Hilchos Mechiras Chametz: The Laws [Governing] the Sale of Chametz

The Alter Rebbe is borrowing, out of context, the wording of Berachos 8a.

See the Alter Rebbe’s statements in his Yoreh Deah (Hilchos Niddah 189:43).

There is a general principle that halachah k’basrai, the halachah follows the latest authority who ruled on a given matter. However, Rama (Choshen Mishpat 25:2) explains the rationale for this principle: It is assumed that the scholars of the later generations saw the rulings of the scholars of the previous generations. Thus, if the scholars of the later generations (i.e., the Acharonim) ruled differently than the authorities who preceded them despite seeing the views of the previous authorities, it is assumed that the later authorities had ample justification for their decision. Therefore, the ruling of the scholars of the later generations are followed.

Rama, however, explains that when the scholars of the later authorities did not see the rulings of the scholars of the previous generations, the ruling of the scholars of the later generations need not be followed if the later ruling disagrees with the ruling of the earlier scholars. The rationale is that had the scholars of the later generations seen the rulings of the scholars of the previous generations, it is possible that they would have accepted those rulings and decided the halachah differently than they had based on their own reasoning.

As mentioned in Sh’eiris Yehudah (responsum 10), the Alter Rebbe is alluding to a specific responsum written by Rabbeinu Yitzchak Alfasi, which is quoted by Shitah Mekubetzes (Bava Me­tzia 77a). The Shulchan Aruch of Rav Yosef Caro (Choshen Mishpat 190:10) presents an instance similar to that ruled upon by Rabbeinu Yitzchak Alfasi in the responsum cited by Shitah Mekubetzes. However in his gloss to that section of Rav Yosef Caro’s Choshen Mishpat, Rama rules differently than Rabbeinu Yitzchak Alfasi. (See footnote 21 below, where this difference of opinion is explained.) The Alter Rebbe is postulating that Rama was not aware of Rabbeinu Yitzchak Alfasi’s responsum because Shitah Mekubetzes was not yet printed in his lifetime. Had Rama been aware of this ruling, he may well have ruled differently. Similarly, other exceptions to the general rule that halachah k’basrai may be made when the Rishonim’s ruling was not well publicized, and there is reason to believe that the Acharonim were not aware of it. In such instances, the ruling of the Rishonim may be favored over that of the Acharonim.

See sec. 447:1, which discusses in depth why the Sages used this rationale as one of the reasons for the severity of the laws governing chametz on Pesach.

See the gloss of Bechor Shor to Pesachim 21a and Toras HaShelamim, responsum 6, where this conception is mentioned. This conception is also discussed in many other sources.

See sec. 445:2 and the Kuntreis Acharon (note 1) to that section, which focus on this point.

The Alter Rebbe is referring to Rashba, Vol. 1, responsum 70. See sec. 436:18 and the Kuntreis Acharon (note 1 to sec. 445), where the Alter Rebbe cites this ruling.

Talmud Yerushalmi, Pesachim 2:2.

Darchei Moshe, Orach Chayim 445:1.

Pri Chadash, Orach Chayim, the end of sec. 445:2 and sec. 467:9.

The Alter Rebbe is emphasizing that since the person’s intention was to sell the chametz and then reacquire it, it is not included in the person’s nullification of his ownership of chametz. Therefore, great care must be taken in making certain the sale is valid, for if it is not valid, the chametz remains in the possession of the Jew who sought to sell it. The Alter Rebbe rules more stringently here than in sec. 448:8. Consult that source.

I.e., one should make sure the sale of his chametz is accepted by all halachic authorities.

See Rambam, Hilchos Chametz U’Matzah 4:6-7. See also the gloss of Rabbeinu Asher, Pesachim 2:4.

Tosefta, Pesachim 2:6-7.

Talmud Yerushalmi, Pesachim 2:2.

See sec. 448:17, which gives an example of how such a sale could be made to assure the non-Jew will return the chametz after Pesach.

