Mechiras Chametz-Entire Chapter

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Chapter 5:  Mechiras Chametz-Selling the Chametz to a gentile:

 

Introduction:

The Torah prohibits one from owning Chametz beginning from the 6th hour on Erev Pesach, as explained in chapter 2 Halacha 5. Accordingly, throughout the ages, with the approach of Pesach Jews would have to discard or destroy all the Chametz that remains in their home. While for some this was an easy and inexpensive task, for others this would cause a great monetary loss, and in certain cases a complete ruin of one’s Chametz run business. It is for this reason that the Rishonim[1] found it befitting to arrange for a Halachically valid sale of the Chametz to a gentile, and hence save people from financial ruin. Now, the idea of selling Chametz to a gentile is no novelty of the Rishonim, as it was always Biblically allowed for anyone to sell his Chametz prior to the 6th hour on Erev Pesach.[2] The novelty of the enactment of the Rishonim is the arrangement of a sale which allows, and practically guarantees, the person to then buy back his Chametz from the gentile once Pesach has concluded. Thus, the sale in essence circumvents the Chametz owning prohibition, and allows business to continue as usual once Pesach is over. While in previous times, this accustomed sale was only done by Chametz business owners, in order to save their business[3], in today’s times it has become accustomed for all Jewry to join the Mechiras Chametz sale that is done through their local community Rabbi.[4] Some communities perform this sale simply as a Chumra, and backup, just in case they forgot to get rid of some Chametz before Pesach, however, never to initially leave actual Chametz in their property over Pesach.[5] Furthermore, some are stringent to negate completely any reliance on the sale, even by Chametz businesses, and hence do not eat any Chametz after Pesach, unless it was produced afterwards.[6] Most of Jewry, however, uses this sale literally, to allow their Chametz to remain in their homes over Pesach, begin covered under the sale to the gentile.[7] This chapter will elaborate on the various detailed laws relevant to this sale, and its related Chametz.

1. The allowance and obligation:

Prior to the 6th hour of Erev Pesach, one may sell his Chametz to a gentile, even if the gentile plans to own the Chametz over Pesach.[8] Such Chametz is permitted in benefit after Pesach.[9]

Who is obligated to sell his Chametz and is it Biblically required?[10] Anyone who is planning to leave Chametz in his property over Pesach and does not want to disown it, is Biblically required to sell his Chametz to a gentile prior to Pesach. Likewise, all Chametz that one plans to sell to the gentile is not included in the Bittul recited on Erev Pesach, and is hence Biblically required to be sold.[11] Accordingly, Mechiras Chametz is a Biblical requirement for anyone who plans to leave Chametz in his home over Pesach and have it included in the sale, and if the sale is invalid, they transgressed a Biblical prohibition against owning Chametz.[12] [However, one who has cleaned his house from any known Chametz is not obligated to do Mechiras Chametz. Nevertheless, the custom today is to be extra meticulous and do Mechiras Chametz in all cases, just in case some Chametz has remained in one’s possession without his knowledge.[13]]

The validity of today’s sale and who may rely on it: The original sale to the gentile discussed in the Mishneh, was a regular sale in which the seller parted with his product for exchange of payment. Being that not always was it possible for people to find a gentile who is willing to purchase all of one’s Chametz, which would then force one to destroy it before Pesach, the question rose as to whether one may sell the Chametz to a gentile friend, or give it to him as a present, knowing that the trustworthy friend will not touch the Chametz, and then reacquire the Chametz back from the friend after Pesach. Practically, the Rishonim[14] and Poskim[15] rule that it is permitted to do so. As the generations passed, this allowance further developed to selling the Chametz to any gentile, even not a trusted friend, in a way that will monetarily enforce the gentile to resell the Chametz back to the Jew after Pesach, as refusing to do so would bring the gentile to a great financial loss.[16] Furthermore, it advanced to allowing the Chametz to remain in one’s home and never be actually taken by the gentile.[17] Many Halachic details and opinions are involved in the actualization of this type of sale; if and how it can be made Halachically binding, as well as the conditions of allowing the Chametz to be stored in the home.[18] Due to all the above complications, some do not initially rely on this form of sale to leave actual Chametz in one’s property.[19] Others, however, even initially rely on the sale to allow leaving Chametz in one’s home, and so is the widespread custom today.[20] One who does so must truly accept the sale transaction, and that if the gentile desires to sell all the Chametz, he may do so.[21] In the coming Halachas the various details of the sale and storing of the Chametz will be discussed.

 

Summary:

Every Jew who does not plan to get rid of all his Chametz before Pesach, is Biblically obligated to sell his Chametz to a gentile before the 6th hour on Erev Pesach. Practically, it is customary for all Jews to perform Mechiras Chametz before Pesach even if they do not plan on leaving Chametz at home over Pesach. While some are particular to not initially rely on the sale to allow leaving actual Chametz in one’s home, the widespread custom is to be lenient in this matter.

 

Q&A

If one owns stocks in Chametz owning companies, must it be sold to a gentile before Pesach?

This matter is disputed amongst Poskim. Practically, the custom is to include one’s stocks in the Mechiras Chametz sale that is done before Pesach. See Chapter 2 Halacha 5A in Q&A for the full details of this matter!

Should wives, sons, daughters and other family members sell their Chametz in addition to their father/husband?

All children who work and make their own money are to have their Chametz sold on their behalf. They may ask their father to include them in the sale, by having their name added to the Shtar Harsha. Likewise, it is best for wives are to appoint their husbands to include them in the sale, by having him add their name to the Shtar Harsha.[22]

Should the Gabbai sell the Chametz of the Shul?

The custom is for the Gabbai, or another person appointed by the Shul directors, to sell the Chametz of the Shul. This, however, does not exempt one from the obligation of searching the Shul for Chametz. See Chapter 4 Halacha 15 in Q&A for the full details of this matter!

Should one arrange a sale of Chametz for non-religious Jews who may eat/sell the sold Chametz during Pesach?[23]

Yes, it is proper to do so despite the above suspicion.[24]

 

 

Selling one’s Chametz business for the duration of Pesach:[25]

Businesses that own and produce Chametz are to have their Chametz sold to the gentile, just like everyone else. Now, if the business has a gentile clientele who would like to continue purchasing their Chametz throughout Pesach, then some Poskim[26] rule that one is to sell the business to a gentile for the duration of Pesach, and the gentile may have the company work on Pesach. All the profit made during that time period will belong to the gentile, until bought back by the Jew. Nevertheless, practically, one is only to make such an arrangement in a case of great loss, and after advising with a Rav.

 

2. What Chametz is included in the standard sale:

All Chametz that one owns is included in the standard sale contract used today. This applies to all forms of Chametz, whether it is big or small, expensive [i.e. bottle of whisky], or worthless [i.e. a cracker or pretzel], known or unknown[27], it is all included in the sale.[28] [Accordingly, one who performs Mechiras Chametz is not to destroy Chametz that he finds on Pesach, as will be explained below.]

Chametz vessels: There is no need to sell one’s Chametz vessels to the gentile[29], unless they contain actual Chametz that is not able to be washed off.[30] Accordingly, the sale contracts explicitly include all Chametz vessels that have Chametz stuck to them.[31] These vessels are rented to the gentile over Pesach.[32] Chametz vessels that are sold to a gentile and remain in one’s home do not require Tevila after Pesach.[33]

Inedible products: There is no need to sell inedible Chametz products [i.e. shampoo, soap etc] for Pesach and include it in the sale. Nevertheless, some contracts include the sale of inedible products that may contain Chametz, such as perfume, cosmetics, soap and shampoo.[34] See Chapter 6 Halacha 4 for the full details of this matter.

 

 

Q&A

May one sell actual Chametz and leave it at home during Pesach?

Yes, and so is the Chabad custom. However, there are those who are particular against doing so, as explained in Halacha 1 and the introduction.

 

Are pieces of Chametz that are in the Chametz room/closet included in the sale?

Yes, in the contract Admur writes that all Chametz in the rooms rented are included in the sale even though they have no market value and would not be bought by anyone. Accordingly, there is no need to perform Bedikas Chametz in these areas. See Chapter 4 Halacha 2 in Q&A!

 

May one include Chametz wine in his Mechiras Chametz for Pesach?

Yes. After Pesach the wine remains Kosher and there is no issue of Yayin Nesech.[35]

 

Should Chametz Shirayim that one received from his Rebbe be included in the sale to the gentile?[36]

The Shirayim should not be sold and is rather to be eaten before Pesach.[37]

 

 

Must Chametz vessels that were sold to the gentile be reimmersed after Pesach?[38]

Some Poskim[39] rule that if the contract included that the actual Chametz vessels were sold/rented to the gentile over Pesach, then they must be reimmersed in a Mikveh after Pesach. Other Poskim[40] however rule that Chametz vessels that are sold to a gentile and remain in one’s home throughout Pesach, do not require Tevila after Pesach, and so is the final ruling and custom today.[41] If, however, the vessels are taken by gentile, then not only do they require reimmersing, but also require Kashering.[42]

 

 

Finding Chametz on Pesach:

Being that all one’s Chametz is included in the sale to the gentile, as explained above, therefore, one who performed the Mechira and finds Chametz in his property on Pesach, is not to destroy it, being it belongs to the gentile. Rather, he is to sweep it to the area designated for the gentile. Certainly, it is forbidden to say a blessing on destroying such Chametz. See Chapter 2 Halacha 9A for the full details of this matter!

 

 

3. Appointing the Rav to sell one’s Chametz:

One may appoint a messenger to perform the sale on his behalf, and is not required to be in direct dealings with the gentile. Nevertheless, in previous times, the custom was for each individual to sell his Chametz directly to a gentile acquaintance, and for this purpose Admur wrote the dialect of the sale document that should be used. However, due to the complexity of the laws and details involving Mechiras Chametz, the custom became to appoint a Rav, or a Beis Din, to perform the sale on one’s behalf.[43] This custom dates back to the times of the Alter Rebbe.[44] In the Q&A we will deal with various details regarding this practice.

The Shtar Harshah-Power of attorney document:[45]

The Shtar Harshah is known as the power of attorney document signed by those who desire to appoint the Rabbi to sell their Chametz.  This document is not to be confused with the Shtar Mechira, which is the sale document handed to the gentile by the Rav on Erev Pesach, and never reaches the hands of the seller. The Shtar Harsha document’s details, and solidifies the particulars of what the Rabbis is being appointed to do on one’s behalf.[46] In addition, it provides the gentile with a name and address for him to collect the Chametz he purchases, if he so chooses. The dialect of the Harsha document can be found in Sefarim[47] and is provided by Rabbanim and Batei Dinim who perform the sale, in various dialects.[48] Although the custom is to sign on a Shtar Harshah, this is not a necessity in order to validate the appointment of the Rav to sell one’s Chametz, and all forms of informing the Rav remain valid, as will be explained in the Q&A.[49]  

Handing the Shtar Harsha to the gentile?[50] It is customary for the Rav to attach to the sale document given to the gentile, all the Shtar Harshahs of the people he is representing. 

A mistake in the Shtar Harsha:[51] It is accustomed to write in the sale document with the gentile, that if for whatever reason the Shtar Harsha was invalid, such as one wrote the wrong name, address, or it was lost and not sent to the gentile, the person’s Chametz is nevertheless included in the sale.

Q&A on the Shtar Harsha

Does one have to particularize in the contract all the areas that he owns Chametz in?

One is to write the exact address of where the Chametz is located.[52] Additionally, one should mention all the areas in the home where the Chametz is stored.[53] Nevertheless, even if one does not mention all the areas that contain the Chametz, the sale is remains valid.[54]

Must one understand the details of the Shtar Harsha?[55]

One who signs a document, obligates himself to all the financial matters and conditions written in that document, even if he is unaware of any of its content.[56] Nevertheless, it is proper that the signer be aware of the details of the document, and that the sale is a true and binding legal acquisition.[57]

Is Chametz that is purchased after one signs on the Shtar Harsha, or appoints the Rav, included in the sale?[58]

Yes, this applies even if this detail was not written in the Shtar Harsha.[59] Nevertheless, it is customary to explicitly write in the Shtar Harsha that the power of attorney includes the right to sell all Chametz that one will acquire after the signing. 

 

The custom of the Chabad Rebbeim:[60]

The customs of the Chabad Rebbeim [and in previous times, of other Chabad communities[61]] was not to appoint the Rav to sell their Chametz on their behalf, but rather to sell their Chametz to the Rav before Pesach, and then have the Rav sell his Chametz to the gentile. In this sale, an Eiruv Kablan, which is a third-party guarantor, was used on the side of the Rav, who is the buyer, to ensure payment for the transaction, and Halachically validate its acquisition. [Likewise, the following other Kinyanim were also used: 1) Kinyan Sudar; 2) Sechirus Vekinyan Agav.[62]]

 

 

Q&A on appointing the Rav

May one send his wife, children, or other person to the Rav, to sign on the Shtar Harsha on his behalf?[63]

Any person, including one’s wife or child [even below Bar/Bas Mitzvah] may be appointed as a messenger to go to the Rabbi and appoint him to sell the Chametz on one’s behalf, through signing on the Shtar Harsha.[64] In such a case, it is proper for a Kinyan to be made with the messenger.[65] Nonetheless, the custom is for the seller himself to sign on the Shtar Harshah, and not to send a child to do so. If, for whatever reason, one is unable to go himself, he may send another person to do so on his behalf, as stated above.

May one appoint a Rav over the phone, or through fax, email or website registration form?[66]

Yes.[67] However, initially, it is best for one to personally sign on the Shtar Harsha and then send it in.[68]

May one appoint two different Rabbis to sell his Chametz?

Yes. Doing so poses no Halachic worry of invalidating the sale, and whichever sale is validated first, makes the sale for him.[69] However, some[70] write that initially one should not appoint two different Rabbis to sell his Chametz for him.

 

May a Lubavitcher Chassid sell his Chametz through a non-Lubavitch Rav?

