Passover

Jewish Law: Selling Chametz

March 8, 2010

The Torah forbids a Jew, during Pesach, not just from eating chametz but even from deriving benefit from his chametz. Furthermore, there is an additional prohibition of even owning chametz on Pesach. However, people often own chametz which they do not want to discard or burn. Over the generations, rabbanim have developed a mechanism – selling chametz to a gentile – to enable Jews to abide by these Torah laws without suffering a monetary loss.

The logic behind selling chametz is that when one sells his chametz to a gentile, he transfers ownership of the chametz and thereby avoids the Torah’s prohibition of owning the chametz, because the Jew no longer owns the chametz. (Of course, the other prohibitions of eating or otherwise deriving benefit from chametz still apply.)

This article discusses the layman’s role in selling his chametz to a gentile.

Originally, Jews destroyed all their chametz before Pesach. But the Middle Ages saw the rise of Jewish-owned bakeries and breweries. As Pesach approached, these businesses were often left with large inventories of chametz so they avoided a financial loss by selling their chametz stock to a gentile and repossessing their chametz after Pesach. Over the following centuries, Jewish householders followed the example of these businessmen. They sold their chametz individually to a gentile. In fact, the Kitzur Shulchan Aruch, written in the 19th century, explains the procedure for a householder to sell his chametz directly to a gentile. The problem with this approach today is that most people do not know how to arrange a halachically valid transferal of ownership. Therefore, local rabbis arrange the sale of chametz for their communities. However, there is much confusion surrounding this sale.

A common misconception is that the rabbi purchases the community’s chametz and resells it to a gentile. Actually, the rabbi does not purchase anyone’s chametz. He merely acts as an agent to sell the chametz.

One appoints the rabbi as his agent by performing two acts. First, he takes hold of an object (e.g. a pen or handkerchief), which belongs to the rabbi. Though not absolutely required, this act strengthens the relationship between the owner and his agent (the rabbi).

Second, he signs a document which formally appoints the rabbi to both sell the chametz and rent the place where the chametz is situated so that it will be located on the gentile’s “property.” One of the ways a gentile may acquire a Jew’s possessions is known as chotsair. That is, if the chametz resides in the gentile’s property and the Jew so desires, the gentile acquires the chametz.

One does not have to appoint the rabbi in person as his agent to sell chametz. A person may appoint the rabbi by mail, phone, fax, etc. It is very important for people to know that this sale is a formal sale. Once the chametz is sold to the gentile, it is totally owned by the gentile.

The seller must inform the rabbi of the location of the chametz so that he can, in turn, inform the gentile to enable his access to and use of the chametz. In case the seller will not be home for Pesach he should leave the key with a neighbor and record that information on the document that he signs with the rabbi.

Before Pesach, the gentile provides the rabbi with a down payment for the chametz. The gentile is not required to sell the chametz back to the Jew(s) when Pesach ends. Since the gentile owns the chametz, he is allowed to do with it as he pleases.

If, after Pesach, the gentile chooses to sell the chametz back to the Jews, the rabbi returns his down payment (with a payment for his “cooperation”). Originally, when people sold their chametz individually, many did not charge the gentile buyers the full market price for their chametz so some gentiles opted to retain ownership after Pesach and the Jews suffered financial losses. Today, the rabbi’s contract with the gentile states that, should the gentile choose to retain ownership of the chametz after the conclusion of Pesach, the chametz will be assessed within a few days and the gentile will be required to pay the assessed value upon presentation of the assessor’s report. The rabbi will credit the down payment toward the full purchase price. Therefore, the gentile has no incentive to retain ownership at the conclusion of Pesach.

In an ordinary year, the rabbi sells the chametz to the gentile during the fifth hour of the morning (i.e. between 4/12 and 5/12 of the daylight interval) of Erev Pesach, i.e. within the hour following the deadline for eating chametz. However, when Erev Pesach is Shabbos and Pesach starts on Saturday night, we have a problem because 1) we may eat chametz until the end of the fourth hour (4/12 of the daylight interval) on Shabbos Erev Pesach but 2) we may not sell on Shabbos.
A number of solutions have been suggested. The simplest is to retain ownership of the chametz one plans to eat on Shabbos Erev Pesach. When the Jew appoints the rabbi, he must specifically exclude the chametz that he intends to use on Shabbos and specify where it will be. For example, he may write on the contract that he is authorizing the rabbi to sell all his chametz except for “the rolls in the white plastic bag on the porch.” On Shabbos, he will not be permitted to consider any unfinished chametz to be included with what he is selling to the gentile because he explicitly excluded that chametz from the sale. Therefore, if he does not consume all the reserved chametz before the deadline for eating chametz, he must dispose of the remainder properly. There are various methods of destroying chametz on Shabbos. Ask your rabbi which method he prefers. A simple disposal procedure is to crumble the remaining chametz and flush it down the toilet.

After Pesach, before one uses the chametz that was sold, he should check that his rabbi has repurchased it from the gentile.

Rabbi Yosef Fleishman heads the Kollel Choshen Mishpat – Institute for Dayanim, Jerusalem, Israel, and its affiliated Beis Din, “Nesivos Chaim.”

This series is intended to give general guidelines only; since every circumstance is unique, actual cases should be referred to a Dayan or Beis Din.

The Institute for Dayanim is pleased to answer queries from the general public regarding monetary and business halachah, and to offer advice regarding the drafting of halachically valid contracts, wills etc.
The Institute for Dayanim can be reached by e-mail at beisdin@neto.net.il, or via the website, www.en.din.org.il