When a Jew sells his chametz to a non-Jew, he has two somewhat conflicting objectives. On one hand, he must divest himself totally of ownership over the chametz. On the other hand, he wants to be assured that he receives the chametz he is selling back after Pesach (or at least its full market value). Because of the latter desire, he is placed in the halachic category ayel venafik azuzei (“[one who is] coming in and going out [seeking] money”). See Bava Metzia 77b-78a. As explained in the Tur and the Shulchan Aruch of Rav Yosef Caro (Choshen Mishpat, sec. 190:11ff.), a person in this halachic category seeks complete reimbursement for the property he is selling, and is unwilling to accept credit. Accordingly, unless payment is made in full, the Jewish owner is not considered to have willingly transferred ownership of the chametz. Hence, it is not possible for the Jew to sell his chametz to the non-Jew on credit. On the other hand, the non-Jew would certainly not desire to pay the full market value of the chametz to the Jew when he would have to return the chametz a week later. In the contract in the main text, the Alter Rebbe includes several details to resolve this difficulty.

In this way, the Jew will have received full payment for his chametz, and then given part of the amount received back to the non-Jew as a loan.

This is an example of the principle the Alter Rebbe mentioned initially (see footnote 4), that a decision of the Rishonim that was not publicized sufficiently may be followed even though the Acharonim rule differently.

In this instance, the Shulchan Aruch of Rav Yosef Caro (Choshen Mishpat 190:10) states: “When one person sells a field to another for 1000 zuzim and [the purchaser] gave [the seller] a portion of the money, and the seller was ayel venafik azuzei (“coming in and going out [seeking] money”), i.e. is seeking full payment for the property and is unwilling to accept credit, then even if only one zuz was left [unpaid], the purchaser does not acquire the entire [field].” In his gloss, Rama adds: “If [the seller] accepted the remainder of the sum as a debt…, he acquires [the entire field].” Nevertheless, in a responsum which is quoted by Shitah Mekubetzes (Bava Metzia 77a), Rabbeinu Yitzchak Alfasi, one of the leading Rishonim, rules differently, maintaining that the sale is not effective. Accordingly, the Alter Rebbe posits that Rama’s ruling should not be followed because it is very possible that he did not see the responsum of Rabbeinu Yitzchak Alfasi, and had Rama seen that ruling, he would have ruled differently.

Terumas HaDeshen, responsum 120.

Here, the Alter Rebbe is introducing the concept of another Jew acting as an areiv kablan to secure the debt.

The term areiv kablan denotes a guarantor who makes a more encompassing commitment than an ordinary guarantor. Rambam (Mishneh Torah, Hilchos Malveh VeLoveh 25:5) states:

Who is considered to be an [ordinary] guarantor and who is considered a kablan?If a person says: “Give him [the loan] and I will give you [payment],” he is considered to be a kablan.[In this instance,] the lender has the option of [first] seeking reimbursement from [this guarantor], even though [the lender] did not explicitly stipulate: “On the condition that I can collect the debt from whomever I desire first.”

If, however, [the person] tells [the lender]: “Lend him and I will act as a guarantor,” “Lend him and I will pay,” “Lend him and I am obligated,”... these statements cause him to be considered as an [ordinary] guarantor. [The lender] may not demand payment from him first, nor may [the lender] collect payment from him in a situation in which the borrower possesses property unless he makes a stipulation [to that effect].

See sec. 448:8, where the Alter Rebbe writes:

Alternatively, [the Jew] should take from [the non-Jew] a minimal amount of money or objects of value, and have [the non-Jew] provide a guarantor ([i.e.] an areiv kablan) for the remainder of the sum, i.e., [the guarantor will agree to be responsible] to pay [the Jew that sum] at the date agreed upon so that [the Jew] will have no claim whatsoever against the non-Jew, only against the guarantor.

See also the Alter Rebbe’s Yoreh Deah (Hilchos Ribis, subsection 63ff), where he discusses the concept of an areiv kablan.

Since the areiv kablan should never have owned the chametz involved in this transaction, he should not include his own chametz in this transaction.

The Alter Rebbe is referring to the sample contract that follows on p. 622ff.

As Divrei Shalom emphasizes, the bill of sale is merely a record of the sale. Although there are instances in Jewish Law where the transfer of a legal document formalizes a transaction, this is not one of them.

Unless a price for an item is established, there is no way a binding sale can formalized. See Bava Basra 86a. See also the Shulchan Aruch of Rav Yosef Caro (Choshen Mishpat 200:7).