Being that there are areas of dispute amongst Poskim regarding the validity of the acquisitions, in which Admur rules in a specific way[71] it is therefore incumbent for one to sell his Chametz through a person who will be doing the sale in accordance to the rulings of the Alter Rebbe.[72] Most notably, is the Takana of Admur to use a Jewish Eiruv Kablan to guarantee payment for the sale, which is not followed by all sects of Jewry. [see Halacha 6A] Thus, when selling the Chametz through a non-Lubavitcher care should be taken to verify that it will be a valid sale according to Admur, and that a Jewish Eiruv Kablan will be used. Nonetheless, being that all standard sales of Mechiras Chametz use various forms of acquisitions, and if one is invalid the other validates the sale [See Halacha 6], Bedieved, one may appoint a non-Lubavitch Rav to do the sale on one’s behalf even if he will not be using an Eiruv Kablan.[73]

Is the Rabbi allowed to appoint another person in his place to sell the Chametz if for whatever reason he is unable to do so?

Yes. The appointed shliach has permission to appoint another shliach in his place.[74] Nevertheless, it is best for this to be explicitly written in the contract of power of attorney.[75]

 

Selling Chametz through a Rav within your time zone:

One must be careful to sell his Chametz through a Rav who is located in his time zone and not in an earlier or later time zone. Selling the Chametz in a later time zone can invalidate the entire sale, and require one to destroy all his Chametz, as by the time the Chametz prohibition arrived in one’s location, the Chametz has not yet been sold. On the other hand, selling in an earlier time zone will cause the Chametz to be sold prior to the end time of eating, which will disable one from eating any of his Chametz from that time and onwards, being it already belongs to the gentile.[76] Thus, when selling Chametz online, through the phone, email etc, one is to verify the location of where the sale will be taking place. Next, we will discuss what to do if one is traveling for Pesach and leaving his Chametz in a different time zone.

 

If a person has traveled to a different time zone for Pesach, where should he sell his Chametz?[77] 

Ø  Example 1: If an Israeli traveled to America for Pesach does he sell his Chametz in Israel or in America?

Ø  Example 2: If an American traveled to Israel for Pesach does he sell his Chametz in Israel or in America?

The dispute in Poskim: Some Poskim[78] rule that one goes after the area where the Chametz is located, whether to be stringent or to be lenient. Thus, if one travels from Israel to America he must sell it before the 6th hour of Erev Pesach in Israel. Other Poskim[79], however, rule that one goes after the time zone of his current location for all matters. Thus, if an Israeli resident traveled from Israel to America for Pesach, he one can sell it before the 6th hour enters in his city in America, and does not have to precede it to the time in Israel. Practically, we rule like this latter opinion, although its proper to be stringent like the former opinion to sell the Chametz prior to the 6th hour in the area that the Chametz is in, if it is in an earlier time zone.[80]

Practical application: One who owns Chametz in a different time zone, is to always do the sale in whichever area is the earlier time zone [east versus west], whether he traveled to an earlier time zone or later time zone. Thus, in both examples above, if one has Chametz in his home area he is to sell his Chametz through a Rav in Israel. [If one is in the later time zone, he should discuss with the Rav in Israel as what he should do about eating Chametz once the 6th hour has arrived in the earlier time zone.[81]]

A further example-Flying from east coast to west in America: When flying for Pesach from the east coast to the west coast in America, or from the east coast to the middle of America, one needs to make sure to sell his Chametz in accordance to the time that Chametz becomes prohibited in the east coast. Similarly, when flying to Hawaii from America for Pesach, one must be careful to sell his Chametz by the Rav in the area in which he currently lives.

Flying from west to east in America: He must sell the Chametz in accordance to the time of the east coast.

Selling the Chametz on the 13th: Some Rabbanim and Batei Dinim sell the Chametz to the gentile also on the 13th of Nissan. One who signs on such a document would avoid the necessity of finding a Rav who sells the Chametz in the earlier time zone, as in any event the Chametz will be sold before the 6th hour of the day enters in either area. Thus, if one is traveling from America to Israel, he can sign in America on a Shtar Harsha that sells the Chametz on the 13th of Nissan. Nonetheless, one is to advise with the Rav as what to do regarding eating Chametz after this time.    

Buying back the Chametz after Pesach: There is no Halachic issue involved with being located in a later time zone and having the Chametz bought back after Pesach in the earlier time zone, as one has no intention to buy back the Chametz until after Pesach ends for him.[82] However, some Poskim[83] rule that one is to sell the Chametz in the earlier time zone and tell the Rav to not buy it back from the gentile on his behalf, until Pesach ends in his later time zone.[84]

 

If one who sold his Chametz through a Rav in a later time zone, is the Chametz prohibited after Pesach?

Some Poskim[85] rule the Chametz is forbidden in benefit after Pesach, and thus must be destroyed. Practically, one is to speak with a Rav regarding this matter.

Q&A on the Kinyan

Does one have to do a Kinyan when appointing the Rabbi?

One is not required to perform a Kinyan with the appointed Rav who will sell one’s Chametz[86], although the custom is to do so.[87]

How to perform the Kinyan:

The Rav [who is synonymous to the buyer/receiver of the Chametz] gives the seller a vessel of any value [such as a Gartel or handkerchief] and is to tell him that he is acquiring it in exchange for appointing him to sell the Chametz on his behalf.[88] The seller is to lift the item of the Rav one Tefach, thus signifying its acquisition, and then return it to him.

 

Are witnesses required when appointing the Rav?[89]

No.

Does one have to give money to the Rabbi who is doing the sale?[90]

Although there is no obligation to do so, the custom is to give a donation to the Rabbi doing the sale.[91]

 

Q&A on when to appoint the Rav and do the sale

By when should one appoint the Rav to sell the Chametz?

The Chametz may only be sold up until the start of the 6th hour of the day of Erev Pesach, as explained in chapter 2 Halacha’s 4-7. Some Poskim[92] rule that it is best Halachically to sign on the Shtar Harsha by the 13th of Nissan, and not wait until Erev Pesach, or the night of Bedikas Chametz.[93] Ideally, however, it is valid to do so until the sale takes place on Erev Pesach, although obviously one is to precede this matter as much as possible, both for his sake, and the sake of the Rav.

 

If one forgot to sell his Chametz before the 5th hour on Erev Pesach, what is he to do?

It is common for sale contracts today to explicitly write that included in the sale of Chametz to the gentile, is the Chametz of anyone who wanted it to be sold but forgot to appoint the rabbi, write their name, address properly, or if the power of attorney document got lost.[94] However, some Poskim[95] invalidate this clause. Accordingly, if one forgot to appoint the Rav to sell one’s Chametz, one is to contact him for a final ruling and direction.

Having one’s Chametz sold on the 13th:

Some are stringent to sign on a Mechiras Chametz contract that sells the Chametz on the 13th of Nissan.[96] Today, due to this, some Batei Dinim perform the sale on the 13th. Some Poskim[97] however protest against this custom.[98] Practically, the Chabad custom is to perform the sale on the 14th. This is likewise the custom of many Gedolei Yisrael. See Chapter 4 Halacha 2 in Q&A for the full details of this subject!

 

4. May one sell the Chametz of another Jew without his knowledge?[99]

One who is storing the Chametz of another Jew in his home is to contact him prior to the start of the 6th hour on Erev Pesach and verify that he sold his Chametz. If one is unable to verify if the Jew sold his Chametz to a gentile, then he is obligated to sell the Chametz for him, prior to the 6th hour on Erev Pesach. [Accordingly, the Poskim[100] rule one can sell the Chametz of any Jew he can think of, and add his name and address to the Shtar Harsha, if he is unsure if he will be selling his Chametz.[101] Furthermore, some Poskim[102] go as far as saying that one can sell the Chametz of all the Jewish people in this manner, even one who is not observant. Accordingly, some Shtarei Mechira explicitly sells the Chametz of all the Jewish people. Some Poskim[103] however negate the above ruling, and state the sale is only valid if the Jew gave permission for his Chametz to be sold. Practically, while it does not hurt to include all Jews in the sale, and on the contrary, one only gains by doing so, nevertheless, one is to try to get explicit permission from whoever he can. If one has a relative who is not in a functional state, such as a parent who is in a coma r”l or has Alzheimer’s, he may sell the Chametz on his behalf, although it is best to receive power of attorney through a Beis Din prior to doing so.[104]]

5. Leaving the sold Chametz in one’s home over Pesach and where it should be stored:

It is permitted to leave a gentile’s Chametz in one’s home over Pesach[105], if one does not have any liability over it even in a case of negligence[106], and one places it behind a Mechitza/divider of ten Tefachim [80 cm.].[107] Thus, it is permitted to leave all of one’s Chametz that is included within the sale of Mechiras Chametz within one’s home over Pesach, so long as it is behind a divider that reaches the minimum height of ten Tefach.[108]

The laws of the Mechitza-Where is the Chametz to be stored?

The Chametz of a gentile must be kept behind a Mechitza/divider as stated above.

Height:[109] The Mechitza must be a minimum height of ten Tefach [80 cm.]. It does not suffice to cover it with a vessel.[110]

Sturdiness:[111] The Mechitza placed in front of the Chametz must be permanent and sturdy in a way that it obstructs people from entering. It does not suffice to hang a sheet and the like in front of the Chametz.[112]

 

 

Examples of valid Mechitzas and areas where the sold Chametz may be stored:[113]

·         A room which will be closed and locked throughout Pesach.

·         A closet that will remain closed and locked throughout Pesach.

 

Q&A

Must the Mechitza/divider surround the entire Chametz?

Yes. The Chametz must be surrounded by all sides by the permanent and sturdy ten Tefach divider in order to remove its direct accessibility. It does not suffice to simply place it in front of the Chametz and leave the sides not surrounded.[114]

 

Taping and locking the sold areas:

All the areas that are sold to the gentile due to containing Chametz, or due to not being cleaned for Chametz, are to be properly closed and locked [with use of string, padlocks, child locks, or plastic cable ties] throughout Pesach.[115] However, by areas that contain only a suspicion of Chametz, and not actual Chametz [such as areas sold due to not being checked for Pesach] then it suffices to place tape on them and write Chametz and the like.[116]

 

May one leave wrapped Chametz in his fridge or freezer?

If he will be using the fridge during Pesach, then it is forbidden to leave any actual Chametz there even if he wraps the Chametz well and writes sold on it, and even if he tapes off an entire shelf for the Chametz.[117] If, however, one will not be using the fridge at all during Pesach, such as he has a Pesach fridge, then one may leave Chametz there and lock up the fridge [or turn it around so its door faces the wall] throughout Peach.

Closing up only the freezer or fridge compartment: It is disputed amongst Rabbanim if one may leave Chametz foods in his fridge or freezer, and close up the entire fridge or freezer compartment throughout Pesach, while making use of the other compartment.[118] Practically, one should not do so, especially if he is unable to properly lock the compartment that will store the Chametz.

 

May one leave sold Chametz in his kitchen cabinets?

It is best not to do so[119], although the custom is to be lenient.[120] One should make sure to close and lock these cabinets properly [with use of string, padlocks, child locks, or plastic cable zip ties].

 

Does one have to do Bedikas Chametz to areas of Chametz that will be sold to the gentile?

See Chapter 4 Halacha 2 in Q&A!

 

 

Entering and opening the areas that contain Chametz and were sold to the gentile:[121]

It is forbidden for one to make use of the areas sold to the gentile.[122] However, on mere occasion, one may momentarily enter into a Chametz room or closet, in order to retrieve something from there that is not Chametz.[123]

 

May one sell his home to exempt it from Bedika and then live in it, or have others live in it, throughout Pesach?[124]

No, as stated above. See also Chapter 3 Halacha 1 in Q&A!

 

May one who went away and did not clean his home for Pesach, having included it in the sale to the gentile, enters the home during Pesach?[125]

One may not do so on a steady basis. However, one may do so on occasion to retrieve a necessary item and the like.

 

May one who sold his house with exception to a single room live in that room over Pesach?

This matter requires further analysis.[126]

6. How the sale is performed?

In this Halacha we will discuss the technicalities of the sale procedure and the forms of acquisition that are used. This information is general in nature, and is not intended to be used for the purpose of doing an actual sale, which is to be left to the jurisdiction of a practicing Rav who is well versed in all its details.

