Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

THe Sale of Chametz

HaRav Aharon Lichtenstein*

            The sale of chametz comes to deal with two different problems, the two stemming from one source: the prohibitions of bal yera'e and bal yimatze – owning chametz on Pesach; and the prohibition of deriving benefit even after Pesach from chametz that had been owned by a Jew on Pesach.

            The simple solution to the first problem – the prohibitions of bal yera'e and bal yimatze – is bi'ur chametz, the removal and destruction of chametz. Sometimes it is difficult to destroy one's chametz, whether for economic reasons, or because a person is not sure that he has destroyed all the chametz in his possession. In such cases, we sell the chametz.

            In order to overcome the aforementioned problems, the sale of chametz was developed until it reached the institutionalized form familiar to us today.

THe Chametz of a non-Jew

            The idea of the sale of chametz is based on the Gemara in Pesachim 5b:

It is said: "Neither shall there be leaven seen unto you" (Shmeot 13:7) – your own you must not see, but you may see that belonging to others and to the Most High.

            This passage implies that the Torah did not forbid the physical presence of chametz in a Jew's home, but rather the possession of chametz belonging to him. The Gemara continues:

One might think that one may hide [chametz] or accept bailments [of chametz] from a non-Jew? Therefore the verse states: "It shall not be found [in your houses]" (Shemot 12:19)

            The Gemara's implication is that a Jew is permitted to have in his house chametz belonging to a non-Jew, but he is forbidden to accept responsibility for its safekeeping, such that the chametz would be in his possession as a deposit. According to the Gemara's conclusion, if a Jew accepted responsibility for a non-Jew's chametz, he violates the prohibitions of bal yera'e and bal yimatze, but if he did not accept such responsibility, he may leave the chametz in his house. Thus, if a person sells his chametz to a non-Jew before Pesach, he does not violate the prohibitions of bal yera'e and bal yimatze on Pesach.

            The Mishna in Pesachim 28a also deals with the sale of chametz to a non-Jew:

Chametz belonging to a non-Jew which had been kept over Pesach is permitted for use; but that of a Jew is forbidden for use. Because it is said: "Neither shall there be leaven seen with you."

According to most Rishonim, chametz belonging to a non-Jew which had been kept over Pesach is permitted even to be eaten, and not just for use. Therefore, chametz that was sold to a non-Jew before Pesach is permitted after Pesach.

            We do not find that the Gemara relates to the sale of chametz as an instrument through which to allow the use of the chametz after Pesach. The Gemara relates to the sale of chametz in an entirely different context. The Gemara in Pesachim 13a deals with a Jewish bailee who had received a deposit of chametz from another Jew, and the time of the prohibition of chametz is slowly approaching:

It once happened that a certain man deposited a saddle-bag full of chametz with Yochanan of Chukok, and mice made holes in it, and the chametz was bursting out. He then went before Rabbi [Yehuda Hanasi]. The first hour he said to him: "Wait"; the second, he said to him: "Wait"; the third, he said to him: "Wait"; the fourth, he said to him: "Wait"; at the fifth he said to him: "Go out and sell it in the market."

            In the continuation, the Gemara explains that the bailee sold the chametz to a non-Jew, in order not to violate the prohibitions of bal yera'e and bal yimatze. This then would seem to be a source for the sale of chametz. But there is no hint in the Gemara that the Jew repurchased the chametz from the non-Jew after Pesach.

            The sale of chametz is mentioned a second time in the Gemara in a different context. The Mishna at the beginning of the second chapter states:

The whole time that one is permitted to eat [chametz], one may feed it to cattle, beasts and birds. And he may sell it to a non-Jew, and benefit thereof.

            The Gemara (21a) raises an objection against the words of the Mishna, "and he sells it to a non-Jew":

This is obvious! It is to reject [the view of] this Tanna. For it was taught: Bet Shammai maintain: A man must not sell his chametz to a non-Jew, unless he knows thereof that it will be consumed before Pesach. But Bet Hillel say: As long as he [the Jew] may eat it, he may sell it.

