Economic Protectionism and The History of the Sale of Chametz

Economic protectionism is a subject of great controversy in America at the current moment, as is widely reported in the news and in dueling op-eds. What is less well-known, by contrast, is the role that theme had in the development of the practice of mekhirat chametz, the selling of leaven bread before Passover. That practice is itself rooted in a history of controversy, with some worried that it constitutes a ha’aramah, a term subject to multiple interpretations, but in this context would mean either an inappropriate evasion of responsibility, or a sham transaction (or both).

Some have complained that the sale seems like a game: the chametz does not leave the original owner’s residence (something some poskim insisted should happen (see Terumat HaDeshen 119 and Bach, OC 448, s.v. katav); the purchaser does not appear interested in actually taking possession of the chametz (seesp. L’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 Pesach.

There is a basis for the sale in the earliest rabbinic literature: the Tosefta speaks of a situation in which a Jew, finding himself stuck at sea as Pesach approaches, transfers ownership of his chametz to a non-Jewish fellow traveler, and reclaims it after the holiday (Pesachim 2:6–7; a version of this appears as well in Yerushalmi Pesachim, 2:2). 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. The Machatzit HaShekel (OC 448:4) bemoans this development, and assumes that much has deteriorated over the generations in terms of the sincerity of the sale, while trying to find justification for its continued acceptance. Not all authorities were equally concerned; the Chatam Sofer (Resp.,YD, 310) wrote in response to the Machatzit HaShekel, and Resp. Maharshag (II, 80:4), asserts that the custom has shown that the concerns of the Machatzit HaShekel need not be attended to at all.

A number of the early authorities, in relating the Tosefta’s ruling, include the assertion that one who utilizes this option is justified “as long as he does not engage in ha’aramah.” (The Beit Yosef cites this addition from the Behag, as does Rabbenu Yerucham, Netiv V, part V, 46a, but a number of sources indicate that this represents a textual variant of the Tosefta itself; see Resp. Rashba, I, 70; Chiddushei HaRitva, Pesachim 21a, s.v. ha-mokher; Meiri; Ohr Zarua, 256; and Bach.) The Beit Yosef (OC 448:3–4) citing Rabbenu Yerucham, expresses astonishment: the entire plan appears to be a ha’aramah, and yet, it is permitted!

Various interpretations can be found as to the ha’aramah that is being referenced here. One crucial position is that the intent is that the sale should be absolute, and not conditioned on a mandated reversal of the sale after Pesach. Indeed, in the Talmud Yerushalmi, and in the Lieberman edition of the Tosefta, the phrase is included as requiring a “matanah gemurah,” with the Korban HaEdah explains as excluding a gift conditioned on return.

This requirement prompted some discussion, as the general rule is that a gift conditioned on eventual return, a “matanah al menat le-hachazir,” does constitute, for the duration of its term, a gift. Accordingly, strictly speaking, the transaction should be valid, despite its limited term, and should successfully remove the Jew from ownership of the chametz during that time. Explanations that are offered reflect the two basic concerns about ha’aramot in general. To some, the issue is that a transaction of this type does indeed undermine the sincerity of the process in a fundamental way. For example, the Radbaz (Resp. V, 1416.) understood that the condition of return transformed the transaction into one in which the non-Jew is expected to safeguard the chametz, and that a sale contingent on any future detail cannot be considered absolute until that condition has been clearly fulfilled. (See also Resp. K’tav Sofer, OC 90. See Chazon Yechezkel to the Tosefta, ch. 2, # 6, who asserts that in the case of a sale conditioned on return the chametz remains the property of the Jew. However, note the objection of Mechokek Yehudah, OC 448:7, to the original claim of the Radbaz.)

