Mechiras chametz sometimes gets a bad rap. The widespread practice of observant Jews selling their chametz to a non-Jew prior to Passover, and thus avoiding the prohibitions of bal yeraeh and bal yematze while preserving the chametz for repossession after Passover, is sometimes seen as a way of not having one’s cake and eating it too; an evasion that perhaps fulfills the technical imperative of the Torah directive (and perhaps not), yet seems to be artificial and contrived in nature. The ambivalence toward this practice (as well as other “sale” approaches, which are subject to varying degrees of controversy) is reflected in the joke that is told about a rabbinic ban on smoking: the orthodox Jews aren’t worried, as they will simply sell their lungs to a non-Jew.
This conflicted attitude is played out in the halakhic literature. True, the Tosefta (Pesachim 2:6-7) does speak of a situation in which a Jew, finding himself stuck at sea as Passover approaches, transfers ownership of his chametz to a non-Jewish fellow traveler, and reclaims it after the holiday. However, the impression is one of an unplanned, non-ideal, and isolated incident; the current reality, where entire communities plan in advance to preserve their stocks of chametz through annually scheduled arrangements with their local rabbi, appears to be a significant expansion of the depicted scenario.
A more commonly heard complaint is that the sale seems like a joke: the chametz does not leave the original owner’s residence (something some poskim insisted should happen; see Terumat HaDeshen 119 and Bach, Orach Chaim 448, s.v. katav); the purchaser does not appear interested in actually taking possession of the chametz (see Machatzit HaShekel, O.C. 448:4; Responsa Chatam Sofer, YD 310; Responsa Li-Horot Natan, II, 27); rarely if ever does the seller have to open his doors and cabinets to the new owner of his food; and the chametz invariably reverts to its original ownership immediately after Passover.
Rabbenu Yerucham (Netiv V, part V, 46a), commenting on the Tosefta‘s ruling, asserts that one who utilizes this option should not engage in ha’aramah (translated alternatively either as a sham or an evasion of the halakhah). The Beit Yosef (Orach Chaim 448:5) questions this requirement: the entire plan appears to be a ha’aramah, and yet, it is permitted!
Controversy over the sale has persisted over the generations, despite its increasing usage, and while some of the objections focused on the more problem-fraught method of a rabbi purchasing his congregants’ chametz in order to sell it to a non-Jew (see, for example, R. Uri Shraga Feivush Toubish, Responsa Uri Vi-Yish’i, 121), it is clear that some great rabbinic authorities objected even to the more prevalent current practice, where the rabbi does not purchase the chametz but rather acts as an agent to sell it to the purchaser (see, for example, Responsa Shoel U’Meishiv, II, 2:77; on this distinction, see also R. Ya’akov Ariel, Resp. Bi-Ohalah Shel Torah, I, 59).
The Bekhor Shor (Pesachim 21a) is taken to assert that mekhirat chametz is indeed a ha’aramah, and for that reason is ineffective against a biblical prohibition of owning chametz. He assumes, however, that the chametz at hand is only subject to a rabbinical prohibition, because, as the Talmud states (Pesachim 10a) in the context of bedikat chametz, the bitul (nullification) of chametz is effective to negate the Torah prohibition. (Others who accepted this premise include Ketzot HaChoshen, 194:4; R. Meshulam Igra, Responsa 39:1; and R. Natan Note Kahane, Resp. Divrei Rinanah, 30, with extensive further references cited by R. Yitzchak Hershkowitz in footnote 11 therein. See also R. Yitzchak Shmuel Shechter, Responsa Yashiv Yitzchak X, OC 9.)
However, many acharonim challenged that premise, noting that the chametz that is negated is not the same chametz as that which is sold, and thus a biblical prohibition would still attach; as such, one who would utilize mekhirat chametz must be comfortable that it is effective on a Torah level (see, for example, Mekor Chaim 448:9; and the lengthy analysis of Responsa Minchat Yitzchak, VIII:41; the Kogalglover Rav offers a creative explanation of the Bekhor Shor’s view in his Responsa Eretz Tzvi, I, 84).
Indeed, there are many who have adopted a policy not to sell chametz gamur (outright chametz, as opposed to chametz-derived or mixed products), presumably reflecting a lack of confidence in the sale’s efficacy together with the assumption that the chametz in question is not batel (nullified) (see R. Asher Weiss, Haggadat Minchat Asher, p. 280). Nonetheless, the acceptance of mekhirat chametz in all forms is widespread, with Jews purchasing chametz knowing in advance it will be sold, and some rabbinic authorities even considering the question of whether it should be an obligation to sell one’s chametz as part of the appropriate safeguards for Passover (see Responsa Li-Horot Natan VI, 25).
Perhaps an explanation can be offered for the embrace by so much of observant Jewry of the embattled mekhirat chametz. It would begin by considering the prohibitions of bal yeraeh (“it shall not be seen”) and bal yematze (“it shall not be found”) that the sale is meant to address. The Ran (Pesachim 1a, s.v. u-mah; see also Peri Megadim, Petichah to Pesach 1:9) asserts that these prohibitions serve as a kind of “syag min haTorah,” a safeguard similar to those of rabbinic creation, but from the Torah itself (see R. Yosef Engel, Lekach Tov, 8:1): in essence, the Torah is really primarily concerned that we should not eat chametz. However, if chametz is kept in one’s possession, there is a great risk that in a distracted moment, or in the course of a semi-awake midnight snack, one might prepare himself a meal of the normally-permitted chametz. To avoid this eventuality, all chametz must be removed from one’s possession.
By embracing mekhirat chametz, the Jewish people are declaring that there are two things that can prevent them from eating chametz: not having any, and the transgression of gezel, of theft. If the chametz is in one’s house, but is off-limits because of the prohibition of stealing, that is enough to keep the Jews away from its consumption. Therefore, it doesn’t matter whether or not the chametz will ever be picked up by its purchaser, or whether or not the sale will be reversed after Passover. All that does matter is that during Passover, the chametz legally belongs to another; that is enough to make sure it will be untouched. In other words, Klal Yisrael is willing to stake its “kareit” (the most severe divine penalty, “cutting off” from the Jewish people), its very spiritual survival, on its commitment to avoiding theft.
In this context, it is worth noting the words of the Semag (Mitzvot Aseh #73), who states that the exile has gone on too long because of deficiencies in honesty and integrity in dealing with the nations of the world. When that problem is present, redemption cannot take place; it would be a chilul Hashem (desecration of God’s Name) for God to redeem a nation that is perceived as immoral. As such, perhaps the practice of mekhirat chametz is a conscious decision, at a time when we focus on geulah (redemption), to enter into a monetary relationship with a non-Jewish person, and to honor the integrity of that relationship with one’s spiritual life. Such an attitude, taken with proper seriousness, might just bring the redemption, one step at a time.
