The Selling of Chametz from a Historical Prospective
By Avi Lazerson
One of the basic aspects of Passover is the removal of chametz (bread and products that are made from fermented grain products) from the Jewish home. It is forbidden to have chametz in the house or to even own chametz during Passover. Other than destroy it or eat it all up, another popular method to rid oneself of it is to sell it to a non-Jew. The end concept of the sale being that the non-Jew will return it to the Jew at the conclusion of the Passover festival and the Jew does not chance losing his chametz. But is this a real sale or just legal fiction? How can one make a sale in which the item never moves from its place? Let us see how this sale began.
Selling chametz was not always the choice for Jews. If we look back in history we shall soon realize that people lived much simpler lives. The food stocks on hand were generally limited to small amounts; refrigeration had not been invented yet. During the times of the Talmud, the Jews would simply go through their home and take out what little chametz could be found and either eat it, give it to the animals or burn it before the onset of Passover. Flour (milled grain) was not considered chametz unless it came into contact with water and therefore could be kept and stored until after the Passover.
The Mishna in tractate Pesachim (21a) mentions that as long as it is permitted to eat chametz, it is permitted to feed the animals and fowl and sell it to a non-Jew. Not that this was the recommended action to take, but that selling the chametz to a non-Jew was an option. The sales mentioned here were real sales where as the non-Jew paid full price and took the chametz into his domain and consumed it.
The concept of selling the chametz to a non-Jew before the Passover begins and getting it back after the Passover finishes is found in a Tosephta (a statement from the Mishnaic period - 2000 years ago) in the second chapter of Pesachim:
A Jew and a non-Jew who are on a ship and the Jew has chametz in his possession. The Jew should sell it or give it as a present to the non-Jew and then take it back after the Passover with the stipulation that it be given as a real gift.
We see from this Tosephta that the idea in the mind of the Jew is to rid himself of the chametz only for the sake of the holiday and he has in mind to reclaim it after the holiday yet the Tosephta allows this if when the Jew gives it or sells it, it is done with a conviction that it is a real sale or gift. This means that the Jew realizes that the non-Jew can do with it as he pleases; he may eat it or re-sell it. Here we are talking about a situation where a Jew is on a ship and will need his provisions after the Passover and has no choice but to make such a deal with the non-Jew; in such conditions an exchange like this was given as an option.
As life developed and became more sophisticated, Jewish merchants acquired large stocks of chametz that could not easily be disposed of with out taking a large monetary loss. The amount of stock was to great for the non-Jew to remove from the property of the Jew. It was necessary to find a method that the merchant could rid himself of the chametz with out the resulting monetary loss. The result was the selling or renting of space in the property of the Jew in which the chametz resided together with the selling of the chametz. In this manner the non-Jew acquired the property as well as the chametz. This also made the sale of chametz easier since it was acquire with the land.
To facilitate payment, since the amount could be quite high, a down payment was made with the rest of the money to be paid at a later date. This would allow the non-Jew an easier method for acquiring the chametz and give the Jew an easier method of getting rid of the chametz coupled with the simplified method of returning the chametz after the conclusion of the Passover holiday.
Although this was meant for factory owners and middle men who had large quantities of chametz and could possibly suffer a large financial loss never-the-less it was grafted into use in our modern world since most people have more chametz in their house than they care to dispose of before Passover (like that bottle of expensive scotch) the sale of chametz becomes an important part of modern life.
In the past, the sale was simple, the non-Jew would give money and physically take possession of the chametz by removing it from the property of the Jew to the non-Jew's property. Today, the sale is more complicated; the Jew must move his chametz to a designated area and then rent or sell this area to the non-Jew. Plus, today, we put our chametz plates, pot, pans, etc together with the chametz making the sale much more complicated. We do not sell the utensils, but rather the chametz which is on them. Therefore to insure that the sale is done correctly, the Jew normally contacts a local rabbi who is learned in this specialized area who will act as his agent to sell the chametz to a non-Jew. The Jew signs a document specifying the terms of the sale and giving the rabbi power of authority to execute the sale for the Jew. The rabbi normally acts as an agent for many Jews. It is the rabbi who acting as the agent makes the sale prior to the Passover holiday (chametz can not be sold during Passover). After the conclusion of the Passover holiday it is the rabbi who will make arrangements for the chametz to be returned to the ownership of the Jew.
Although it may look like legal fiction, it is indeed in keeping with the requirements and ancient traditions of the Torah. It is indeed a real sale even though the chametz is returned back to the Jew after the conclusion of the holiday.
from the March 2010 Edition of the Jewish Magazine