The Kinyanim:

All transactions must have a Halachically legal form of acquisition performed for them to be legally binding, and effective. Accordingly, the primary focus of importance in the sale to the gentile is that a Halachically valid form of acquisition was made with the gentile, and hence the Chametz of the community has truly become his legal property. In Choshen Mishpat, various forms of acquisitions are discussed and debated as to their legal status regarding a gentile. Practically, in today’s Mechiras Chametz sales the Rav performs with the gentile all the possible transactions, in order to make the sale binding according to all opinions, and in all circumstances.[127] The following is a list of the transactions performed and their legal status:

  1. Kinyan Meshicha: Having the gentile take the Chametz into his property or public area. This form of acquisition is debated in the Poskim[128] as to whether it is valid with a sale[129] to a gentile. Hence, it initially must be done together with the acquisition of money, in which case it is valid according to all.[130] This is the most preferred form of acquisition.[131] Nevertheless, practically today this form of acquisition is not done, due to the inability of having the gentile collect the Chametz from each and every home.[132]
  2. Kinyan Kesef and Eiruv Kablan: Having the gentile pay for the Chametz. This form of acquisition is debated in the Poskim[133] as to whether it is valid with a gentile, and hence may only be used together with Kinyan Meshicha or another valid Kinyan.[134] Furthermore, it is debated amongst the Poskim as to whether the gentile may pay up front for only part of the sale price and leave the remainder as a debt that he will pay later on, or if the gentile must have the entire requested sum paid for, and if he does not wish to do so, then he must have a Jewish guarantor [i.e. Eiruv Kablan] cover the remaining payment.[135] Famously, the Alter Rebbe held and publicized the latter position that if the gentile did not pay in full, or have a Jewish guarantor cover the remaining debt, then the Kinyan of Kesef is invalid.[136] This position was later held by other Poskim[137] and is followed in Chabad and other communities until this very day.[138] They therefore arrange by the sale to have a Jewish guarantor present who accepts upon himself the remaining debt. The money is to be given to the Jew at the time that the acquisition is made and not before hand. The guarantor is to be finalized before the giving of the money.[139] However, other Poskim[140], hold of the former position that one can allow the gentile himself to owe the rest of the money, and so is followed by some communities today.[141] [It is important to note that the need of an Eiruv Kablan according to Admur, is only in order to validate Kinyan Kesef, and it does not invalidate any other valid Kinyan.[142] Practically, today, all sales of Chametz perform a number of forms of acquisitions, so if one is invalid another takes effect, and hence if one sold his Chametz through a Rav/Beis Din who does not use an Eiruv Kablan, it is nevertheless valid Bedieved even according to Admur.[143] However, initially one must be careful to only sell his Chametz through a Rav who follows the Takana of Admur to use an Eiruv Kablan.[144]]
  3. Situmta:[145] Any action which is accustomed to being used amongst merchants to finalize a sale, considers the sale final and valid, such as: Marking on the merchandise[146]; Handshake or Tekias Kaf; The giving of a Perutah; Slapping hands; Handing over of keys[147]. These actions are only valid if they are common practice amongst merchants in the area that the sale is taking place, and are used to finalize the sale. [Practically, today, it is customary to hand over some keys, and give a handshake as part of these Kinyanim.]
  4. Kinyan Agav Karka:[148] A Kinyan Agav Karka, involves acquiring a moveable object through acquiring land. The Jew sells or rents the Chametz containing room to the gentile through Kinyan Kesef [explained above], and as a result of acquiring the room, the gentile also acquires the Chametz that is in it [and all other Chametz of the seller, in all locations of the world[149]]. The Jew must tell the gentile before the acquisition of the land that “Through acquiring the room you will also acquire the Chametz that is in it.” If this was not explained beforehand, then the gentile does not acquire it.[150] ]Practically, being that some Poskim rule that this form of acquisition is invalid with a gentile, therefore it is only done in addition to the other acquisitions.[151]] The room is rented to the gentile, as opposed to sold, and is acquired through Kinyan Kesef.[152] When renting the room there is no obligation to have an Eiruv Kablan upon performing Kinyan Kesef, and no other acquisition is needed to validate the acquirement of the room.[153] Nonetheless, an Eiruv Kablan is used also when renting the rooms through Kinyan Kesef.[154] The custom is to rent to the gentile all the areas in where the Chametz is stored for the entire duration of Pesach.[155]
  5. Kinyan Chatzer:[156] Kinyan Chatzer is invalid by a gentile, and hence when renting the rooms to the gentile one must first tell him that by doing so he will acquire the Chametz.[157] However, if the gentile stands near the room that the sold Chametz is in at the time that the keys are handed over, then it is valid. Practically, so is the proper custom, [and so is done by Rabbanim[158]].[159]
  6. Kinyan Sudar:[160] A Kinyan Sudar involves the seller acquiring an object [i.e. handkerchief] of the buyer [i.e. gentile], and through doing so the buyer acquires the Chametz. It is debated in Poskim as to whether this is a valid form of acquisition with a gentile, and the final ruling of Admur and other Poskim is that it is invalid.[161] Nevertheless, many do so as an added Kinyan, in addition to the other Kinyanim.[162]
  7. Shtar: The sale is documented and signed in all its detail and this document is then given to the gentile. This sale contract does not serve as kinyan, as a document cannot be used to acquire merchandise, but rather as a show of proof for the sale.[163] See E!

 

 

When renting the rooms to a gentile, does one need to replace on the Mezuzahs after Pesach?[164]

Some Poskim[165] rule the Mezuzah’s must be removed and then replaced.[166]  Other Poskim[167], however, rule that it is not needed to be replaced and so is the custom.[168]

 

 

Handing over the keys:[169]

As explained above, handing the gentile the keys of the rooms that contain the Chametz fulfills the Kinyan of Situmta in acquiring the Chametz to the gentile. In addition, irrelevant of which form of acquisition was used for the gentile to acquire the Chametz, the Jew must hand the gentile the key to the room where the Chametz is stored prior to the 6th hour, in order so the gentile buyer is able to access his Chametz whenever he wants throughout Pesach. This access, and handing over of the keys, is vital for removing the Jew’s liability over the Chametz.[170] If the key of the room was not handed over to the gentile prior to the 6th hour, then [although the Chametz belongs to the gentile, nevertheless] the Chametz is forbidden in benefit after Pesach.[171] [However, this only applies in a case that the gentile has asked for the keys. If the gentile did not ask for the keys, then not handing over the keys does not negate the sale and does not give one liability.[172] Practically, it is no longer the custom to hand over all the keys of all the sellers homes to the gentile buyer[173], and rather only a few keys are given as part of the Kinyan Situmta.[174] In place of the keys, it is customarily written in the contract “The keys for the areas that contain the Chametz are all prepared and waiting in their homes for the gentile to take, and he may not be protested.”]

 

Q&A

If one refuses to give his Chametz to the gentile upon being asked, is the sale invalid?[175]

Refusing to give the Chametz according to many Poskim could invalidate the sale.[176] Furthermore, it would cause one to receive liability over it[177], cause him to transgress the owning prohibition and make the Chametz forbidden in benefit for all Jews after Pesach.[178] To prevent this issue, they add in the contract that anyone who refuses to hand the gentile his Chametz, the gentile has full legal permission to do whatever he can to get to it, including breaking the door and locks.

 

The gentile:

Appointing an emissary:[179] A gentile cannot make another person an emissary to acquire an object on his behalf.[180] Thus the gentile that is acquiring the Chametz must carry it himself and if he did not do so, then it has never left the Jews ownership during pesach.

Selling the Chametz to a Yisrael Mumar:[181] One may not sell his Chametz to a Jewish apostate.[182] If one did so, then the Chametz is forbidden in benefit after Pesach, unless it is a case of great loss, in which case he may have the buyer sell the Chametz for him and give him the money in exchange.[183]

 

Q&A

If after the sale it was later discovered that the gentile is truthfully Jewish, what is one to do?[184]

If this matter is discovered on Pesach, all the Chametz must be destroyed. If discovered after Pesach, then it follows the ruling stated above regarding benefit.

 

How we “enforce” the gentile to make a return sale after Pesach:

Lechatchilah, it’s forbidden to stipulate any conditions to the sale, of which lack of completing uproots the sale retroactively.[185] Likewise, one must sell the Chametz to the gentile in a way that the Jew has no rights over it during Pesach.[186] Thus, one cannot stipulate in the sale contract that the gentile must sell back the Chametz to the Jew after Pesach. However, one can create sale conditions which will make it unprofitable for the gentile to not give back the Chametz after Pesach, and hence economically force him to choose to sell back the Chametz.[187] The method used today is to create profitable conditions for the gentile to sell back the Chametz after Pesach, and he is thus inclined to do so.[188] Nonetheless, if the gentile does not want to return the Chametz after Pesach but rather wants to keep it for himself, and pay its price to the Jew, then its forbidden for the Jew to take him to a secular court, or do anything to force the gentile to return the Chametz to him, being that the Chametz was fully sold to him already.[189]

The sale contract of Admur in the Siddur:[190]

The sale is documented and signed in all its detail and this document is then given to the gentile. This sale contract does not serve as kinyan, as a document cannot be used to acquire merchandise, but rather as a show of proof for the sale.[191] The contract may be written in any language; however, it should be read to the gentile in a language that he understands. Admur in his Siddur wrote a detailed Shtar Mechira which is the basis of the documents used today amongst Chabad Rabbanim. In Admur’s words[192] “Every  Jew who the fear of G-d touches his heart to make a sale which will be final and valid according to all opinions should write a sales document as written in the Siddur.” However, many additions have been inserted throughout the years, and there are slight differences between the sale documents of various Rabbanim.[193]

The following are some of the details of the original contract of Admur: The gentile who is buying the Chametz from the Jew is doing so in order to sell the Chametz to others, having until 1-2 days after Pesach to do so. For his trouble in selling the Chametz, he gets a discount of a ½ a ruble from the market price of the Chametz that he bought from the Jew. The gentile may decide to sell the Chametz to any gentile during Pesach for market value or for a profit, in which case the profit goes to the gentile. After Pesach, the gentile may sell it to any Jew. When the due date arrives for the payment to the Jew, then if the gentile sold the Chametz, he gives whatever money that he still owes the Jew to the guarantor, which then gives it to the Jew. However, if he has not sold the Chametz, then the [guarantor pays the Jew the remainder of the debt, while the] guarantor then discusses with the gentile about getting the Chametz back, giving the gentile a slight profit as they compromise between themselves. [If the Jew decides to accept the Chametz back as his payment, then this would be valid, however the Chametz is first to be given to the guarantor.]

The price of the Chametz: The price that the gentile has to pay the Rav goes according to the market price of the Chametz at the time of the sale.[194]

Acquisition: The following are the acquisitions that Admur mentions to use in the contract that he authored: 1) Money with guarantor.[195] 2) Handshake.[196] 3) Giving keys to the gentile.[197] 4) Kinyan Agav.[198] 5) Kinyan Chatzer by having the gentile near the room of Chametz. [In addition, some Rabbanim have the custom to add the following Kinyan Sudar.[199] One should mention to the gentile that all these acquisitions done have the ability on their own to acquire the Chametz to the gentile.[200]]

 

Q&A

When does the sale take place?[201]

Customarily, the sale takes place sometime in the 5th hour, and goes into affect right before the start of the 6th hour, on Erev Pesach.[202]

Erev Pesach that falls on Shabbos: See Chapter 11 Halacha 3!

Must the sale be valid even according to state law, or does validity according to Jewish law suffice?[203]

The sale must have legal recognition and be valid according to State law in order to be valid according to Halacha.[204]

 

7. May one begin to eat Chametz after Pesach prior to the conclusion of the sale? ?[205]

One may begin eating Chametz immediately after the conclusion of Pesach, even though it is prior to the return sale of the Chametz taking place with the gentile.[206] Doing so does not border on stealing from the gentile or any other transgression.[207] This especially applies in those sale contracts that make an explicit stipulation with the gentile that one may eat the Chametz prior to the conclusion of the return sale.[208] [Practically, so is explicitly written in the sales contracts of the Eida Hachareidis[209] and of Rav Landa of Bnei Brak.[210] Others however do not explicitly write this stipulation.[211]] Even by those sale contracts that do not explicitly make this stipulation, one may be lenient to allow one to eat the Chametz prior to the end of the sale if one knows for certain that the gentile is not particular on this matter.[212] Practically, it is proper for every Rav who is arranging a sale contract to enter this stipulation explicitly in the contract and hence merit the public.[213] Alternatively, the Rav is to arrange to purchase back the Chametz immediately after Pesach.[214]

Eating Chametz during one’s last Pesach meal:[215] One whose meal on the last day of Pesach continued into Motzei Yom Tov, until after Tzeis Hakochavim, is now permitted to eat Chametz during his meal [prior to Birchas Hamazon[216]] even though he did not yet Daven Maariv or recite Havdalah at all [and did not even say Baruch Hamavdil[217]].[218] [In such a case, one is nevertheless to recite Yaaleh Veyavo and Chag Hamatzos Hazeh within his Birchas Hamazon.[219]]

_________________________________________________________________

[1] See Terumos Hadeshen 120; Admur 448:6; Michaber 448:3

[2] Mishneh Pesachim 21b, as rules Beis Hillel in Pesachim ibid

[3] See Admur 448:6 and Levush 448:3 “A Jew who has a lot of Chametz”; Elya Raba 448:3; Machatzis Hashekel 448:4; Yeshuos Yaakov 448:5; However, in Terumos Hadeshen ibid, no mention is made of the amount of Chametz one has, and it simply discusses what to do if one finds it difficult to destroy his Chametz.

[4] See Piskeiy Teshuvos 448:10

[5] The reason: As they view that the form of sale done today which guarantees the Chametz’s return, and allows it to remain in the home was only established to be done in a time of great need, for Chametz business owners who own a lot of Chametz, and not as standard practice. [See Elya Raba 448:3; Machatzis Hashekel 448:4; Yeshuos Yaakov 448:5 that the allowance for the sold Chametz to remain in one’s home is only if he owns a lot of Chametz and it is difficult to remove it.]

[6] Maaseh Rav that so was custom of Gr”a; Igros Sofrim 48 in name of Rav Akiva Eiger; Orchos Rabbeinu Pesach 19 in name of Chazon Ish and Steipler; Kinyan Torah 7:49; Teshuvos Vehanhagos 1:309; See Piskeiy Teshuvos 448:10

[7] Piskeiy Teshuvos ibid; The Chabad custom is to rely on the sale to sell actual Chametz, and so was practiced by some Gedolei Yisrael, who sold their beer, and would drink it for Havdala on Motzei Pesach. [See Admur 296:10; Rama 296:2; Mishneh Sachir 118; Otzer Minhagei Chabad Acharon Shel Pesach 31] The Tzemach Tzedek in his old age was accustomed to sell bread for him to eat when Pesach is over. [Otzer Minhagei Chabad p. 80] In the Shtar Mechira of the Rebbe Rashab, actual Chametz was sold.

[8] Mishneh Pesachim 21b, as rules Beis Hillel in Pesachim ibid; Admur 443:3

[9] Mishneh Pesachim 28a

[10] Seder Mechiras Chametz of Admur

Other Opinions: Some Poskim rule that all Chametz is included in the Bittul, including Chametz that one plans to sell. According to them the sale of Chametz is only Rabbinically required, and is only Rabbinically valid, as it has the status of Harama. [Bechor Shur Pesachim 21a; Toras Hashlamim 6; See Tzemach Tzedek O.C. 48; Likkutei Sichos 16:129; printed in Shulchan Menachem 2:273] According to this opinion, one who does not nullify his Chametz, may not rely on the sale. On the other hand, according to this opinion, one who nullifies his Chametz, may be lenient regarding various matters of the legality of the sale, being it is only Rabbinical. Admur ibid negates their opinion and says the sale is Biblically required, and hence must be valid according to all.

