Beit Midrash

  • Pesach
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Chapter Six-Part Two

The Laws of the Hametz Sale


Rabbi Eliezer Melamed


4.The Laws of the Sale
Every Jew, before selling ĥametz, should read the authorization contract he will be signing, so that he understands that he is empowering the rabbi to sell his ĥametz, and that the sale is absolute. Nonetheless, if instead of reading the contract one simply relied on the rabbi, the sale is valid, for, if the gentile comes during Pesaĥ to take the ĥametz, and the rabbi tells the Jew that the ĥametz indeed belongs to the gentile, and that he must give it to him, the Jew will do so.
The seller should write his name and address in clear script on the contract of sale so that the gentile knows who he is and where he lives. In this manner, the gentile buyer will be able, if he wants, to go to the seller’s house and take the ĥametz (see Sidur Pesaĥ Ke-hilkhato 11:7-8, and in the notes).
It is most preferable to give the gentile the key to the place where the ĥametz is located so that he can enter and take it at any time. In practice, though, it is sufficient to give the gentile the seller’s phone number so that when the gentile wants the ĥametz, he can call to come and take it. The most important principle is that sellers of ĥametz should be aware that after the sale, the ĥametz indeed belongs to the gentile, and the seller must allow him to enter the house and take his ĥametz (MB 448:12).
Ideally, the seller should indicate the various types of ĥametz, and their prices, on the contract the rabbi gives him to sign, and some people are meticulous about this. In practice, though, this is very difficult to carry out. Therefore, the custom is to write that all ĥametz in one’s possession is included in the sale, and that the price is in accordance with the accepted market price, as determined by appraisers (see BHL 448:3, s.v. "be-davar mu’at").
It is best to write in the contract where exactly the ĥametz is located, for example: "In the upper left kitchen cupboard," or "in the room on the right, in the box so marked." Several places may be listed. Even without this, the sale is still valid, though all ĥametz should be gathered to one place and labeled. Everything gathered to the place determined for the sale by two hours before the onset of the prohibition against deriving benefit from ĥametz is included in the sale.
As noted, the preferred custom is to sell or rent to the gentile the place upon which the ĥametz rests, so that the ĥametz will be in the possession of the gentile, and the sale will appear to be like any other sale in which the buyer transfers possession.
One may sell ĥametz through a proxy who writes all relevant details and signs on the owner’s behalf. One may also sell ĥametz over the phone, by fax, or via the Internet. Usually, the person selling ĥametz signs and performs a kinyan (act of acquisition) in order to empower the rabbi as a shali’aĥ. Nonetheless, the kinyan is not crucial, as the most important thing is the transaction between the rabbi and the gentile, which is effective for everyone who has appointed the rabbi to sell his ĥametz (Sidur Pesaĥ Ke-hilkhato 19:4, 9-10). 5
In kitchens that belong to public institutions, the manager or his representative sells the ĥametz.
One should not sell the ĥametz that is absorbed into utensils. Quite a few laws relating to mekhirat ĥametz were introduced in order to make it clear to all that it is an actual sale, but if one writes that he is selling the ĥametz absorbed in his utensils, the sale will appear to be lacking seriousness, since ĥametz absorbed in utensils has no value and nobody is interested in buying ĥametz absorbed in utensils. The same applies to ĥametz stuck to utensils. Therefore, one should not indicate this in the sale contract. 6
5.The Deadline for Selling Ĥametz and the Status of One Visiting Israel or Abroad
The sale must take place while it is still permitted to derive benefit from ĥametz, for when the sixth hour of the day of the fourteenth of Nisan arrives, and it becomes forbidden to derive benefit from ĥametz, it likewise becomes forbidden to sell it. Instead, it must be destroyed. In order to allow people to sell their ĥametz until the very last minute, mekhirat ĥametz takes place on the fourteenth, just before the end of the time that it is permissible to derive benefit from ĥametz.
