Q. A Rav sold the chametz of his community to a certain non-Jew, and after Pesach he discovered that the person’s mother was Jewish, which renders him a Jew. May the chametz be used?
A. The halachah (Shulchan Aruch Orach Chaim 448:3) is that chametz she’avar alav haPesach (chametz that was in the possession of a Jew during Pesach) may not be used or even sold (issur hanaah). This is a penalty levied by Chazal, and it applies even if the owner of the chametz was mevatel (nullified) it before Pesach (which means that he did not transgress bal yeira’eh and bal yimatzei), because Chazal did not want people to keep chametz in their possession to use after Pesach while claiming that they were mafkir (relinquished ownership of) it. The penalty applies even to situations in which chametz remained in a person’s possession in error (shogeg) or due to circumstances beyond his control (oness). Furthermore, the chametz is prohibited to all Jews, not only the person who had it in his possession over Pesach (Ran, Pesachim 7b). Most poskim rule that this applies even to chametz that was in the possession of a mumar (a Jew who does not keep the mitzvos) because he is still Jewish (Taz 448:4; Mishnah Berurah ibid. 11).
In this case, community members were relying on the Rav to sell their chametz, and they were also mevatel the chametz properly. There are two perspectives from which to view this case, and we will present the upsides and downsides of each, and in the final analysis, a Rav must be consulted regarding each individual case to determine which approach to take.
The first approach is to say that the sale to the person who turned out to be Jewish is a mekach ta’us (mistaken sale), because the sellers certainly did not want their chametz to be bought by a Jew. This would mean that the chametz remained in the possession of the original owners after they did bitul, but it was caused by an oness (Shu”t Shoel u’Meishiv, Mahadura Telisa’i, 2:60; Shu”t Ha’elef Lecha Shlomo 261; Shu”t Maharash Engel 7:143).
What is the halachah if a Jew did everything he was supposed to do to eliminate his chametz — both bedikah and bitul — but it was nevertheless found in his possession during Pesach?
Some poskim rule leniently, saying that the penalty Chazal imposed would not apply once a person did everything he was supposed to. According to this view, someone who stands to incur a major financial loss (hefsed merubah) may certainly rely on those opinions at least to derive benefit from (i.e., but not eat) the chametz (Mishnah Berurah 448:25).
In our case, since the bitul is in effect (see below), and the members of this community did what they were supposed to do by selling their chametz to someone they thought was not Jewish, the situation was one of oness, so according to this lenient view, they may derive benefit from the chametz.
The second approach is that the sale to that non-observant Jew was valid, and the chametz was in his possession over Pesach (Imrei Eish, Orach Chaim 24; Minchas Pittim 448:3). Although this should render the chametz prohibited, we can nevertheless permit someone who will incur a heavy financial loss to have the Jewish buyer of the chametz exchange it for chametz that belonged to an actual non-Jew, or sell it to a non-Jew, and whatever he receives in exchange will be permissible for use. But the original owners may not be the ones to sell the chametz to the non-Jew, because that would constitute deriving benefit from it (Mishnah Berurah ibid. 11; see other approaches in Magen Ha’elef 448:4; see Shaarei Teshuvah ibid. 11).
The downside of the first approach is that some poskim say that if the sellers claim that there was a mekach ta’us, then it means that the chametz was actually in their possession over Pesach, and it would be better for it to be in the possession of the non-observant Jew so that the original owner does not transgress bal yeira’eh (Imrei Eish loc. cit.). The poskim who do advocate for that approach maintain that there is no violation of bal yeira’eh either way because the person was mevatel his chametz, and there are numerous poskim who rule that bitul takes effect even on chametz that was sold (Bechor Shor, Pesachim 21a; Mekor Chaim 448:5, Ketzos Hachoshen 194:3). The fact that the chametz was in the possession of the owners, in violation of Chazal’s edict that it should be eliminated, is not an issue, since that was due to a complete oness (see Nesivos 234:3).
The poskim who say that the sale may not be nullified rule according to the poskim (Shu”t Chasam Sofer, Orach Chaim 62; Pri Megadim 448, Eishel Avraham 10; Seder Mechiras Chometz LehaRav; Nishmas Adam 130:8) who say that chametz that was sold is not included in the bitul, and reversing the sale would mean that, in retrospect, the owner transgressed bal yeira’eh.
The downside of the second approach is that if the sale is not nullified, we need the non-observant Jew to deal with the chametz, which isn’t always practical.
