the Sale of Ĥametz / Sparing Ĥametz from Destruction by Selling It to a Gentile

By midday of the fourteenth of Nisan, every Jew must have disposed of the ḥametz in his possession. In the past, Jews would plan their food purchases and their meals so that by Pesaḥ they would have finished consuming any ḥametz foods and thus not have to dispose of large quantities. They would leave only a small amount of ḥametz with which to fulfill the mitzva of bi’ur ḥametz in the best possible manner: by burning it.

However, occasionally one’s plan would backfire and he would find himself possessing a large quantity of ḥametz when Pesaḥ arrived. In such a case, if he did not mind losing the ḥametz, he could burn it or give it as a gift to a decent and deserving gentile. If he did not want to lose the value of his ḥametz, he could sell it to a gentile before Pesaḥ, since, as long as the prohibition has not gone into effect, it is permissible to sell the ḥametz and receive its full value. The prohibition against deriving benefit from ḥametz goes into effect on the sixth hour on the day of the fourteenth of Nisan, and until that time it is permissible to sell the ḥametz.

This was especially important for food merchants who would remain with large stocks of ḥametz before Pesaḥ and had no choice but to sell to a gentile, in order to avoid great financial loss. Even if a gentile could not be found who was sincerely interested in buying all of the ḥametz, the Sages teach that it is permissible for a Jew to say to a gentile, “Even though you do not need so much ḥametz, buy all of my ḥametz for the full price, and if you want, I will buy it back from you after Pesaḥ” (based on t. Pesaḥim 2:7).

the Sale of Ĥametz / How the Practice of Selling Ĥametz Spread

About 400 years ago, many Jews living in Europe began to support themselves through the production and sale of whiskey. This was because the barons, the landowners, would often contract Jews to manage their affairs, and it was common for them to lease their distilleries and inns to Jews in exchange for a fixed price and/or a percentage of sales. This whiskey, which was made from barley and wheat, is considered ḥametz gamur. To prevent the great financial loss that would come each year with its disposal before Pesaḥ, it became necessary to sell it to a gentile before Pesaḥ and buy it back again immediately thereafter, in order to continue selling the whiskey as usual.

Over time, rabbinic leaders noticed that the sale was sometimes carried out improperly, leading to serious problems. If the sale is improper, the ḥametz remains in the possession of the Jew, and with every hour that passes he violates bal yera’eh and bal yimatzei. Additionally, it is forbidden to derive benefit from such ḥametz after Pesaḥ, and it must all be completely destroyed. Therefore, rabbinic authorities began to oversee the sale of ḥametz, in order to ensure its proper sale. Seeing that the sale was being carried out in an orderly manner, other Jews began to participate in the transaction, in order to save their own ḥametz from being lost. This is how mekhirat ḥametz began to spread and become increasingly common.

However, a number of prominent rabbis claimed that mekhirat ḥametz was not a real sale, but merely a fiction. In the first place, it is clear that after Pesaḥ the ḥametz will return to the Jew. Moreover, no sales tax is paid to the government on this sale. Thirdly, in a normal sale the buyer pays for all of the ḥametz and physically takes it into his possession, but here the gentile neither pays the full price, nor takes the ḥametz with him.¹

footnotes: ¹ emTevu’ot Shor, a commentary on Pesaḥim is hesitant about the idea of selling ḥametz, since it might be considered a fiction. Baḥ, Eliya Rabba, and Maḥatzit Ha-shekel (§448) state that one should not rely on mekhiratḥametz except in extreme situations, to prevent a significant loss. In Ma’aseh Rav (a compendium of the Vilna Gaon’s customs) it is written that one should only sell ḥametzgamur in an irrevocable sale, and after Pesaḥ one should not purchase ḥametz that had been sold in a standard ḥametz sale. This was also the practice of Rabbi Akiva Eger. See Sidur Pesaḥ Ke-hilkhato 11, n. 38 and Hilkhot Ḥag Be-ḥag 10:14 and 11:31. Over time several of the concerns of those opposed to selling ḥametz have been allayed by the addition of specific clauses to the sale. For example, Bekhor Shor claimed that the gentile buying the ḥametz does not understand the details of a legal sale, but nowadays, we sell our ḥametz to knowledgeable Gentiles who certainly understand the legal ramifications of the sale. Another allegation was that the ḥametz was sold for a symbolic sum, as written in SA 448:3, and those opposed to the sale claimed that the seller in such a case does not have full intention to sell. The answer to this problem was that the Jewish seller would certainly agree to sell his ḥametz for a nominal fee in order to save himself from violating the prohibition of owning ḥametz, as is written in Ḥok Yaakov. Nowadays, however, our custom is to sell the ḥametz for its full value, as per MB and BHL 448:19, which effectively eliminates this issue.