[11] Background from Admur in Seder Mechiras Chametz “One who thinks that the selling of Chametz is only a Rabbinical requirement, being that he already did Bittul before the sale takes place, is mistaken, as the Bittul does not include any Chametz that one plans to retrieve after Pesach. Thus, if the sale is invalid one transgresses a Biblical command of Baal Yiraeh and Baal Yimatzeh.”  

The reason: As since one plans to take back the Chametz after Pesach, the nullification is invalid. [Admur ibid; See Admur 445:2; 436:18-19 and 433:34 regarding Chametz which is placed in a public area, had a mound fall on it, or if a person traveled away from his home, in a way that he is not obligated to remove the Chametz, that nevertheless, if at the time that he placed it in a public area, traveled, or that the Mapoles fell, he had in mind to take back the Chametz after Pesach, then it’s as if the Chametz was never destroyed.] Furthermore, how can Chametz which one plans to sell be included in the Bittul, as how can he disown something that he plans to sell afterwards.

Unknown Chametz: Seemingly, all unknown Chametz that is included in the sale, is also included in the nullification, and hence selling such Chametz is only Rabbinically required. Vetzaruch Iyun.

[12] Admur ibid in Seder Mechira, seemingly retracting from his ruling in 434:15 and 448:8

Opinion of Admur in Shulchan Aruch: In 448:8 Admur rules that so long as one showed intent to sell the Chametz, he no longer transgresses owning it, even if the sale was Halachically invalid for some reason. In his words “Once the Jew has shown before the 6th hour that he has no intention on having anything to do with the Chametz, then regarding the prohibition of owning Chametz, the Chametz is no longer considered to be his, even though that regarding sale laws, the Chametz has not legally yet been acquired by the gentile, and the Jew may thus go back on the sale. The reason for why showing that one does not want the Chametz suffices to prevent transgressing the prohibition of Baal Yiraeh and Baal Yimatzeh, is because once the 6th hour arrives, since the Chametz is now prohibited in benefit, it automatically becomes ownerless, [as something prohibited in benefit is not considered to have an owner, and thus from a legal standpoint, there is no Jew that owns Chametz once the 6th hour has arrived being that it then becomes prohibited in benefit]. Nevertheless, the Torah decided that any Jew which did not remove the Chametz from his possession before the 6th hour, and did not destroy it after the 6th hour, the Chametz is considered to be his, under his name, in order for him to transgress the prohibition of Baal Yiraeh and Baal Yimatzeh. For this reason if one did an action before the 6th hour showing that he does not want the ownership of this Chametz, then it suffices to remove from himself the prohibition of baal yiraeh and baal yimatzeh when the 6th hour arrives, as through him showing that he does not want to own it he acquires the Chametz to the gentile, even though that from a legal aspect it’s not a completely valid transaction, as explained above.” This idea is repeated also in Admur 434:15 regarding appointing an emissary to nullify the Chametz on one’s behalf The Chametz that one transgresses Baal Yiraeh and Baal Yimatzeh, is anyways not considered his at all, and one thus only transgresses Baal Yiraeh and Baal Yimatzeh [when he has not disowned it] because the Torah considered the Chametz like it is his, in order for him to be associated with it so he transgress the above prohibition. Therefore, even a mere revelation of one’s opinion, that he reveals even through a messenger that he has no desire at all for the Chametz, suffices to remove himself from having his name associated with it, and he will thus not transgress anything.” So also rules Tzemach Tzedek in Piskeiy Dinim 32; ; Chok Yaakov 448:13; M”B 448:9; Kaf Hachaim 448:95

Other opinions: See previous footnotes!

[13] Piskeiy Teshuvos 448:10

[14] Terumos Hadeshen 120; Rambam 4:5-6; Rosh 2:4; Tosefta Pesachim 2:5; Yerushalmi 2:2

[15] Admur 448:6 “A Jew who owns a lot of Chametz on Erev Pesach [and thus does not want to destroy it, but rather] wants to sell it to a gentile acquaintance and friend or to give it to him as a present, then even if he knows that the gentile will not touch the Chametz and will rather guard it for him until after Pesach and then return it to him, nevertheless, one may do so. Being that if the gentile would refuse to return the Chametz, it would be legal for him to do so being that he already acquired the Chametz through a form of acquisition, therefore it ends up that throughout Pesach the Chametz belongs to the gentile with an absolute acquisition, and thus when he decides to return the Chametz to the Jew after Pesach, its considered that he is giving the Jew a present.”; Michaber 448:3

[16] This allowance is rooted in the ruling of Admur 448:17; Michaber 448:4; Rambam 4:7; and Tosefta 2:7; See Seder Mechiras Chametz [Levin] p. 155 that selling to the gentile for full payment as first accustomed by the Noda Beyehuda, as brought in Sefer Shivas Tziyon 10

[17] See Admur 448:7; M”A 448:4; Elya Raba 448:3; Machatzis Hashekel 448:4

[18] Is today’s form of sale of Chametz a true sale or a trickery? Some Poskim rule that being that the sale is arranged in a way that the gentile knows he will in essence be forced to “sell back” the Chametz after Pesach, and the Jew who is aware of this fact therefore agrees to the sale, therefore, the sale has a mere status as Harama, and is only Rabbinically valid. [Bechor Shur Pesachim 21a, brought in Makor Chaim 440:3; Toras Hashlamim 6; See Chasam Sofer O.C. 16; Tzemach Tzedek O.C. 48] However, practically, we do not rule this way. [Admur in Seder Mechira rules the sale is Biblical; Likkutei Sichos 16:129 that so is opinion of Admur and majority of Poskim, printed in Shulchan Menachem 2:273; Sdei Chemed Chametz Umatzah 9:15]

Issues raised with today’s form of Mechiras Chametz: 1) Chametz cannot remain at home: Some Poskim rule one may not initially rely on this form of sale to leave actual Chametz in one’s property, unless he contains a lot of Chametz, and doing so would cause a great loss. [Elya Raba 448:3; Machatzis Hashekel 448:4; Yeshuos Yaakov 448:5] 2) Harama Nikeres: Some Poskim rule that since the entire sale is merely Harama, it is only permitted to be done if the Harama is not recognizable in the sale. [See Tzemach Tzedek O.C. 48; Likkutei Sichos ibid] Practically, we do not rule this way, as stated above. 3) Not true sale: Some Poskim question that in today’s times, the idea of selling the Chametz has become merely protocol for the sake of circumventing the prohibition, and hence the gentile has no true intent to purchase the Chametz. [Machatzis Hashekel 448:4] 4) Rotzeh Bekiyumo: Some Poskim rule that if one desires the existence of the Chametz over Pesach then it is forbidden even if one sells it to a gentile. [See Tur 450; Minchas Yaakov 85:15; Yeshuos Yaakov 448:5; Arugas Habosem 112; M”B 450:24; Piskeiy Teshuvos 450:7] Practically, we do not rule this way. [Chasam Sofer 119; Likkutei Sichos ibid based on that Admur omits this ruling from his Shulchan Aruch; See Peri Chadash 450:7]

[19] Elya Raba 448:3; Machatzis Hashekel 448:4; Yeshuos Yaakov 448:5; Maaseh Rav that so was custom of Gr”a; Igros Sofrim 48 in name of Rav Akiva Eiger; Orchos Rabbeinu Pesach 19 in name of Chazon Ish and Steipler; Kinyan Torah 7:49; Teshuvos Vehanhagos 1:309; See Piskeiy Teshuvos 448:10

[20] Piskeiy Teshuvos ibid; The Chabad custom is to rely on the sale to sell actual Chametz, and so was practiced by some Gedolei Yisrael, who sold their beer, and would drink it for Havdala on Motzei Pesach. [See Admur 296:10; Rama 296:2; Mishneh Sachir 118; Otzer Minhagei Chabad Acharon Shel Pesach 31] The Tzemach Tzedek in his old age was accustomed to sell bread for him to eat when Pesach is over. [Otzer Chabad p. 80] In the Shtar Mechira of the Rebbe Rashab, actual Chametz was sold.

[21] Seder Mechira of Admur; See Machatzis Hashekel 448:4

[22] Heard from Harav Yaakov Yosef za”l

The reason: As all business today separate money from one’s salary which goes to a pension fund, and the money of that fund may be used to purchase Chametz stocks, in one’s name. Now, since according to law the husband has no access to that money, and even in case of divorce, he may not be able to have access to her funds, therefore it is considered under her ownership, and must be sold by her. Certainly if she began working, and receiving a pension fund, prior to the marriage, then she retains the legal rights over it.

[23] Rebbe in Igros Kodesh 19 letter 7248 [printed in Shaarei Halacha Uminhag 2:195]; The Rebbe there concludes that one should try to add to the contract with the gentile, that the Jew or someone that the Jew appoints has the right from the gentile to sell or give the Chametz to another on behalf of the gentile, although the Jew is doing this in exchange for a reward in return.

[24] The reason: As it prevents them from transgressing the Issur of owning Chametz, as well as that it reminds the people about the Issur of Chametz, and their heritage. With regards to the suspicion that perhaps they will use the Chametz: 1) Obviously not everyone who will sell their Chametz will use it. 2) Even regarding those that are suspected to do so, this is not as much as a certainty as is the help that is given by selling. 3) According to some opinions, including Admur, the sale remains valid and it is merely that he steals. [See Admur 448/13-14] 4) Even according to those opinions who say that the sale is nullified, perhaps it is only from then and onwards. [Rebbe ibid]

[25] See Admur 450:4-7; 10-11 regarding renting one’s Chametz business to a gentile for the duration of Pesach; Doveiv Meisharim 2:4; Piskeiy Teshuvos 450:3; 7; 10

[26] Shaar Hakolel on Seder Mechira 19; Hagahos Chochmas Shlomo 450:7; Halef Lecha Shlomo 334; Zekan Ahron 2:22; See Kinyan Torah 5:32

Other opinions: Some Poskim do not allow the business to remain open over Pesach even if sold to the gentile. [Maharam Shick 216; Maharshag 55]

[27] Vetzaruch Iyun regarding Chametz that one had no knowledge of at the time of the sale, as he nullified it before Pesach when saying the Bittul, and hence it is no longer his to sell. If this is true, then one would be required to destroy it on Pesach even if he sold his Chametz and would say a blessing if the Chametz is a Kezayis in size. However, in truth, this question is a general question on the Bittul, and as to how the sale and Bittul do not contradict each other, as on the one hand, all Chametz that one plans to sell is not included in the Bittul, and on the other hand one plans to sell all the Chametz. Vetzaruch Iyun. However, perhaps one can suggest that since the Bittul is Rabbinically invalid, it is at least Rabbinically considered that one owns the Chametz, and it is this Rabbinical ownership that is being sold, even if one does Bittul. Likewise, perhaps by the gentile renting the areas of the Chametz he likewise acquires these areas, as ruled in 436:20.

[28] The common sale contracts that are given to the gentile include the following clause: Included in the sale is all pieces of Chametz found in all the mentioned areas, which do not have any sales worth, and are not purchasable, they belong to the gentile. [Clause in Shtar Mechira of Admur, brought in Hilchos Mechiras Chametz in end of Hilchos Pesach in Shulchan Aruch Harav] Accordingly, all Chametz is included in the sale. [Shevet Halevi 9:116; Mikraeiy Kodesh 1:74; Teshuvos Vehanhagos 2:211; Piskeiy Teshuvos ibid; Nitei Gavriel 3:4; footnote 22]

[29] Admur 447:3; See Chapter 2 Halacha 5 and chapter 3 Halacha 6

[30] Admur 442:31; See Admur 442:28 [brought in Chapter 3 Halacha 4] that from the letter of the law it must only be sold if it contains a Kezayis.

[31] Shtar Mechira of Admur

Which types of vessels is Admur referring to in the contract? See Shaar Hakolel on Seder Mechira 17 that the vessels mentioned in the contract refer to non-meal vessels, as one is required to clean all his meal vessels from Chametz; The Rebbe however in Likkutei Sichos 16:129 [printed in Shaarei Halacha Uminhag 2:194] negates this explanation and says it refers to all vessels that could not be cleaned for whatever reason, including meal vessels, as explains Admur 442:31

[32] Nussach of Shtar Mechira of Admur; See Likkutei Sichos 16:129

Other opinions: Some Poskim rule that one should not include in the sale any of his Chametz vessels, as otherwise they will require immersion after Pesach. Thus, they are careful to write in the contract that they do not intend to sell the actual vessels but rather only the Chametz that is on the vessels. [Shivas Tziyon 11 in name of his father the Noda Biyehudah; Chasam Sofer 109 in name of Rav Nassan Adler; brought in Shaar Hakolel on Shtar Mechira 17 who explains that the vessels mentioned in the contract of Admur is only referring to non-meal vessels which thus anyways do not require to be toiveled. The Rebbe ibid however negates his explanation.

[33] See Q&A!

[34] Shtar Mechira of Divrei Malkiel 4:24 regarding perfume and cosmetics; Shtar Mechira of Rebbe Rashab included some products of inedible Taaruvos Chametz; So is also written in the Shtar Mechira of “Seder Mechiras Chametz” [Levin] p. 183 which is endorsed by Vaad Rabbanei Chabad; See however Chapter 6 Halacha 4 that in truth there is no need to sell such products, and it is better not to do so, as people may come to use the products as is Halachically allowed. Vetzaruch Iyun! When I questioned Rav Levin as to why he entered this in the contract he stated this was not his decision, but that of Vaad Rabbanei Lubavitch.

