Sparing Hametz from Destruction by Selling It to a Gentile | Rabbi Eliezer Melamed | Beit Midrash

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Pesach

קטגוריה משנית

1.Sparing Hametz from Destruction by Selling It to a Gentile
By midday of the fourteenth of Nisan, every Jew must have disposed of the ĥametz in his possession. In the past, Jews would plan their food purchases and their meals so that by Pesaĥ they would have finished consuming any ĥametz foods and thus not have to dispose of large quantities. They would leave only a small amount of ĥametz with which to fulfill the mitzva of bi’ur ĥametz in the best possible manner: by burning it.
However, occasionally one’s plan would backfire and he would find himself possessing a large quantity of ĥametz when Pesaĥ arrived. In such a case, if he did not mind losing the ĥametz, he could burn it or give it as a gift to a decent and deserving gentile. If he did not want to lose the value of his ĥametz, he could sell it to a gentile before Pesaĥ, since, as long as the prohibition has not gone into effect, it is permissible to sell the ĥametz and receive its full value. The prohibition against deriving benefit from ĥametz goes into effect on the sixth hour on the day of the fourteenth of Nisan, and until that time it is permissible to sell the ĥametz.
This was especially important for food merchants who would remain with large stocks of ĥametz before Pesaĥ and had no choice but to sell to a gentile, in order to avoid great financial loss. Even if a gentile could not be found who was sincerely interested in buying all of the ĥametz, the Sages teach that it is permissible for a Jew to say to a gentile, "Even though you do not need so much ĥametz, buy all of my ĥametz for the full price, and if you want, I will buy it back from you after Pesaĥ" (based on t. Pesaĥim 2:7).
2.How the Practice of Selling Ĥametz Spread
About 400 years ago, many Jews living in Europe began to support themselves through the production and sale of whiskey. This was because the barons, the landowners, would often contract Jews to manage their affairs, and it was common for them to lease their distilleries and inns to Jews in exchange for a fixed price and/or a percentage of sales. This whiskey, which was made from barley and wheat, is considered ĥametz gamur. To prevent the great financial loss that would come each year with its disposal before Pesaĥ, it became necessary to sell it to a gentile before Pesaĥ and buy it back again immediately thereafter, in order to continue selling the whiskey as usual.
Over time, rabbinic leaders noticed that the sale was sometimes carried out improperly, leading to serious problems. If the sale is improper, the ĥametz remains in the possession of the Jew, and with every hour that passes he violates bal yera’eh and bal yimatzei. Additionally, it is forbidden to derive benefit from such ĥametz after Pesaĥ, and it must all be completely destroyed. Therefore, rabbinic authorities began to oversee the sale of ĥametz, in order to ensure its proper sale. Seeing that the sale was being carried out in an orderly manner, other Jews began to participate in the transaction, in order to save their own ĥametz from being lost. This is how mekhirat ĥametz began to spread and become increasingly common.
However, a number of prominent rabbis claimed that mekhirat ĥametz was not a real sale, but merely a fiction. In the first place, it is clear that after Pesaĥ the ĥametz will return to the Jew. Moreover, no sales tax is paid to the government on this sale. Thirdly, in a normal sale the buyer pays for all of the ĥametz and physically takes it into his possession, but here the gentile neither pays the full price, nor takes the ĥametz with him. 1
Nevertheless, the opinion of the vast majority of poskim is that mekhirat ĥametz may be relied upon and is as valid as any sale. By law, the gentile can refuse to sell the ĥametz back to the Jew after Pesaĥ. It is a bona fide sale, not a fiction. Nevertheless, in order to avoid even the appearance of a fiction, the rabbis made a practice of being very meticulous about all details of the sale. Since there are different halakhic opinions regarding the proper mode of purchase when a gentile buys from a Jew, the rabbis are careful to execute the sale using all forms of acquisition, so that it is clear that the sale is effective according to all opinions. In addition, they make sure that the sale is effective according to state laws as well (see MB 448:17, 19, and BHL ad loc.).
