Selling Chametz and Circumventing Mitzvot
The sale of chametz is a relevant issue every year. Because it involves many halakhic considerations, it is often used as a springboard for investigating other matters, such as what mode of acquisition is valid in the case of a transaction with a non-Jew. In this shiur,we will address the effectiveness of selling chametz in overcoming the prohibition of bal yera'eh and bal yimatze (owning chametz on Pesach). We will also address the more general question of ha'arama, using a mechanism the sole purpose of which is circumventing a biblical law. The issue of ha'arama is too broad to exhaust in this framework, and we will therefore focus on ha'arama in cases of sale.
Selling Chametz to a Non-Jew
The idea of selling chametz to a non-Jew before Pesach is not novel. The mishna states (Pesachim 21a):
The entire time that one is permitted to eat [chametz], one may feed it to cattle, beasts, and birds, and one may sell it to a non-Jew.
The gemara (ad loc.) discusses the matter:
And one may sell it to a non-Jew – This is obvious. This comes to reject the view of this Tanna. For it was taught: Beit Shammai maintain: A man must not sell his chametz to a non-Jew unless he knows that it will be consumed before Pesach. But Beit Hillel say: As long as he [the Jew] may eat it, he may sell it.
Beit Shammai maintain that one is prohibited to sell chametz before Pesach unless one knows that it will be consumed before the start of the holiday. This seems to indicate that ideally, there should be no chametz at all in the world on Pesach, but we simply do not have control over all the chametz in the world. At any rate, regarding all the chametz that is in one's possession, one must make sure that it will no longer exist on Pesach.
However, the halakha follows the view of Beit Hillel, and there is therefore no problem with the actual sale of chametz. That does not mean, however, that there is no problem with the way that we sell chametz today.
A Full-Fledged Gift
The Tosefta(Pesachim 2) states:
If a Jew and a non-Jew were on a boat and the Jew had chametz in his possession, he may sell it to the non-Jew or give it to him as a gift, and then take it back from him after Pesach, provided that he give it to him as a full-fledged gift.
Two main questions may be raised regarding this law. First, what is the reason for the Tosefta’s reservation that the Jew must give the chametz to the non-Jew as a full-fledged gift? Second, does this law apply only in an exceptional case, like the one mentioned in the Tosefta, or does it apply in all situations?
Several explanations may be offered for the Tosefta’s statement that the chametz must be transferred as a full-fledged gift.
The Tosefta may mean that a gift that is given on condition that it will be returned is not a valid gift with respect to the prohibition of owning chametz. In general, a gift given on condition that it will be returned is considered a valid gift. Thus, for example, the gemara in Kiddushin states that one may fulfill his obligation with an etrog that was given to him on condition that it will be returned. Why, then, should such a gift not be valid with respect to chametz?
The Radbaz cites the Hagahot Maimuniyot (Hilkhot Shabbat, chap. 2), who writes that one who gives away chametz on condition that it will be returned transgresses the prohibition of owning chametz on Pesach because of the special stringency found in the laws of chametz. Elsewhere, the Radbaz explains that if a person gifts chametz to a non-Jew on condition that it will be returned, he cannot know what the non-Jew will in the end do with it. Will he return the chametz after Pesach, in which case the gift will be retroactively valid and the Jew will not transgress the prohibition against owning chametz? Or will he not return the chametz after Pesach, in which case the gift will be void from the beginning, so that it will turn out that the Jew transgressed the prohibition?
It may even be argued that even if the non-Jew does return the chametz, the Jew still violates the prohibition because over the entire Pesach, he was in doubt regarding the status of the chametz. He therefore had a clear connection to the chametz, and because of that connection, he violates the prohibition.
According to this explanation, when the Tosefta speaks of a full-fledged gift, it means a gift with no conditions whatsoever. This is necessary so that there will be no concern about non-fulfillment of a condition that would invalidate the gift, in which case the Jew would violate the prohibition against owning chametz on Pesach.
