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Peninei Halakha > Pesah > 06 – Mekhirat Ḥametz, the Sale of Ḥametz > 02. How the Practice of Selling Ḥametz Spread

02. How the Practice of Selling Ḥametz 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 ḥametz gamur. To prevent the great financial loss that would come each year with its disposal before Pesaḥ, it became necessary to sell it to a gentile before Pesaḥ 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 ḥametz 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 ḥametz after Pesaḥ, and it must all be completely destroyed. Therefore, rabbinic authorities began to oversee the sale of ḥametz, 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 ḥametz from being lost. This is how mekhirat ḥametz began to spread and become increasingly common.

However, a number of prominent rabbis claimed that mekhirat ḥametz was not a real sale, but merely a fiction. In the first place, it is clear that after Pesaḥ the ḥametz 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 ḥametz and physically takes it into his possession, but here the gentile neither pays the full price, nor takes the ḥametz with him.[1]

Nevertheless, the opinion of the vast majority of poskim is that mekhirat ḥametz may be relied upon and is as valid as any sale. By law, the gentile can refuse to sell the ḥametz back to the Jew after Pesaḥ. It is a real, binding 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, they would draw up a bill of sale for the actual value of the ḥametz, 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 Pesaḥ, the gentile can decide: if he wants to keep the ḥametz, he must pay the debt; if he wants to sell the ḥametz back to the Jew, the Jew repays the cash deposit, and in return for the ḥametz, he pardons the gentile’s debt from before Pesaḥ. The reason no tax is paid on mekhirat ḥametz is that the king, or government, understands that this sale is carried out for religious, not commercial purposes, and therefore waives the tax.

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 or rent to the gentile the ground on which the ḥametz rests, thereby transferring the ḥametz 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 Pesaḥim, is hesitant about the idea of selling ḥametz, since it might be considered a fiction. Baḥ, Eliya Rabba, and Maḥatzit Ha-shekel (§448) state that one should not rely on mekhirat ḥametz 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 ḥametz gamur in an irrevocable sale, and after Pesaḥ one should not purchase ḥametz that had been sold in a standard ḥametz sale. This was also the practice of R. Akiva Eger. Over time several of the concerns of those opposed to selling ḥametz have been allayed by the addition of specific clauses to the sale. For example, Bekhor Shor claimed that the gentile buying the ḥametz does not understand the details of a legal sale, but nowadays, we sell our ḥametz to knowledgeable gentiles who certainly understand the legal ramifications of the sale. Another allegation was that the ḥametz 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 ḥametz for a nominal fee in order to save himself from violating the prohibition of owning ḥametz, as is written in Ḥok Yaakov. Nowadays, however, our custom is to sell the ḥametz 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 ḥametz, since there are too many, but I will mention several of them: Noda Bi-Yehuda 141:8, Ḥatam Sofer OḤ §62 and §113, Oneg Yom Tov 28, and Sdei Ḥemed 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 ḥametz and its evolution. Igrot Moshe OḤ 2:91 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 ḥametz sits as well. There are those who prefer to rent their rooms or houses that contain ḥametz, 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.

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