6 – Mekhirat Ĥametz – the Sale of Ĥametz

1. Sparing Ĥametz 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]

[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.

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).

[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.

4. The Laws of the Sale

Every Jew, before selling ĥametz, should read the authorization contract he will be signing, so that he understands that he is empowering the rabbi to sell his ĥametz, and that the sale is absolute. Nonetheless, if instead of reading the contract one simply relied on the rabbi, the sale is valid, for, if the gentile comes during Pesaĥ to take the ĥametz, and the rabbi tells the Jew that the ĥametz indeed belongs to the gentile, and that he must give it to him, the Jew will do so.

The seller should write his name and address in clear script on the contract of sale so that the gentile knows who he is and where he lives. In this manner, the gentile buyer will be able, if he wants, to go to the seller’s house and take the ĥametz (see Sidur Pesaĥ Ke-hilkhato 11:7-8, and in the notes).

It is most preferable to give the gentile the key to the place where the ĥametz is located so that he can enter and take it at any time. In practice, though, it is sufficient to give the gentile the seller’s phone number so that when the gentile wants the ĥametz, he can call to come and take it. The most important principle is that sellers of ĥametz should be aware that after the sale, the ĥametz indeed belongs to the gentile, and the seller must allow him to enter the house and take his ĥametz (MB 448:12).

Ideally, the seller should indicate the various types of ĥametz, and their prices, on the contract the rabbi gives him to sign, and some people are meticulous about this. In practice, though, this is very difficult to carry out. Therefore, the custom is to write that all ĥametz in one’s possession is included in the sale, and that the price is in accordance with the accepted market price, as determined by appraisers (see BHL 448:3, s.v. “be-davar mu’at”).

It is best to write in the contract where exactly the ĥametz is located, for example: “In the upper left kitchen cupboard,” or “in the room on the right, in the box so marked.” Several places may be listed. Even without this, the sale is still valid, though all ĥametz should be gathered to one place and labeled. Everything gathered to the place determined for the sale by two hours before the onset of the prohibition against deriving benefit from ĥametz is included in the sale.

As noted, the preferred custom is to sell or rent to the gentile the place upon which the ĥametz rests, so that the ĥametz will be in the possession of the gentile, and the sale will appear to be like any other sale in which the buyer transfers possession.

One may sell ĥametz through a proxy who writes all relevant details and signs on the owner’s behalf.  One may also sell ĥametz over the phone, by fax, or via the Internet. Usually, the person selling ĥametz signs and performs a kinyan (act of acquisition) in order to empower the rabbi as a shali’aĥ. Nonetheless, the kinyan is not crucial, as the most important thing is the transaction between the rabbi and the gentile, which is effective for everyone who has appointed the rabbi to sell his ĥametz (Sidur Pesaĥ Ke-hilkhato 19:4, 9-10).[5]

In kitchens that belong to public institutions, the manager or his representative sells the ĥametz.

One should not sell the ĥametz that is absorbed into utensils. Quite a few laws relating to mekhirat ĥametz were introduced in order to make it clear to all that it is an actual sale, but if one writes that he is selling the ĥametz absorbed in his utensils, the sale will appear to be lacking seriousness, since ĥametz absorbed in utensils has no value and nobody is interested in buying ĥametz absorbed in utensils. The same applies to ĥametz stuck to utensils. Therefore, one should not indicate this in the sale contract.[6]

[5]. Sidur Pesaĥ Ke-hilkhato 11:12 states that one is permitted to enter into a ĥametz sale agreement with multiple rabbis. Even if each rabbi sells to a different gentile, the sale completed first takes effect. Preferably, one should not do this, since it seems deceitful, unless he is worried that one rabbi may not sell his ĥametz, and he wants to ensure that his ĥametz is sold one way or another.

Additionally, Sidur Pesaĥ Ke-hilkhato 11:20 states that if one was unable to sell his ĥametz due to some unavoidable reason, his friend may sell the ĥametz for him even without permission, since it is beneficial to the owner of the ĥametz, and one may act to benefit another even without permission. This is the opinion of many poskim, as cited in Piskei Teshuvot 448:21.

