06 – Mekhirat Ḥametz, the Sale of Ḥametz

01. Sparing Ḥametz from Destruction by Selling It to a Gentile

By midday of the 14th of Nisan, every Jew must have disposed of the ḥametz in his possession. In the past, Jews would plan their food purchases and their meals so that by Pesaḥ they would have finished consuming any ḥametz foods and thus not have to dispose of large quantities. They would leave only a small amount of ḥametz with which to fulfill the mitzva of bi’ur ḥametz 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 ḥametz when Pesaḥ arrived. In such a case, if he did not mind losing the ḥametz, 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 ḥametz, he could sell it to a gentile before Pesaḥ, since, as long as the prohibition has not gone into effect, it is permissible to sell the ḥametz and receive its full value. The prohibition against deriving benefit from ḥametz goes into effect on the sixth hour on the day of the 14th of Nisan, and until that time it is permissible to sell the ḥametz.

This was especially important for food merchants who would remain with large stocks of ḥametz before Pesaḥ 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 ḥametz, the Sages teach that it is permissible for a Jew to say to a gentile, “Even though you do not need so much ḥametz, buy all of my ḥametz for the full price, and if you want, I will buy it back from you after Pesaḥ” (based on t. Pesaḥim 2:7).

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]

03. For Whom Is the Ḥametz 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 ḥametz before Pesaḥ 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 Pesaḥ, it would take days and even weeks to restock and market their products. In addition to the loss it would cause to manufacturers and merchants, it would cause inconvenience to those unable to purchase ḥametz foods during the weeks after Pesaḥ. Therefore, factory owners, food chains, and stores sell all of their ḥametz to a gentile before Pesaḥ, and as soon as Pesaḥ passes, they buy it back again and remarket it.

In principle, anyone may sell his ḥametz to a gentile via the mekhirat ḥametz organized by his local rabbis. He may do so even if he only wishes to sell a small amount of ḥametz – for example, a package of pasta – because once it has been sold, the Jew no longer violates the prohibitions relating to ḥametz.

Some are stringent and prefer not to rely on mekhirat ḥametz since it appears fictitious: the ḥametz remains in the Jew’s house, the gentile will almost certainly not come to take it, and the Jew resumes eating the very same ḥametz as soon as Pesaḥ is over. According to these poskim, it is only proper to sell ḥametz in order to prevent a great loss; concerning a small loss, one should not sell his ḥametz.

Nowadays, all are advised to participate in mekhirat ḥametz, because some food products and flavored medicines may contain small amounts of ḥametz, 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 ḥametz. Therefore, the proper thing is to sell them and thus avoid all doubt. In addition, some maintain that people who have stock in companies that own ḥametz must sell their shares; the shares are sold with the rest of the ḥametz.^[3]

Concerning ḥametz gamur, it is customary to advise people not to sell insignificant amounts of ḥametz, so as not to use the sale for minor needs. However, when significant loss is involved, it is permitted le-khatḥila to sell the ḥametz. Each person should decide for himself what he considers a significant or small loss. There is no reason to ask a rabbi about this, and there is no reason to ask what is ḥametz gamur and what is uncertain, as the basic halakha is that even the sale of real ḥametz of little value is permissible, for the sale is valid even le-khatḥila, and one may rely without concerns or questions on the rabbis conducting the sale.^[4]

Because the sold ḥametz remains in the Jew’s house, there is a risk that he will forget that it is prohibited and eat it during Pesaḥ. Therefore, one must set up a partition at least ten tefaḥim high (c. 80 cm) to act as a barrier between himself and the ḥametz or lock the ḥametz in a cupboard and hide the key. One may also tape up the cupboard. It is best to write “sold ḥametz” on it so that one does not accidentally open it on Pesaḥ (see SA 440:2).

04. The Laws of the Sale

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

The seller should write his name and address in clear script on the contract of sale so that the gentile buyer knows who he is and where he lives. Thus, the gentile buyer will be able, if he wants, to collect his ḥametz.

Le-khatḥila, it is proper to give the gentile the key to the place where the ḥametz is located so that he can enter and take his ḥametz. In practice, though, it is sufficient to give the gentile the seller’s phone number so that if the gentile wants, he can call to come and take his ḥametz. This is the most important principle: all sellers must know that after the sale, the ḥametz indeed belongs to the gentile, and the seller must allow him to enter the house and take his ḥametz (MB 448:12).

Le-khatḥila, the seller should indicate the various types of ḥametz, and even list 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 ḥametz 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 proper to write in the contract where exactly the ḥametz 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. Be-di’avad, even without this, the sale is still valid, though all ḥametz 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 ḥametz is included in the sale. Le-khatḥila, the place where the ḥametz is kept is also rented to the gentile, so that the ḥametz is in the gentile’s possession and the sale resembles any other sale in which the buyer transfers the purchase into his possession.

