2. How the Practice of Selling Ĥametz Spread

https://ph.yhb.org.il/en/04-06-02/

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]


[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  §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  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.
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