GIVING IT ALL AWAY - SELLING CHAMETZ PART II
As mentioned at the end of last week's Chabura, two of the major issues that have to be dealt with concerning the practice of selling chametz before Pesach are the issues of ha'arama (halachic trickery) and matana al m'nat l'hachzir (giving a gift on the condition that it will be returned. This week, we will see how these two issues play out and to what degree we treat each of them as a legitimate concern when it comes to selling chametz.
Rambam (Hil. Chametz U'Matzah 4:6-7) cites the case in the Tosefta concerning the Jew and the non-Jew on a boat almost verbatim, noting that the Jew may sell his chametz to a non-Jew as long as the sale is total. He then cites the continuation of the Tosefta, writing that a Jew can ask a non-Jew to buy chametz that the Jew will then buy from him after Pesach, so long as no actual conditions are made. Both the Tur and the Shulchan Aruch (O.C. 448) concur in this basic view.
The Beit Yoseif cites Rabbeinu Yerucham who notes that while it is permitted to sell one's chametz to a non-Jew, it may not be done in a tricky manner (ha'arama). The Beit Yoseif objects, claiming that the way that chametz is generally sold, with the full intention that the Jew will return after Pesach to buy it back, seems to be a classic case of ha'arama! The Beit Yoseif thus reasons that Rabbeinu Yerucham must be referring to a case where the original sale was predicated on the condition that the chametz be returned, and such a sale in thus invalid. The Terumat HaDeshen (119-120) rules that even though the non-Jew knows that the sale will be reversed after the week, as long as he lives outside the house of the Jew (meaning that he is not the servant of the Jew) then the sale will be fine. Seemingly, the Terumat HaDeshen merely requires that the sale involve some clear sign that the chametz is leaving the possession of the Jew, and the fact that it is now owned by another house seems to accomplish this goal.
Bach cites a debate in terms of the permissibility of ha'arama. He records the opinions of the Agudah and the Shut Rashba, both of whom claim that since at the moment of the sale it is done properly, the sale is fine even if the Jew explicitly mentions that he plans to buy it back at the end and even if the Jew allow the non-Jew to pay so small a fee that it is obvious that the Jew plans on undoing the sale in a week. Rosh objects and claims that this is blatant ha'arama, and thus a sale done in such a manner would be completely invalid. Nevertheless, the Aruch HaShulchan offers the astounding rationale that the entire chiddush (novelty) of the law of selling the chametz is that even though it is ha'arama, it is nevertheless a valid sale.
Perhaps some support for the permissive position in this debate can be brought from the Mishna Acharona on the second to last mishna in Nega'im. In discussing the general issue of ha'arama, the Mishna Acharona claims that ha'arama is only a problem if it is done once the time to do the mitzva has come. However, if a person can look into the future, as it were, and take some action that will remove his obligation before the fact, then that is a permissible type of ha'arama. Thus, since the sale of chametz is done before the person is prohibited from owning chametz, this sale would be completely valid, since it is a "properly performed" ha'arama.
In terms of our second issue, we mentioned last week that based on Succah 41b and other places, we generally rule that a present given to someone on the condition that it be returned (matana al m'nat l'hachzir) counts as a valid gift, and the recipient can be said to own the gift with all rights and privileges of that ownership until it is returned. However, the Shulchan Aruch rules that in this case such a gift would not be valid. Rather, if the chametz is to be given to a non-Jew free of charge, it cannot be done with any stipulation of further action on the part of the Jew. The Aruch HaShulchan provides the rationale for this opinion. The gemara in Succah notes that a matana al m'nat l'hachzir work retroactively - only after one returns the gift is he considered to have owned it in the interim. Thus, until the non-Jew fulfills the condition of the returning the chametz it is possible that the chametz will be considered either chametz of the Jew or at least chametz of the non-Jew left in the hands of the Jew to watch (which is also forbidden).
On the other hand, the Aruch HaShulchan cites the Levush, who claims that this case is no different than any other. Thus, since a matana al m'nat l'hachzir is generally considered to be a full gift, such a rule applies here as well, and thus there is no problem with giving one's chametz to a non-Jew with the explicit condition that it will be returned. The Aruch HaShulchan himself claims that such a gift only works if the chametz is removed from the house of the Jew. However, since the Rishonim were generally strict about this issue, such a gift would not work if one did not at least go so far as to remove the chametz from his house.
This law of the Aruch HaShulchan deserves some mention on its own. The Magen Avraham claims that the chametz should be removed from the house of the Jew. However, he notes that this is only to avoid the appearance of impropriety, and if it is left in the Jew's house there is no violation of the law (since the only prohibition is for a Jew to own chametz, but not for him to see someone else's). As such, he moves on to his next law, namely that if one owns a large amount of chametz, he need only sell the area in his house where the chametz is, and the chametz will be sold along with the space. While the Magen Avraham claims that the Jew has to hand over the keys so that the non-Jew will be able to gain access to what is now his chametz, there are several other poskim who do not require this step to be taken. However, the non-Jew must at least be informed where the chametz is (and such is the common practice today).
Another important issue is whether or not we sell dishes that are used for chametz. The general rule is that whenever one buys a dish or some other utensil from a non-Jew he has to do tevila (ritual immersion) on that dish. As such, if one were to sell his actual dishes along with the rest of his chametz, it would seem that he would have to do tevila on all of his dishes before using them again after Pesach! This view is expressed by Rav Ovadiah Yoseif (Yechaveh Da'at 3:24). However, in his discussion of the issue he notes that Rav Shlomo Kluger (Ha-Elef Lecha Shlomo Y.D. 193) suggests that one might not have to do tevila in such a case. He explains this view by stating that since the entire sale is a ha'arama, the utensils are never really transferred to the non-Jew to the extent that they would need tevila. Rav Moshe Dovid Tendler has explained that the tevila needed when buying a utensil from a non-Jew is for the purpose of raising the utensil to a new state of holiness, and perhaps this explanation can be used to support the hypothesis of Rav Kluger - since the utensil never really left the ownership of the Jew, there is no need to re-initiate it. However, as nice as this explanation may be, Rav Kluger's position is still somewhat unsatisfying, since he seems to be proposing a self-contradictory position, that the dishes are both sold and not sold at the same time. As such, he does not even rule in accordance with his own suggestion. While the Aruch HaShulchan (Y.D. 120:52) also suggests that no tevila will be needed since the sale is merely an extra stringency (since the nullification of the chametz is sufficient to prevent one from violating any prohibition), Rav Yoseif concludes that the dishes should not be sold, and if they are sold they should receive tevila without a bracha.
As a final note, it should be stressed that the selling of chametz is not simply a "halachic joke." It is a real sale, a fact that often gets lost in the rote nature of the process and inevitable return of the chametz after the holiday. There are some Rabbis who insist that the non-Jew come to pick up his chametz during Pesach, an action which drives home to everyone that this sale is for real. Even when this is not done, one must make sure to fully intend to be selling his or her chametz, as any sale requires the full consent of the seller. As mentioned at the outset of last week's Chabura, chametz is an extremely strict area of law, and thus there is no aspect of it, not even this ha'arama, which should be taken lightly.
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