Nevertheless, the opinion of the vast majority of poskim is that mekhirat ḥametz may be relied upon and is as valid as any sale. By law, the gentile can refuse to sell the ḥametz back to the Jew after Pesaḥ. It is a bona fide sale, not a fiction. Nevertheless, in order to avoid even the appearance of a fiction, the rabbis made a practice of being very meticulous about all details of the sale. Since there are different halakhic opinions regarding the proper mode of purchase when a gentile buys from a Jew, the rabbis are careful to execute the sale using all forms of acquisition, so that it is clear that the sale is effective according to all opinions. In addition, they make sure that the sale is effective according to state laws as well (see MB 448:17, 19, and BHL ad loc.).

Regarding payment, a bill of sale is formulated to reflect the actual value of the ḥametz, and the gentile pays a cash deposit, as merchants are wont to do. The remainder of the sum is charged to him as a debt, but this does not prevent the completion of the purchase. After Pesaḥ, the gentile can decide: if he wants to keep the ḥametz, he must pay the debt; if he wants to sell the ḥametz back to the Jew, the Jew repays the cash deposit, and in return for the ḥametz, he pardons the gentile’s debt from before Pesaḥ. The reason no tax is paid on mekhirat ḥametz is that the king, or government, understands that this sale is carried out for religious, not commercial purposes, and therefore waives the tax.

In order to reinforce the sale, so that it resembles any other sale in which the buyer takes the purchased item into his possession, the rabbis ordained that the Jew sell to the gentile the ground on which the ḥametz rests, thereby transferring the ḥametz into the gentile’s possession (MB 448:12). In Eretz Yisrael, where it is forbidden to sell land to a gentile, the area is rented, and some poskim say that even outside Eretz Yisrael it is best to rent the area instead of selling it.²

footnotes: ² It is impossible to list all of the poskim who permit the sale of ḥametz, since there are too many, but I will mention several of them: Noda Bi-Yehuda 141:8, Ḥatam Sofer OḤ  §62 and §113, Oneg Yom Tov 28, and Sdei Ḥemed 8:9, which discusses the opposition to the sale at length. See also R. Zevin’s Ha-mo’adim Be-halakha in the chapter about selling ḥametz and its evolution. Igrot Moshe OḤ  2:95 states that the sale works even if the seller is not an observant Jew. MB 448:12 discusses the optimal procedure of selling the area where the ḥametz sits as well. There are those who prefer to rent their rooms or houses that contain ḥametz, since they themselves are only renting and therefore cannot sell the house. Additionally, Avnei Nezer §345 states that renting is preferable, since it seems less fictitious, as one certainly does not really want to sell his house. See Hilkhot Ḥag Be-ḥag 11:10 in the notes.

the Sale of Ĥametz / For Whom Is the Ĥametz Sale Intended Today?

In recent generations, new storage methods have been introduced that allow us to preserve food products for long periods of time. As a result, food manufacturers and dealers are in constant possession of large inventories of food, and they need to sell their ḥametz before Pesaḥ in order not to lose the value of their stock. Moreover, if food manufacturers were to make a point of exhausting their entire inventory before Pesaḥ, it would take days and even weeks to restock and market their products, and in the mean time, they would lose business. Even if no competitors were to seize the opportunity, it would cause a great inconvenience to buyers, who would be unable to purchase ḥametz foods during the weeks after Pesaḥ. Therefore, factory owners, food chains, and stores sell all of their ḥametz to a gentile before Pesaḥ, and as soon as Pesaḥ passes, they buy it back again and remarket it.