Some of the Rishonim cite the Tosefta in a manner that reflects their understanding of its statement. For example, when the Ritva (Pesachim 21b) cites the Tosefta, he adds at the end the words: "And provided that he does not engage in ha’arama (circumvention)." The Rishonim disagree regarding whether this is an alternative reading of the Tosefta or an interpretation of the standard text. The Ritva (p. 21a) explains:
But if he circumvents the prohibition and regularly sells [his chametz] every year to a non-Jew before Pesach and takes it back after Pesach, we penalize him, and [the chametz] is forbidden to him and to all of Israel after Pesach.
If a person gives chametz to a non-Jew as a full-fledged gift, there is no problem, and if one year he gives him the chametz merely to circumvent the prohibition, but he takes it back after Pesach, that too is all right. However, if he does this every year, the Sages penalize him and forbid his chametz after Pesach.
Other Rishonim suggest that the proviso that the person must not engage in ha’arama means that he must give the chametz to the non-Jew with no conditions attached. Accordingly, this is merely an explanation of the words "full-fledged gift" in the standard version of the Tosefta.
A third explanation can also be suggested for the forbidden ha’arama – that the seller not sell the chametz without really having in mind to sell it.
What is the law if a person goes ahead and sells his chametz by way of ha’arama? It would seem from the Ritva that he does not violate any prohibition of Torah law, but by Rabbinic decree he is guilty of a transgression. However, if we say that there is a problem with the sale itself, it turns out that the person violates the Torah prohibition against owning chametz.
It could be argued that even if we follow the Ritva’s view, what he says is only lekhatchila, the proper mode of conduct from the outset. If a person indeed engaged in circumvention, he does not violate even a Rabbinic prohibition.
The Problem with Ha’arama
What is the problem with circumvention?
First of all, the person lies; he gives a person a gift without really intending to give it to him. But is there a halakhic problem regarding the validity of the sale or gift?
The Ran maintains that regarding chametz,we require bedika (checking the house for chametz and burning the chametz that was found) in addition to bittul (nullifying the chametz) because we do not know whether or not the person really means to nullify the chametz. R. Akiva Eiger asks: What difference does it make whether or not he really means to nullify the chametz? What a person thinks in his mind is irrelevant! He is bound by what he says with his mouth!
The answer to R. Akiva Eiger's question depends on how bittul works. If bittul is a type of hefker (renouncement of ownership), this is indeed a good question. But if bittul is considered destruction of the chametz in the person's heart, as argued by Rashi, it is not a transfer of ownership that depends exclusively on what the person says. Rather, the effectiveness of the bittul depends exclusively on what he thinks in his mind.
There is, however, a situation of umdena demukhach, where there is a clear indication of what a person is thinking, which can void a transaction even if we say that the validity of a transaction depends on what the person says, and not on what he thinks. In the case of the sale of chametz, is there an umdena demukhach that the person does not really intend to sell the chametz? While it can plausibly be argued that in today's circumstances, people do not really wish to sell their chametz, it can also be argued that there is an umdena demukhach that a person does not want to transgress the prohibition against owning chametz on Pesach.
The Yerusahlmi (Pesachim, chap. 2) also deals with the issue of ha'arama:
If one renounced ownership of his chametz on the thirteenth of Nisan, what is the law? R. Yochanan said: It is forbidden. R. Shimon ben Lakish said: It is permitted… Rather, R. Yochanan was concerned about ha’arama. And R. Shimon ben Lakish was not concerned about ha’arama.
The Yerushalmi is dealing with a case in which a person renounced ownership of chametz on condition that he would re-acquire it after Pesach, and in this way the chametz is not forbidden after Pesach. The disagreement is about whether or not we are concerned about ha’arama. What does this mean?
Among the Rishonim and the commentators to the Yerushalmi we find two explanations:
1) The concern is that a person does not really renounce ownership of his chametz.
2) The concern is that a person does not renounce ownership of his chametz at all, but rather he does a "trick" and plans to retake possession of the chametz after the festival is over.
When is Ha’arama Permitted?