The prohibition takes effect according to one’s location. In Israel, the sixth hour arrives approximately seven hours before the East Coast of the United States. Therefore, a U.S. resident who is in Israel must sell his ĥametz in Israel, because if he sells his ĥametz according to the deadline in the United States, the sale will take place after the onset of the prohibition incumbent upon him. The end of Pesaĥ also poses a problem for such a person, because he must observe yom tov sheni shel galuyot (the extra day of Yom Tov observed in the Diaspora), which means that the prohibition of ĥametz applies to him until the end of the eighth day, while in Israel the ĥametz is bought back from the gentile after the seventh day. However, in fact, it is not a problem for him to sell his ĥametz in Israel. Even though the gentile sells the ĥametz back at the end of seven days, since the U.S. resident is still observing Pesaĥ according to the custom of Jews in ĥutz la-aretz, and he is not yet interested in buying the ĥametz back, the ĥametz remains hefker or in the possession of the beit din (rabbinical court). Only after yom tov sheni shel galuyot has passed does the ĥametz return to his possession.
If his family remains in the United States, and they plan to eat the ĥametz after the prohibition has commenced in Eretz Yisrael, he must renounce ownership of his portion in that ĥametz, and his family sells the ĥametz there (Sidur Pesaĥ Ke-hilkhato 11:14).
A resident of Israel who travels to the U.S. may, in principle, sell his ĥametz in the United States, for, according to most poskim, the obligation to eliminate ĥametz depends on the owner’s location, not the location of the ĥametz. Nevertheless, one should preferably sell it in Eretz Yisrael, in order to satisfy the opinions of all poskim, for some maintain that one must eliminate ĥametz according to its location, and, if this is the case, one must sell the ĥametz before the onset of the prohibition in Eretz Yisrael. 7
Additionally, a resident of Israel who is visiting a Diaspora community should not eat ĥametz on the eighth day of Pesaĥ, just as he should not do any other activity forbidden on yom tov, even in private (AHS 596:5). If such a person has his own place of residence, he need not partake in a second Seder. However, if he is being hosted by people who live abroad, he should participate in the second Seder. He should not recite berakhot on mitzvot, but instead should answer "Amen" to the berakhot of others. 8
6.Ĥametz That Was Sold – Its Status after Pesaĥ
After Pesaĥ, it is best not to use the ĥametz that was sold until one can assume that the rabbi has bought it all back. When necessary, though, one may take out some ĥametz immediately after Pesaĥ with a willingness to pay the gentile for it were he to request this. It is best that the beit din make an explicit condition with the gentile that the Jew will be obligated to pay for any sold ĥametz he takes, if the gentile so desires. Thus, there will be no question about the Jew taking ĥametz immediately after Pesaĥ (see Sidur Pesaĥ Ke-hilkhato 11:22).
Some people are strict and do not eat ĥametz that was sold because, according to stringent poskim, such a sale is not legitimate and this ĥametz has the status of ĥametz she-avar alav ha-Pesaĥ, which one may neither eat nor derive benefit from.
In practice, however, one need not be concerned about complying with this stringency, because the prohibition of ĥametz she-avar alav ha-Pesaĥ is rabbinic, and whenever there is uncertainty about a rabbinic law, halakha follows the lenient opinion. This is all the more true where only a small number of poskim are strict, while the overwhelming majority permit. Indeed, there were great rabbis who, after Pesaĥ, would make a point of eating ĥametz that had been sold through mekhirat ĥametz, in order to demonstrate that the sale was done in keeping with halakha. 9
When shopping for food after Pesaĥ, one must make sure that the seller has a certificate verifying that he sold his ĥametz in keeping with the halakha so that one does not buy ĥametz she-avar alav ha-Pesaĥ. Even more caution is needed if the seller is not religious, because if he did not understand the significance of the sale and continued to sell ĥametz in his store during Pesaĥ, a few poskim (Sde Ĥemed, Maharam Schick) maintain that the sale was not legitimate, and that it is forbidden to eat or derive benefit from any ĥametz in his store. In this case, one must preferably follow the stringent poskim and wait for goods produced after Pesaĥ to arrive. If, however, it is clear that the seller performed bedikat ĥametz in keeping with the halakha, and was careful not to let anybody go near the ĥametz that was sold, it is permissible to buy ĥametz from him as soon as Pesaĥ has ended (Sidur Pesaĥ Ke-hilkhato 11:13, 23).