In principle, anyone may sell his ḥametz to a gentile via the mekhirat ḥametz organized by his local rabbis. He may do so even if he only wishes to sell a small amount of ḥametz – for example, a package of pasta – because once it has been sold, the Jew no longer violates the prohibitions relating to ḥametz.

Some are stringent and prefer not to rely on mekhirat ḥametz since it appears fictitious: the ḥametz remains in the Jew’s house, the gentile will almost certainly not come to take it, and the Jew resumes eating the very same ḥametz as soon as Pesaḥ is over. According to these poskim, it is only possible to sell ḥametz in order to prevent a great loss; concerning a small loss, one should not sell his ḥametz, in order to avoid possible transgression.

Nowadays, all are advised to participate in mekhirat ḥametz, because some food products and flavored medicines may contain small amounts of ḥametz, and they should not be destroyed just because of this possibility. On the other hand, these must not be kept because they may actually contain ḥametz. Therefore, to avoid all doubt, the best thing to do is to sell them.³

footnotes: ³ Sidur Pesaḥ Ke-hilkhato 11:5 states that there are those who maintain that one who has money invested directly or indirectly in stock of companies that produce ḥametz must sell these shares before Pesaḥ. Consequently, all ḥametz sale documents include clauses regarding stocks and shares in these types of companies. However, according to the letter of the law, if one does not have any decision-making power in the company, he is considered a creditor, not a partner, and he would not be required to sell his shares, as explained above in 3:3. Thus, one who sells his shares in this particular company does so merely to satisfy all opinions. Above at 4:11 we cited a dispute between poskim regarding whether or not one can exempt himself from bedikat ḥametz by selling his home to a gentile. According to all opinions, however, if the Jewish owner leaves one room in the house for himself, he can perform bedikat ḥametz in that room and exempt himself from bedikat ḥametz in the rest of the house. Bedikat Ḥametz U-vi’uro 8:17 states that in addition to bitul, one should sell all of the ḥametz in his possession, since if he was unaware of a certain piece of ḥametz during the time of nullification and did not nullify it properly, the ḥametz sale will certainly protect him from violating any prohibition. Even though he sold his ḥametz, if he finds the ḥametz on Pesaḥ he is permitted to burn it. This is not considered stealing from the gentile, since he is not causing the gentile any monetary loss. However, it seems to me that it is better not to sell all the ḥametz that one has in his possession, since this makes the whole sale look fictitious, because every buyer wants to know where his purchase is without having to look for it all over the house. Therefore, one must decide where to place his ḥametz, and it is preferable to specify the location in the authorization contract. Regarding ḥametz that may have remained in the house, bitul is sufficient.

Concerning ḥametz gamur, people are advised not to sell insignificant amounts of ḥametz, so as not to use the mekhirat ḥametz for small needs. However, when a significant loss is involved, it is permitted, even le-khatḥila, to sell the ḥametz. Each individual should decide for himself what he considers a significant or small loss. Nonetheless, one is permitted to sell his ḥametz even if he only wants to prevent a small loss, for mekhirat ḥametz is fundamentally halakhically valid, and one may be confident that the rabbis conducting the sale do so in full compliance with halakha.⁴

footnotes: ⁴ Hilkhot Ḥag Be-ḥag 10:14 and 11:9 and in the notes states that the sale of ḥametz gamur should be limited to owners of large businesses, but individuals must take care, as much as possible, to only sell uncertain ḥametz. So states Bedikat Ḥametz U-vi’uro 8:9.According to the letter of the law, every individual has the right to rely on the sale, since the sale is valid according to the majority of poskim. Even if the seller feels that the sale is somewhat fictitious, if the gentile wishes to do so, he could take the seller to court and legally claim the purchased ḥametz, which proves that the ḥametz indeed belongs to the gentile. Additionally, since every person nullifies his ḥametz, and subsequently there is no Torah prohibition on this ḥametz (there is only a rabbinic injunction that requires destroying or selling the ḥametz in addition to bitul), the ḥametz assumes the status of a safek de-rabanan (an uncertainly about a rabbinic prohibition). Thus, one may certainly rely on the lenient opinions that permit the sale.

