a token partition is erected around the sold chametz (SA, OC 440:2).

8. Rav Schachter (Be’Ikvei HaTzon [Jerusalem, 1997], 75) points out that mechirat chametz avoids the prohibitions but does not accomplish the positive commandment of destroying chametz. It is via the small amount that is left over and burnt that one fulfills the mitzvah of tashbitu (destroying one’s chametz).

9. Rav Shalom Mordechai HaKohen Schwadron of Brezhan, “Dinei Mechirat Chametz,” in Tcheilet Mordechai (5746), vol. 3, 362, writes that the main thing is that the sale should not be conducted in a frivolous manner, because it is only with great difficulty that this sale was permitted by the rabbis (par. 91). The sale should be handled by a competent authority (par. 91-2) and the dishes should not be sold or they will require tevilah upon returning to the Jewish owner (par. 105).

The Chatam Sofer (Shu”t 1:OC:113 and 2:YD:310) supported the sale, and asserted that whoever questions it should be scolded. He maintained its validity even if the non-Jew had no intention of it being an actual sale, as long as it was done legally. Rav Moshe Feinstein confirmed the validity of the sale, even if the chametz belonged to a store owner who actually did business with the sold chametz on Pesach (Iggerot Moshe, OC 1:149).

10. Historically the Jews of Yemen did not avail themselves of this option. They fulfilled the Biblical edict of tashbitu without any creative solutions and simply removed all chametz from their possession before Pesach. If, by accident, someone was left with a large quantity of chametz, he would sell it outright to a non-Jew with no intent of repurchasing it after Pesach. Rabbi Yosef Kapach recommends that Yemenites continue to act in their traditional manner. (Rav Kapach to Rambam, Hilchot Chametz U’Matzah 2:3 and Halichot Teiman, 18). Regarding the Jews of Aden, a seaport city in Yemen, Aggadata d’Pischa claims they sold their chametz and even their dishes. However, according to Otzar Minhagei Aden (5773), 87-88, only businesses sold chametz but not chametzdik dishes or the dishes that were used to store chametz.

11. Some have suggested selling kitniyot, lest there be chametz mixed in (see Stern 4:5, p. 28).

12. See Stern, 4:6-8, pp. 28-29.

13. The contract used in Yerushalayim includes adhered chametz, absorbed chametz and nonglass and metal utensils. The Chatam Sofer’s contract included adhered chametz but not absorbed chametz or utensils.

14. Kraina d’Igrata, 371-2. For an exchange of letters on this topic between the Steipler and Rav Yosef Shalom Elyashiv, see Rav Avraham Dov Levin, Seder Mechirat Chametz u’Mechirat b’Hamah ha’Mavkirah l’Goy k’Minhag Rabbanei Yerushalayim Ir Hakodesh (5766), 43-48.

15. This was the practice among the Beta Yisrael Jews of Ethiopia, where most of the utensils were made of pottery.

16. See Stern, 7:16, p. 54.

17. For the many divergent opinions on this topic, see Darkei Teshuvah, Yoreh Deah 120:90; the long footnote in Rabbi Zvi Cohen’s Tevilat Keilim 3:3; Yabia Omer 6, YD:11 and Yechave Da’at 3:24 (where Rav Ovadia Yosef asserts one should not sell utensils and rules that they require immersion if sold). The Kitzur Shulchan Aruch 114:2 also says not to sell utensils. Utensils made of material that do not require tevilah may be sold.

18. “Hilchot Mechirat Chametz,” found at the end of Hilchot Pesach (p. 234 in the 5773 ed.).

19. See the sichah from 1976 printed in HaMaor 54:2 (380): (March-April 2001): 3-5.

20. See Rabbi Shimon Finkelman, The Chazon Ish: The Life and Ideals of Rabbi Avraham Yeshayah Karelitz (New York, 1989), 57.

21. On the Chazon Ish’s opinion that there is no need to sell chametzdik utensils and that sold utensils require tevilah, see Emunah U’Bitachon 3:8 and Chazon Ish, OC 117:15.

22. If someone authorized more than one rabbi to sell the chametz, it does not invalidate the sale (Shu”t Minchat Yitzchak 6:38).

23. This is relevant in a case where one dies between authorizing the rabbi to sell his chametz and the rabbi performing the sale (see Rav Yaakov Ariel, B’Ohalah shel Torah 2:59)