In the Torah portion of Bo, we are taught the prohibition of owning Chametz on Pesach, as the verse says,
“No leaven shall be found in your houses for seven days for whoever eats what is leavened, that person... shall be cut off from the community of Israel.”
A second verse says,
“Throughout the seven days... no leavened bread shall be seen to you, and no leaven shall be seen to you in all your territory.” Yet a third verse teaches us that one must destroy Chametz before Pesach begins, as it says, “On the very first day [this refers to Erev Pesach] you shall destroy leaven from your houses.”
Chametz of a Gentile
The Talmud interprets the word לְך ָ (to you) in the above verse, to mean that one may allow Chametz that belongs to others (gentiles) to remain in his domain. This chametz must be placed behind a barrier that is at least 10 tefachim (handbreadths) tall (approximately three feet, two inches) in order to ensure that one not forget and eat this chametz.
The above applies only if the Jew is not responsible for the chametz of the gentile. If, however, he accepted responsibility for the chametz in case it gets damaged or stolen, he may not keep it in his house. Rather, he must return it to the gentile before the last time to own chametz.
How to Destroy Chametz?
As mentioned above, the Torah commands that one destroy one’s chametz. According to one opinion in the Talmud, one must destroy his chametz by burning it. It is common practice to follow this opinion, although most opinions say that one may destroy chametz by other means as well. When Erev Pesach coincides with Shabbat, it is usual to destroy leftover chametz by flushing it down the toilet or the like.
Nullifying Chametz
It is mandatory to destroy chametz only at the time assigned by the sages for burning chametz. Before that time, one may divest oneself of one’s chametz through other methods (as explained below) and thus will not transgress the prohibition of owning chametz.
By Torah law, one may declare his chametz ownerless (hefker) before the time to burn the chametz has arrived. By Rabbinic law, however, this is not sufficient because the sages were concerned that one may be insincere in his declaration. In addition, the sages were concerned that one may forget and eat the chametz which he has declared ownerless but which is still around the house.
Even by Rabbinic law, one may declare his chametz ownerless and place it in a public place where others can take it before the time for burning chametz. In this case, it is clear that his declaration is sincere since it is now available for all to take and there is no fear that he may forget and eat it since it is out of his domain.
In such a case, one may not intend to return after Pesach and take back his chametz (or whatever is left of it) as this intention renders his declaration that the chametz is ownerless a farce since his real intention was to get it back later.
If one declared chametz ownerless and left it in a public space, no Jew may take possession of that chametz after Pesach as the sages decreed that such declarations do not save chametz from becoming forbidden after Pesach for fear that people may make such declarations in an insincere manner. (Some disagree and permit such chametz.)
Selling Chametz to a Gentile – Complete Sale
In the Talmudic era, it was standard practice to consume one’s chametz before Pesach and burn the small amount that was left. One who had too much chametz to consume would sell it to a gentile without the expectation to buy it back.
Selling Chametz to a Gentile – With Expectation to Buy it Back
The idea of selling chametz with the expectation to buy it back is mentioned in the Tosefta and the Jerusalem Talmud. “If a Jew and a gentile were on a boat and the Jew had chametz, he may sell it to the gentile or give it to him as a gift, and then buy it back from him after Pesach. This is only permissible if he gave it as an absolute gift.” The Jew would specify at the time of the sale that he was willing to buy it back from the gentile after Pesach.
Similarly, the Terumat Hadeshen writes that one may sell his chametz to a gentile for a small sum or give it to him as a gift, and the gentile keeps it in his house until after Pesach when the Jew can buy it back or receive it back as a gift.
In these cases, the gentile would pay the selling price for the chametz before Pesach, and the Jew would buy it back after Pesach for a higher price so that the gentile could make a profit on the transaction. The price could be more, less, or the same as the market value. As mentioned above, the gentile would take possession of the chametz for the duration of Pesach.
Selling on a Larger Scale
In the 16th century, when many Jews made their livelihood by selling alcohol, it became prevalent to sell chametz to a gentile while keeping the chametz in the Jew’s domain. In order to strengthen the sale, it was customary to also sell or rent the rooms (or areas) which contained the chametz, to the non-Jew.
Writing a Document
According to Halacha, a purchase of land from a gentile can only be completed with a document. As such, it became customary to write a document which would include the sale of the areas which contained chametz as well as the chametz itself.
For several reasons, it’s now customary to rent, rather than sell, the areas of chametz to the gentile. As such, a document is no longer a necessity. Nevertheless, it is customary to write a document which includes all of the details of the rental of the areas and the sale of the chametz. Writing a document gives the sale more gravity in the eyes of the gentile and establishes it as an effective sale rather than a “mere” religious ritual.
Downpayments
Since, in more recent times, large amounts of chametz were sold to the gentile, it became impractical for him to pay the full sale price of the chametz at the time of the purchase. As such, several rabbis instituted that the gentile give a downpayment at the time of the sale while the rest of the sale price remains a debt which will be paid in full should the gentile choose to keep the chametz after Pesach.
Guarantor for the Loan
Rav Shneor Zalman of Liadi, author of the Shulchan Aruch HaRav, instituted that another Jew accept upon himself to be a full guarantor of the debt which the gentile owes to the Jews for the rest of the sale price of the Chametz. If the gentile decides to keep the chametz after Pesach, the owners may seek payment either from the gentile or from the guarantor (who can then seek reimbursement from the gentile). This is called an Arev Kablan.
The reason for this innovation is that there are opinions that a sale between a Jew and a gentile is not complete until the money is paid in full and that a partial payment would not complete the sale. By making an Arev Kablan the Jew no longer has any financial claim (directly) against the gentile so the sale can be completed even without full payment, just as a sale between two Jewish people.
Some Disagree
Some say it is better not to use the Arev Kablan method as the Jewish guarantor will want the chametz to remain in existence (i.e., not consumed or destroyed) in case he needs to pay the debt and wants to collect the debt from the gentile. If the gentile doesn’t have the cash to pay him back, the Arev Kablan can collect the chametz instead. This is called רוצה בקיומו – that the Jew wants the existence of the chametz even if he doesn’t own it. Some say this is forbidden.
The Alter Rebbe’s Position
The Shulchan Aruch HaRav is of the opinion that there is no prohibition for a Jew to “want the existence of chametz” that doesn’t belong to him just as there is no such prohibition regarding other items from whom one may not benefit. Several other Acharonim share this view. The only case in which רוצה בקיומו is forbidden is Avodah Zarah – items used for idol worship.
An additional point is that even without the Arev Kablan innovation, this רוצה בקיומו remains a question. As the original owner wants the chametz to exist in case the gentile can’t afford to pay him for the purchase of the chametz, he will collect the chametz instead.
Additional Kinyanim
In order to strengthen the sale, it is customary to make additional kinyanim, ritual modes of acquisition, besides the downpayment as discussed above. All of this is done by a Rav who is an expert in this matter.
G-d willing, we will discuss these kinyanim and many of the practical details of this sale, in another article.
Wishing you a Shabbat Shalom UMevorach!
Copyright 2024 by Rabbi Aryeh Citron