[35] As there is no prohibition to drink the wine of a gentile that is under constant supervision and guarding of a Jew. [See Shulchan Aruch Yoreh Deah chapter 131 in length]

[36] Likkutei Sichos 16:129 [printed in Shaarei Halacha Uminhag 2:193]; The Tzemach Tzedek instructed the Rebbe Rashab to eat the candies that he received from him before Pesach, rather than sell it to a gentile. Chassidim tell over that they would always eat their shirayim before pesach rather then sell them to a gentile. [Rebbe ibid]

[37] The reason: The reason for this is because it is not honorable to one’s Rebbe to take the shirayim that he was given and sell it to a gentile. [Rebbe ibid]

[38] See Likkutei Sichos 18:364, printed in Shaarei Halacha Uminhag 2:194 and Shulchan Menachem 2:285]; Piskeiy Teshuvos 448:8

[39] Shivas Tziyon 11 in name of his father the Noda Biyehudah; Chasam Sofer 109 in name of Rav Nassan Adler

[40] Implication of Admur in Seder Mechira; Gloss of Chochmas Shlomo 448; Shoel Umeishiv 51; Halef Lecha Sholomo Y.D. 194; Aruch Hashulchan Y.D. 120:52; Darkei teshuvah 120:90; Rebbe in Likkutei Sichos, printed in Shaarei Halacha Uminhag 2:194; Poskim in Piskeiy Teshuvos ibid

[41] The reason: The reason the Torah requires a vessel to be Kashered is not because of some external impurity that is transmitted to the vessel by a gentile, and thus requires cleansing prior to use of a Jew, but rather due to Kashrus reasons. The mere fact that a vessel was owned by a gentile, and could have been used for non-Kosher foods, gives it a potential of being non-Kosher. Now, being it’s not common at all that the sold vessels of Mechiras Chametz will be used by the gentile, it’s not considered to have a potential of being used by the gentile for non-kosher foods, and hence does not need immersion. [Rebbe ibid]

[42] Rebbe ibid; However, see footnote 35 “However possibly one can say that even in this case Tevilah is not required being that Tevilas Keilim is a novelty, and thus we do not apply to instances where it’s not specifically mentioned to require tevilah being that the instance is not common to occur.”

[43] Shaar Hakolel 10; Piskeiy Teshuvos 448:17; See Sdei Chemed Chametz Umatzah 9:6-7 for a discussion on this matter

Other opinions: Some Poskim rule it does not suffice to appoint a Rav to sell one’s Chametz, as the seller must personally sign on the sale document with the gentile. [Makor Chaim 8; See Sdei Chemed ibid]

[44] Shaar Hakolel ibid; Yeshuos Maloko Pesicha Lidinei Mechiras Chametz 24

[45] Shaar Hakolel 10; Piskeiy Teshuvos 448:17; See Sdei Chemed Chametz Umatzah 9:6-7 for a discussion on this matter

[46] Shaar Hakolel Seder Mechira 4 writes that one needs to mention all the types of Chametz that he is selling, Thus in the power of attorney document that everyone signs, all the types of Chametz should be mentioned, which includes: Anything mixed with the 5 grains whether fried/baked/pickled/salted/raw/roasted/, whether beiyun or taaruvos, whether nuksha or Biblical, whether edible for man or for animal/birds, or for medicine, etc. [Shaar Hakolel 11] See also Biur Halacha 448 “Bedavar Muat” and Piskeiy Teshuvos 448:29

[47] See end of Nachalas Shiva; Shaar Hakolel Seder Mechiras Chametz 38 for his Nussach; Seder Mechiras Chametz [Levin] p. 189 has a copy of the Shtar Harsha accustomed to be used today.

[48] The Beis Din, or Rav, writes the Shtar Harsha in accordance to the details written in his contract, and hence there exists various dialects of this document

[49] Tzemach Tzedek 46 “Since he revealed that he wants to appoint him as his messenger, it is valid”; Piskeiy Teshuvos ibid

Other opinions: Some Poskim rule that it does not suffice to appoint a Rav to sell one’s Chametz, as the seller must personally sign on the sale document with the gentile. [Makor Chaim 8] According to this opinion, signing on the Shtar Harsha is an obligation, as only then is it considered that one signed on the sale document. Nevertheless, we do not rule like this opinion. [See Sdei Chemed ibid; Piskeiy Teshuvos ibid footnote 69]

[50] Divrei Nechemiah in suspicion of opinion of Makor Chaim ibid

[51] Tzemach Tzedek 46; Sdei Chemed Chametz Umatzah 9:6-7; Moadim Uzmanim 3:269; Piskeiy Teshuvos 448:21; Seder Mechiras Chametz [Levin] p. 177 and 182

[52] Divrei Malkiel 4:22; Igros Moshe 1:150; See Kinyan Torah 4:43 that this must be written even Bedieved; Piskeiy Teshuvos 448:29

[53] In the contract, Admur writes that the rooms with the Chametz have been marked for the gentile to know. Thus, one should mention within the contract all the areas which he has Chametz in. Shaar Hakolel Seder Mechira 4 writes that one needs to mention all the types of Chametz that he is selling, making sure to mention all the areas that they are being stored in; See Divrei Malkiel 4:22; Moadim Uzmanim 3:289

[54] Tzemach Tzedek 46 writes that even if the gentile was not made aware of the areas that contain the Chametz, it is nevertheless valid, as anyways the gentile knows that all the rooms which contain Chametz within them are rented to him, and there is thus no greater sign for him then that, Brought in Shaar Hakolel Seder Mechira 12; Piskeiy Teshuvos 448:29

[55] Michaber C.M. 45:3; 61:13 regarding Kesuba; Rama E.H. 66:13; C.M. 61:13; 68:2; Admur Hilchos Ribis 46 in parentheses; Beis Yosef E.H. 66; C.M. 68; 69; 147; Teshuvos Hameyuchasos Ramban 77; Shut Rashba 1:629; 1:985; 5:228; See Yabia Omer E.H. 3:13; Mishneh Halachos C.M. 7:61-13; Mishpitei Eretz 2:299; Techumin 8:164

Other opinions: Some Poskim rule that if one claims that he did not understand all the conditions on the document, we accept his claim. [Rav Meir, brought in Rashba 1:629] Others limit this only to a case where there when there is an Anana Sahadi that he was unaware. [Ruling of Rashba 1:1156 regarding the invalidation of a condition in the Kesuba due to the claim that the Kallah was unaware of its content; Kneses Hagedola C.M. 147; Maharash Laniado 18; Ginas Veradim E.H. 4:14; Rav Sharman in Techumin ibid in name of Riaz Anzil 49; Mishneh Halachos ibid; See Kneses Hagedola ibid and Dvar Moshe 2:69 and Yabia Omer 3:13 regarding this contradiction in Rashba] Other Poskim rule that we believe such a claim regarding a secondary detail in the document. [Kneses Hagedola C.M. 147; Maharash Halevi Y.D. 14] Others rule that we only accept this claim if the person did not personally sign, even if he had witnesses sign. [Shut Reb Betzalel Ashkenazi 24, author of Shita Mekubetzes; Yabia Omer E.H. 3:13]

[56] The reason: As whenever one signs a document, he agrees to obligate himself to all of its content, and thus even if it was not read before him, it is legally valid. [Implication of Admur and Michaber ibid; Smeh 45:5; Shach C.M. 61:18; Ramban ibid “If he did not bother reading it and signed, he has obligated himself to all its content, even if he did not borrow”] Meaning, that when one signs a document, who relies on the author of the document and agrees to its content. [Smeh ibid and 62:23; Shach 45:5; Ramban ibid; Beir Hagoleh 45:3; Levush 45:3; Aruch Hashulchan 45:5] Alternatively, the reason is because certainly one has agreed to obligate himself to whatever is written there, as certainly they read it before him, and he trusted that person. [Rama E.H. 66:13; C.M. 68:2; Rashba 1:629; 5:228] If we were to invalidate documents based on this claim, a document would never have any legal meaning. [Beis Yosef E.H. 66; Rashba ibid] The Halachic ramification between the two reasons is if one knows for certain that the signatory was unaware of its content. According to the former reason the condition should be valid, while according to the latter reason perhaps the condition is invalid. See other opinions brought in previous footnote!

[57] Seder Mechira of Admur “The main thing is that the Jewish Chametz seller truly accepts the sale transaction, and that if the gentile desires to sell all the Chametz, he may do so” See Piskeiy Teshuvos 448:5

[58] Tzemach Tzedek 46; Shaar Hakolel Seder Mechira 10

[59] The reason: As Zachin Leadam Shelo Befanav. [Tzemach Tzedek ibid]

[60] Sefer Haminhagim [English] p. 72; Hayom Yom p. 45; See Otzer Minhagei Chabad Nissan p. 76; Article of Rav Levin in Yagdil Torah N.Y.; 59:207; Seder Mechiras Chametz [Levin] p. 194-196

[61] See Seder Mechiras Chametz ibid that so was custom in Vitebsk

[62] Otzer Minhagei Chabad ibid

[63] M”B 448:19; Piskeiy Teshuvos 448:19

[64] The reason: As to appoint the Rav as a Shliach one does not need to perform any Kinyan, and everyone is valid to act as one’s representative, to inform the Rav, even a gentile. [Piskeiy Teshuvos ibid] This is in addition to the fact that even the sale itself to the gentile may be done through a Shliach, such as one’s wife or other person, although to do so through a child or gentile is under dispute. [See M”B ibid; Piskeiy Teshuvos ibid]

[65] Blumenkrantz 3-53

[66] Tzemach Tzedek 46 “Since he revealed that he wants to appoint him as his messenger, it is valid”; brought in Shaar Hakolel 10; Sdei Chemed Chametz Umatzah 9:6-7; Piskeiy Teshuvos 448:17

Other opinions: Some Poskim rule that it does not suffice to appoint a Rav to sell one’s Chametz, as the seller must personally sign on the sale document with the gentile. [Makor Chaim 8] According to this opinion, signing on the Shtar Harsha is an obligation, as only then is it considered that one signed on the sale document. Nevertheless, we do not rule like this opinion. [See Sdei Chemed ibid; Piskeiy Teshuvos ibid footnote 69]

[67] The reason: As stated above, and in the coming Q&A, one only needs to reveal to the Rav that he

[68] See Sdei Chemed Chametz Umatzah and Piskeiy Teshuvos ibid that one should suspect for the opinion of the Makor Chaim ibid who requires a signature.

[69] Peri Hasadeh 3:91Minchas Yitzchak 6:38 based on Michaber C.M. 240:13; Piskeiy Teshuvos 448:6

The reason: There is no Halachic invalidation of the sale involved in appointing two different Rabbis to sell one’s Chametz, as whichever Rabbi sells the Chametz first, is the one who actually sells it for the person.

[70] Rabbi Blumenkrantz 3-55; However see Orchos Rabbeinu 2:2 that the Chazon Ish and Steipler would even initially sell through many different Rabbanim

[71] Such as that one must have a Jewish guarantor, and that a Kinyan chatzer does not help for a gentile. This is in addition to the fact that by all means one should use the sale contract which Admur authored as opposed to contracts taken from other sources. See Shaar Hakolel on Seder Mechiras Chametz for the explanation of the various nuances found in the Shtar Mechira of Admur, in contrast to that of other Poskim.

[72] So replied Rav Eli Landau and Rav S.B. Levin, that the main Kinyan of Admur in the Siddur is Kinyan Kesef, and it hence needs an Eiruv Kablan, while the other Kinyanim are just “Litosefes.” Hence, if the Kinyan Kesef is invalid, it can nullify the whole sale according to Admur. Vetzaruch Iyun, as Admur 448:8 clearly rules that Kinyan Kesef alone does not suffice, and hence one cannot rely on it alone. Thus, one must say the other Kinyanim are also valid in their own right, otherwise there is no Kosher Mechiras Chametz today according to Admur.

[73] Admur 448:7-8 rules that the main Kinyan is Meshicha, although Lechatchila one must do also Kinyan Kesef with an Eiruv Kablan because some say Meshicha is not enough; In 448:11 he rules that if one can’t do Meshicha, then he must do one of the other Kinyanim listed there [and here below]. This implies that the entire need of an Eiruv Kablan is only when one is relying on Kinyan Kesef with Meshicha, otherwise, one can rely on the other Kinyanim even without an Eiruv Kablan. So is also implied from Tzemach Tzedek in Piskei Dinim, brought in Shaar Hakolel 2, that “By Kinyan Kesef one needs an Eiruv Kablan.” In other words, lack of an Eiruv Kablan does not nullify the other forms of Kinyanim.

[74] Avnei Nezer O.C. 347; See Piskeiy Teshuvos 448:18

[75] Shaar Hakolel Seder Mechira 10

[76] See however Chapter 16 Halacha 1 for conditions in which it would be allowed to eat the Chametz after the sale even in such a case!

[77] Igros Moshe 4:94; Minchas Yitzchak 7:25; Mishneh Halachos 6:93; Beir Moshe 7 Kuntrus Elektri 115; Shraga Hameir 2:65; 4:84; Piskeiy Teshuvos 443:1; The leaning opinion of Rebbe in Shulchan Menachem 3:229 is that we follow the area of the Chametz

[78] Oneg Yom Tov 36 based on Pesachim 32a; Kaf Hachaim 443:17; Opinion of Rebbe ibid

[79] Chesed Leavraham Kama 35; Levushei Mordechai Tinyana 47; Eretz Tzevi 1:83; Mikraeiy Kodesh 1:55; See Piskeiy Teshuvos ibid

[80] So rules Igros Moshe 4:94; Minchas Yitzchak 7:25 brought in Piskeiy Teshuvos ibid

[81] One suggestion is to specify that he is only selling him the Chametz in that time zone, otherwise he will not be able to eat Chametz even before the 5th hour, as it was already sold. Accordingly, when one has traveled to a later time zone [east to west] one would need to make 2 sale contracts, writing in each one that it is only valid for the Chametz of its area, in order so he be able to still eat Chametz in the west after the time of the East has arrived. However, in truth, many contracts give the Jew explicit permission for him to take the Chametz for himself, with intent to repay the gentile, and hence the above is not necessary. One should discuss these points with the Rav.

Left his wife and kids for Pesach in a later time zone: One who is in an early time zone than his wife and children who have been left at home, must sell his Chametz in his current location and thus enters into the same dilemma as described above, as how can his family now eat the Chametz in his home? Minchas Yitzchak 7:25 suggests that the husband needs to give over the Chametz to his family as a complete present saying that they have permission to do with it whatever they wish, and they should sell their own Chametz through the Rav in their time zone.

