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1. The allowance and obligation:

Prior to the 6^th hour of Erev Pesach, one may sell his Chametz to a gentile, even if the gentile plans to own the Chametz over Pesach.[1] Such Chametz is permitted in benefit after Pesach.[2]

Who is obligated to sell his Chametz and is it Biblically required?^[3] 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.^[4] 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.[5] [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.[6]]

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[7] and Poskim[8] 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.[9] Furthermore, it advanced to allowing the Chametz to remain in one’s home and never be actually taken by the gentile.[10] 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.[11] Due to all the above complications, some do not initially rely on this form of sale to leave actual Chametz in one’s property.[12] Others, however, even initially rely on the sale to allow leaving Chametz in one’s home, and so is the widespread custom today.[13] 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.[14] In the coming Halachas the various details of the sale and storing of the Chametz will be discussed.

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

[2] Mishneh Pesachim 28a

[3] 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.

[4] 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.

[5] 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 6^th 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!

[6] Piskeiy Teshuvos 448:10

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

[8] 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

[9] 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

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

[11] 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]

[12] 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

[13] 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.

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

[15] 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.

^[16] 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.

[17] 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]

[18] 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

^[19] 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]