[6]. Selling the utensils themselves to a gentile is not worthwhile, since after Pesaĥ one would be required to immerse the utensils in a mikveh, like any eating implement bought from a gentile (Ĥatam Sofer  §109 and most poskim; however, AHS YD 108:52, states that one may be lenient). Therefore, some poskim write that it is preferable to sell the ĥametz that is absorbed in or stuck to the utensils, as written in Bedikat Ĥametz U-vi’uro 8:18-21. It is also written that one should only sell the utensils that have small holes or grooves, which make them difficult to clean, and that some are careful to sell the ĥametz that is absorbed in these utensils. The truth is, though, that this is unnecessary, because the ĥametz was already nullified. Even if there is substance remaining on the utensils, as long as there is less than a kezayit cumulatively, according to the majority of poskim there is no need to burn it (SAH 446 and Kuntrus Aĥaron 1). One must store these utensils in an enclosed area so that he does not accidentally use them on Pesaĥ, and after Pesaĥ one must remove any substance that remained on the utensils before using them, because of the rule that one may not benefit from ĥametz that he owned over Pesaĥ. Preferably, in order to satisfy those who maintain that one is required to burn even less than a kezayit of ĥametz (MA 442:12), one should remove any trace of ĥametz from the utensils before Pesaĥ, or ruin the residue with detergents until they are no longer fit for a dog’s consumption.

If this is the case, even if there is more than a kezayit, there is no obligation to burn it. Therefore, there is no need to sell the ĥametz that is stuck to the utensils, and even more so one should not sell the ĥametz that is absorbed in the utensils.

5. The Deadline for Selling Ĥametz and the Status of One Visiting Israel or Abroad

The sale must take place while it is still permitted to derive benefit from ĥametz, for when the sixth hour of the day of the fourteenth of Nisan arrives, and it becomes forbidden to derive benefit from ĥametz, it likewise becomes forbidden to sell it. Instead, it must be destroyed. In order to allow people to sell their ĥametz until the very last minute, mekhirat ĥametz takes place on the fourteenth, just before the end of the time that it is permissible to derive benefit from ĥametz.

The prohibition takes effect according to one’s location. In Israel, the sixth hour arrives approximately seven hours before the East Coast of the United States. Therefore, a U.S. resident who is in Israel must sell his ĥametz in Israel, because if he sells his ĥametz according to the deadline in the United States, the sale will take place after the onset of the prohibition incumbent upon him. The end of Pesaĥ also poses a problem for such a person, because he must observe yom tov sheni shel galuyot (the extra day of Yom Tov observed in the Diaspora), which means that the prohibition of ĥametz applies to him until the end of the eighth day, while in Israel the ĥametz is bought back from the gentile after the seventh day. However, in fact, it is not a problem for him to sell his ĥametz in Israel. Even though the gentile sells the ĥametz back at the end of seven days, since the U.S. resident is still observing Pesaĥ according to the custom of Jews in ĥutz la-aretz, and he is not yet interested in buying the ĥametz back, the ĥametz remains hefker or in the possession of the beit din (rabbinical court). Only after yom tov sheni shel galuyot has passed does the ĥametz return to his possession.

If his family remains in the United States, and they plan to eat the ĥametz after the prohibition has commenced in Eretz Yisrael, he must renounce ownership of his portion in that ĥametz, and his family sells the ĥametz there (Sidur Pesaĥ Ke-hilkhato 11:14).

A resident of Israel who travels to the U.S. may, in principle, sell his ĥametz in the United States, for, according to most poskim, the obligation to eliminate ĥametz depends on the owner’s location, not the location of the ĥametz. Nevertheless, one should preferably sell it in Eretz Yisrael, in order to satisfy the opinions of all poskim, for some maintain that one must eliminate ĥametz according to its location, and, if this is the case, one must sell the ĥametz before the onset of the prohibition in Eretz Yisrael.[7]