            According to Bet Shammai, the obligation to destroy chametz begins thirty days before Pesach, and so a person is only permitted to sell chametz to a non-Jew during this period if he knows that the chametz will be consumed before Pesach. The Halakha has been decided in accordance with the position of Bet Hillel, who permit the sale of chametz for as long as benefit may be derived from chametz. Here too, however, there is no hint of repurchase of the chametz at the conclusion of Pesach.

The source of the Law

            The sale of chametz with the intention of repurchasing it after Pesach is explicitly mentioned in the Tosefta (Pesachim 2:6):

A Jew and a non-Jew who were traveling together by ship, and the Jew has chametz on hand – he may sell it to the non-Jew, or give it to him as a gift, and then repurchase it from him after Pesach, provided that he gives it to him as an absolute gift.

            This Tosefta requires discussion on two different levels: on the level of understanding the Tosefta, and on the level of the practical Halakha with respect to the case discussed therein. On the exegetical level, we shall deal here with two questions:

1)       The Tosefta deals with the case of "a Jew and a non-Jew who were traveling together by ship." Does the Tosefta mean to limit the sale of chametz to such a case? Perhaps chametz may only be sold in a situation that does not involve any planning from the outset.

It is difficult to answer this question based on the wording of the Tosefta. There are Rishonim who state explicitly that it is only the incidental sale of chametz that is permitted, but selling chametz in a fixed and institutionalized manner is forbidden (Talmid ha-Ritva[1] and R. Amram Gaon]. Most Rishonim, however, do not limit the sale of chametz in any manner. Many Rishonim cite the Tosefta as is, and it is difficult to draw any conclusions as to whether the sale of chametz is limited to the case mentioned in the Tosefta or whether this case is only an example. The Rambam, for example, rules in Hilkhot Chametz u-Matza 4:6:

If a Jew and a non-Jew are traveling together by ship, and the Jew has on hand some chametz, and the fifth hour arrives, he may sell it to the non-Jew or give it to him as a gift, and may then repurchase it from him after Pesach, provided that he gives it to him as an absolute gift.

2)        What does the Tosefta mean when it says "absolute gift"? What is a gift that is not "absolute"? Two answers may be given to this question:

a)          "An absolute gift" is one that involves no legal problems. According to this explanation, the Tosefta means to exclude, for example, a gift given with the stipulation that it be returned. The law is in accordance with the position that such a gift is indeed a gift, but the Tosefta may disagree or perhaps it maintains that such a gift – despite the fact that it takes effect in the context of civil law – does not remove the prohibitions of bal yera'e and bal yimatze.

b)          "An absolute gift" refers to a complete sale with respect to the consciousness of the seller and purchaser. According to this explanation, the Tosefta comes to exclude the case where a sale is executed in the formal sense, but the two parties understand that the gift will not take effect in actual practice.

According to the first understanding, it is very easy to satisfy the requirement of "absolute gift." According to the second understanding, the matter is much more complicated, for today the sale is totally fictional.

What is the law governing a person who sold his chametz to a non-Jew in a manner that was not "absolute"? The Tosefta's ruling may have been intended only lekhatchila, but if a person sold his chametz with the intention of repurchasing it after Pesach, perhaps the sale is valid, the chametz belongs to the non-Jew, and thus he does not violate the prohibitions of bal yera'e and bal yimatze, and he may derive benefit from the chametz after Pesach. Alternatively, the Tosefta's ruling may apply even bedi'eved, and if the chametz was sold in such a manner that is not "absolute," it is forbidden after Pesach. Even according to this understanding, it is possible that the person does not violate the prohibitions of bal yera'e and bal yimatze (for the bottom line is that the chametz was not in his possession over Pesach), but he is nevertheless forbidden to derive benefit from the chametz after Pesach.[2]

What are the problems with the sale of chametz?

            What is the problem with selling chametz? The discussion regarding the validity of the sale of chametz necessitates an analysis of three separate questions:

1)           Does a person who sold his chametz not violate the prohibitions of bal yera'e and bal yimatze?

2)           Is it permissible to sell chametz, and is it permissible to derive benefit from the chametz after Pesach?

3)           Practically speaking, how is the sale of chametz executed?

