Appointing the Rav to sell one’s Chametz-Q&A

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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.[1] This custom dates back to the times of the Alter Rebbe.[2] In the Q&A we will deal with various details regarding this practice.

 

The Shtar Harshah-Power of attorney document:[3]

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.[4] 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[5] and is provided by Rabbanim and Batei Dinim who perform the sale, in various dialects.[6] 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.[7]  

Handing the Shtar Harsha to the gentile?[8] 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:[9] 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.[10] Additionally, one should mention all the areas in the home where the Chametz is stored.[11] Nevertheless, even if one does not mention all the areas that contain the Chametz, the sale is remains valid.[12]

 

Must one understand the details of the Shtar Harsha?[13]

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.[14] 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.[15]

 

Is Chametz that is purchased after one signs on the Shtar Harsha, or appoints the Rav, included in the sale?[16]

Yes, this applies even if this detail was not written in the Shtar Harsha.[17] 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:[18]

The customs of the Chabad Rebbeim [and in previous times, of other Chabad communities[19]] 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.[20]]

 

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?[21]

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.[22] In such a case, it is proper for a Kinyan to be made with the messenger.[23] 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?[24]

Yes.[25] However, initially, it is best for one to personally sign on the Shtar Harsha and then send it in.[26]

 

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.[27] However, some[28] 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[29] 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.[30] 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.[31]

 

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.[32] Nevertheless, it is best for this to be explicitly written in the contract of power of attorney.[33]

 

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[34], although the custom is to do so.[35]

 

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.[36] 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?[37]

No.

 

Does one have to give money to the Rabbi who is doing the sale?[38]

Although there is no obligation to do so, the custom is to give a donation to the Rabbi doing the sale.[39]

 

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[40] 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.[41] 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.[42] However, some Poskim[43] 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.[44] Today, due to this, some Batei Dinim perform the sale on the 13th. Some Poskim[45] however protest against this custom.[46] 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!

_______________________________________________________________________

[1] 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]

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

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

[4] 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

[5] 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.

[6] 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

[7] 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]

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

[9] 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

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

[11] 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

[12] 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

[13] 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]

[14] 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!

[15] 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

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

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

[18] 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

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

[20] Otzer Minhagei Chabad ibid

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

[22] 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]

[23] Blumenkrantz 3-53

[24] 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]

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

[26] 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.

[27] 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.

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

[29] 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.

[30] 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.

[31] 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.

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

[33] Shaar Hakolel Seder Mechira 10

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

[35] 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]

[36] Michaber 195/1

[37] 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

[38] 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

[39] 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]

[40] 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.”

[41] 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]

[42] 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

[43] See Piskeiy Teshuvos ibid

[44] 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

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

[46] 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]

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