One of the highlights of being in R. Moshe Tendler’s shiur is his annual pre-pesach shiur in which R. Tendler discusses haggadah and some of the halakhot of pesach. I was able to pop in on the first day of the shiur, in which R. Tendler discussed his critiques of how mechirat hametz is often conducted as well as his own alternatives.
Selling hametz is a response to the biblical laws of hametz over the pesach holiday. Biblical law not only forbids eating hametz over pesach (Shemot 13:3, Devarim 17:3), but also commands that hametz should not be seen (bal yeiraeh) (Shemot 13:7) nor found (bal yimatzei) (Shemot 12:19) in one’s possession. There are typically three ways in which Jews get rid of their hametz before pesach. The first is bittul hametz or the nullification of hametz which treats the hametz as “like the dust of the earth.” While this mechanism sufficiently satisfies the biblical requirement by removing status of hametz, the Rabbinic Sages realized that people might not take bittul hametz seriously. For example in the event that someone would find a “nice piece of cake” then it is likely the previous act of nullification would be ignored. Consequently, the Sages enacted the requirement of searching for hametz (bedikat hametz) and subsequently destroying whatever was found (bi’ur hametz) (B. pesachim 4b, 6b). This mechanism elegantly solves the problem by physically removing the hametz itself. In practice Jews perform both the bedika and bittul to satisfy all eventualities (Rambam Hilkhot Hametz UMatzah 3:7, Shulhan Aruch O.C. 434:2).
But in addition to these two mechanisms of bittul and bedikat hametz, a third option developed to satisfy the biblical prohibition against possessing hametz and that is selling hametz to a non-Jew or “mechirat hametz.” This mechanism, while not explicitly Talmudic, is based on the Talmud’s distinction between the dual laws of bal yeiraeh and bal yimatzei. According to the Talmud, bal yeiraeh only refers to the owners of the hametz since the verse actually says that hametz cannot be seen “for you” (lo yeiraeh lecha…), and consequently the second prohibition of bal yimatzei refers to having any hametz on your property even if it is owned by someone else (B. Pesachim 5b). Since the Talmud emphasizes personal ownership of both the hametz and the property on which it rests, then this problem could be solved by transferring ownership of both the hametz and the area in which it is contained over to a third party for whom hametz would not be prohibited i.e. a non-Jew.
While the logic behind mechirat hametz is sound, its efficacy depends entirely on its implementation; if one is truly selling hametz then the sale has to be legitimate. However this assumption is far from certain based on how mechirat hametz is conducted in most synagogues. In a typical scenario, a congregant will fill out a form roughly itemizing the hametz and their values along with the locations in the house or apartment. The Rabbi would then “sell” the hametz to the non-Jew for a sum to be paid at the end pesach. When the non-Jew does not pay for the rest of the hametz the Jews Rabbi would then “buy back” the hametz from the non-Jew such that the non-Jew profits slightly from the transaction. The details may differ from Rabbi to Rabbi, but this is a commonly used process.
R. Tendler criticizes these sorts of mechirat hametz as being “legal fictions,” less a transaction and more of a semantic ritual. In most cases the non-Jew does not have access to the hametz which he bought, nor is there reasonable expectation that the non-Jew could in fact complete the sale. Furthermore, many Jews are fully comfortable knowing that the hametz which they “sold” will be fully available to them after pesach, indicating that they do not truly believe the hametz is not in their legal possession.1
Since the result of an invalid sale would be the mass violation of two biblical prohibitions, R. Tendler officiates a more serious and legally binding version of mechirat hametz. First, the non-Jew selected is a fairly wealthy member of his community, one who could theoretically purchase all the hametz in Monsey.2 Congregants itemize the quantity and value of their hametz and formally appoint R. Tendler as their agent who 1. has the “right to rent or sublease to the purchaser of this chometz [sic] the rooms or parts of the rooms in which the chometz [sic] is found”3 and 2. negotiate the sale of all hametz in the stated locations as well as all other hametz for which a person has legal responsibility. R. Tendler also collects a key from each seller, giving the non-Jew access to his recently purchased hametz. In fact each year someone from the community is selected to actually have the hametz taken by the non-Jew over pesach, and is compensated afterwards. The purchase is conducted as with minimal money down4 and the rest of the value being loaned. R. Tendler also insists on a guarantor since few people would make loans of this size without some form of collateral. At the end of the pesach the hametz is not “bought back” but rather the loan is forgiven conditional to the transference of property back to the previous owners.
In all, R. Tendler’s mechirat hametz involves a nine step process incorporating several forms of kinyan (halakhic acquisition) as well as typical business etiquette:
- Renting the property to the non-Jew through kinyan kessef (monetary transaction) and a handshake.5
- Acquiring the hametz on the sold property via a kinyan karka.
- Formally selling the hamtetz through kinyan kessef.
- Establishing a loan for the remainder of what was not paid up front
- Designating a cosigner for the above loan
- A kinyan shtar – acquisition through contract for the hametz and the area in which it is contained
- A symbolic but halakhically effective kinyan sudar.
- Final handshake
- As per the custom of the land, a mutual drink.
Thus for R. Tendler, the act of mechirat hametz assumes the laws and ritual of not only a Jewish transaction, but a civil one as well.
For those interested, here are pictures of the documents R. Tendler uses:
Seller’s document: page 1
English contract: page 1, page 2, page 3
Hebrew contract: page 1, page 2
Guarentor’s contract: page 1
1. As he described once in shiur the true test of ownership is who feels loss when an asset is lost or destroyed. For example, if someone “sells” his liqueurer collection and it gets destroyed in a fire over pesach, to what extent will he be disappointed (aside from the aesthetic pain of seeing good whiskey destroyed). A sense of loss indicates that he did not entirely relinquish his possession.