I.                                           Bal yera'e and Bal Yimatze

It would seem that since the sale of chametz is legally valid, the seller relinquishes ownership over the chametz, and thus does not violate the prohibitions of bal yera'e and bal yimatze. We find a discussion of the parameters of ownership regarding the prohibition of chametz in Pesachim 6a:

Our Rabbis taught: If a non-Jew enters a Jew's courtyard with chametz dough in his hand, he [the Jew] is not obliged to remove it. If he deposits it with him, he is obliged to remove it. If he assigns a room to him [for the dough], he is not obliged to removed it. For it is stated: "[Leaven] shall not be found."

The Gemara explicitly states that a Jew who assigned a specific place in his house for the chametz belonging to a non-Jew, he is not required to destroy it. Most of the Rishonim understand that we are dealing with a case where the Jew accepted responsibility for the non-Jew's chametz, but nevertheless, if he assigned a specific place for it, he does not violate the prohibitions of bal yera'e and bal yimatze. According to them, if the Jew did not accept upon himself responsibility for the chametz – there is clearly no problem whatsoever. Rashi disagrees with this understanding, and he explains that we are dealing with a case where the Jew did not accept upon himself responsibility for the chametz. But even according to him, if the Jew assigned a specific place for the non-Jew's chametz, he does not violate the prohibitions of bal yera'e and bal yimatze.

What is the significance of this law? One possible understanding is that this law defines the forbidden act: Chazal established that even if a person has chametz in his possession, he only violates the prohibitions of bal yera'e and bal yimatze if he is the owner of that chametz. Therefore, when the chametz belongs to a non-Jew, he does not violate the prohibitions. According to this understanding, when the chametz belongs to a non-Jew, there is no act of transgression whatsoever, for the Jew is not in possession of chametz belonging to him.

A second possible understanding is that this law does not define the forbidden act, but teaches us a law regarding the object of the transgression: chametz belonging to a non-Jew is not included in the prohibitions of bal yera'e and bal yimatze. According to this understanding, a person violates the prohibitions of bal yera'e and bal yimatze with any chametz that is found in his possession, even if he is not the owner, but the chametz of a non-Jew was excluded from these prohibitions.

According to the first understanding, there is room to discuss whether it is only ownership of chametz that is forbidden, or perhaps even some other relationship to the chametz suffices. What is the law, for example, if a person has chametz in his possession, and he has an interest in its contiued existence? Formally, he is not the owner of the chametz, but there exists a certain relationship between them based on the fact that he is interested in its existence.

It is not difficult to find practical differences between the two understandings that we have proposed. There are a number of cases in which a person violates the prohibitions of bal yera'e and bal yimatze even with chametz that does not belong to him. The most striking case is that of a bailee – a person who accepts responsibility for chametz belonging to a non-Jew. According to the second understanding, it is difficult to understand why such a person violates the prohibitions of bal yera'e and bal yimatze, for in the final analysis the chametz belongs to a non-Jew and should therefore be excluded from these prohibitions. According to this understanding, we must say that the bailee is not a simple bailee, but rather a hirer or a borrower, who is permitted to use the chametz as he desires, and therefore enjoys partial ownership – "ownership of use" – over the chametz, and the chametz is regarded (at least in part) as the chametz of a Jew. In contrast, according to the first understanding, we can understand that the bailee is an unpaid or a paid bailee (as is the view of some Rishonim). While this bailee has no ownership whatsoever of the chametz, and the chametz is regarded as "the chametz of a non-Jew," there is no doubt that the Jewish bailee is interested in its existence, for he has accepted responsibility for it. Thus, there exists a certain relationship of ownership between the Jew and the chametz ("interest in its existence"). Therefore, according to this understanding, the bailee is liable to violate the prohibitions of bal yera'e and bal yimatze.

Another case in which a person violates the prohibitions of chametz with chametz that does not belong to him is brought by the Rambam. He goes much further than mere acceptance of responsibility. The Gemara in Pesachim 5b relates about the residents of Mechoza:

Just as Rava said to the residents of Mechoza: Remove the chametz belonging to the troops from your houses: since it stands in your possession if lost or stolen, and you must requite [the loss], it is as yours and is forbidden.