Regarding payment, a bill of sale is formulated to reflect the actual value of the ĥametz, and the gentile pays a cash deposit, as merchants are wont to do. The remainder of the sum is charged to him as a debt, but this does not prevent the completion of the purchase. After Pesaĥ, the gentile can decide: if he wants to keep the ĥametz, he must pay the debt; if he wants to sell the ĥametz back to the Jew, the Jew repays the cash deposit, and in return for the ĥametz, he pardons the gentile’s debt from before Pesaĥ. The reason no tax is paid on mekhirat ĥametz is that the king, or government, understands that this sale is carried out for religious, not commercial purposes, and therefore waives the tax.
In order to reinforce the sale, so that it resembles any other sale in which the buyer takes the purchased item into his possession, the rabbis ordained that the Jew sell to the gentile the ground on which the ĥametz rests, thereby transferring the ĥametz into the gentile’s possession (MB 448:12). In Eretz Yisrael, where it is forbidden to sell land to a gentile, the area is rented, and some poskim say that even outside Eretz Yisrael it is best to rent the area instead of selling it. 2
3.For Whom Is the Ĥametz Sale Intended Today?
In recent generations, new storage methods have been introduced that allow us to preserve food products for long periods of time. As a result, food manufacturers and dealers are in constant possession of large inventories of food, and they need to sell their ĥametz before Pesaĥ in order not to lose the value of their stock. Moreover, if food manufacturers were to make a point of exhausting their entire inventory before Pesaĥ, it would take days and even weeks to restock and market their products, and in the mean time, they would lose business. Even if no competitors were to seize the opportunity, it would cause a great inconvenience to buyers, who would be unable to purchase ĥametz foods during the weeks after Pesaĥ. Therefore, factory owners, food chains, and stores sell all of their ĥametz to a gentile before Pesaĥ, and as soon as Pesaĥ passes, they buy it back again and remarket it.
In principle, anyone may sell his ĥametz to a gentile via the mekhirat ĥametz organized by his local rabbis. He may do so even if he only wishes to sell a small amount of ĥametz – for example, a package of pasta – because once it has been sold, the Jew no longer violates the prohibitions relating to ĥametz.
Some are stringent and prefer not to rely on mekhirat ĥametz since it appears fictitious: the ĥametz remains in the Jew’s house, the gentile will almost certainly not come to take it, and the Jew resumes eating the very same ĥametz as soon as Pesaĥ is over. According to these poskim, it is only possible to sell ĥametz in order to prevent a great loss; concerning a small loss, one should not sell his ĥametz, in order to avoid possible transgression.
Nowadays, all are advised to participate in mekhirat ĥametz, because some food products and flavored medicines may contain small amounts of ĥametz, and they should not be destroyed just because of this possibility. On the other hand, these must not be kept because they may actually contain ĥametz. Therefore, to avoid all doubt, the best thing to do is to sell them. 3
Concerning ĥametz gamur, people are advised not to sell insignificant amounts of ĥametz, so as not to use the mekhirat ĥametz for small needs. However, when a significant loss is involved, it is permitted, even le-khatĥila, to sell the ĥametz. Each individual should decide for himself what he considers a significant or small loss. Nonetheless, one is permitted to sell his ĥametz even if he only wants to prevent a small loss, for mekhirat ĥametz is fundamentally halakhically valid, and one may be confident that the rabbis conducting the sale do so in full compliance with halakha. 4
Because the sold ĥametz remains in the Jew’s house, there is a risk that he will forget that it is prohibited and eat it during Pesaĥ. Therefore, one must set up a partition at least ten tefaĥim high (80 cm) to act as a barrier between himself and the ĥametz, or lock the ĥametz in a cupboard and hide the key. One may also tape up the cupboard. It is advisable to write "sold ĥametz" on it so that one does not accidentally open it on Pesaĥ (see SA 440:2).
^ 1.. Tevu’ot Shor, a commentary on Pesaĥim, is hesitant about the idea of selling ĥametz, since it might be considered a fiction. Baĥ, Eliya Rabba, and Maĥatzit Ha-shekel (§448) state that one should not rely on mekhirat ĥametz except in extreme situations, to prevent a significant loss. In Ma’aseh Rav (a compendium of the Vilna Gaon’s customs) it is written that one should only sell ĥametz gamur in an irrevocable sale, and after Pesaĥ one should not purchase ĥametz that had been sold in a standard ĥametz sale. This was also the practice of Rabbi Akiva Eger. See Sidur Pesaĥ Ke-hilkhato 11, n. 38 and Hilkhot Ĥag Be-ĥag 10:14 and 11:31. Over time several of the concerns of those opposed to selling ĥametz have been allayed by the addition of specific clauses to the sale. For example, Bekhor Shor claimed that the gentile buying the ĥametz does not understand the details of a legal sale, but nowadays, we sell our ĥametz to knowledgeable Gentiles who certainly understand the legal ramifications of the sale. Another allegation was that the ĥametz was sold for a symbolic sum, as written in SA 448:3, and those opposed to the sale claimed that the seller in such a case does not have full intention to sell. The answer to this problem was that the Jewish seller would certainly agree to sell his ĥametz for a nominal fee in order to save himself from violating the prohibition of owning ĥametz, as is written in Ĥok Yaakov. Nowadays, however, our custom is to sell the ĥametz for its full value, as per MB and BHL 448:19, which effectively eliminates this issue.