Because the sold ḥametz remains in the Jew’s house, there is a risk that he will forget that it is prohibited and eat it during Pesaḥ. Therefore, one must set up a partition at least ten tefaḥim high (80 cm) to act as a barrier between himself and the ḥametz, or lock the ḥametz in a cupboard and hide the key. One may also tape up the cupboard. It is advisable to write “sold ḥametz” on it so that one does not accidentally open it on Pesaḥ (see SA 440:2).

the Sale of Ĥametz / The Laws of the Sale

Every Jew, before selling ḥametz, should read the authorization contract he will be signing, so that he understands that he is empowering the rabbi to sell his ḥametz, and that the sale is absolute. Nonetheless, if instead of reading the contract one simply relied on the rabbi, the sale is valid, for, if the gentile comes during Pesaḥ to take the ḥametz, and the rabbi tells the Jew that the ḥametz indeed belongs to the gentile, and that he must give it to him, the Jew will do so.

The seller should write his name and address in clear script on the contract of sale so that the gentile knows who he is and where he lives. In this manner, the gentile buyer will be able, if he wants, to go to the seller’s house and take the ḥametz (see Sidur Pesaḥ Ke-hilkhato 11:7-8, and in the notes).

It is most preferable to give the gentile the key to the place where the ḥametz is located so that he can enter and take it at any time. In practice, though, it is sufficient to give the gentile the seller’s phone number so that when the gentile wants the ḥametz, he can call to come and take it. The most important principle is that sellers of ḥametz should be aware that after the sale, the ḥametz indeed belongs to the gentile, and the seller must allow him to enter the house and take his ḥametz (MB 448:12).

Ideally, the seller should indicate the various types of ḥametz, and their prices, on the contract the rabbi gives him to sign, and some people are meticulous about this. In practice, though, this is very difficult to carry out. Therefore, the custom is to write that all ḥametz in one’s possession is included in the sale, and that the price is in accordance with the accepted market price, as determined by appraisers (see BHL 448:3, s.v. “be-davar mu’at”).

It is best to write in the contract where exactly the ḥametz is located, for example: “In the upper left kitchen cupboard,” or “in the room on the right, in the box so marked.” Several places may be listed. Even without this, the sale is still valid, though all ḥametz should be gathered to one place and labeled. Everything gathered to the place determined for the sale by two hours before the onset of the prohibition against deriving benefit from ḥametz is included in the sale. As noted, the preferred custom is to sell or rent to the gentile the place upon which the ḥametz rests, so that the ḥametz will be in the possession of the gentile, and the sale will appear to be like any other sale in which the buyer transfers possession.

One may sell ḥametz through a proxy who writes all relevant details and signs on the owner’s behalf.  One may also sell ḥametz over the phone, by fax, or via the Internet. Usually, the person selling ḥametz signs and performs a kinyan (act of acquisition) in order to empower the rabbi as a shali’aḥ. Nonetheless, the kinyan is not crucial, as the most important thing is the transaction between the rabbi and the gentile, which is effective for everyone who has appointed the rabbi to sell his ḥametz (Sidur Pesaḥ Ke-hilkhato 19:4, 9-10).⁵

footnotes: ⁵ Sidur Pesaḥ Ke-hilkhato 11:12 states that one is permitted to enter into a ḥametz sale agreement with multiple rabbis. Even if each rabbi sells to a different gentile, the sale completed first takes effect. Preferably, one should not do this, since it seems deceitful, unless he is worried that one rabbi may not sell his ḥametz, and he wants to ensure that his ḥametz is sold one way or another.Additionally, Sidur Pesaḥ Ke-hilkhato 11:20 states that if one was unable to sell his ḥametz due to some unavoidable reason, his friend may sell the ḥametz for him even without permission, since it is beneficial to the owner of the ḥametz, and one may act to benefit another even without permission. This is the opinion of many poskim, as cited in Piskei Teshuvot 448:21.

In kitchens that belong to public institutions, the manager or his representative sells the ḥametz.

