(2004/5764)
Introduction
Last week we discussed the Halachic basis for the sale of Chametz and what can be sold. This week we will discuss how the appointment of the Rabbi to sell the Chametz and the sale of Chametz to a non-Jew is conducted.
Appointing the Rabbi As An Agent.
We mentioned last week that the accepted practice for at least the past hundred years has been to appoint the Rabbi as an agent to sell the Chametz on one's behalf. Although simply telling the Rabbi "I appoint you as my agent to sell my Chametz to a non-Jew" is sufficient, the practice is to demonstrate our seriousness of intent of our appointment of the rabbi as our agent by two acts. First, we fill out a form (a Shtar Harshaah), which states that we are appointing the rabbi as our agent to sell the Chametz. Second, we engage in what is called a "Kinyan Sudar" (literally, an acquisition done by a cloth) with the Rabbi. This involves the Rabbi giving a garment or "utensil" (usually a handkerchief or pen) to the individual appointing the Rabbi and that individual lifting the garment or utensil. According to Halacha, this procedure is not necessary (or effective, since it is a Kinyan Devarim, an intangible agreement), but, as the Rambam (Hilchot Mechirah 5:14) notes, it is accepted practice to conduct a "Kinyan Sudar" to express seriousness of intent, when appointing an agent.
However, since simply stating "I appoint you as my agent" is essentially sufficient, Rav Moshe Feinstein rules (cited by Rav Shimon Eider, Halachos of Pesach, p.122) that an appointment by telephone can be done in a situation of great need. If one has access to a fax machine, one can fax the Rabbi the authorization form in this case. When appointing the Rabbi as agent on the phone, one can say “Bilev Shalem Amarti Vigamarti Laasot Davar Zeh,” “I have wholeheartedly resolved to carry out this matter,” as an alternative to the Kinyan Sudar (see Shulchan Aruch, Even Haezer 141:26 - this is the practice in Rabbinic courts when appointing an agent to deliver a Get).
Some Rabbis require that each individual who wishes to sell Chametz to fill out a separate authorization form. Others simply request that each individual add his name and address to the list of people in the community who are authorizing the Rabbi to make the sale. The advantage of filling out individual forms is that each individual can list the types of Chametz they wish to sell, the location of the Chametz in the home, and the approximate value of the Chametz. This fulfills the requirement of the Aruch Hashulchan (Orach Chaim 448:27) that each seller should specify the types of Chametz he is selling. By describing the Chametz and its value the seller demonstrates his seriousness of intent (Gemirut Daat).
Rav Moshe Feinstein (Teshuvot Igrot Moshe O.C. 1:150) defends those who do not list the types of Chametz that is being sold. He writes that if only an individual or a few people are selling Chametz, then the seller must specify what they are including in the sale. Otherwise, the non-Jew does not know what he is buying, and it is difficult to regard this as a legitimate sale. However, if a community is selling Chametz to a non-Jew, then he understands that he is purchasing all types of Chametz. Hence it is implicitly understood that he is purchasing a wide range of products and does not require a specified list of what he is acquiring.
The Sale of Chametz to the Non-Jew
Both the Mishnah Berurah (448:19) and Aruch Hashulchan (O.C. 448:28) describe our practice of performing many Kinyanim (acts which are Halachic demonstrations of the transfer of the title from one individual to another) to effect the sale of Chametz to the non-Jew. These include Kinyan Kesef (money), Kinyan Shtar (contract), Kinyan Agav (acquiring movable property as an adjunct to acquiring real estate), Kinyan Chatzeir (acquiring any movable property that is found in one's real property), and Kinyan Suddar.
We perform all of these Kinyanim, because Halachic authorities disagree regarding which of these Kinyanim are effective with a non-Jew. In addition, Mechirat Chametz must be valid on a biblical level according to many authorities (see the Shulchan Aruch Harav’s Seder Mechirat Chametz; but see Bechor Shor to Pesachim 21a and the Mekor Chaim who disagree) who argue that since the Jew intends to repurchase the Chametz after Pesach, the Chametz he sells to a non-Jew is not included in the Bittul Chametz (nullification of Chametz procedure). Therefore, the Kinyan that is used to effect the sale must be effective on a Torah level. Halachic authorities disagree about various Kinyanim whether they are effective on a Torah level or only a Rabbinic level. Because of the disagreements regarding these two issues, we perform many Kinyanim in order to accommodate as many opinions as possible.
Kinyan Kesef (Money).
When Metaltelin (moveable items) are purchased in a conventional situation, the purchaser gives money to the seller and the purchaser takes the object from the seller. The Mishnah in Kiddushin 26a states that one takes title to Metaltelin by taking the object (Meshichah). Rav Yochanan and Reish Lakish (Bava Metzia 46b) disagree whether this rule is of biblical or rabbinic origin. Rav Yochanan argues that biblically, giving money is what establishes title, but the Rabbis instituted that one does not acquire the item until Meshichah is performed. Reish Lakish asserts that Meshichah is sufficient both on a biblical and rabbinic level.