^ 2.. It is impossible to list all of the poskim who permit the sale of ĥametz, since there are too many, but I will mention several of them: Noda Bi-Yehuda 141:8, Ĥatam Sofer OĤ §62 and §113, Oneg Yom Tov 28, and Sdei Ĥemed 8:9, which discusses the opposition to the sale at length. See also R. Zevin’s Ha-mo’adim Be-halakha in the chapter about selling ĥametz and its evolution. Igrot Moshe OĤ 2:95 states that the sale works even if the seller is not an observant Jew. MB 448:12 discusses the optimal procedure of selling the area where the ĥametz sits as well. There are those who prefer to rent their rooms or houses that contain ĥametz, since they themselves are only renting and therefore cannot sell the house. Additionally, Avnei Nezer §345 states that renting is preferable, since it seems less fictitious, as one certainly does not really want to sell his house. See Hilkhot Ĥag Be-ĥag 11:10 in the notes.
^ 3.. Sidur Pesaĥ Ke-hilkhato 11:5 states that there are those who maintain that one who has money invested directly or indirectly in stock of companies that produce ĥametz must sell these shares before Pesaĥ. Consequently, all ĥametz sale documents include clauses regarding stocks and shares in these types of companies. However, according to the letter of the law, if one does not have any decision-making power in the company, he is considered a creditor, not a partner, and he would not be required to sell his shares, as explained above in 3:3. Thus, one who sells his shares in this particular company does so merely to satisfy all opinions. Above at 4:11 we cited a dispute between poskim regarding whether or not one can exempt himself from bedikat ĥametz by selling his home to a gentile. According to all opinions, however, if the Jewish owner leaves one room in the house for himself, he can perform bedikat ĥametz in that room and exempt himself from bedikat ĥametz in the rest of the house. Bedikat Ĥametz U-vi’uro 8:17 states that in addition to bitul, one should sell all of the ĥametz in his possession, since if he was unaware of a certain piece of ĥametz during the time of nullification and did not nullify it properly, the ĥametz sale will certainly protect him from violating any prohibition. Even though he sold his ĥametz, if he finds the ĥametz on Pesaĥ he is permitted to burn it. This is not considered stealing from the gentile, since he is not causing the gentile any monetary loss. However, it seems to me that it is better not to sell all the ĥametz that one has in his possession, since this makes the whole sale look fictitious, because every buyer wants to know where his purchase is without having to look for it all over the house. Therefore, one must decide where to place his ĥametz, and it is preferable to specify the location in the authorization contract. Regarding ĥametz that may have remained in the house, bitul is sufficient.
^ 4.. Hilkhot Ĥag Be-ĥag 10:14 and 11:9 and in the notes states that the sale of ĥametz gamur should be limited to owners of large businesses, but individuals must take care, as much as possible, to only sell uncertain ĥametz. So states Bedikat Ĥametz U-vi’uro 8:9.
According to the letter of the law, every individual has the right to rely on the sale, since the sale is valid according to the majority of poskim. Even if the seller feels that the sale is somewhat fictitious, if the gentile wishes to do so, he could take the seller to court and legally claim the purchased ĥametz, which proves that the ĥametz indeed belongs to the gentile. Additionally, since every person nullifies his ĥametz, and subsequently there is no Torah prohibition on this ĥametz (there is only a rabbinic injunction that requires destroying or selling the ĥametz in addition to bitul), the ĥametz assumes the status of a safek de-rabanan (an uncertainly about a rabbinic prohibition). Thus, one may certainly rely on the lenient opinions that permit the sale.