"GOING OUT OF BUSINESS SALE" - SELLING CHAMETZ BEFORE PESACH - PART I
The prohibition against eating chametz (leavened bread and other similar products) on Pesach is spelled out many times in the Torah and as such is well known. However, as is detailed in Shemot 13:7, there is an additional prohibition to see any chametz that belongs to you during the course of the holiday. We are instructed to purge ourselves and our property so totally of the offending foods that we may not even put ourselves into a situation where we are likely to find any chametz among our possessions.
There are several laws that have come about due to the generally strict stance taken by the Torah against chametz during Pesach. Even though one could avoid all problems by simply nullifying the chametz, achieved by reciting a brief formulation disavowing one's ownership of said foods, we have the general practice of both nullifying the chametz as well as going on a "search and destroy mission," wherein we cleanse our houses completely of any foods that would fall under these prohibitions. This law is so serious that the general prohibition of "bal tashchit" (not to destroy those things which are useful to us, such as wasting food) does not apply, and it is actually a commandment to destroy any such food left around the house when Pesach comes.
However, as Jews have become more involved in various professions that involve ownership of large quantities of chametz, and as an increase in the average wealth of Jews worldwide has led to private ownership of increasingly valuable stores of chametz (such as liquor collections that can be worth several hundred dollars), people have been more reluctant to destroy a significant portion of their possessions. As such, the notion of selling one's chametz has become more and more popular over the years. Our goal in this Chabura will be to analyze the various sources that discuss the institution of selling chametz and under what conditions it may be done.
The mishna at the beginning of the second chapter of Pesachim (21a) states that as long as it is permissible to eat chametz on the 14th day of the month of Nissan, it is also permissible to give it to one's animals to eat and to sell it to non-Jews and to derive benefit from it. In other words, up until a certain point on erev Pesach (whose exact time is discussed further in the gemara), one may use the chametz for any purpose that he may so desire. Among these purposes is selling the chametz to a non-Jew, which can only be done so long as one legally possesses the chametz. After this time passes, any money gained from such a sale would be forbidden for any further use (see Tosafot ad loc.).
It is unclear from the mishna exactly why a person would be selling his chametz to a non-Jew a few hours before Pesach begins. If the reason would be strictly business purposes, then we can perhaps better understand Tosafot's focus on using the money if the chametz is sold too late. However, the analysis of this issue in the gemara itself seems to belie a different purpose. In the gemara, Beit Shammai rules that a person should not sell his chametz to a non-Jew unless it will definitely be gone before Pesach beings, while Beit Hillel rules that as long as the chametz is sold during the permitted hours, it is irrelevant what happens to it after that point in time. It seems that the concern is not so much a business one (why should the merchant be concerned what the customer does with the product?), but rather a concern for the relationship between the Jew and the chametz. Seemingly, this sale is being made for the purpose of getting the chametz out of the possession of the Jew before the prohibitions against owning chametz come into effect.
There is, however, a third view stated in the gemara. Rabi Yehuda ben Beteira claims that "kutach," a type of dip made with yeast cannot be sold within thirty days of Pesach. The simple explanation of this view, as explained byRashi, is that he is ruling in accordance with Beit Shammai, namely that chametz can only be sold if it will be eliminated by Pesach. However, Tosafot claim that he is following the view of Beit Hillel. How is this to be explained? They note that kutach has to be sold in such a way that it will be consumed before Pesach begins so that people do not come to suspect that it was actually sold on Pesach itself. However, there is no intrinsic problem with the kutach existing on Pesach if it is owned at that time by a non-Jew.
Moving beyond this gemara, perhaps the most important source for the law of selling chametz from the time of the mishna and gemara is to be found in the Tosefta to Pesachim (2:6). There it says that if a Jew and a non-Jew who are travelling on a boat as Pesach comes in, and the Jew owns chametz, he may sell it to the non-Jew or give to him as a gift and buy it back after Pesach, provided that the sale or gift is a complete one. What is unclear at this point is whether or not the Jew worked out before the fact that he would buy the chametz back. However, this is tackled to some degree in the Yerushalmi (2:2). After repeating the story found in the Tosefta, the Yerushalmi continues to note that a Jew can also tell the non-Jew in this case to buy twice as much chametz provisions, and after Pesach the Jew will buy some of them from him (this explanation of the Yerushalmi follows Rabbeinu Manoach). Thus, we see the permissibility of both selling chametz to a non-Jew to avoid owning it on Pesach, as well as the permissibility of having a non-Jew buy chametz with the knowledge that the Jew will buy it from him at a later point in time.
We will conclude for now with two comments that will provide us with necessary concepts to proceed in our analysis of this law. The first is brought by Ritva, in his comments to the gemara. He writes that a Jew may sell his chametz to a non-Jew, but it may not be done in a tricky manner ("ha'arama"). In other words, if the Jew and the non-Jew have an arrangement that every year the Jew sells the non-Jew his chametz and then buys it back eight days later then that is not considered to be a valid sale. Rather, it is considered as if the non-Jew is leaving a collateral in the hands of the Jew, something which would cause the Jew to violate the various prohibitions relating to chametz.
The second issue is raised by the Korban HaEdah in his commentary to the Yerushalmi. He claims that when the Yerushalmi requires that the gift made to the non-Jew be a complete one, that means that it cannot be a gift given on the condition that it be returned ("matana al m'nat l'hachzir"). This is interesting since in general we rule that such a gift has the status of being a valid gift (see Succah 41b), and thus we need to understand why the Korban HaEdah makes this stringency and we need to see if it holds up in practice.
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