[82] Admur 448:3; 450:21 in parentheses; Piskeiy Teshuvos

[83] Igros Moshe 4:94

[84] Rather the Rav is to buy it for himself and then the original owner will buy it back from the Rav.

[85] See Igros Moshe 4:94 and so is implied from Admur in Seder Mechira who rules the sale is Biblical; However, see Mishneh Halachos 6:96; Piskeiy Teshuvos 443:1 and Admur 448:8 that the Chametz is permitted in benefit so long as one showed interest in selling it

[86] Tzemach Tzedek 46; Shaar Hakolel Seder Mechiras Chametz 10

[87] Shevach Hamoadim 8:6; Piskeiy Teshuvos 448:17

The reason: This is done merely to elucidate to the seller that it is a true sale, as in truth no acquisition is needed in appointing the Rav to be one’s sale messenger. [Piskeiy Teshuvos ibid]

[88] Michaber 195/1

[89] Shaar Hakolel Seder Mechira 10; This follows the ruling that no witnesses are needed to validate a Kinyan Sudar: Michaber C.M. 195/1; 189/1; Smeh 123/21; Rambam Mechira 5/9; Tosafos in Baba Basra 40a and Kiddushin 65 and Sanhedrin 6; Rashba in Baba Basra 40a in name of Rabbeinu Tam and Rif; Ittur, brought in Maggid Mishneh on Rambam ibid

[90] See Sdei Chemed Chametz Umatzah 9:6 that he would not take payment; Teshuvos Vehanhagos 2:218 that there is Halachic basis for giving money; Piskeiy Teshuvos 448:17; Rabbi Blumenkrantz page 3-53

[91] Some authorities suggest that this is more than a mere custom, and may be required by the letter of the law, as the Rav cannot be trusted simply as a Shliach to sell the Chametz, and through paying him money it turns him into an employee working for the owner of the Chametz, of which he then can be trusted sell the Chametz for the owner. [Teshuvos Vehanhagos ibid]

[92] Divrei Nechemia 35; Kinyan Torah 3:53; 6:26; See also Tzemach Tzedek 47 “And in addition majority of the people sell their Chametz through the power of attorney do so on the 13th, and certainly he is not suspected to forget to sell it to the gentile.”

[93] The reason: This is done to help avoid needing to check the sold areas for Chametz on the night of the 14th according to the stringent opinions. [ibid]

[94] Tzemach Tzedek 46; Sdei Chemed Chametz Umatzah 9:6-7; Moadim Uzmanim 3:269; Piskeiy Teshuvos 448:21; Seder Mechiras Chametz [Levin] p. 177 and 182; See Avnei Nezer O.C. 528 who allows giving the Chametz to a gentile even after midday; See also Chelkas Yaakov 2:70; 3:180; Doveiv Meisharim 1:119; Piskeiy Teshuvos 448:31

[95] See Piskeiy Teshuvos ibid

[96] M”B ibid “Although one is not to protest against those who are lenient, nevertheless, one who sells on the 13th is doing the better act”; Kaf Hachaim ibid “It is best…”; Nitei Gavriel ibid

[97] Teshuvos Vehanhagos 2:220; See Piskeiy Teshuvos ibid footnote 20

[98] The reason: As by doing such a sale one enters his entire Bedika into question, as if his entire home and all Chametz is already sold to the gentile on the 13th, how can he check for Chametz with a blessing on the 14th, and seemingly his blessing is in vain. [ibid]

[99] Admur 443:6 “It is a mitzvah of “Hashavas Aveida” for one to sell the Chametz prior to the 6th hour, [in order to prevent his friend of a financial loss].” Michaber 443:2

[100] Implication of Admur ibid; M”A 436:11; See Tzemach Tzedek 46; Panim Meiros 2:52; Chasam Sofer E.H. 11; Divrei Chaim 2:46; Beir Yitzchak 2; Poskim in Sdei Chemed Chametz Umatzah 9:2; Chazon Ish E.H. 45-11; Piskeiy Teshuvos 448:21; See article of Rav Mordechai Farkash, printed in Hearos Ubiurim Yud Alef Nissan 5770

[101] The reason: As Zachin Leadam Shelo Befanav. [Poskim ibid]

[102] Sdei Chemed ibid; See Doveiv Meisharim 1:30

[103] See Avnei Nezer 347; Divrei Malkiel 4:18; Ketzos Hachoshen C.M. 243:8 who explains one can only acquire for the person, and not from the person, or do a transaction on his behalf; See Kinyan Torah 4:43 that the address must be written even Bedieved;

[104] Heard from Harav Yaakov Yosef, in order to suspect for the opinion of the Ketzos Hachoshen

[105] Admur 440:2 and 8; 448:7 ; See Chapter 2 Halacha 5A!

[106] Admur 440:9-16; See Chapter 2 Halacha 5C!

Do we retain liability over the gentiles Chametz that remains in our home? Simply allowing the Chametz to remain in one’s home after the sale does not make it into a Pikadon, and does not make one liable for damages, even due to negligence, unless the gentile stipulated otherwise. [Admur 448:7 “It is proper for the gentile to remove the Chametz from the property of the Jew before Pesach, as otherwise it appears as if the Jew has accepted to store the gentiles Chametz in his home. Nevertheless, from the letter of the law, there is no room to suspect for this.”; M”A 448:4; Taz 448:4; Bach 448] Nonetheless, since it appears as if the Jew has accepted to store the gentiles Chametz in his home and has thus accepted liability, therefore, the custom is to include as part of the sale transaction, the renting of the rooms in which the sold Chametz is found, as now the Chametz is no longer in our property. [See Admur 448:7; Makor Chaim 448:9]

Issues of liability involved in Mechiras Chametz: In addition to selling the Chametz to the gentile, one must also negate any liability from the Chametz which remains in one’s home. There are several issues presented regarding Mechiras Chametz today that can cause liability to fall. 1) No known amount: Some Poskim rule that in today’s form of Mechiras Chametz, there is some form of liability that the Jew has for the Chametz that was sold to the gentile being there is no known amount of Chametz being sold. To counteract this issue, part of the sale transaction must include renting the rooms in which the Chametz is found in the gentile, as although we remain liable, the Chametz is not in our property. [Makor Chaim 448:9; See however Sheiris Yehuda 8, brought in Shaar Hakolel 18 who counters this claim; Seder Mechiras Chametz Levin p. 162] 2) Access to the Chametz: Not giving the gentile access to the Chametz can cause one to have liability. [See Admur 448:14 and Halacha 6C!]

[107] Admur 440:5 and 8; 448:4; See Halacha 10 and Chapter 5 Halacha 5!

The reason: The Mechitza serves as a Heker/reminder, so he not come to forget about the prohibition of eating Chametz, and not come to using it. [Admur 440:5]

The reason it does not help to place the Chametz behind a Mechitza by disowned Chametz: The reason the Sages allowed one to place the Chametz of a gentile behind a Mechitza, even though one who disowns Chametz must destroy it completely from the home, is because by a gentile’s Chametz, one is more hesitant to eat from it, and thus placing it behind a Mechitza suffices. However, by Chametz of Hefker, that was disowned, one is not hesitant to eat from it even if a Mechitza is placed. [Admur in gloss on Kuntrus Acharon 440:11]

[107] Admur 446:7; Shevet Halevi 9:116 in second option

[108] See Admur 448:7 that it is nevertheless proper to remove the Chametz from the home being it appears like one accepted liability, and for this reason that we rent to the gentile the rooms in which the sold Chametz is found. [Makor Chaim 448:9]

[109] Admur 440:5 and 8

[110] Admur 440:5; 446:7

The reason: One cannot rely simply on the vessel, due to a decree that one may come to remove the vessel and order to use it, and the Chametz will be revealed and one will forget and come to eat it.  [Admur 440:5]

[111] Admur 440:5

[112] The reason: As one is able to [move the sheet and] go under the sheet, and there is thus worry that one may come to eat from the Chametz that is placed there.

[113] So is the custom; In general, Tzaruch Iyun as to the allowance of leaving Chametz in a room or closet. Admur ibid ruled that leaving it under a vessel is invalid because we suspect one may take the vessel to use and then come to eat the Chametz. This worry should likewise apply to leaving Chametz in a room or closet, as perhaps one will open the room or closet to get something, and will then come to eat the Chametz. However, in truth the cases are not the same and it is hence permitted to do so, due to the following reasons: a) The room and closet themselves are sold/rented to the gentile, and we do not suspect that one will steal the use of the gentile’s property. b) Even if one does enter the room once in a while to retrieve something [as will be explained below], this is only momentarily and perhaps we do not suspect he will come to eat the Chametz in this short amount of time. [See Admur 440:6]

[114] So is implied from Admur ibid in his reasoning for invalidating a sheet due to that one can bypass it. So too here, if one can bypass the Mechitza from a different angle, then what purpose does it serve.

[115] See Admur 451:1 regarding Chametz vessels, and all the more so would this apply to actual Chametz!

[116] Nitei Gavriel in name of Ashel Avraham Butchach; Betzel Hachochma 6:34; Kinyan Torah 1:110; Mishneh Halachos 8:189; Orchos Rabbeinu Pesach 17

[117] The reason: As a) The Chametz must be behind a Kosher Mechitza of ten Tefach, and wrapping it up, or taping it, is not defined as a Kosher Mechitza. b) The Mechira contract rents the areas of the Chametz to the gentile, hence the entire fridge is rented to him, and one thus cannot make regular use of it over Pesach.

[118] Although it is possible to define the compartment as a valid Mechitza, nevertheless a second issue still remains, and that is that the entire fridge is rented to the gentile, and hence how can one now make use of it.

[119] Rav M.S. Ashkenazi of Kfar Chabad discouraged using it. This can be due to several reasons: a) It is not a Mechitza of ten Tefach; b) One is accustomed to opening the closets throughout the year and taking out food [see Admur 451:1]; c) This possibly causes all the cabinets to be rented to the gentile. This especially applies against leaving Chametz in the cabinets under one’s counter, as if one does so he may no longer be allowed to use the counter for his needs being that it is rented to the gentile. [Rav Ashkenazi]

[120] Piskeiy Teshuvos 448:11 footnote 50; Based on Mishneh Halachos 8:189 regarding bathroom cabinets; and so is the custom!

The reason: Although the cabinets are not ten Tefachim tall, as is required by a Mechitza, nevertheless it is valid being that we consider the wall that the cabinet is attached to, to be the Mechitza. [ibid] Vetzaruch Iyun, as a) We explained above that the Chametz must be surrounded by all sides by a Kosher Mechitza. b) People are used to opening it during the year.

[121] See Piskeiy Teshuvos 448:14; 436 footnote 20

[122] The reason: As a) Due to worry that one may come to eat the Chametz as it is for this reason that the Chametz, or potential Chametz in an unchecked room, must be placed behind the Mechitza, and by making use of the room or closet one invalidates its Mechitza [which were the closet and room doors]. B) The sale of Chametz to the gentile that is performed today rents to the gentile all the areas of one’s home where the Chametz is kept, and all the areas where there is possible Chametz and one did not perform Bedikas Chametz. Accordingly, it is forbidden for one to make use of the rooms, closets, and cupboards which were designated to be sold to the gentile.

[123] The reason for allowance: a) Some contracts explicitly include a clause which allows the Jew to enter the rented areas on occasion if he needs to. [Sivas Tziyon 10 in name of Noda Beyehuda; Orchos Chaim 448:19; Teshuvos Vehanhagos 1:290; See Piskeiy Teshuvos ibid] Furthermore, even those contract who do not include this clause [such as the contract written in Seder Mechiras Chametz [Levin], Contract of Rav Raskin] seemingly one always retains the right to retrieve an item that is his from someone else’s property. [See Admur Hilchos Gezeila Ugeneiva 28 based on the principal of Adam Oseh Din Leatzmo] b) We are not worried that one may come to eat from the Chametz, as one will only remain there momentarily, and the worry seemingly does not apply in such a case. Hence, we do not find any source for prohibiting passing by a Chametz stand of a gentile.

[124] Piskeiy Teshuvos 436 footnote 20

[125] See Piskeiy Teshuvos 448:14; 436 footnote 20

[126] Seemingly, it is permitted to live in the room as the gentile must give the Jew passage way to get to the unsold room, and hence this is not considered a constant use of the sold property. Nevertheless, it would be forbidden for the resident to lounge in the other rooms or even hallway for no reason, and he may only enter there on a non-steady basis. Regarding using the bathroom-seemingly if there are no children at home it is not included in the sale as there is no obligation to check a bathroom for Chametz. See Chapter 3 Halacha 3!

[127] See Seder Mechira of Admur who adds Kinyan Agav “as an additional Kinyan to the one’

S above”; See Sheiris Yehuda 11; Piskei Dinim 448 p. 32

[128] Some opinions rule that a gentile only acquires an item through giving money to the seller and not through Meshicha. [Opinion in Admur 448:8; Rashi Kiddushin 14b; Bechoros 3b; Masas Binyamin 59 and 97; Nachalas Shiva 30; Michaber and Tur, like Reish Lakish] Other Poskim rule the opposite, that a gentile only acquires an item through Meshicha and not through giving money to the seller. [Ruling of Admur in 441:12; Kuntrus Acharon 441:4; opinion in Admur 448:8; Shach C.M. 194:1; Rabbeinu Tam Tosafos Avoda Zara 71a; Ramban; Chok Yaakov; like Rebbe Yochanan] Other Poskim rule that both forms of acquisition are valid, either Meshicha or Kesef. [Opinion in Admur 448:8; Rambam Zechiya Umatan 1:14] Practically, when selling Chametz to a gentile, the gentile needs Lechatchilah do both forms of acquisition, Meshicha, and to pay the seller the money, in order for it to be valid according to all. [Admur 448:8; Vetzaruch Iyun from Admur 441:12 where he rules even Lekula that Kinyan Kesef is worthless, and only Meshicha helps!]

