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Q I sell my bread every year before Passover, but it doesn't feel genuine. Is this legitimate?- J.B., Haifa
A Last year, the Chief Rabbinate sold $150 billion worth of hametz (leavened foods) to a non-Jewish resident of Abu Ghosh. The sheer vastness of this number, as well as the scattered locations of the hametz, leads many to wonder about the legality of the sale. This mass transaction, however, is only the latest stage in the history of mechirat hametz, the selling of Jewish bread to non-Jews before Pessah.
Beyond forbidding consumption of bread, the Torah twice forbids owning hametz (Exodus 12:19, 13:7). According to most scholars, the biblical prohibition applies to hametz that one owns but stands in someone else's physical possession (Hatam Sofer OC 1:113). To uphold these commandments, one must relinquish all ownership claims of the hametz (bitul), and remove them from one's physical possession (bi'ur). To accomplish the latter goal, one can either consume or burn the hametz, or give it, permanently, to a non-Jew (Pessahim 21a, 13a).
One source from antiquity, however, speaks of a case where a Jew can give hametz to a non-Jew, and receive it back after Pessah. If a person is stuck on a boat, and will require bread rations after the holiday, he may sell - without any conditions - his hametz to a non-Jew, or ask the non-Jew to purchase additional rations over the holiday, with the implicit understanding that the non-Jew will sell him the hametz after the holiday (Tosefta Pessahim 2:12-13). While the rabbis deemed this sale as entirely legitimate, it was clearly in a case of dire need (sha'at dehak).
Indeed, a number of medieval decisors prohibited these sales when done as a sly attempt to avoid fulfilling the law (ha'arama). Rabbi Yom Tov ibn Asevilli (14th century, Spain), for example, explicitly banned yearly sales, weary of Jews attempting to regularly circumvent these biblical prohibitions (Ritva Pessahim 21a). He further prohibited consuming this hametz after Pessah, applying the regular fine for bread illegally owned over the holiday.
Two major decisors, however, defended the yearly selling of hametz to non-Jews. Rabbi Israel Isserlein (14th century, Germany) and Rabbi Yosef Karo (16th century, Safed) both ruled that as long as one fulfills the technical requisites of transactions, the sale remains valid, even though it was understood that the gentile would resell the hametz back after the holiday (OC 448:3). However, both demanded that one remove the hametz from one's house to fulfill proper sale protocol. Some Jews today continue to conform to this requirement, bringing their hametz to a location that the non-Jew owns.
All of this remained practical in an era when Jews possessed a minimal amount of hametz that would remain edible past the holiday (no preservatives, no fridges). However, as Rabbi Shlomo Zevin has noted, in the late 16th century, Polish Jews entered the liquor industry and it was unfeasible to rid their large warehouses of all hametz. Meeting this challenge, Rabbi Yoel Sirkes (1561-1640) employed several legal mechanisms that would allow the transaction to take place without requiring the company owners to remove the hametz from their premises (Bach, OC 448).
While these large-scale transactions were originally intended for businesses, they soon were used for individual home owners, with Pessah Haggadot sometimes providing forms and instructions. Some raised fundamental objections to this phenomenon, deeming it inappropriate to use a legal loophole to avoid the relatively minimal financial losses to individuals. Other problems emerged when individuals made mistakes in the intricacies of the transaction. As such, for over a century, most people have appointed a rabbi as their agent to sell their hametz on Pessah eve, providing him with the location of their hametz and its estimated value. (This can now even be performed on numerous Internet sites).
These developments made these transactions more common yet also more indirect, and have encouraged greater opposition to these sales. Many rabbinic figures, ranging from the 18th century Lithuanian authority Vilna Gaon (Ma'aseh Harav 180) to more recent figures like Rabbi Joseph Soloveitchik (Nefesh Harav p. 177), have encouraged people not to use this mechanism, especially to sell full-fledged bread. Their concerns varied, with some apprehensive over the soundness of the transaction and others questioning the propriety of using legal loopholes. Major rabbinic figures like Rabbi Moshe Sofer (Hatam Sofer OC 1:62) and Rabbi Moshe Feinstein, however, have aptly defended these sales as both valid and legitimate. All agree, however, that the sellers must take these sales seriously to actualize the transaction.
Parenthetically, in the past few years, many communities have launched "food drives" before Pessah to donate unopened hametz products to the needy (in Israel, mechirat hametz is performed, with the food distributed after Pessah). This is a most worthwhile cause in the holiday spirit.
The writer, on-line editor of Tradition, teaches at Yeshivat Hakotel and is pursuing a doctorate in Jewish philosophy at the Hebrew University.