Avodah Zarah 72a. See also the Shulchan Aruch of Rav Yosef Caro (loc. cit.), which mentions this point.

See Sefer Meiras Einayim 200:14, which states that an evaluation by one person is acceptable.

See sec. 448:6, where this concept is explained.

The Alter Rebbe is referring to Bava Metzia 65b. That passage states:

If one sells a house or a field, and says to [the purchaser], “When I have money, resell it to me,” that is forbidden. [If the buyer says], “When you have money, I will resell it to you,” that is permitted….

What is the difference between the first clause and the second?

Rava answered: In the second clause, he [i.e., the buyer] made the statement of his own volition.

Apparently, the Alter Rebbe is withdrawing the leniency mentioned in sec. 448:23.

There are several halachic reasons why the owner should sell – or rent – the rooms where the chametz is held to the non-Jewish purchaser of the chametz:

a) so that when the non-Jew performs a kinyan formalizing his purchase or rental of the room, he will also formalize his acquisition of the chametz through a kinyan agav (sec. 448:11).

b) when, as mentioned below on p. 631, the non-Jew stands next to the room at the time of the kinyan, the room serves as an extension of his hand and acquires the chametz on his behalf (see the Tzemach Tzedek, Piskei Dinim, Orach Chayim, 448:3, p. 32b; see also Shaar HaKollel, sec. 37).

c) by doing so, the Jew specifies the location of the chametz (see Tzemach Tzedek, Orach Chayim, responsum 45, sec. 4).

The Alter Rebbe composed – or intended to compose – a document explaining the halachic reasoning for the different measures employed in this deed of sale. Unfortunately, this document is not extant and no records of it exist.

As stated in Terumas HaDeshen (Pesakim 201), wording the document in this manner prevents the seller from later claiming that he did not truly intend to sell his property and that his statements were made facetiously.

Unless the property that is being sold or rented is clearly identified, the bill of sale recording its sale or rental is invalid (see Rambam, Hilchos Zechiyah U’Matanah 3:5).

The Alter Rebbe suggests doing this by including a description of the boundaries of the property, because in previous eras properties often had no address. Hence, it was necessary to describe the boundaries where the room was located. In the present era, it is sufficient to write the address where the chametz is located.

Later in this document, the Alter Rebbe includes a rental contract, detailing how the Jew should rent these rooms to the non-Jew, enabling him to acquire the chametz via their rental.

See sec. 442:9, where this term is defined.

The bill of sale is establishing the price of the whiskey, beer, and malt, as the wholesale price that retail merchants in that locale would pay.

See sec. 442:31, which mentions giving such utensils to a non-Jew so that one will not be liable for the chametz attached to them. In contrast to this, utensils that were used for chametz throughout the year, but that have no chametz attached to them, may be stored away for Pesach without being sold (see sec. 451:1). Even though the flavor of chametz is absorbed in the sides of the utensil, one does not violate the prohibitions against possessing chametz because of it (see sec. 447:3).

It is necessary to obliterate these pieces of chametz according to our Sages’ decree, as stated in sec. 442:28-29. This clause prevents that obligation from falling on the Jew. Moreover, since these pieces of chametz will have belonged to the non-Jew during Pesach, they will not be prohibited if they are discovered after Pesach.

The implication is that the chametz being sold has not yet been measured or weighed. For the sale to be binding, the chametz must be weighed or measured and a market-price established (Bava Basra 86a; see also the Shulchan Aruch of Rav Yosef Caro, Choshen Mishpat 200:7). Nevertheless, since the principals agreed to conduct the sale according to the measurements to be made in the future, the sale is binding. See the Shulchan Aruch of Rav Yosef Caro (Choshen Mishpat 200:1).

There are two reasons why the key is being given to the non-Jew: a) as the Alter Rebbe states in sec. 448:11, and alludes to here, through the seller handing the key to the non-Jewish purchaser, the non-Jew acquires not only the rights to the room(s), but also to the chametz in those rooms, and b) this gives the non-Jew access to the room, which is necessary, as stated later in this bill of sale (see also sec. 448:13).

In the present era, the chametz for the entire community is sold communally. Therefore, the keys to the room containing the chametz are not given to the non-Jew. However, a provision is added to the deed of sale, stating that the keys are available whenever the non-Jew might ask for them.

