How the sale is done

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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.[1] 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[2] as to whether it is valid with a sale[3] to a gentile. Hence, it initially must be done together with the acquisition of money, in which case it is valid according to all.[4] This is the most preferred form of acquisition.[5] 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.[6]
  2. Kinyan Kesef and Eiruv Kablan: Having the gentile pay for the Chametz. This form of acquisition is debated in the Poskim[7] as to whether it is valid with a gentile, and hence may only be used together with Kinyan Meshicha or another valid Kinyan.[8] 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.[9] 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.[10] This position was later held by other Poskim[11] and is followed in Chabad and other communities until this very day.[12] 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.[13] However, other Poskim[14], 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.[15] [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.[16] 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.[17] 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.[18]]
  3. Situmta:[19] 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[20]; Handshake or Tekias Kaf; The giving of a Perutah; Slapping hands; Handing over of keys[21]. 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:[22] 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[23]]. 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.[24] ]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.[25]] The room is rented to the gentile, as opposed to sold, and is acquired through Kinyan Kesef.[26] 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.[27] Nonetheless, an Eiruv Kablan is used also when renting the rooms through Kinyan Kesef.[28] The custom is to rent to the gentile all the areas in where the Chametz is stored for the entire duration of Pesach.[29]
  5. Kinyan Chatzer:[30] 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.[31] 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[32]].[33]
  6. Kinyan Sudar:[34] 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.[35] Nevertheless, many do so as an added Kinyan, in addition to the other Kinyanim.[36]
  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.[37] See E!

 

 

When renting the rooms to a gentile, does one need to replace on the Mezuzahs after Pesach?[38]

Some Poskim[39] rule the Mezuzah’s must be removed and then replaced.[40]  Other Poskim[41], however, rule that it is not needed to be replaced and so is the custom.[42]

 

 

Handing over the keys:[43]

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.[44] 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.[45] [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.[46] Practically, it is no longer the custom to hand over all the keys of all the sellers homes to the gentile buyer[47], and rather only a few keys are given as part of the Kinyan Situmta.[48] 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?[49]

Refusing to give the Chametz according to many Poskim could invalidate the sale.[50] Furthermore, it would cause one to receive liability over it[51], cause him to transgress the owning prohibition and make the Chametz forbidden in benefit for all Jews after Pesach.[52] 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:[53] A gentile cannot make another person an emissary to acquire an object on his behalf.[54] 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:[55] One may not sell his Chametz to a Jewish apostate.[56] 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.[57]

 

Q&A

If after the sale it was later discovered that the gentile is truthfully Jewish, what is one to do?[58]

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.[59] Likewise, one must sell the Chametz to the gentile in a way that the Jew has no rights over it during Pesach.[60] 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.[61] 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.[62] 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.[63]

The sale contract of Admur in the Siddur:[64]

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.[65] 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[66] “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.[67]

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.[68]

Acquisition: The following are the acquisitions that Admur mentions to use in the contract that he authored: 1) Money with guarantor.[69] 2) Handshake.[70] 3) Giving keys to the gentile.[71] 4) Kinyan Agav.[72] 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.[73] One should mention to the gentile that all these acquisitions done have the ability on their own to acquire the Chametz to the gentile.[74]]

 

Q&A

When does the sale take place?[75]

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.[76]

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?[77]

The sale must have legal recognition and be valid according to State law in order to be valid according to Halacha.[78]

 

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[1] 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

[2] 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!]

[3] 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]

[4] See previous footnote

[5] Admur 448:7; M”B 448/17

[6] 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.”

[7] 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.

[8] Admur 448:12

[9] 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]

[10] 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]

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

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

[13] Shaar Hakolel Seder Mechira

[14] 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

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

[16] See Shaar Hakolel Seder Mechira 2

[17] 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.

[18] 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.

[19] Admur 448:11

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

[21] 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.

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

[23] 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

[24] 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]

[25] 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]

[26] 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.

[27] 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.”

[28] 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]

[29] 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

[30] Admur 448:11

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

[32] Shtar Mechira of Rav Landau and Rav Raskin

[33] Seder Mechira of Admur

[34] 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

[35] 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

[36] 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

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

[38] Piskeiy Teshuvos 448:12

[39] Lechem Hapanim in Kitzur Shulchan Aruch 114

[40] 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]

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

[42] 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

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

[44] 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!

[45] 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]

[46] 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.

[47] 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.

[48] 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

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

[50] However, see Admur 448:13

[51] 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]

[52] Admur 448:14

[53] Admur 448:10

[54] 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]

[55] Admur 448:26

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

[56] 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]

[57] 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.”

[58] See Piskeiy Teshuvos 448:9

[59] 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]

[60] 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]

[61] 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]

[62] See E!

[63] Admur 448:25

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

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

[66] 448:12

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

[68] 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]

[69] 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.

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

[71] 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]

[72] 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.

[73] See A!

[74] Piskeiy Dinim, brought in Shaar Hakolel 32

[75] Piskeiy Teshuvos 448:7

[76] 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]

[77] 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]

[78] 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.

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