One should not sell the ḥametz that is absorbed into utensils. Quite a few laws relating to mekhirat ḥametz were introduced in order to make it clear to all that it is an actual sale, but if one writes that he is selling the ḥametz absorbed in his utensils, the sale will appear to be lacking seriousness, since ḥametz absorbed in utensils has no value and nobody is interested in buying ḥametz absorbed in utensils. The same applies to ḥametz stuck to utensils. Therefore, one should not indicate this in the sale contract.⁶

footnotes: ⁶ Selling the utensils themselves to a gentile is not worthwhile, since after Pesaḥ one would be required to immerse the utensils in a mikveh, like any eating implement bought from a gentile (Ḥatam Sofer OḤ  §109 and most poskim; however, AHS YD 108:52, states that one may be lenient). Therefore, some poskim write that it is preferable to sell the ḥametz that is absorbed in or stuck to the utensils, as written in Bedikat Ḥametz U-vi’uro 8:18-21. It is also written that one should only sell the utensils that have small holes or grooves, which make them difficult to clean, and that some are careful to sell the ḥametz that is absorbed in these utensils. The truth is, though, that this is unnecessary, because the ḥametz was already nullified. Even if there is substance remaining on the utensils, as long as there is less than a kezayit cumulatively, according to the majority of poskim there is no need to burn it (SAH 446 and Kuntrus Aḥaron 1). One must store these utensils in an enclosed area so that he does not accidentally use them on Pesaḥ, and after Pesaḥ one must remove any substance that remained on the utensils before using them, because of the rule that one may not benefit from ḥametz that he owned over Pesaḥ. Preferably, in order to satisfy those who maintain that one is required to burn even less than a kezayit of ḥametz (MA 442:12), one should remove any trace of ḥametz from the utensils before Pesaḥ, or ruin the residue with detergents until they are no longer fit for a dog’s consumption.If this is the case, even if there is more than a kezayit, there is no obligation to burn it. Therefore, there is no need to sell the ḥametz that is stuck to the utensils, and even more so one should not sell the ḥametz that is absorbed in the utensils.

the Sale of Ĥametz / The Deadline for Selling Ĥametz and the Status of One Visiting Israel or Abroad

The sale must take place while it is still permitted to derive benefit from ḥametz, for when the sixth hour of the day of the fourteenth of Nisan arrives, and it becomes forbidden to derive benefit from ḥametz, it likewise becomes forbidden to sell it. Instead, it must be destroyed. In order to allow people to sell their ḥametz until the very last minute, mekhirat ḥametz takes place on the fourteenth, just before the end of the time that it is permissible to derive benefit from ḥametz.

The prohibition takes effect according to one’s location. In Israel, the sixth hour arrives approximately seven hours before the East Coast of the United States. Therefore, a U.S. resident who is in Israel must sell his ḥametz in Israel, because if he sells his ḥametz according to the deadline in the United States, the sale will take place after the onset of the prohibition incumbent upon him. The end of Pesaḥ also poses a problem for such a person, because he must observe yom tov sheni shel galuyot (the extra day of Yom Tov observed in the Diaspora), which means that the prohibition of ḥametz applies to him until the end of the eighth day, while in Israel the ḥametz is bought back from the gentile after the seventh day. However, in fact, it is not a problem for him to sell his ḥametz in Israel. Even though the gentile sells the ḥametz back at the end of seven days, since the U.S. resident is still observing Pesaḥ according to the custom of Jews in ḥutz la-aretz, and he is not yet interested in buying the ḥametz back, the ḥametz remains hefker or in the possession of the beit din (rabbinical court). Only after yom tov sheni shel galuyot has passed does the ḥametz return to his possession.

If his family remains in the United States, and they plan to eat the ḥametz after the prohibition has commenced in Eretz Yisrael, he must renounce ownership of his portion in that ḥametz, and his family sells the ḥametz there (Sidur Pesaḥ Ke-hilkhato 11:14).