[129] A present: However, when a gentile is given a present from a Jew, according to all it suffices for him to carry the object, as money was only said to be required [for acquisition] in a case that the gentile is buying an item from a Jew, and thus has to give him money for it, however in a case that there is no money involved, like when its being given as a present, then carrying the item alone suffices. [Admur 448/9]

[130] See previous footnote

[131] Admur 448:7; M”B 448/17

[132] See 448:7 and 11 If one is unable to sell the Chametz to the gentile by having him carry the Chametz, such as that there is too large of an amount of Chametz for the gentile to carry, or that the gentile wants the Chametz to remain in the house of the Jew, or that the Jews Chametz is in a different country, then other forms of complete acquisition, which renders the sale final and un-retractable, must be used for the gentile to acquire the Chametz.”

[133] See previous footnotes regarding Kinyan Meshicha for the debate; Practically, Admur 441:12 and in Kuntrus Acharon 441:4 rules like the Shach that only Kinyan Meshicha works, and not Kinyan Kesef. In his words “As a Jew from a gentile, or vice versa, does not acquire anything with money alone, but rather with Meshicha” Accordingly, Admur rules there that if a Jew bought Chametz from a gentile and did not do Meshicha, then it is not considered his [if no other form of Kinyan was done]. However, here in 448:8 Admur suspects for the opinions that invalidate Meshicha and validate Kesef, and thus also Kinyan Kesef is initially to be done. Vetzaruch Iyun from the Siddur in Seder Mechira, where Admur explains the necessity of having an Eiruv Kablan for Kinyan Kesef, in which he makes it seem that the main Kinyan is Kinyan Kesef, when in Admur here in 441:12 rules that Kinyan Kesef is worthless. So is also implied from Shaar Hakolel 20. Perhaps, however Admur in the Siddur was relying on also Kinyan Meshicha, or another form of Kinyan mentioned in the Shtar.

[134] Admur 448:12

[135] In previous times, this debate was not relevant, as the custom was to sell all the Chametz to the gentile for a final minimum sum, and hence the entire payment was covered. However, this risked the gentile legally running off with the person’s Chametz in exchange for a minuscule payment. In the times of the Alter Rebbe, a new innovation was made to circumvent this risk, and have the gentile owe the remaining payment. [Admur in Seder Mechira] It is this innovation that is debated in terms of its validity. The germ of the debate is regarding whether Kinyan Kesef is valid if one still needs to chase after the gentile for payment. This is called Yotzei Venichnas Achar Hadamim and Ayal Venafik Azusei. [See Rama C.M 190:10]

[136] Admur 448:8 When using payment for a merchandise as a form of acquisition, the buyer must pay the seller the entire amount of the sale, or part of the money but have a guarantor liable for the rest of the payment, in a way that there is no claim left upon the gentile buyer, [and that the gentile buyer does not have to pay the guarantor back until after Pesach-Seder Mechira]” Seder Mechiras Chametz of Admur in Siddur However, if the gentile still remains owing money to the seller, then the sale is invalid according to the opinion of the greatest of the Rishonim and Achronim. Thus, there is no possibility for allowing the gentile to owe money to the seller, and rather (if the gentile does not want to pay all up front, then) another Jew must accept upon himself to become a guarantor to the owed money in a way the gentile is now completely out of the picture, and owes nothing to the seller. And any claims made can only be made to the guarantor.” See Sheris Yehuda 10 regarding the source of these Rishonim, and that one of them is the Rif regarding Aya Venafik Al Zuzei [brought in Hosafos Shulchan Aruch Admur 1359]; Tzemach Tzedek in Piskei Dinim p. 32a; Shaar Hakolel on Seder Mechira 2; Aruch Hashulchan 448:22; Emek Sheila Y.D. 92; Sdei Chemed Chametz Umatzah 9:10; See Seder Mechiras Chametz [Levin] p. 155-156; Mechiras Chametz Beeiruv Kablan [Belinuv]; Piskeiy Teshuvos 448:25

The reason: As if the seller pressures the gentile to pay before the due date, and he does not do so, the sale is invalid, as the Rif invalidates a case of Aya Venafik aZuzei. This does not apply if there is a guarantor, as the gentile has completely removed himself from the picture. [See Sheiris Yehuda ibid; Piskei Dinim ibid; Shaar Hakolel on Seder Mechira 3; Seder Mechiras Chametz [Levin] p. 159-160]

[137] Aruch Hashulchan ibid; Emek Sheila ibid; Sdei Chemed ibid

[138] Moadim Uzmanim 4:274 that so was practiced in Poland and Lithuanian communities, as well as in Eretz Yisrael.

[139] Shaar Hakolel Seder Mechira

[140] Rama C.M 190:10; Noda Beyehuda, brought in Shivas Tziyon 10; P”M 448 M”Z 7; Makor Chaim 448:8; Chayeh Adam 124:2; M”B 448/13; Shtar Mechira of Chasam Sofer and many students of Gr”a omit the Eiruv Kablan; This opinion is mentioned, and negated, in Seder Mechiras Chametz of Admur

[141] Betzel Hachochma 6:35 that so was accustomed in Hungarian, Romania and Austrian Jewish community

[142] See Shaar Hakolel Seder Mechira 2

[143] Admur 448:7-8 rules that the main Kinyan is Meshicha, although Lechatchila one must do also Kinyan Kesef with an Eiruv Kablan; In 448:11 he rules that if one can’t do Meshicha, then he must do one of the other Kinyanim listed there [and here below]. This implies that the entire need of an Eiruv Kablan is only when one is relying on Kinyan Kesef with Meshicha, otherwise, one can rely on the other Kinyanim even without an Eiruv Kablan. So is also implied from Tzemach Tzedek in Piskei Dinim, brought in Shaar Hakolel 2, that “By Kinyan Kesef one needs an Eiruv Kablan.” In other words, lack of an Eiruv Kablan does not nullify the other forms of Kinyanim.

[144] So replied Rav Eli Landau and Rav S.B. Levin, that the main Kinyan of Admur in the Siddur is Kinyan Kesef, and it hence needs an Eiruv Kablan, while the other Kinyanim are just “Litosefes.” So is also implied from Shaar Hakolel 20. Hence, if the Kinyan Kesef is invalid, it can nullify the whole sale according to Admur. Vetzaruch Iyun, as Admur 448:8 clearly rules that Kinyan Kesef alone does not suffice, and hence one cannot rely on it alone. Thus, one must say the other Kinyanim are also valid in their own right, otherwise there is no Kosher Mechiras Chametz today according to Admur.

[145] Admur 448:11

[146] In certain places when the seller marks on the merchandise that it has been sold to him, it finalizes the sale. [Admur ibid]

[147] This Kinyan is also mentioned in Seder Mechira of Admur, and fulfills a dual purpose, as it also removes the liability on the Chametz from the sellers.

[148] Admur 448:11; Chok Yaakov 448:14; See Seder Mechiras Chametz [Levin] p. 162

[149] Shaar Hakolel Seder Mechira 31; A Kinyan Agav Karka works even for Chametz that is not in the rented/bought room, thus the Chametz of a Jew found in the field also is acquired through the Kinyan Agav; See Seder Mechiras Chametz [Levin] p. 162

[150] If the Jew did not originally tell him  to acquire the Chametz with the room, then even if the Chametz is in the room [i.e. Kinyan Chatzer], the gentile does not acquire it, as the law that one’s courtyard can acquire for him anything that is in it, only applies by a Jew, as he has the legal ability to make an emissary represent him, as opposed to a gentile who cannot, as explained above. [Admur ibid]

[151] It is implied from Admur in the Seder Mechira that this form of Kinyan is not the most secure as there are opinions who rule that a Kinyan Agav does is invalid with a gentile. For this reason, the Maharil would also do a Kinyan Sudar with the gentile by having the gentile give the Jew an item that he owns. Now, although also regarding Kinyan Sudar there is a dispute if it works with a gentile, nevertheless with both the kinyanim together its valid. [Maharil in Sheiris Yehudah 11, brought in Shaar Hakolel 32]

[152] Admur in Seder Mechira [unlike Admur 448:12]; Noda Beyehuda in Shivas Tzion 10

The reason one may not sell: Since the gentile may not owe any of the money to the Jew, therefore the room may only be rented [not sold] to the gentile. [Admur ibid in Seder Mechira] Vetzaruch Iyun, as this contradicts the ruling of Admur 448:12 [brought below] that one can have an Eiruv Kablan for the sale as well. [See Piskei Dinim 448 p. 32; Shaar Hakolel 8] Alternatively, the reason is because some of the seller do not own their homes and only rent them, thus they do not have the authority to sell them. Alternatively, a person does not really agree to sell his room, and it hence seems like trickery which can invalidate the sale. Thus one only rents it to the gentile. [Noda Beyehuda ibid, brought in Shaar Hakolel ibid]

Selling the room-Other opinions in Admur: Admur 448:12 rules that one may sell the room to the gentile, using Kinyan Kesef with an Eiruv Kablan, as well as Kinyan Shtar.

[153] Implication of Admur Seder ibid; Shaar Hakolel on Seder Mechira 29

The reason: When renting a room to a gentile no contract is needed, and rather money alone finalizes the acquisition. [Michaber C.M. 195:9] As well, when renting, not all the money must be given upfront, as one only becomes obligated to pay after having rented. It thus it suffices for only part of the money to be paid, and as a result the gentile acquires the Chametz in the room through a Kinyan Agav, as for a kinyan agav even a momentary ownership of the land suffices for him to acquire the merchandise. [Shaar Hakolel ibid]

When selling the room: Admur 448:12 rules “When selling ones room to the gentile [in order to acquire him the Chametz through a kinyan agav] the gentile must pay the seller upfront the entire amount of the sale, or part of the money but have a guarantor liable for the rest of the payment, when the due date arrives, [in a way that there is no claim left upon the gentile buyer]. As well [when selling the rooms] a sales document must be written as a gentile does not acquire land through only money or chazakah. Rather a document together with payment is what acquires land for him.”

[154] Shaar Hakolel ibid, based on Admur regarding renting the beer storage, and that so should be done when doing a mass sale for the entire city; So is written in the Shtar Mechira of Rav Landau; Rav Raskin and Rav Levin in Seder Mechiras Chametz.

The reason: Seemingly Admur requires this because the gentile is paying very little for even the first moment of rent and we hence want to remove him completely from the picture. [Shaar Hakolel ibid]

[155] Seder Mechira of Admur; From the perspective of Kinyan Agav, there is no need to do so, however some write we do so in order to negate liability. See M”A 448:4; Makor Chaim 448:9; Seder Mechiras Chametz [Levin] p. 162

[156] Admur 448:11

[157] The reason: As a Chatzer acquires Midin Shlichus, and a gentile does not have Din Shlichus. [Admur ibid]

[158] Shtar Mechira of Rav Landau and Rav Raskin

[159] Seder Mechira of Admur

[160] Custom Maharil, as recorded in Sheiris Yehudah 11, brought in Shaar Hakolel 32; See Sdei Chemed 9:30; Yeshuos Chochma 18; Seder Mechiras Chametz [Levin] p. 172

[161] Admur Kuntrus Acharon 441:3 rules like Shach that it is invalid, and explains that’s why it was omitted by him in Shulchan Aruch 448 and Seder Mechira; Piskei Dinim 448 p. 32; See Shach C.M. 123:30

[162] So did Maharil in Sheiris Yehudah 11, brought in Shaar Hakolel 32 [see previous footnotes]; Shtar Mechira of Shaar Hakolel; Shtar Mechira of Rav Landau and Rav Raskin; See Sdei Chemed 9:30; Yeshuos Chochma 18; See however Seder Mechiras Chametz [Levin] p. 172 that in majority of the Shtarei Mechira of Rabbanei Chabad throughout the generations, the Kinyan Sudar was not mentioned, as follows the opinion of Admur

[163] Shaar Hakolel Seder Mechira 33; However, when selling the room to the gentile, Admur 448:12 rules one also requires Kinyan Shtar

[164] Piskeiy Teshuvos 448:12

[165] Lechem Hapanim in Kitzur Shulchan Aruch 114

[166] The reason: As a gentile who owns a home is exempt from Mezuzah, and thus when it is bought back after Pesach it becomes obligated from new. [ibid]

[167] Misgeres Hashulchan 11; Kinyan Torah 1:110

[168] The reason for those that are lenient is because they hold that only a house that a gentile lives inside of becomes exempt from the Mezuzah, and thus since here the gentile never planned to live there, it does not remove the obligation. Piskeiy Teshuvah 448

[169] Admur 448:13-14; See Seder Mechiras Chametz [Levin] p. 168

[170] It is a Biblical prohibition to have liability over Chametz, even if the sale was valid, and the Chametz now belongs to the gentile. See Chapter 2 Halacha 5C!

[171] The reason: As being that the gentile owner has no access to his Chametz, the liability of damages remains on the Jew, and a Jew’s liability over Chametz is considered like ownership, and he thus transgresses Baal Yiraeh and Baal Yimatzeh on it on Pesach, and it is forbidden after Pesach. [Admur 448:14]

[172] Tzemach Tzedek O.C. 44 explains that the handing over of the key is only needed in a case that the gentile still owes the Jew money for the sale, as then the Chametz is considered a collateral of the Jew, and the Jew thus has liability over it. However, in a case that the gentile has paid the entire price, or has had it given to a guarantor to pay as explained in the contract of Admur, then the handing over of the keys is not needed at all.

[173] Igros Kodesh 13 letter 4313; The Rebbe there writes that today the custom is that even those who are meticulous in Mitzvos do not hand over the keys; See Sdei Chemed 9:9; Nitei Gavriel 1:122; Otzer Minhagei Chabad p. 82; Seder Mechiras Chametz [Levin] p. 168; Piskeiy Teshuvos 448:16

The reason: It is no longer feasible to hand over the keys to the gentile as there are thousands of Jews that sell their Chametz. Now, being that the gentile does not ask for the keys, and does not owe any money for the sale, there is no need to do so. If, however, the gentile would ask for all the keys to all the homes and one would refuse, then the sale would be invalid and cause liability.

