The weeks preceding Pesach are very hectic throughout the Jewish community. It is the time when many people clean their homes from top to bottom in an effort to remove every trace of chometz (leavened bread). In addition, it is common practice to give a rabbi power of attorney to sell our chometz to a non-Jew. This practice has become a standard in all Jewish communities, in both the private and the public sectors.
This article will attempt to answer some of the popular questions asked about Mechiras Chometz (the sale of chometz to a non-Jew).
Does the non-Jew actually own our chometz?
Can the non-Jew enter my non-Pesachdik kitchen, and bake a cake using my pots and my food supply?
What do I get from him in return?
Can I be sure that I will get my chometz back after Pesach?
What goes on behind the scenes between the rabbi and the non-Jew?
Did Jewish people sell their chometz throughout history? If not, when did this practice begin?
Prohibition of Owning Chometz
The Torah prohibits possession of all leavened bread made of wheat, barley, rye, oats, or spelt on Pesach. According to the Torah Law (M'Deorisah) one may remove his ownership of chometz by making it "hefker" (i.e. nullifying all chometz from his property). Nullifying means that he allows anyone to come into his property and take chometz as desired. After Pesach, if the owner finds his chometz untouched, he may acquire it once again.
However, according to Rabbinic Law (M'Dirabanan) this method ("hefker") is not sufficient. According to the rabbis, two problems could arise:
1. One might not wholeheartedly nullify his chometz, thereby transgressing the prohibition of owning chometz on Pesach.
2. Since the chometz remains in his house, we fear that one might forget and eat the chometz during Pesach.
For these reasons, our sages commanded us to remove all leavened products from our possession. Traditionally, the disposal is a physical one, removing all chometz from one's home and burning what is left of it before Pesach.
Original Methods of Mechiras Chometz
It would seem from the above explanations that if one would sell all of his chometz and bring it to his non-Jewish neighbor before Pesach, it would be accepted even according to Rabbinic Law (Mi'Dirabanan), since the chometz would not belong to him anymore and it would leave his property.
We first find Mechiras (the sale of) Chometz to a non-Jew in the Talmud (Pesachim 21:1, Tosefta Pesachim 2), with a case where a Jewish person was on a ship for Pesach and could not get rid of his chometz. The rabbis allowed him to sell the chometz to a non-Jew and buy it back after Pesach, if the chometz was still there at the end of Pesach. In addition, the rabbis would permit him to show interest in buying back the chometz after Pesach, so that the non-Jew would not use it or sell it. However, they would not permit him to make any sort of condition with the non-Jew, to ensure he would get the chometz back after Pesach, since:
1. The condition might put the entire transaction in question by showing the disinterest in a complete sale.
2. The non-Jew might decide not to return the chometz after Pesach. By refusing, he has violated his part of the deal, which puts the status of the entire deal in jeopardy.
Based on the above situation, the Rishonim (Rambam, Rosh, etc.), as well the Shulchan Aruch (Orach Chaim 448:3), allow us to sell our chometz to a non-Jew as a standard practice, not only as a last resort. As it clearly says in the Trumas Hadeshen (1:120), one who cannot get rid of all of his chometz before Pesach is permitted to sell or give it to a non-Jew, transferring all chometz from his property to the non-Jew's property. The sale must be final, without conditions. After Pesach, he may buy it back.
This became the common practice during medieval times. Before Pesach, Jewish people would go to their non-Jewish neighbors and friends, whom they trusted, and sold them a few loaves of bread, some bottles of beer, and all other chometz items that they did not throw away.
How Mechira Developed Through History
Throughout history, it was rare to find the need to sell large quantities of chometz. However, about four hundred years ago, in the late 1600s, the Jewish community became involved in the liquor industry, an industry where the main ingredient was wheat. The large market of beer, liquor, and whiskey left them with large quantities of wheat. It was financially beneficial for the Jews to use the remaining wheat to raise cattle. They would later sell the cattle for meat or milk. Both the liquor and the cattle owned by these Jews were chometzdik - the liquor because its main component was wheat, and the cattle because their food and barns had wheat.
When Pesach approached, major issues arose. The amount of chometz that had to be sold was astronomical, and the monetary value of the chometz was very high. The Jewish businessmen could not find non-Jews willing to pay such a large sum for the chometz. In addition, they were not able to find a non-Jew willing to store all the chometzdik merchandise.