We find many cases of ha'arama throughout the Talmud; some are forbidden, while others are permitted. The Rambam distinguishes between these cases of circumvention that are permitted and those that are forbidden. The Rosh does not make such a distinction; rather, he distinguishes between circumventions that the Sages permitted and those that they prohibited, but the question remains as to what the criteria are for deciding whether a particular circumvention is permitted or forbidden.
The first criterion is the desire of the Torah. We have Torah laws and Rabbinic laws, but there is also an idea of the Torah's desire – in other words, the goal that the Torah wished to achieve with these laws.
The main question, of course, is how we can know what the Torah wants. In our case, is the objective of the prohibition against owning chametz that there should be no chametz in a person's possession, lest he come to eat it or for some other reason? Or is it that there should be no chametz in the world at all? This brings to mind the disagreement between Beit Shammai and Beit Hillel that was mentioned earlier in the shiur.
An additional criterion is based on the gemara in Bekhorot (3b):
R. Mari bar Rachel possessed a herd of animals. He used to transfer [to a non-Jew] possession of the ears [of the firstlings while still in the womb]. He [nevertheless] forbade the shearing and the working of the animals and gave them to the priests. The herd of R. Mari bar Rachel died… Why did the herd of R. Mari die? Because he deprived them of their holiness.
In this case, we find ha’arama that deprives the firstling of its sanctity, and punishment was imposed for this on R. Mari bar Rachel. The Tosafot (ad loc., s.v. deka mafka) note:
The reason that we are not careful about this today, even though R. Mari was punished for it… Alternatively, in the days of R. Mari, when they were experts in casting a blemish in a firstling before it emerged into the world, it was forbidden to do this by way of circumvention. But we, who are not experts in this, it is better to sell [the firstling] to a non-Jew, before he comes to sin.
An important principle emerges from the words of the Tosafot. A distinction must be made between a circumvention done in order to overcome a prohibition and a circumvention performed in order to avoid performing a mitzva. If one performs a ha’arama in order to avoid performing a mitzva, this is forbidden circumvention. But if he does it in order to avoid transgressing a prohibition, this is permitted circumvention. The Torah wants people to avoid prohibitions, but it does not want them to refrain from performing mitzvot.
Another layer should be added to this distinction. In the case of a prohibition, if a circumvention will do away with the entire goal of the prohibition (e.g., a circumvention allowing one to lend money at interest), such a circumvention is forbidden, even though it is not intended to cause a person to refrain from performing a mitzva.
The Goal of Selling Chametz
Let us return to the sale of chametz. Should ha’arama work in such a case? It may be suggested that this depends on whether the goal is to make sure that the person does not violate a prohibition or if the goal is to exempt oneself from a mitzva.
This is connected to the question of whether there is a mitzva of tashbitu, destroying chametz. Tosafot maintain that the commandment of tashbitu is only bedi'eved. In the case in which a person owns chametz on Erev Pesach, he is commanded to destroy it, but this is a mitzva that was not meant to happen. However, according to those Rishonim who maintain that there is a mitzva of tashbitu on Erev Pesach, it is possible that the sale of chametz will clash with this mitzva.
One must, however, examine what exactly is the relationship between the sale of chametz and the nullification that we do, for even one who sells his chametz does soto the exclusion of the chametz that he will burn, in which case he fulfills the mitzva of tashbitu despite the sale. It may further be suggested that the sale itself is a fulfillment of the mitzva of tashbitu, because the goal of the action is to rid oneself of the chametz that a person has on Erev Pesach.
The Bekhor Shor writes that the sale of chametz does not work for something that is chametz by Torah law. However, since we ordinarily nullify our chametz, our chametz is forbidden only by Rabbinic decree, and therefore one can sell it.
The Acharonim reject the position of the Bekhor Shor and argued that the sale of chametz works even for chametz by Torah law. However, there is a severe stringency that contemporary authorities have introduced – that is, not to sell actual chametz, but only a mixture containing chametz. This stringency is reminiscent of the Bekhor Shor's distinction, for while all agree that actual chametz is subject to the prohibition of bal yera'eh and bal yimatze, the Rishonim disagree regarding whether a mixture containing chametz is subject to the same prohibition.