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.”