What was the situation in Mechoza? Most of the Rishonim understood that the residents of Mechoza accepted responsibility for this chametz, and therefore it was necessary for them to remove it from their homes. The Rambam in Hilkhot Chametz u-Matza 4:4 rules:

If a powerful non-Jew deposits chametz with a Jew, and the Jew knows that although he has accepted no responsibility for it, the non-Jew will nevertheless hold him liable for it if it is lost or stolen, and will use force to make him pay for it, the Jew must nevertheless destroy it before Pesach. For the fact that its powerful owner will hold the Jew responsible for it causes the chametz to be regarded as if it belonged to the Jew.

When a person is responsible for chametz (even if he did not accept such responsibility upon himself), he is interested in its continued existence, and therefore he is obligated to destroy it. A similar case is brought in the Yerushalmi, Pesachim 2:2:

"Neither shall there be leaven seen unto you" (Shmeot 13:7). There are Tannaim who teach: Your own you must not see, but you may see on the street. There are [other] Tannaim who teach: Even on the street… He who said: Your own you must not see, but you may see on the street - where he renounced ownership prior to its removal. He who said: Even on the street – where he renounced ownership after its removal.

It is not clear from the Yerushalmi what is the law regarding a person who renounced ownership of his chametz after having removed it, but before the end of the time to remove chametz – does he violate the prohibitions of bal yera’e and bal yimatze? Nevertheless, it follows from the Yerushalmi that a person can violate these prohibitions even with chametz, the ownership of which he had renounced, since he retains a certain relationship to the chametz. In the continuation of the Yerushalmi passage, this is stated explicitly:

If a person renounced ownership of his chametz on the thirteenth [of Nisan], what is the law after Pesach? R. Yochanan said: It is forbidden. R. Shimon ben Lakish said: It is permitted.

The Yerushalmi explains that the position of R. Yochanan, that a person can violate the prohibitions of bal yera'e and bal yimatze even with chametz, the ownership of which he has renounced, may stem from his position regarding the laws of renunciation or from concern about circumvention.[3]

If, indeed, it is possible to transgress the prohibitions of chametz even with chametz with which a person has a certain connection, and not just with chametz that fully belongs to him, then a difficulty arises regarding the sale of chametz that is customary today: Does a person retain some connection to the chametz that he has sold to a non-Jew? If he retains a connection, he should violate the prohibitions of bal yera'e and bal yimatze.

Another problem regarding the sale of chametz arises from the Mishna in Pesachim 30b:

If a non-Jew lent [money] to a Jew on his chametz, after Pesach it is permitted for use. While if a Jew lent [money] to a non-Jew on his chametz, after Pesach it is prohibited for use.

            If a non-Jew lent money to a Jew, and the Jew gave him chametz as a pledge, he is permitted to derive benefit from the pledge after Pesach. Why is this so? Surely the pledge is the property of the borrower and belongs to him? The Gemara discusses this question, and the Rambam in Hilkhot Chametz u-Matza 4:5 rules:

If a Jew gives chametz to a non-Jew as a pledge and says: "If I do not bring the money due to you between now and a specified date, you are to acquire ownership of the pledged bread as of now," the chametz is regarded as under the authority of the non-Jew and use may be made of it after Pesach, provided that the date specified is prior to Pesach. If, however, the Jew does not say: "You are to acquire ownership of the pledged chametz as of now," the chametz is regarded as if it were a mere deposit with the non-Jew, and no benefit may be had from it after Pesach.

            Why does the Rambam require that the date of payment be prior to Pesach? Surely the Jew said "Acquire ownership of the chametz as of now," so that even if the date of payment is after Pesach, the acquisition takes effect before Pesach! Indeed, the Ra'avad disagrees and says:

This is not clear and not lucid. For even if the time [of payment] only arrives after Pesach – he does not transgress. And if the time [of payment] arrives before Pesach, then even if he did not say "As of now," he has acquired it, for there is no law of asmakhta with respect to a non-Jew.