The "Bach" was one of the first Achronim (Rabbinic period after the Rishonim) to deal with this issue. He came up with a solution that did not require the Jews to remove the chometz from their homes. They would rent or sell the room or area where the chometz was stored, so that the chometz would be in the possession of the non-Jew. However, it became too hard to find a non-Jew willing to pay for the large stock of chometz. The rabbis (in the early 1800s, led by the "Nodah B'Yehuda") introduced a loan-based transaction ("Zekifah B'milveh"), where the non-Jew only had to pay a down payment. The rest was given as a loan, until the end of Pesach. After Pesach, he was given the option of paying with the chometz instead of cash.
This is the crux of the "Mechiras Chometz" transaction, which occurs in many communities until this day. However, it sounded too much like a legal loophole ("harama"), since the non-Jew did not pay and was not capable of paying the full price for the chometz. After Pesach, when the non-Jew returned the chometz in place of the money he owed, it seemed too obvious that the sale had not actually taken place.
Therefore, the rabbis set up several methods of transactions ("kinyanim") to show validity and strength to the sale.
■ The non-Jew picks up part of the merchandise ("meshicha").
■ The buyer makes a down payment.
■ A purchase of property along with the chometz on it ("Kinyan Agav").
■ Legal documents.
■ Exchange of properties ("chalipen"), similar to a barter transaction.
■ Handing over the keys.
This became very complicated and, more often than not, people were getting the details wrong. They were not selling their chometz properly, causing themselves to transgress the prohibition of owning chometz on Pesach.
Finally, in the late 1800s the rabbis instituted that all chometz should be sold through them, insuring that no mistakes would occur. Some actually bought the chometz from their communities, while others held power of attorney for their communities.
As a result, the rabbi ended up with enormous amounts of chometz before Pesach. That itself raised some questions:
How would the non-Jew know which chometz he purchased, since that information was not indicated on the sale document?
Since the rabbi was the only one to receive the down payment, was the rest of the community participating in the sale?
Mechiras Chometz as We Know It
At the turn of the 18th century, many rabbis questioned the whole system of Mechiras Chometz. Some recommended selling only questionable ("safek") chometz, not real chometz, while some defended the sale of all chometz. Reb Schneur Zalman of Liadi, "The Rav," was not satisfied with the way chometz was sold (i.e. through a down payment); he felt the sale was more like a loophole. In the Shulchan Aruch HaRav, he mentions the opinion of some Rishonim opposing this type of sale. Since the underlying condition of the sale is that the non-Jew must pay for the entire merchandise, but in reality, he does not pay the entire price, the sale is void. (The "Rav" noted, that the opinion of these Rishonim (Rif etc.) was only discovered in the late 1800s, which would explain why it wasn't taken in to account by the early Achronim).
The Shulchan Aruch HaRav emerged with a new method for selling large quantities of chometz-Mechiras Chometz with a guarantor ("Arev Kablan"). Adding a guarantor ("Arev Kablan") to the sale made the difference. If the non-Jew would not have enough money to pay, a Jewish person would guarantee to pay the full sum. Once the non-Jew had a guarantor, and would pay the remaining sum of money with the guarantor, the sale was complete. The rabbi would have to collect the money from the guarantor only, not from the non-Jew.
The "Rav" instituted the methods of transaction ("kinyanim") listed above, with small nuisances to insure that the sale would be valid according to Halachah as well as the non-Jewish formalities.
When the rabbi sells chometz to a non-Jew, he attaches his sale document, as well as the documents from his community to the contract, with the exception of the chometz of the guarantor. The rabbi gives the non-Jew a key to one of the properties so that the buyer can enter if he desires, however, the non-Jew does have the right to benefit from any property sold to him. What stops him from using the chometz, is the binding agreement that he has with the guarantor. If he were to use chometz, he would owe that amount to the guarantor.
After Pesach, the rabbi, the guarantor and the non-Jew meet. The rabbi demands the payment from the guarantor. The guarantor then gives the non-Jew a choice, either to pay him fully or to pay him with chometz, if he still has some chometz leftover. When the non-Jew chooses the latter, the guarantor pays his dues to the rabbi with that chometz. This process could take an hour or two, therefore one is recommended to refrain from using the sold chometz for some time after the end of Pesach.
Here at OK Kosher Certification, we aim for the highest standard.
We want to insure that our clients' chometz is sold properly, without using loopholes that might bring the mechira into question. The OK gets power of attorney from the establishments that we certify and then Rabbi Levy sells the chometz through a rav. Since, any chometz that is not sold properly is forbidden after Pesach, our rabbis at the OK will only sell the chometz with a complete mechira, mechira by way of a guarantor, as instituted in the Shulchan Aruch HaRav, and accepted by the leading rabbinic authorities.