One may sell ḥametz through a proxy who writes all relevant details and signs on the owner’s behalf. One may also sell ḥametz over the phone, by fax, or via the Internet. Even though it is proper for the seller to sign and perform a kinyan (act that formalizes a transaction) to reinforce the sale, be-di’avad it does not prevent the sale from taking effect, as the most important thing is the kinyan performed when the rabbi sells the ḥametz to the gentile, and this kinyan is effective for everyone who asked the rabbi to sell their ḥametz.

In kitchens that belong to public institutions, the manager or his representative sells the ḥametz.^[5]

One should not sell the ḥametz that is stuck to and absorbed into kelim. Quite a few laws relating to mekhirat ḥametz 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 ḥametz absorbed in or stuck to his kelim, the sale will appear to be lacking seriousness, since this has no value and nobody is interested in buying it. Therefore, one should not indicate this in the sale contract.^[6]

05. The Deadline for Selling Ḥametz and the Status of One Visiting Eretz Yisrael or Abroad

The sale must take place while it is still permitted to derive benefit from ḥametz, for when the sixth hour of the 14th of Nisan arrives, and it becomes forbidden to derive benefit from ḥametz, it may not be sold; it must be destroyed. So that people can join the sale until the last day, the sale customarily occurs on the 14th, just before the end of the time that it is permissible to derive benefit from ḥametz.

The prohibition takes effect according to one’s location. In Eretz Yisrael, the sixth hour arrives approximately seven hours before it arrives on the East Coast of the United States. Therefore, a U.S. resident who is in Israel must sell his ḥametz in Eretz Yisrael, because if he sells his ḥametz according to U.S. times, the sale will take place when ḥametz is already forbidden for him to sell.

At first glance, the end of Pesaḥ 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; see Peninei Halakha: Festivals 9:8), which means that the prohibition of ḥametz applies to him until the end of the eighth day, while in Israel the ḥametz is bought back from the gentile after the seventh day. Nevertheless, he may still sell his ḥametz in Eretz Yisrael. Even though the gentile sells the ḥametz back at the end of seven days, since the U.S. resident is still observing Pesaḥ according to the custom of Jews in ḥutz la-aretz, and he is not yet interested in buying the ḥametz back, the ḥametz remains hefker or in the possession of the beit din. Only after yom tov sheni shel galuyot has passed does the ḥametz return to his possession.

If his family remains in America, and they plan to eat the ḥametz after the prohibition has commenced in Eretz Yisrael, he must renounce ownership of his share of that ḥametz, and his family sells the ḥametz there.

A resident of Eretz Yisrael who travels to the U.S. before Pesaḥ may, in principle, sell his ḥametz in the United States, for, according to most poskim, the obligation to eliminate ḥametz depends on the owner’s location, not the location of the ḥametz. 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 ḥametz according to its location, and, if this is the case, one must sell the ḥametz before the onset of the prohibition in Eretz Yisrael.^[7]

Additionally, a resident of Eretz Yisrael who is visiting a Diaspora community should not eat ḥametz on the eighth day of Pesaḥ, 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 (see Peninei Halakha: Zemanim, ch. 9, for a thorough treatment of these issues).

06. Ḥametz That Was Sold – Its Status after Pesaḥ

After Pesaḥ, it is better not to use the ḥametz that was sold until one can assume that the rabbi has bought it all back. When necessary one may take out some ḥametz immediately after Pesaḥ with a willingness to repay the gentile for it at his request. It is best that the rabbis stipulate explicitly with the gentile that a Jew will be obligated to pay for any sold ḥametz he takes, if the gentile so desires. Thus, there will be no question about the Jew taking ḥametz immediately after Pesaḥ.

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

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

When shopping for food after Pesaḥ, one must make sure that the seller has a certificate verifying that he sold his ḥametz in keeping with the halakha so that one does not buy ḥametz she-avar alav ha-Pesaḥ. 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 ḥametz in his store during Pesaḥ, a few poskim (Sdei Ḥemed, Maharam Schick) maintain that the sale was not legitimate, and that it is forbidden to eat or derive benefit from any ḥametz in his store. In this case, it is proper to follow the stringent poskim and wait for goods produced after Pesaḥ to arrive. If, however, it becomes clear that the seller performed bedikat ḥametz in keeping with the halakha and was careful not to let anybody go near the ḥametz that was sold one may buy ḥametz from him immediately after Pesaḥ.^[8]