            It seems that according to the Rambam, if Pesach arrives and the person does not know with certainty to whom the chametz belongs – that suffices to create a relationship of ownership between him and the chametz, at least on the level of "interested in its existence." In other words, even a conditional connection constitutes a transgression of the prohibitions of bal yera'e and bal yimatze. Similarly, the validity of the sale of chametz in our time depends upon developments after Pesach, and during Pesach a person is in a state of lack of certainty regarding the ownership of the chametz.

II. Is it permissible to circumvent the prohibition of chametz?

            The question of ha'arama - utilizing a mechanism the sole purpose of which is circumventing a biblical law – rises in various areas of Halakha. There are prohibitions regarding which the Mishna and Gemara explicitly instruct us how to circumvent them, and there are other prohibitions regarding which circumvention is problematic, both on grounds of Halakha and on grounds of general outlook.

            If we assume that ha’arama is permitted wherever there exists a legitimate need, we must consider whether financial loss is regarded as a legitimate need that permits circumvention of the prohibition of deriving benefit from chametz that was owned by a Jew on Pesach. The author of Tevu’ot Shor maintains that this indeed is the case, and he adduces proof from the Gemara in Shabbat 139b:

He said to them: You speak of ha’arama: It is ha’arama [in connection with] a rabbinical [interdict], and a disciple of the Rabbis will not come to do this at the very outset.

            Rashi there explains:

This circumvention does not involve a biblical prohibition, but only a rabbinic prohibition. For even if he did it without circumvention, he [only] transgresses a rabbinic prohibition. Therefore, since he is a disciple of the Rabbis, they were not stringent with him, for he will not come to do it lekhatchila without the circumvention.

            From the words of Rashi, two points emerge that must be examined before permitting ha’arama: the identity of the circumventer (a Torah scholar or a regular person), and the stringency of the law being circumvented (Torah law or rabbinic decree). The Ra’avya writes that only a Torah scholar is permitted to circumvent prohibitions, but the author of Tevu’ot Shor disagrees and rules that circumvention is permitted to all, but only with respect to rabbinic prohibitions.

            According to the criteria of the Tevu’ot Shor, the allowance to sell chametz is limited to chametz nukshe or other types of chametz that are forbidden only by rabbinic decree. It is, however, forbidden to sell chametz that is forbidden by Torah law. The way to get around this limitation is through bittul chametz – nullification of the chametz: Following bittul, the chametz is forbidden only by rabbinic decree, and thus one should be permitted to circumvent the prohibition and sell chametz even according to the Tevu’ot Shor.

            The combination of bittul and sale raises another problem: After a person has sold his chametz to a non-Jew, how can he then go ahead and nullify it? If the bittul has no validity, we come back to our original question, namely that the chametz is forbidden by Torah law, and as such, circumvention should be forbidden!

            It may be possible to overcome this difficulty, for the the Tevu’ot Shor means that one is forbidden to utilize ha’arama in a situation where without the circumvention he would violate a Torah prohibition. In our case, if the person would not sell his chametz to the non-Jew, he would nullify it, and thus violate only a rabbinic prohibition. Thus, this circumvention should be regarded as ha’arama relating to a rabbinic decree, and not ha’arama relating to a Torah prohibition.

            This, however, depends on another question: Is bittul chametz effect with respect to known chametz? The Rishonim discuss this issue, and it dependes on variant readings of the Rambam. The standard editions of Hilkhot Chametz u-Matzah 2:2 read:

What does the term "putting away" (hashbata), as used by Scripture, mean? That one should count the chametz as nought, regarding it in his mind as if it were earth, and implant in his mind the thought that he has no chametz in his possession, and that all the chametz that may be in his possession is to be considered equivalent to earth, or to something of no use whatsoever.

The Kesef Mishne cites another reading, which leads to a different ruling:

What does the term "putting away" (hashbata), as used by Scripture, mean? That one should remove the chametz that is known to him from his possession, and that which is not known, he should nullify in his heart and consider as equivalent to earth.

            If this is the correct reading, then bittul should be ineffective with respect to known chametz, and thus once again the prohibition is by Torah law and ha'arama should be forbidden.