2. Actually he uses a former VP of UPS which means that he is one of the few people who could actually take possession of all the hametz in Monsey and ship it anywhere overnight.
3. The text is from the official form used by R. Tendler for the Monsey community.
4. Specifically the nominal value of a perutah per item, which R. Tendler currently values at around $0.10.
5. As is the custom in many business transactions, a handshake is a formality which “seals the deal.”
“Since the result of an invalid sale would be the mass violation of two biblical prohibitions…”
Why? Mid’oraita b’vittul b’alma sagi – on a biblical level, bittul alone is enough. One would violate the biblical prohibition only if he or she found some of the “sold” chameitz on Pesach and desired it. If it’s closed away in cabinets and pantries, as most people do, that shouldn’t really be an issue (on a biblical level at least). The sale, like b’dikah itself, seems to be mostly a safeguard, no?
The problem is that if people “sell” their chametz without really wanting to sell, and their true da’as is to not relinquish ownership – then they are not mevatel it…
And all this so that that oh-so-special half-eaten box of Wheaties can be waiting for you after Pesach.
For businesses which could not survive otherwise, ok fine. But for a typical family the whole thing is unnecessary and, has been pointed out by my elders and betters, a bit of a joke.
For Heaven’s sake – eat the stuff up before Pesach. Is it so hard?
Reuven – The problem is that people want the hametz afterwards and specifically *don’t* want to get rid of it i.e. there’s likely a hisaron in the bittul.
Gavi – You’re right, which is why R. Tendler makes sure that at least one household in Monsey has some random hametz taken. As he put it, “word gets around” and each year people talk about who got caught. This way every seller is fully aware of the genuine possibility that he won’t necessarily have all the hametz after pesach.
Dov – Maybe not for Wheaties, but if you had a $38,000 bottle of Macallan’s I think you might reconsider.
Absent cheap Wheaties or expensive liquor, unscientific polls suggest to me that many people go through the exercise of mechira even when they can’t identify any actual chametz remaining in the location. They seal up their cabinets with things like spices and kitniot inside, figuring they ought to be covered between the general bittul and the dubious mechira of non-chametz that may have breathed the same kitchen air as departed chametz. I’m just saying.
Aside from the drink afterwards, I don’t see how Rabbi Tendler’s actual sale is any different from the numerous kinyanim made by any rabbi selling chametz.
As for the necessity of such a drink, I’ve never sat down for a drink after completing a sale/purchase with a non-Jew, and before this post, I couldn’t imagine a respected rabbi condoning such a practice.
As for the non-Jew deciding he wants to keep one community member’s chametz, I have heard that this was done in Rabbi Marcus’ shul as well. Anyone from SI want to confirm that?
And Dov- the fact that we’re dealing with a half-eaten box of Wheaties is what makes the sale real. You can’t on the one hand claim that the sale is fictitious because people wouldn’t actually agree to forgo the rights to their chametz, and then claim that it’s improper and unnecessary because it’s something a person would really be willing to sell.
You write about how people sell chametz that they are aware of, but don’t quite intend to sell it. An issue going in the other direction is that people sell chametz that they are not aware of. I’ve heard rabbis warn that everyone should always do a chametz sale even if they aren’t aware that they own any chametz at all, just in case.
People think they are selling things that no one would want or could take possession of, like the outer millimeter of pots into which chametz might have been absorbed, crumbs under the refrigerator, doubtful chametz such as ketchup, nullified chametz such as anything that has ever touched bread, non-food such as wallpaper paste, and theoretical chametz such as stock shares.
Daniel – I don’t see anything wrong with selling more stuff as long as it’s itemized and included in the sale.
Jerry – The drink is most certainly optional and not a requirement (also assuming I’m reading it correctly). If you want to see how it’s handled differently, compare with another Rabbi’s approach (assuming he doesn’t follow R. Tendler).
Janet – If you look at the sellers contract, it extends to hametz which isn’t listed but under his possession. Curiously, it also includes hametz which does come into his possession over Pesach, which is itself a point of controversy of most sales.
Jerry – I’m not questioning what people would or wouldn’t be willing to do. I’m sure most Jews would in fact actually sell their chometz for fair market value, if that’s what they thought was required. And they might even be interested in buying it back after the holiday, rather than have to go out and buy all new stuff.
But none of this is at issue. What’s at issue is that people “sell” their chometz knowing full well that it’s gonna sit in that closet with the string around the handle for eight days, and then they’re gonna eat it. Which, as far as I can see is no sale at all, and puts them at risk for violating both a negative and a positive commandment.
And all this for that half-eaten box of Wheaties.
I guess I shouldn’t have used the word “dubious.” I didn’t mean to suggest there was anything wrong with sales of non-chametz per se.
I just meant that (as suggested by Janet subsequently), many people view the mechira as a backup, “belt and suspenders” approach intended to capture unknown miscellaneous chametz. That’s actually the purpose of the general bittul, though. Mechira is supposed to be for things you know about.
As you say, itemization in the mechira document is optimal, although many forms I’ve seen refer generically to chametz with only the monetary value to be filled in by the seller.
It is mostly irrelevant what the person selling the chometz is thinking. Devarim SheBelev Einon Devarim. Once the Rabbi is appointed as the Apotropus and conducts the sale, it’s sold.
Sorry guys but what you have is a sale with a stipulation and you are transgressing the torah prohibition.
Psychologically selling chametz demonstrates that you want to keep your chametz, that you do not want to get rid of it. Hashem wants you to get rid of your chametz. Try doing what Hashem wants and see how meaningful your life will be.
Rabbi Tendler is not the originator of an Oruv Kablon this is a chidush of the Shulchan Aruch Harav that is practiced by every single chabad Rabbi selling chametz