^ 5.. Sidur Pesaĥ Ke-hilkhato 11:12 states that one is permitted to enter into a ĥametz sale agreement with multiple rabbis. Even if each rabbi sells to a different gentile, the sale completed first takes effect. Preferably, one should not do this, since it seems deceitful, unless he is worried that one rabbi may not sell his ĥametz, and he wants to ensure that his ĥametz is sold one way or another.
Additionally, Sidur Pesaĥ Ke-hilkhato 11:20 states that if one was unable to sell his ĥametz due to some unavoidable reason, his friend may sell the ĥametz for him even without permission, since it is beneficial to the owner of the ĥametz, and one may act to benefit another even without permission. This is the opinion of many poskim, as cited in Piskei Teshuvot 448:21.
^ 6.. Selling the utensils themselves to a gentile is not worthwhile, since after Pesaĥ one would be required to immerse the utensils in a mikveh, like any eating implement bought from a gentile (Ĥatam Sofer OĤ §109 and most poskim; however, AHS YD 108:52, states that one may be lenient). Therefore, some poskim write that it is preferable to sell the ĥametz that is absorbed in or stuck to the utensils, as written in Bedikat Ĥametz U-vi’uro 8:18-21. It is also written that one should only sell the utensils that have small holes or grooves, which make them difficult to clean, and that some are careful to sell the ĥametz that is absorbed in these utensils. The truth is, though, that this is unnecessary, because the ĥametz was already nullified. Even if there is substance remaining on the utensils, as long as there is less than a kezayit cumulatively, according to the majority of poskim there is no need to burn it (SAH 446 and Kuntrus Aĥaron 1). One must store these utensils in an enclosed area so that he does not accidentally use them on Pesaĥ, and after Pesaĥ one must remove any substance that remained on the utensils before using them, because of the rule that one may not benefit from ĥametz that he owned over Pesaĥ. Preferably, in order to satisfy those who maintain that one is required to burn even less than a kezayit of ĥametz (MA 442:12), one should remove any trace of ĥametz from the utensils before Pesaĥ, or ruin the residue with detergents until they are no longer fit for a dog's consumption.
If this is the case, even if there is more than a kezayit, there is no obligation to burn it. Therefore, there is no need to sell the ĥametz that is stuck to the utensils, and even more so one should not sell the ĥametz that is absorbed in the utensils.
^ 7.. Oneg Yom Tov (§36) states that we follow the location of the ĥametz. Many disagree with this ruling and maintain that the prohibition takes effect according to the location of the owner. This is the opinion of Ĥessed Le-Avraham 141:35, Eretz Zvi 1:83, Mikra’ei Kodesh Pesaĥ 1:55, and other poskim quoted in Piskei Teshuva 443:1. Le-khatĥila, we take both opinions into consideration and follow whichever time is earlier, as is written in Igrot Moshe OĤ 4:94-95.
A Diaspora resident who is presently in Israel and sells his ĥametz in Israel should have in mind not to reacquire this ĥametz until after the festival ends in the Diaspora, as written above. Even if he did not have this intent, Sidur Pesaĥ Ke-hilkhato 11:35 states that presumably he does not want to reacquire the ĥametz before the festival ends, so he does not reacquire it until it becomes permissible. Mikra’ei Kodesh Pesaĥ 1:76 states that even if one acquired ĥametz on the eighth day of Pesaĥ in the Diaspora, the ĥametz may be eaten after Pesaĥ, since there are poskim who maintain that a Diaspora resident in Israel is not required to observe two days of yom tov. Therefore, since this is an uncertain situation on the rabbinic level, we are lenient.
^ 8.A thorough treatment of yom tov sheini shel galuyot, including the status of travelers and temporary residents, appears in Peninei Halakha: Holidays ch. 9.
^ 9.. See n. 1 where we listed those who adopt stringent opinions, including Gra, who refrained from eating ĥametz that had been sold. In n. 2 we listed those who adopt lenient opinions (the majority of authorities).

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