Mechirat Chametz: Theory and Practice
The Torah (Shemot 12:19 and 13:7) prohibits possession of chametz on Pesach. As such, there is a biblical requirement to dispose of all chametz in one's possession. As an alternative to the disposal of chametz, many people sell their chametz to a non-Jew (mechirat chametz) as a means of removing the chametz from their possession. They then reacquire the chametz after Pesach from the non-Jew. This article will explore the basis for mechirat chametz and the method of acquisition that is used both in the sale and the reacquisition.
Is Mechirat Chametz an Inappropriate Loophole?
A cursory examination of the mechirat chametz practice may lead one to the conclusion that mechirat chametz is merely a legal loophole. R. Yisrael Isserlin, Terumat HaDeshen 1:302, rules regarding the prohibition of charging interest on a loan (ribbit), that one should not seek out loopholes that avoid violation of a biblical prohibition. Ostensibly, one should apply the same logic to mechirat chametz and conclude that since the purpose of mechirat chametz is to avoid the biblical prohibition of owning chametz, mechirat chametz should be prohibited.
However, the comments of Terumat HaDeshen cannot possibly serve as the basis for prohibiting mechirat chametz because Terumat HaDeshen authored another responsum (1:120) which explicitly permits mechirat chametz, and this responsum serves as the basis for modern-day mechirat chametz (See Beit Yosef, Orach Chaim 448, and Shulchan Aruch, Orach Chaim 448:3). One must then ask: why isn't mechirat chametz a violation of the prohibition to create a legal loophole in order to avoid a biblical prohibition?
Perhaps the answer is based on the comments of Shach, Yoreh Deah 157:20. Shach explains that there are two types of legal loopholes. The first type of loophole is one where there are terms built in to the transaction that serve to control the transaction and protect both parties from the inherent risk normally associated with such a transaction. The second type of loophole is one where the transaction is carried out normally with no special terms and both parties subject themselves to a certain element of risk. The first type of transaction is fictitious and is prohibited if the purpose is to prevent violation of a biblical prohibition. The second type of transaction is permitted because there are no false clauses in the transaction.
One can now suggest that the reason why Terumat HaDeshen permits mechirat chametz is because it belongs to the second category of transactions. Mechirat chametz (if done properly) is a transaction devoid of any false terms of sale. If the non-Jew decides to retain possession of the chametz after Pesach, he is legally entitled to do so. Similarly, if the seller of the chametz decides not to reacquire the chametz after Pesach, the non-Jew is legally bound to the sale and he has no legal claim to the money that is used for purchase of the chametz. Since both parties subject themselves to the normal risks associated with a transaction, the transaction is similar to the second category of loopholes and is permitted.
Terumat HaDeshen's opinion notwithstanding, some Acharonim prohibit all forms of legal loopholes when their purpose is to prevent violation of a biblical prohibition. R. Yosef D. Soloveitchik urged his followers to refrain from mechirat chametz on all types of chametz whose possession on Pesach entails a biblical prohibition (see Nefesh HaRav pg. 177). R. Alexander S. Shor, B'chor Shor, Pesachim 21a, agrees that one should not rely on any type of loophole to avoid a biblical prohibition. However, he suggests that since one can actually accomplish the biblical requirement to dispose of one's chametz by nullifying the chametz (bittul chametz), mechirat chametz is only necessary to accomplish the rabbinic requirement of totally removing chametz from one's possession. Since the loophole of mechirat chametz only serves to avoid violation of a rabbinic prohibition, B'chor Shor permits mechirat chametz.
The Method of Transaction
In order to properly execute mechirat chametz, the transaction must be a halachically significant transaction. The Mishna, Kiddushin 26a, states that transactions of movable items must be performed by physically transferring possession of the item (meshicha or hagba'ah). A transaction cannot be completed by merely transferring money from the buyer to the seller. There is a dispute in the Gemara, Bechorot 13b, whether this is true for transactions between Jews and non-Jews. According to R. Yochanan the proper method of transaction between a Jew and a non-Jew is through physical transfer of possession of the item. However, according to Reish Lakish, the transaction is performed through monetary transfer. Tosafot, Avodah Zarah 71a, s.v. Rav Ashi, note that the final ruling is a matter of dispute. Rashi sides with the opinion of Reish Lakish and Rabbeinu Tam sides with the opinion of R. Yochanan. Tosafot add that in order to fulfill both opinions, one should perform both physical transfer of the item and monetary transfer when performing a transaction with a non-Jew that has ritual significance.
As such, Mishna Berurah 448:17, rules that when selling one's chametz, one should not only insist that the non-Jew pay for the chametz, but he should also take physical possession of the chametz. However, due to the large volume of chametz involved in a single sale, it is highly impractical to insist that the non-Jew take actual physical possession of all of the chametz. Therefore, Mishna Berurah 448:19, recommends combining monetary transfer with other forms of transaction. There are a few possible forms of transaction that may be used. First, the Gemara, Bava Metzia 74a, states that there are situations where one can enact a transaction by performing an action that local businessmen use to close a deal. One modern example is a handshake. Second, the Mishna, Kiddushin 26a, states that one can transfer movable items as part of a real estate transaction. Regarding mechirat chametz, Mishna Berurah, ibid, suggests selling or renting land as part of the sale, and including the chametz in the package. Third, Mishna Berurah 448:17 also recommends including kinyan chalipin (barter transaction) as a means of transferring the chametz. This is accomplished by the non-Jew giving an item of his in exchange for the chametz.
The Reacquisition of the Chametz
Mishna Berurah, Biur Halacha 448:3, s.v. B'Davar, notes that common practice demands that the sale price of the chametz should reflect the value of the chametz. However, he adds that there is no requirement for the non-Jew to pay in full at the time of the sale. It is sufficient if he pays a down-payment at the time of the purchase and incurs the balance as debt.
While this solution is very practical in executing the initial transaction, it does complicate the reacquisition of the chametz after Pesach. If the non-Jew were to pay in full prior to Pesach, that money could be used to repurchase the chametz after Pesach. However, since common practice is that the non-Jew only pays a down-payment, there are insufficient funds in the down-payment to repurchase the chametz. It is also not possible to nullify the sale on grounds that the non-Jew failed to pay in full because nullification of the sale would retroactively place the chametz in possession of the Jew for the entirety of Pesach.
Therefore, there are two possible methods of reacquiring the chametz. The first option is to initiate a new sale that reacquires the chametz. The balance that the non-Jew owes is factored into this new sale. The second option is to seize the chametz in lieu of the debt incurred by the non-Jew. The advantage of this second option is that it doesn't require a new sale after Pesach. However, R. Shlomo Kluger, HaElef Lecha Shlomo, Orach Chaim no. 221, doesn't recommend such a practice. He suggests that seizure of property for defaulting on a payment is something that is normally done through beit din. Therefore, seizure of the chametz without a beit din would cast aspersions on the original sale. This view is also reflected in Mishna Berurah, Biur Halacha 448:3 s.v. Mechira. R. Kluger notes that if the non-Jew is not available after Pesach for the reacquisition of the chametz, a beit din may authorize seizure of the chametz as payment for the balance of the original sale.