The Sale of Chametz
The sale of chametz with the intention of repurchasing it after Pesach is explicitly mentioned in the Tosefta (Pesachim 2:6):
- The Tosefta deals with the case of "a Jew and a non-Jew who were traveling together by ship." Does the Tosefta mean to limit the sale of chametz to such a case? Perhaps chametz may only be sold in a situation that does not involve any planning from the outset.
- It is difficult to answer this question based on the wording of the Tosefta. There are Rishonim who state explicitly that it is only the incidental sale of chametz that is permitted, but selling chametz in a fixed and institutionalized manner is forbidden (Talmid ha-Ritva and R. Amram Gaon]. Most Rishonim, however, do not limit the sale of chametz in any manner. Many Rishonim cite the Tosefta as is, and it is difficult to draw any conclusions as to whether the sale of chametz is limited to the case mentioned in the Tosefta or whether this case is only an example. The Rambam, for example, rules in Hilkhot Chametz u-Matza 4:6:
- What does the Tosefta mean when it says "absolute gift"? What is a gift that is not "absolute"? Two answers may be given to this question:
- "An absolute gift" is one that involves no legal problems. According to this explanation, the Tosefta means to exclude, for example, a gift given with the stipulation that it be returned. The law is in accordance with the position that such a gift is indeed a gift, but the Tosefta may disagree or perhaps it maintains that such a gift – despite the fact that it takes effect in the context of civil law – does not remove the prohibitions of bal yera'e and bal yimatze.
- "An absolute gift" refers to a complete sale with respect to the consciousness of the seller and purchaser. According to this explanation, the Tosefta comes to exclude the case where a sale is executed in the formal sense, but the two parties understand that the gift will not take effect in actual practice.
- According to the first understanding, it is very easy to satisfy the requirement of "absolute gift." According to the second understanding, the matter is much more complicated, for today the sale is totally fictional.
- Does a person who sold his chametz not violate the prohibitions of bal yera'e and bal yimatze?
- Is it permissible to sell chametz, and is it permissible to derive benefit from the chametz after Pesach?
- Practically speaking, how is the sale of chametz executed?
- Bal yera'e and Bal Yimatze
- How is land sold to a non-Jew? It follows from Tosafot that land cannot be sold to a non-Jew by way of a deed, and we have already noted the problem regarding sale by way of money.
- Tosafot maintain, in contrast to most Rishonim, that agav is effective only by rabbinic decree. According to them, relying on agav to cancel the Torah prohibitions of bal yera'e and bal yimatze is problematic.