A resident of Israel who travels to the U.S. may, in principle, sell his ḥametz in the United States, for, according to most poskim, the obligation to eliminate ḥametz depends on the owner’s location, not the location of the ḥametz. Nevertheless, one should preferably sell it in Eretz Yisrael, in order to satisfy the opinions of all poskim, for some maintain that one must eliminate ḥametz according to its location, and, if this is the case, one must sell the ḥametz before the onset of the prohibition in Eretz Yisrael.⁷ Additionally, a resident of Israel who is visiting a Diaspora community should not eat ḥametz on the eighth day of Pesaḥ, just as he should not do any other activity forbidden on yom tov, even in private (AHS 596:5). If such a person has his own place of residence, he need not partake in a second Seder. However, if he is being hosted by people who live abroad, he should participate in the second Seder. He should not recite berakhot on mitzvot, but instead should answer “Amen” to the berakhot of others.⁸

footnotes: ⁷ Oneg Yom Tov (§36) states that we follow the location of the ḥametz. Many disagree with this ruling and maintain that the prohibition takes effect according to the location of the owner. This is the opinion of Ḥessed Le-Avraham 141:35, Eretz Zvi 1:83, Mikra’ei Kodesh Pesaḥ 1:55, and other poskim quoted in Piskei Teshuva 443:1. Le-khatḥila, we take both opinions into consideration and follow whichever time is earlier, as is written in Igrot Moshe OḤ  4:94-95.A Diaspora resident who is presently in Israel and sells his ḥametz in Israel should have in mind not to reacquire this ḥametz until after the festival ends in the Diaspora, as written above. Even if he did not have this intent, Sidur Pesaḥ Ke-hilkhato 11:35 states that presumably he does not want to reacquire the ḥametz before the festival ends, so he does not reacquire it until it becomes permissible. Mikra’ei Kodesh Pesaḥ 1:76 states that even if one acquired ḥametz on the eighth day of Pesaḥ in the Diaspora, the ḥametz may be eaten after Pesaḥ, since there are poskim who maintain that a Diaspora resident in Israel is not required to observe two days of yom tov. Therefore, since this is an uncertain situation on the rabbinic level, we are lenient. ⁸ A thorough treatment of yom tov sheini shel galuyot, including the status of travelers and temporary residents, appears in Peninei Halakha: Holidays ch. 9.

the Sale of Ĥametz / Its Status after Pesaĥ

After Pesaḥ, it is best not to use the ḥametz that was sold until one can assume that the rabbi has bought it all back. When necessary, though, one may take out some ḥametz immediately after Pesaḥ with a willingness to pay the gentile for it were he to request this. It is best that the beit din make an explicit condition with the gentile that the Jew will be obligated to pay for any sold ḥametz he takes, if the gentile so desires. Thus, there will be no question about the Jew taking ḥametz immediately after Pesaḥ (see Sidur Pesaḥ Ke-hilkhato 11:22).

Some people are strict and do not eat ḥametz that was sold because, according to stringent poskim, such a sale is not legitimate and this ḥametz has the status of ḥametz she-avar alav ha-Pesaḥ, which one may neither eat nor derive benefit from.

In practice, however, one need not be concerned about complying with this stringency, because the prohibition of ḥametz she-avar alav ha-Pesaḥ is rabbinic, and whenever there is uncertainty about a rabbinic law, halakha follows the lenient opinion. This is all the more true where only a small number of poskim are strict, while the overwhelming majority permit. Indeed, there were great rabbis who, after Pesaḥ, would make a point of eating ḥametz that had been sold through mekhirat ḥametz, in order to demonstrate that the sale was done in keeping with halakha.⁹

footnotes: ⁹ See n. 1 where we listed those who adopt stringent opinions, including Gra, who refrained from eating ḥametz that had been sold. In n. 2 we listed those who adopt lenient opinions (the majority of authorities).

When shopping for food after Pesaḥ, one must make sure that the seller has a certificate verifying that he sold his ḥametz in keeping with the halakha so that one does not buy ḥametz she-avar alav ha-Pesaḥ. Even more caution is needed if the seller is not religious, because if he did not understand the significance of the sale and continued to sell ḥametz in his store during Pesaḥ, a few poskim (Sde Ḥemed, Maharam Schick) maintain that the sale was not legitimate, and that it is forbidden to eat or derive benefit from any ḥametz in his store. In this case, one must preferably follow the stringent poskim and wait for goods produced after Pesaḥ to arrive. If, however, it is clear that the seller performed bedikat ḥametz in keeping with the halakha, and was careful not to let anybody go near the ḥametz that was sold, it is permissible to buy ḥametz from him as soon as Pesaḥ has ended (Sidur Pesaḥ Ke-hilkhato 11:13, 23).