To others, however, the issue was not the validity of the transfer, but rather the attitude which a condition of reversibility displayed towards the issue at hand. Thus, some felt the objection was not fundamental, but rather an expression of the stringency that should appropriately be shown to the prohibition of chametz. (See, for example, Hagahot Maimoni, Hil. Shabbat, 6:1:2, and Magen Avraham, OC 448:5.) In fact, the Radbaz himself takes this position in a different responsum (I, 240). (R. Yisrael Yehoshua of Kutno considers the positions in Resp. Yeshuot Malko, OC, 39.) Resp. Avnei Nezer (YD, 182:2) asserts that the sale is saved from disqualifying ha’aramah status by the fact that the seller is willing to allow the purchaser to keep the chametz, should he be ready to pay full value.

The Terumat HaDeshen (#120), in a responsum that requires a non-reversible transfer, makes it clear that it would still be acceptable if the non-Jewish recipient was a friend of the Jew who understood that the chametz should be preserved for return to him after Pesach, and fully intended to do so, so long as no explicit condition of transaction required him to; he even adds “and such is appropriate to instruct in practice” (v’khein rauy l’horot). R. Ya’akov Di Boton (Resp. Edut L’Ya’akov, 116) defends this manner of sale through textual proof. However, since there cannot be a stipulation guaranteeing the return, if the purchaser should decide to instead sell the chametz to a third party, that sale must be recognized as valid. (See the extensive analysis and support of the Terumat HaDeshen’s position in R. Moshe Ze’ev Margolios, Resp. Agudat Ezov, YD, 15).

This is indeed consistent with how the sale is conducted generally. The Beit Yosef concludes with this understanding and it is this that is recorded in Shulchan Arukh (OC 448:3.).

While the sale could not be made contingent on a future return, it is nonetheless clear from the Shulchan Arukh and other major sources that the sale is valid when the return is an unspoken understanding, and in fact, even if there is some verbal reference to that return at the time of the initial transfer. There is some discussion as to a situation where the particular chametz has some sentimental value, and the original owner wishes for it to be preserved in its original state and returned to him, such as food received by Chasidim from a revered rebbe (see R. Moshe Greenwald, Resp. Arugat HaBosem, OC, 112, and R. Menachem Mendel Schneerson, Shulchan Menachem, OC, II, 226. Both authors recommend against including this item in the sale, but for different reasons and with different alternative suggestions).

A number of sources make reference to such a comment (sourced in the Tosefta, in the continuation of the boat scenario) expressed by the Jew at that point, that essentially conveys the message that the original Jewish owner would be willing to pay more than another potential buyer would for that chametz. (This is the understanding of the Bach, commenting on the version that appears in the Tur, OC 448, and citing the Agudah, implying that even an explicit pledge to repurchase is acceptable; see there also for variant readings and interpretations. See, in particular, the formulation in the Rosh, Pesachim, 2:1).

The inability to lock down the repurchase was the subject of a fascinating responsum by the Mas’at Binyamin (#.43), R. Binyamin Aharon Solnick (1530–1620). The question involved unscrupulous Jews who would rush after Pesach to buy the chametz of different Jews that had been sold to a non-Jew. Knowing that the non-Jew had paid only a nominal amount, there was an opportunity here to acquire for oneself a significant amount at a very low markup. The original owner would then find that the chametz that they believed they could rely on reacquiring was no longer available.

The Mas’at Binyamin wrote poignantly about the anguish this behavior caused him. Many of the Jews selling the chametz, he noted, were merchants who were completely dependent on that chametz for their livelihood. If the sale arrangement were to become untenable due to the actions of unprincipled opportunists, these merchants would be financially ruined. And yet, the free market was a reality, and guaranteeing the resale to the original owner was unacceptable. There seems to be no solution, but the Mas’at Binyamin wrote that he would be unable to rest until he found one.

Indeed, he did come up with a creative solution. He drew on a number of Talmudic sources, mostly dealing with the regulations of marketplace competition, in which there is some degree of protectionism legislated by the Rabbis. Among these rules is the notion that a businessman who has extended efforts within a certain market is given priority in accessing that market. Given that the original owner of the chametz is far more invested in this chametz than the devious interloper, his rights would be recognized here to the point of enforcement.