See sec. 448:11, where the Alter Rebbe mentions various ways to formalize a sale, including shaking hands and the buyer and seller slapping their hands together. See also Sefer Meiras Einayim 201:5, which mentions that these acts constitute a kinyan, a binding contractual act, that concludes the actual sale. They are not just a promise to carry out the sale.

By receiving a deposit from the non-Jew, the transaction will also be formalized through the payment of money. See sec. 448:8.

The text for the statement signed by the areiv kablan (i.e. the guarantor) mentioned below.

The guarantor must be Jewish. Giving the Jewish owner of the chametz the document signed by the guarantor is equivalent to paying him the remainder of the money the non-Jew owes. Thus, this completes the acquisition of the chametz by the non-Jew.

I.e., the Jewish guarantor.

The word sudar literally means “handkerchief.” A kinyan sudar isone of the means of formalizing a transaction. It involves the purchaser giving the seller an article (e.g. a handkerchief), and stating the terms of the transaction. When the seller lifts up the article, the transaction is formalized (see Rambam, Hilchos Mechirah 5:5; see also Rus 4:7). A kinyan sudar is also effective in formalizing other business commitments. The Alter Rebbe mentions this concept in many different contexts. See, for example, sec. 306:15, sec. 369:1, sec. 437:1, sec. 441:9, and Choshen Mishpat, Hilchos Edus U’Shtaros, subssections 10, 17, 19-20.

In the instance mentioned here, the Jewish guarantor will formalize his commitment to serve as an areiv kablan with a kinyan sudar. The Alter Rebbe does not mention the non-Jew formalizing his acquisition in this manner, in deference to the authorities who maintain that a kinyan sudar is not an effective way for a non-Jew to acquire property from a Jew. See the Kuntreis Acharon (note 5) to sec. 440. See also the Kuntreis Acharon (note 3) to sec. 441. However, R. Yehudah Leib, the Alter Rebbe’s brother, maintains that it is desirable to carry out a kinyan sudar with the non-Jew as an additional measure (see Sh’eiris Yehudah, responsum 11).

The half ruble that is deducted from the price of the chametz is the fee the Jew promised the non-Jew as payment for any inconvenience due to the sale of the chametz. The gold piece that is deducted is the deposit the non-Jew paid.

The Alter Rebbe appended the instructions for selling a firstborn animal to a non-Jew to his Hilchos Mechiras Chametz (see the Hebrew text). Based on those instructions, it can be concluded that after Pesach, the guarantor should tell the non-Jew: “Bring purchasers who wish to purchase the chametz at its market value, so that I can receive from them the money that I guaranteed on your behalf. If you do not wish to make the effort to seek potential purchasers, I am prepared to accept the chametz from you at the fair market value that others would pay, and I will give you the half ruble that you could have made by selling it to others.”

This sum must be paid by the non-Jew to the owner of the chametz. The non-Jew does not receive this sum back from the guarantor, because he is paying to rent the rooms where the chametz that he now owns is located. Although technically the non-Jew loses this money, a) the sum he earns should be significantly more than the fee he is paying to rent the room, and b) the bill of sale specifically states that the guarantor and the non-Jew should negotiate an agreement, “giving [the non-Jew] a small amount as a profit, as they will agree between themselves.” It is logical to assume that the non-Jew will include the rental fee – and any other expenses he incurs while owning the chametz – in the amount he will seek to receive from the guarantor as a profit.

In this document, the Alter Rebbe is assuming it is not too expensive to rent the room where the chametz is stored for the duration of Pesach and a few days afterwards. Therefore, the entire sum is paid in cash. However, in the present era, although the entire community sells its chametz to one non-Jew, each member of the community has his chametz in his own domain. Therefore, the non-Jew rents the numerous places where the chametz he is buying is stored, and the rental fee could be very significant. Accordingly, the accepted practice is to have the non-Jew pay a deposit for the rooms he is renting. The remainder of the sum is included in the obligation that the guarantor undertakes (Shaar HaKollel 29).