Additionally, a resident of Israel who is visiting a Diaspora community should not eat ĥametz on the eighth day of Pesaĥ, just as he should not do any other activity forbidden on yom tov, even in private (AHS 596:5). If such a person has his own place of residence, he need not partake in a second Seder. However, if he is being hosted by people who live abroad, he should participate in the second Seder. He should not recite berakhot on mitzvot, but instead should answer “Amen” to the berakhot of others.[8]

[7]. Oneg Yom Tov (§36) states that we follow the location of the ĥametz. Many disagree with this ruling and maintain that the prohibition takes effect according to the location of the owner. This is the opinion of Ĥessed Le-Avraham 141:35, Eretz Zvi 1:83, Mikra’ei Kodesh Pesaĥ 1:55, and other poskim quoted in Piskei Teshuva 443:1. Le-khatĥila, we take both opinions into consideration and follow whichever time is earlier, as is written in Igrot Moshe  4:94-95.

A Diaspora resident who is presently in Israel and sells his ĥametz in Israel should have in mind not to reacquire this ĥametz until after the festival ends in the Diaspora, as written above. Even if he did not have this intent, Sidur Pesaĥ Ke-hilkhato 11:35 states that presumably he does not want to reacquire the ĥametz before the festival ends, so he does not reacquire it until it becomes permissible. Mikra’ei Kodesh Pesaĥ 1:76 states that even if one acquired ĥametz on the eighth day of Pesaĥ in the Diaspora, the ĥametz may be eaten after Pesaĥ, since there are poskim who maintain that a Diaspora resident in Israel is not required to observe two days of yom tov. Therefore, since this is an uncertain situation on the rabbinic level, we are lenient.

[8]. A thorough treatment of yom tov sheini shel galuyot, including the status of travelers and temporary residents, appears in Peninei Halakha: Holidays ch. 9.

6. Ĥametz That Was Sold – Its Status after Pesaĥ

After Pesaĥ, it is best not to use the ĥametz that was sold until one can assume that the rabbi has bought it all back. When necessary, though, one may take out some ĥametz immediately after Pesaĥ with a willingness to pay the gentile for it were he to request this. It is best that the beit din make an explicit condition with the gentile that the Jew will be obligated to pay for any sold ĥametz he takes, if the gentile so desires. Thus, there will be no question about the Jew taking ĥametz immediately after Pesaĥ (see Sidur Pesaĥ Ke-hilkhato 11:22).

Some people are strict and do not eat ĥametz that was sold because, according to stringent poskim, such a sale is not legitimate and this ĥametz has the status of ĥametz she-avar alav ha-Pesaĥ, which one may neither eat nor derive benefit from.

In practice, however, one need not be concerned about complying with this stringency, because the prohibition of ĥametz she-avar alav ha-Pesaĥ is rabbinic, and whenever there is uncertainty about a rabbinic law, halakha follows the lenient opinion. This is all the more true where only a small number of poskim are strict, while the overwhelming majority permit. Indeed, there were great rabbis who, after Pesaĥ, would make a point of eating ĥametz that had been sold through mekhirat ĥametz, in order to demonstrate that the sale was done in keeping with halakha.[9]

When shopping for food after Pesaĥ, one must make sure that the seller has a certificate verifying that he sold his ĥametz in keeping with the halakha so that one does not buy ĥametz she-avar alav ha-Pesaĥ. Even more caution is needed if the seller is not religious, because if he did not understand the significance of the sale and continued to sell ĥametz in his store during Pesaĥ, a few poskim (Sde Ĥemed, Maharam Schick) maintain that the sale was not legitimate, and that it is forbidden to eat or derive benefit from any ĥametz in his store. In this case, one must preferably follow the stringent poskim and wait for goods produced after Pesaĥ to arrive. If, however, it is clear that the seller performed bedikat ĥametz in keeping with the halakha, and was careful not to let anybody go near the ĥametz that was sold, it is permissible to buy ĥametz from him as soon as Pesaĥ has ended (Sidur Pesaĥ Ke-hilkhato 11:13, 23).

[9]. See n. 1 where we listed those who adopt stringent opinions, including Gra, who refrained from eating ĥametz that had been sold. In n. 2 we listed those who adopt lenient opinions (the majority of authorities).

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