III.                                      THe validity of the sale itself

How is the sale of chametz executed? This question belongs to the world of modes of transaction. When it is possible to physically transfer the chametz from one hand to another – there is obviously no problem. A problem arises as a result of contemporary reality, which makes the actual transfer of chametz impossible. How then must the sale of chametz be executed?

There are two separate problems associated with the sale of chametz. First, how can ownership of the chametz be transferred to the non-Jew? And second, how can the chametz be sold to the non-Jew by way of an agent? Theoretically, it is possible to avoid the second problem by selling the chametz to the local rabbi who will then sell it to the non-Jew. In practice, however, the rabbis are not interested in such a solution, for a problem may arise in connection with the sale, and they would then violate the prohitions of chametz over the chametz of the entire congregation. Thus, the rabbis prefer to serve as agents for the sale of the chametz to a non-Jew, rather than buying the chametz themselves and then selling it to the non-Jew.

In general, there are a number of valid modes of transaction regarding movables: kesef (money), chalifin (barter, kerchief), agav (acquisition of movables incidental to land), and situmta (usage and custom among local merchants).

Kesef – The Gemara in Bava Metzi'a 48b records a dispute whether movables may be acquired with money. The Gemara in Bekhorot notes that this dispute applies to a sale between one Jew and another, but a sale to a non-Jew is governed by the opposite law. If money is effective with regard to a Jew, it is ineffective with regard to a non-Jew. And if money is ineffective with regard to a Jew, it is effective with regard to a non-Jew. Most Rishonim have ruled in accordance with the position of R. Yochanan that money effects a sale by Torah law, and therefore, money is ineffective regarding a sale to a non-Jew. Rashi rules in accordance with Resh Lakish that money does not effect a sale by Torah law, and according to him, a non-Jew can acquire the chametz with money. The Rambam has an interesting position on the matter. He rules in accordance with R. Yochanan, but it would appear that he maintains that money effects a sale with respect to a non-Jew as well.

Even according to those Rishonim who maintain that money can effect a sale to a non-Jew, in order to execute the sale, the non-Jew must pay the money. Obviously, it is unrealistic for the non-Jew to pay the Chief Rabbi in full for all the chametz in the country. The solution to this problem is by settling the purchase price as a loan. The non-Jew pays a small amount of money, and the remainder is coverted into an ordinary loan – as if the Rabbi had loaned him the balance. Thus, the non-Jew pays the entire purchase price, but assumes responsibility for a different debt. It should be noted that some authorities raised questions about this solution, arguing that settling the purchase price as a loan does not always work. Furthermore, as has been shown, most Rishonim maintain that money is not an effective mode of transaction with respect to a non-Jew.

Chalifin – It is not clear whether or not chalifin is a valid mode of transaction with respect to a non-Jew. Rabbenu Tam in Tosafot, Kiddushin 3, maintains that it is effective, but there are Rishonim who disagree.

Agav – Movables may be sold incidental to the sale of land, and even incidental to the lease of land. This solution raises two problems:

1)                      How is land sold to a non-Jew? It follows from Tosafot that land cannot be sold to a non-Jew by way of a deed, and we have already noted the problem regarding sale by way of money.

2)                      Tosafot maintain, in contrast to most Rishonim, that agav is effective only by rabbinic decree. According to them, relying on agav to cancel the Torah prohibitions of bal yera'e and bal yimatze is problematic.

footnotes:

*This is a summary of a shi'ur kelali delivered in the Yeshiva in 1983. It was not reviewed by HaRav Aharon Lichtenstein.

[1] Printed at the end of Chiddushei ha-Ritva on Pesachim.

[2] The Halakhot Gedolot cites a different reading of the Tosefta: Instead of "provided that he gives it to him as an absolute gift," there appears "provided that he not circumvent." There exists also a reading wich combines both limitations, "absolute gift" and the prohibition of ha'arama. According to the second possibility suggested above, "absolute gift" implies a prohibition of ha'arama.

[3] The Ramban at the beginning of Pesachim cites the Yerushalmi, and writes that he is in doubt as to whether renunciation of ownership is effective with regard to the prohibitions of bal yera'e and bal yimatze.

(Translated by David Strauss)