The Alter Rebbe is referring to a kinyan agav karka, a halachic construct through which the ownership of movable property is transferred together with the transfer of ownership of land. See the Shulchan Aruch of Rav Yosef Caro (Choshen Mishpat, sections 195, 205, and 202). See also sec. 448:11, where the Alter Rebbe mentions the effectiveness of transferring the ownership of chametz in this manner.

In this contract, the Alter Rebbe suggests several different means of transferring ownership of the chametz to the non-Jew, so that there will be no halachic questions regarding the validity of this transfer. Therefore, one has to wonder why the Alter Rebbe states that a kinyan agav karka only reinforces the transfer of ownership. Sh’eiris Yehudah addresses this issue, explaining that there are authorities who maintain that a non-Jew may not acquire movable property through a kinyan agav karka (see Sh’eiris Yehudah, responsum 11).

The Alter Rebbe is referring to the form on which legal documents were drawn up in Czarist Russia.

The Alter Rebbe mentions translating this document into Russian and conforming with the Czar’s laws because he was living in czarist Russia. However, the intent is that this document may be translated to other languages, and the laws of the local government that regulate contractual agreements should be followed.

There is an apparent contradiction between the ruling in sec. 450:8-11 and the ruling here. In sec. 450, the Alter Rebbe states that the rental of the rooms to the non-Jew should be formalized before the fourteenth of Nissan, while this document is dated the fourteenth of Nissan. See the footnotes to sec. 450:8-11, which resolve this issue.

The seller should fill in the name of the city where the contract was drawn up.

The Alter Rebbe’s intent is that the bill of sale should be read and explained to the non-Jew in a language that he understands.

The non-Jew should understand the contract he is signing and the relationship between himself and the Jewish guarantor.

I.e., the seller/owner of the chametz.

This wording indicates that this is a real sale, and not merely a legal fiction. The Alter Rebbe is emphasizing that when the Jew who sold the chametz receives it after Pesach, he is acquiring it anew, not merely renewing his previous ownership of it. See sec. 448:6.

Although the kinyan sudar is not required for the sale to be valid, when the guarantor does take hold of the seller’s garment, he is further affirming his commitment.

I.e., there are no other Jews living in that village.

An areiv kablan must be someone who, according to halachah, possesses an independent financial capacity. A boy who is past the age of bar mitzvah possesses such a capacity. Hence, If the owner/seller had a son past the age of bar mitzvah, he would be able to serve as the areiv kablan. See sec. 366:13-14.

I.e., the Jewish owner of the chametz has an illiterate Jewish butler who can serve as the areiv kablan on behalf of the non-Jew. Since the butler does not know how to sign his own name, the owner of the chametz signs the butler’s name on his behalf.

I.e., first the butler should perform the kinyan sudar, and then he should ask the homeowner to sign the bill of sale on his behalf.. This is sufficient for the document to be binding (see the Alter Rebbe’s Choshen Mishpat, Hilchos Edus U’Shtaros, subsection 22). The acceptance of an obligation to serve as a guarantor need not be observed by witnesses (see the Shulchan Aruch of Rav Yosef Caro, Choshen Mishpat 129:1).

There is a question as to why the Alter Rebbe specifies that if possible, the non-Jew should stand near the room where the chametz is stored when he receives the key to the room. The reason for this statement may be due to the fact that although landed property owned by a Jew can act as his agent to acquire moveable property on his behalf, as stated in sec. 448:11, a non-Jew’s landed property cannot act as an agent to acquire moveable property on his behalf. However, Divrei Shalom posits that when the non-Jew is standing next to his landed property, the landed property serves as an extension of his hand and can, therefore, acquire moveable property on his behalf. In this instance, if the non-Jew stands next to the room he is being sold or rented that contains the chametz at the time he acquires the room, then the room can act as an extension of his hand, and further validate his acquisition of the chametz. See sec. 448:11, and footnotes there.

With regard to the rental of the rooms where ordinary chametz is stored, the rental fee was only one gold piece, a small fee. Here, by contrast, the rental involves a longer span of time. Therefore, the rental fee for the area where the chametz is stored is more significant. Furthermore, as the Alter Rebbe proceeds to state, the non-Jew should also pay a few rubles to rent the ice covering the beer for the time until the beer is sold.

Since a larger sum is involved, the non-Jew does not pay the entire sum at the outset. Instead, it remains a debt that is the responsibility of the guarantor.