Dayan Dovid Baddiel was born in England to a distinguished Rabbinic family. He has studied in the some of the most prestigious Yeshivas in Europe and Israel. He received his Rabbinic ordination and Dayanut from the Harry Fischel Institute In Jerusalem. He is the Rabbi of Ohr Aharon Kehilla and is the longest serving Dayan on the Johannesburg Beth Din, having been appointed to that position in 2009.

A subterfuge perhaps?!

A brief introduction
There is a Biblical prohibition against owning Chametz over Pesach. This prohibition can be avoided, either by destroying all of one’s Chametz, or by disowning one’s Chametz, being Mevatel it, a declaration making the Chametz ownerless, which we in fact do at the time of burning our Chametz. Despite having resolved the Biblical prohibition by being Mevatel, the Rabbis still required the active destruction or removal of any Chametz from one’s possession.

It is important to note, that the requirement to destroy any Chametz in a Jew’s possession, only applies to Chametz that belongs to a Jew. However, if the Chametz belongs to a non-Jew, the Jew need not destroy or get rid of it (unless the Jew is financially liable for loss or damage caused to the non-Jew’s Chametz while in the Jew’s possession).

The Tosefta in Pesachim (2:6) discusses the case of a Jew and a non-Jew being together on a ship close to the Yom Tov of Pesach, and the Jew has Chametz in his possession. The Tosefta advises the Jew to either sell his Chametz to the non-Jew, or give it to him as an outright gift. In this way the Jew will avoid the prohibition of owning Chametz over Pesach. Following Pesach, the non-Jew may sell or give it back to the Jew, should he so wish. Based on the above, the Shulchan Aruch (448:3) rules that one can sell or give away one’s chametz before the Chag, even though he is aware that the non-Jew will be selling it back to him after Pesach. Some are even of the opinion that one fulfils the Biblical commandment of Tashbitu⁽¹⁾ (destroying or clearing away the Chametz) by selling it to a non-Jew.

Ha’aramah – subterfuge?

The above situation of the Tosefta, was clearly a case of extenuating circumstances with no alternative solution. Many generations later, a lively debate ensued as to whether this type of arrangement could be set up annually, as a pro-forma process requiring no extenuating circumstances. Some of the authorities(2) were extremely opposed to this, taking the position that such sales, would be considered a Ha’arama (subterfuge) since the non-Jew is not really interested in buying the Chametz and it is clear from the outset that the non-Jew will be reselling it right after the Chag. It was for this reason that the B’chor Shor (Pesachim 21:a) and the K’tzot (CM 194:1) held that the sale could only be relied upon in the case where one had already disowned it (been Mevatel the Chametz), with the sale merely serving to avoid transgressing the Rabbinic requirement of having to remove the Chametz from one’s property or to destroy it.

Nonetheless, most of the Halachic authorities(3) were of the opinion that the sale was perfectly legitimate, even avoiding thereby the Biblical transgression against having any Chametz in ones’ possession, without the need to be Mevatel.

While in days gone by, such sales would see the non-Jew physically taking the Chametz into his possession, the Bach (Siman 448) was satisfied with the validity of the sale, to such an extent that he did not require the Chametz to be removed from the Jew’s premises. This is as a consequence of certain Halachially binding acts of acquisition performed, akin to the legal concept of “constructive delivery”. Others added(4) that one should also rent or sell the areas upon which the Chametz is stored, something which is common practice in today’s sale of the Chametz.

The Mas’at Binyamin (siman 49) dealt with a case where the Chametz had been sold to a non-Jew but with a very weak acquisition, potentially compromising the validity of the sale. He maintained that one need not be concerned with consuming such Chametz after Pesach (upon repurchasing it after Pesach), which would be Rabbinically forbidden were the sale to be deemed invalid. This was based on the following observation(5):

A Jew is not allowed to derive any benefit from Chametz over Pesach. That being the case, such Chametz would have the status of not considered belonging to the Jew, since the Jew may derive no benefit from it, it is clearly not his. Accordingly, how could it ever be considered that the Jew violated the prohibition against owning this Chametz? The Talmud (Pesachim 6b) explains, that one would still be transgressing having Chametz in one’s possession over Pesach, because ‘aso’oh hakatuv k’ilu hu birshuto’, the Torah considers it “artificially” to be in the Jew’s possession. However, in the case where the person had clearly tried to remove it out of his domain, even though it had not been as effective as it should have been, no longer would the Torah consider it to be in his possession, since in any event it is only considered to be in his domain, but not in actuality. Therefore this “artificial” ownership would not be applied in a case where he had actively tried to remove it out of his possession, albeit through an inadequate sale.

The difference between Shemitta and the sale of Chametz.

This would perhaps explain why those who accept the validity of the sale of Chametz, may reject the sale of land in Israel to a non-Jew, known as “Heter Mechira”, in order to avoid the prohibition of Shemitta. In the case of Chametz, all that is required is the removal of an imposed “artificial” state of ownership, whereas with the sale of land, it is the removal of actual ownership of the land.

Furthermore, in the case of the Chametz, if the non-Jew would pay for the goods, the Jew would be only too happy to withdraw from the Chametz. This is not the case of the sale of one’s field during the Shemitta year. It is without question that the person wants to retain “ownership” of his land, rather than receive payment in full. Moreover, during the course of the Shemitta year, the field will continue to be worked in the usual manner, bringing into question the real intent of sale, whereas no interaction will be had with the Chametz throughout the duration of Pesach.

It must also be pointed out that, even were the sale of Chametz to be considered a “Ha’arama”, since the purpose of the sale is to avoid a possible transgression rather than cancelling the mitzvah, it would still be acceptable. This is akin to other forms of potential Ha’aramah, such as the Takana (enactment) of the P’ruzbul at the end of the Shemitta year, to avoid the prohibition of avoiding lending close to the Shemitta year.

Valid according to the law of the State?

Many hold, that for such a sale to be binding, it would also need to be a legally recognised sale according the law of the land, Dina Demalchuta Dina(6). Even were this sale of Chametz not to be considered legally binding according to civil law, in light of the above explanation, it could nevertheless suffice for the purposes of Chametz over Pesach to avoid the Torah imposing the “artificial” ownership.

Selling real Chametz/ Purchasing after Pesach sold chametz

Notwithstanding the above, there are some that are particular not to sell real Chametz, other than products that have certain ingredients of Chametz and not to even purchase Chametz that had been sold to a non-Jew after Pesach(7). Nonetheless, Rabbi Shlomo Zalman Auerbach would inform people that if there was a doubt as to whether a product was sold, or as to whether it was absolute Chametz, such as flour which had not been soaked, only rinsed, one can be lenient even according to the more stricter opinion and allow the purchase of such products after Pesach.

The selling of the Chametz in today’s age

In conclusion, even though the sale of the Chametz had originally been instituted for establishments and for the wholesalers(8); today, each individual will sell their Chametz under the auspices of one’s Rabbi to ensure that the local Beth Din is appointed as the agent to sell the Chametz to the non-Jew, and that it is actioned in the correct way.