A similar conclusion was also reached independently by Resp. Chatam Sofer, OC, 115. The Mas’at Binyamin also made use of the mishnaic discussion of “the law of Sicarii” (Gittin 5:6). This addressed a situation in which violent individuals would extort fields from their original owners with threats. Under these circumstances, the original owner is given priority in reacquiring the land, as he can maintain that he never meant to sell it away in the first place. The mishnah then proceeds to apply this concept even to less dramatic circumstances that also involve property sales that may have been carried out without full intent, again giving those original owners priority in reacquisition. Mas’at Binyamin advances a number of arguments to assert that the chametz situation is an even more compelling fit for such policies.
In authoring this responsum, the Mas’at Binyamin deftly walked a tightrope. From the perspective of the non-Jewish purchaser, the sale is absolute and without any preconditions limiting his autonomy regarding the resale of the chametz. Regarding, however, a scheming outsider who would undermine the process, a clear moral line is drawn.

Resp. Beit Shlomo, OC 83, mentions the ruling of Mas’at Binyamin as a given in a responsum mainly directed against a Jewish seller who would prohibit the non-Jewish purchaser from selling to anyone else, considering that a ha’aramah that he would be inclined to prohibit after the fact. (R. Moshe Feinstein, Resp. Iggerot Moshe, OC, I, 48, questions the position of Mas’at Binyamin and takes a different perspective, while the Mishnah Berurah, 448:13, cites a similar position in the name of “acharonim”.)

This narrow balance is also significant when taken in conjunction with the creative analysis of a later author, R. Shmuel ben Yosef HaLevi, in his Resp. Bigdei Yesha (Resp., 2, first published in 1844). R. Shmuel was greatly concerned with the general practice of the sale, in which the non-Jewish purchaser paid a very small amount as a down payment. Often, the purchaser is destitute, with no conceivable possibility that he would be able to come up with the rest of the payment necessary to enable him to keep the chametz in the long term. It would seem that the only reason to go through such a process is to create a temporary holding pattern until the original owner can buy it back after Pesach. As such, it should be an unacceptable ha’aramah.

To further explain the problem, the non-Jew does understand that the Jew must sell the chametz or otherwise forfeit it all. However, why not sell it for as much as he can? Certainly, with minimal effort, he will find higher bidders. The only reason he is selling for so little must be to lock in his ability to reacquire. In fact, suggests Bigdei Yesha, this must be why the original scenario for the sale of chametz, as described in the tosefta involves an individual travelling on a boat, unable to otherwise preserve his chametz for after Passover, and dependent upon it for his livelihood. In these confined circumstances, the Jew can find no other buyers before the onset of Pesach prohibitions, so it is understandable that he will sell to the only available non-Jewish passenger, for whatever price he can pay. But, absent such extreme circumstances, it could not be explained other than as an effort to preserve his access following Pesach, and is thus a ha’aramah.

Bigdei Yesha asserted that all could be explained neatly through the following foundation. It is true that the non-Jewish purchaser, at the moment, has no possibility of paying the full price of the chametz. However, the Jew is providing him with a business opportunity that may prove beneficial to them both.

The original owner will set a price close to the full value of the chametz, but with some significant reduction. The purpose of that reduction is to allow the purchaser the potential for a profit, if he is able to find a second purchaser who can pay the actual value of the chametz. To enable this possibility, the seller is willing to allow the first purchaser to put down a minimal down payment, and convert the rest to a debt. If, after Pesach, that plan has not been realized, the original owner will buy the chametz back with a slight increase for his efforts.

Bigdei Yesha maintained that this framework addresses all the issues, most importantly, establishing that this sale of chametz is not a ha’aramah at all. The seller fully commits his property to be sold, and the buyer genuinely has a potential value in purchasing the chametz, and will have his losses covered with a modest profit if that potential does not materialize. Further, all parties understand that the most likely eventuality is that it will not materialize, while they can also accept the small possibility that it may.

Of course, Bigdei Yesha’s elaborate model does not necessarily represent, in all of its aspects, the working understanding of every participant or advocate of mekhirat chametz throughout the long history of its practice. Nonetheless, as a model that is mutually beneficial, transparent, and unwilling to tolerate any degree of ha’aramah, it is illuminating.

For more detail:

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