The Gemara (Bechorot 13a) points out that whatever Kinyan is effective on a biblical level between two Jews, the opposite Kinyan is effective for a transaction between a Jew and a non-Jew. Thus according to Rav Yochanan since on a Torah level, giving money is the Kinyan for a sale between a Jew and another Jew, Meshichah is the Kinyan for a sale between a Jew and a non-Jew. According to Reish Lakish since Meshichah is the Kinyan on a Torah level for a sale between a Jew and another Jew, then money is the Kinyan for a sale between a Jew and a non-Jew.
Rabbeinu Tam and most Rishonim rule in accordance with Rav Yochanan that Meshichah is the Kinyan when purchasing Metatelin from a non-Jew. This ruling is in harmony with the general principle that the Halacha follows Rav Yochanan in a dispute between Rav Yochanan and Reish Lakish. Rashi is the most prominent of the minority of Rishonim who rule in accordance with Reish Lakish. They believe that money is the Kinyan for a sale between a Jew and a non-Jew (see Rashi and Tosafot to Bechorot 3b).
If the actual Chametz would be transferred to the non-Jew, then we require both Meshichah and money to accommodate the opinion of both Rashi and Tosafot (see Rosh to Bechorot 1:2 and Rama Y.D. 320:6 and Shach Y.D. 320:8). However, since the non-Jew does not take physical possession of the Chametz he purchases, he does not perform Meshichah. We perform the Kinyan of money but this only satisfies the minority opinion led by Rashi (also see Aruch Hashulchan C.M. 194:10). Therefore, we must perform a Kinyan besides money.
Kinyan Agav
Another Kinyan that is performed during the sale of Chametz is Kinyan Agav. The Mishnah in Kiddushim (26a) articulates how Agav works: “Nesachim She’ein Lahem Achrayut Niknin Im Nesachim Sheyesh Lahem Achrayut Bikesef Uvishtar Uvichazakah,” “Movable property [Metaltelin, such as Chametz] can be acquired 'along with' [‘Agav’] real estate [Karka].” Kinyan Agav can be accomplished by the same means as acquiring land - money [Kesef], a document [Shtar, which spells out that the sale of land], or Chazakah [making physical improvement to the land]. Rashi on the Mishnah explains how Kinyan Agav works "if Metaltelin are sold with Karka, once the purchaser makes a Kinyan on the Karka, he acquires the Metaltelin, along with the Karka. In our case, that non-Jew would give money to rent the shelves on which the Chametz is located (shelves are Karka, because they are attached to the house) and would acquire the Chametz along with (Agav) the shelves.
The Shulchan Aruch (Y.D. 320:6) and the Taz (Y.D. 320:7) rule that the Kinyanim of Kesef and Agav can accomplish a transfer of title from a Jew to a non-Jew. However, not all authorities agree. The Ketzot (C.M. 194:3) cites Tosafot (Bava Kama 12a s.v. Ana) who assert that Kinyan Agav is merely of rabbinic origin and is not effective on a biblical level. As mentioned previously, many authorities believe that the sale of Chametz must be valid on a Biblical level. In addition, the Tumim (122:12) believes that Kinyan Agav works only in a transaction between Jews and not between a Jew and non-Jew. Although there are authorities who defend the use of Kinyan Agav for Mechirat Chametz (see Sdei Chemed Maarechet Chametz Umatzah 9:30) we do not rely on Kinyan Agav alone and even when it is coupled with Kinyan Kesef.
Kinyan Sudar (Chalipin)
Some authorities suggest the use of Kinyan Sudar (as explained previously) as a Kinyan to transfer title to the non-Jew. In fact, the great Rav Yechezkel Landau writes in the Dagul Mervavah (Shulchan Aruch Y.D. 448:3) that he believes that the best option of all the of all the Kinyanim to use for the sale of Chametz is Kinyan Sudar. Tosafot (Kiddushin 3a s.v. Veishah rule that Kinyan Sudar is effective between a Jew and a non-Jew. In fact, Tosafot record that Rabbeinu Tam used Kinyan Sudar to effect a transaction with a non-Jew (Rabbeinu Tam was also a highly successful businessman who had extensive business interactions with non-Jews).
However, there is no consensus regarding this issue. Rav Landau concludes his remarks regarding the use of Kinyan Sudar for Mechirat Chametz, "What can I do, since the Shach (C.M. 123:30) soured the idea." The Shach questions the proof of Rabbeinu Tam that Kinyan Sudar can transfer title from a Jew to a non-Jew. The Shach also is troubled by the fact that the Gemara and other Rishonim do not mention Kinyan Sudar as a Kinyan between a Jew and a non-Jew. Once again, our practice is to perform Kesef, Agav and Chalipin; but these Kinyanim by themselves are insufficient.
Conclusion
Next week, God willing and Bli Neder, we will conclude our discussions of Mechirat Chametz as we will discuss other options to use as Kinyanim – Chatzer, Shtar, Situmta, Odita and Hefker Beit Din Hefker.