[174] See Seder Mechiras Chametz [Levin] p. 168 and Shtar Mechira of Rav Landau and Rav raskin that nevertheless some keys are given for the sake of the Kinyan

[175] Rav Avraham Chaim Naah in Yagdil Torah 6:2610

[176] However, see Admur 448:13

[177] Once the Jew refrains the gentile from accessing his Chametz, the gentile becomes exempt from damage liability over the Chametz, and thus if the Chametz gets stolen or lost the gentile does not have to pay his debt for the sale. [Admur ibid]

[178] Admur 448:14

[179] Admur 448:10

[180] The reason: As we only say that one’s emissary is like oneself regarding a Jew who appoints another Jew as his emissary. [Admur ibid]

[181] Admur 448:26

Other opinions: Some Poskim rule that the Chametz is permitted after Pesach. [See opinions in Piskeiy Teshuvah 447:9]

[182] The reason: As even though he has sinned, nevertheless, he still remains a Jew, and thus [by him owning the Chametz] the Chametz becomes prohibited in benefit after Pesach, just like any Chametz that is owned by a Jew on Pesach. [Admur ibid] This is in addition to transgressing the prohibition of Lifneiy Iver. [M”B 448]

[183] Admur ibid “If one did not know that by doing so the Chametz would become prohibited after Pesach and went ahead and sold the Chametz to the apostate for a token price, knowing that the apostate will return him the Chametz after Pesach, then if there is a great loss involved, the Jew may tell the apostate to sell or exchange the Chametz with a gentile, and then that money or product which he receives can be given to the Jew, as explained in chapter 443.”

[184] See Piskeiy Teshuvos 448:9

[185] Admur 448:19

The reason: As this enters one into a doubt of transgressing a Biblical prohibition, as perhaps the gentile will not fulfill the condition and thus the sale will be retroactively null and void, and thus the Chametz was owned by the Jew throughout Pesach, of which he transgresses Baal Yiraeh and Baal Yimatzeh, even if it was stored in the house of the gentile. [Admur ibid]

[186] For example, if the Chametz was sold on condition that the Jew may buy it back whenever he can afford it, then the sale is invalid, and he transgresses Baal Yiraeh. [Admur 448:21] However, if the Jew stipulated that he maintains the legal right to buy the Chametz after Pesach, then since throughout Pesach the gentile was not obligated to return it to the Jew, it therefore is considered to actually belong to the gentile throughout Pesach, and the Jew did not transgress Baal Yiraeh. However, nevertheless Lechatchilah it is forbidden for the Jew to stipulate this. [Admur 448:22] However, one may even Lechatchilah mention [not stipulate] that if the gentile decides to sell the Chametz then the Jew retains rights to have it sold only to him. [Admur 448:23]

[187] For example: A Jew is allowed to tell a gentile to buy his Chametz from him for double the price, and that after Pesach he will buy it back for a profit. For example, if the Chametz its worth $100 and the gentile will pay him $200, and then after Pesach the Jew will buy it back from the gentile for more than $200, and thus the gentile will profit from the sale. Now, although by the gentile paying double the price for the Chametz, he is in essence being forced to sell it back to the Jew, [as otherwise he will get a great loss], nevertheless since the Chametz has already been sold to the gentile with a complete sale and a complete form of acquisition, it therefore completely belongs to the gentile, until the Jew buys it back from him. [Admur 448:17]

[188] See E!

[189] Admur 448:25

[190] Commentary on the contract can be found in Shaar Hakolel and Seder Mechiras Chametz of Rav Levin

[191] Shaar Hakolel Seder Mechira 33; However, when selling the room to the gentile, Admur 448:12 rules one also requires Kinyan Shtar

[192] 448:12

[193] See Seder Mechiras Chametz [Levin] for the dialect of the Shtar Mechira commonly used today

[194] Admur in Seder Mechira

The reason: As otherwise this can damage the validity of the sale as explained by Tzemach Tzedek.  [Shaar Hakolel 6] However, by items which do not have a market price such as animals, then one needs to set a price for the animals. [Shaar Hakolel on Seder 13]

[195] The gentile gives the Jew one gold coin, and the guarantor obligates to pay the rest, subtracting the one gold coin already given and the ½ a ruble which the gentile is given to benefit.

[196] The Rav and gentile shake hands, as part of Kinyan Situmta.

[197] This is in place of Meshicha which is not done today, in addition to the need to always hand over keys in order to give the gentile access. In truth, this form of acquisition is not really needed despite that Meshicha is not done, being that there are other forms of acquisition which are already being done. Nevertheless, Admur says to do it as a form of acquisition for the sake of having an additional acquirement. [Shaar Hakolel 20]

[198] The room of the Chametz is rented to the gentile, and the contract states that by acquiring the rooms, one acquires also the Chametz that is in them. This acquisition is an addition to the other forms of acquisition that have been done.

[199] See A!

[200] Piskeiy Dinim, brought in Shaar Hakolel 32

[201] Piskeiy Teshuvos 448:7

[202] Before or after the Bittul: According to the Poskim who rule that even Chametz which ones plans to sell is included in the Bittul, then the sale is seemingly invalid if done after the Bittul. As once he nullified his Chametz it seized from being his, and thus can no longer be sold. Accordingly, he would be left with a Rabbinical obligation to destroy the Chametz, being that Bittul alone does not suffice. Thus, according to these opinions, some Poskim rule that the sale must be done prior to the time that people do Bittul. [Chasam Sofer 62; 113; 119] However according to the Poskim, who hold that any Chametz that one plans to acquire back after Pesach is not included in the Bittul, then there is no need to do the sale prior to the Bittul, and rather it may take effect even afterwards. Furthermore, even according to the former opinion, the Poskim conclude that the sale does not contradict the nullification. [See Minchas Yitzchak 8:41; Piskeiy Teshuvos ibid]

[203] Rav Avraham Chaim Naah in Yagdil Torah Yerushalayim 6/2587; Chasam Sofer Orach Chayim 113; Admur in the Siddur “The contract may be translated into another language and given all the legal validity according to state law.”

Background: Rav Avraham Chaim Naah rules that any Chametz sold in a way which does not have State validity, is invalid according to Torah/Halacha. This ruling [of Rav Naah] was written in Hamodia and addressed the problem in the early years of the State of Israel that according to the law all sales must be given a permit from the government, and one who transgresses this is fined, and the merchandise is confiscated. Thus, if the sale is not done with the permission of the government, then it is completely invalid, and people transgress Biblically Baal Yiraeh and Baal Yimatzeh. Thus, he suggested that the Rabbanut must get a permit from the government to validate all the sales done. There were however those who claimed that they do not recognize the Zionist regime and therefore they felt there is no need to get their permit for the sale. They say that they have already nullified the Zionist regime just like they nullify their Chametz and thus the regime is non-existent. They say that the Chasam Sofer never ruled one needs to get the governments permit from such a regime. Rav Naah concludes: Anyone with a brain in his head sees that this claim is a complete bogus, as practically the government will not allow the sale to take place if the gentile decides to go through with it and not sell back the Chametz, and there is no greater form of Haramah/trickery then this, and certainly their sale is invalid. On this it says that their hatred [for the Zionist regime] destroys their thought pattern [to allow oneself to transgress Biblically Baal Yiraeh rather then ask the government for a permit.] [Yagdil Torah ibid]

[204] The reason: As otherwise the sale will be invalidated by the state, and there is no greater Haramah then this, and thus the sale is invalid.

[205] Rav Avraham Chaim Naah [brought in Yagdil Torah Yerushalyim 6:2610]

[206] Grac”h Naah ibid; Yechaveh Daas 2:64; Vaad Hakashrus of Eida Hachareidis [via phone call]; Vaad Hakashrus of Rav Landau [Via correspondence with Rav Eli Landau]; See Choshen Mishpat 359:1-2; Admur Hilchos Gezeila Ugineiva 1-2;

Other Poskim: The Or Yisrael 447:4 in name of the Gaon of Butchach allows taking the Chametz only in a) a case of great need and b) one does so before two witnesses; The Aruch Hashulchan 448:28 writes that the Rav is to buy back the Chametz immediately after Pesach, prior to the storekeepers opening their store, hence implying that prior to the sale one may not take the Chametz, and so concludes Nitei Gavriel 60:1. He however makes no mention of any of the above Poskim that rule it is permitted.

[207] Grac”h Naah ibid

The reason: One may eat the Chametz immediately after Havdalah even if the Chametz was not yet bought back and doing so contains no worry of transgressing stealing from the gentile as the gentile does not care if one eats the Chametz before the return sale. However this only applies if one takes the Chametz with intent to pay the gentile back for its market value, if in truth the gentile chooses to keep the Chametz and not go through with the return sale. Obviously if one would not agree to these terms then it would be considered stealing from him, as in this case he is particular against coming to a loss. [Grac”h Naah ibid] This is based on the law regarding taking an item from a person without his permission which is dependent on whether we assess that the owner is particular or not. [See Choshen Mishpat 359:1-2; Admur Hilchos Gezeila Ugineiva 1-2] Thus in this case certainly the owner is not particular, as the whole purpose of his bought Chametz is to be sold for market value, and thus when the Jew takes it with intent to pay the gentile back he is actually meriting the gentile, and the rule is Zachin Leadam Shelo Befanav. Now, although in Choshen Mishpat ibid this allowance only applies if one “acquires the payment to the owner through another person” [Michaber 359:2; Smeh 359:8; Admur 2] nevertheless perhaps here one may be lenient as the gentile himself [through the Eruv Kablan] himself must pay the Jew for the Chametz that he purchased, and hence in conclusion when the Jew takes it without permission, it evens out the debt of the gentile to the Jew. Nonetheless, the Or Yisrael ibid states that due to these issues it is only initially permitted to take the Chametz if one does so in front of two witnesses. See Grac”h Naah ibid; In addition to all the above, see Kuntrus Achron 440:11 that there is no prohibition against stealing from a gentile when one intends to return the item.

[208] Grac”h Naah ibid; Yechaveh Daas 2:64; See Shaarey Halacha Uminhag 2:195 which also makes mention of such a stipulation for the help of selling Chametz of a Jew which is not observant and may take the Chametz on Pesach; See however “Seder Mechiras Chametz” p. 178 of Rav S.D Levin which states that this condition established by the Rebbe only applies to the sales contract of the store, and not to the general sale contract.

The benefit of this stipulation: Making the stipulation explicit in the contract avoids all worries and issues that were discussed in the previous footnote. [Grac”h Naah ibid]

[209] This stipulation was placed by Rav Avraham Chaim Naah, who was the secretary of the Eida Hachareidis at that time. The stipulation was brought to the attention of Rav Bengis who was the Chief Rabbi of the Eida Hachareidis at that time, and he praised the idea.

[210] In the words of Rav Eli Landau “Every [respectable] Rav of all generations made this stipulation both orally and in writing with the gentile, in order to allow the Jew to take the sold medicine if he so needs. The gentile gives explicit permission to the Jew to take the Chametz before it is sold back on condition to pay him for it.”

[211] The contract of Rav Ashkenazi of Kfar Chabad does not contain this stipulation, and neither does the contract written by Rav Levin in his Seder Mechiras Chametz.

[212] See Choshen Mishpat 359:1-2; Admur Hilchos Gezeila Ugineiva 1-2 and “The reason” brought in previous footnotes for an explanation of this matter. Practically, while the Grac”h Naah seems to side there is no issue with taking the Chametz even if it was not stipulated in the contract he explicitly records the Or Yisrael ibid that allows doing so only in front of two witnesses.

[213] Grac”h Naah ibid; Rav Eli Landa ibid

[214] Aruch Hashulchan 448:28

[215] Admur 491:3; M”A 491:1 [Begins with Tzaruch Iyun, although gives reason to conclude that it is Mutar]; Chok Yaakov 491:1 [concludes like suggestion on M”A ibid]; Elya Raba 491:1; Chok Yosef 491:1; Shulchan Gavoa 491:1; Poskim in Kaf Hachaim 491:7; See Likkutei Sichos 22:36 footnote 62-64

Other opinions: Some Poskim rule one may not eat Chametz prior to reciting Havdala. [P”M 491 A”A 1; See Kaf Hachaim ibid] Other Poskim rule that while one may rely on the Poskim ibid to eat Chametz prior to Havdala, one may not eat Chametz prior to reciting Birchas Hamazon, being that this will create a contradiction to his recital of Yaaleh Veyavo in Birchas Hamazon, as how can he say Chag Hamatzos Hazeh if he ate Chametz. [M”B 491:1; See Kaf Hachaim 491:8 and Likkutei Sichos ibid who negates this understanding, as it is forbidden to eat after Birchas Hamazon, prior to Havdala, and hence the only case in which the Poskim ibid can possibly allow eating Chametz is if one did not yet say Havdala.]

[216] Pashut; Kaf Hachaim 491:8; Likkutei Sichos ibid; See previous footnote!

[217] So is implied from the wording of Admur “and did not yet say Havdala at all

[218] The reason: As the prohibition against eating Chametz on Pesach is not dependent on Havdala at all, and since Tzeis Hakochavim has arrived, it is considered night for all matters, and the holiness of Yom Tov has already dissipated. The fact that one is prohibited from doing Melacha prior to Havdala is not due to the holiness of the Yom Tov, but rather due to a Rabbinical prohibition due to reasons explained in 299:15. (Now, although there is a Mitzvah to add onto the Holiness of Yom Tov, this is only with regards to not doing Melacha during the additional time of Yom Tov, as this Mitzvah is learned from the verse “Tishbisu Shabatchem”, as explained in 261:4.) However, regarding other matters which are dependent on the holiness of the day, such as the Mitzvah of Mikra Kodesh, see chapter 529, there is no need to add from the weekday to the Yom Tov. Accordingly, certainly the eating of Chametz, which is not dependent at all on the holiness of the day, as even during Chol Hamoed one is prohibited from eating Chametz, [is permitted to be eaten during the period of Tosefes Yom Tov]. [Admur ibid]

[219] Implication of M”B ibid; Kaf Hachaim 491:8 in name of Poskim; Likkutei Sichos ibid

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