Mechiras Chometz

A fascinating component of most people’s Pesach preparations is Mechiras Chametz, selling all the Chometz products. As with many issues, the various Minhagim can run the full gamut; from those who sell a freezer full of baked goods to be eaten following Pesach to those who refrain from selling true Chometz altogether and suffice with listing their pots, and numerous intermediate stages.

Many have questioned the appropriateness of this apparent legal fiction as potentially violating both the letter and the spirit of the Law. Once, the process of transferring ownership of the town’s leavened products to a non-Jew was frequently performed casually, and merely as a symbolic act, without resorting to a proper Kinyan to properly consummate the deal. Consequently, many righteous individuals accepted upon themselves not to rely on this procedure. There were also a number of Poskim who advised refraining from relying on the Mechira, except for commercial establishments that would have suffered a significant financial loss.

However, in recent years great efforts have been expended to draw up a text and process that both satisfies the rigors of the secular law of the land, as well as the intricacies of Halacha. One of the issues is which method of acquisition to utilize. There are many various forms of Kinyan detailed in Shulchan Aruch, many of them are limited in their applicability to specific circumstances. For example, real-estate transfers hands through cash payment, a legal document or the purchaser performing a physical act to the property indicating his ownership; however, these methods are not necessarily applicable to Metaltelim. Further complicating the issue is that Halacha delineates different methods of acquisition for a transaction involving two Jews than one including  a non-Jew. Additionally, there are methods of Kinyan which are acceptable by Rabbinic enactment, but not according to the Biblical Law. While this is satisfactory for financial dealings where Beis Din has the power to dictate its own rules of ownership at its discretion, to preclude the prohibition Min HaTorah of possessing Chametz on Pesach an authentic and original Kinyan is required. Unfortunately, these Halachos are subject to numerous debates and dissenting opinions.

The one method of transfer that would unquestionably be effective would be for the non-Jew to take actual physical possession of the offending pastries. However, this is obviously generally impractical.

Consequently, what is commonly done today to create the most Halachically ideal circumstances is to perform a variety of different Kinyanim, with the assumption that between all of them we should have satisfied all of the Poskim at least once. Typically, the non-Jew is requested to give a cash down payment as “Kesef” as well as signing a contract for “Shtar”. Furthermore, a handkerchief changes hands as “Chalipin” and a handshake for “Tekiyas Kaf”. Additionally, he usually rents the rooms or cabinets in which the Chometz is located, adding to the list “Chatzer” and “Agav”.

Furthermore, provisions have been taken to avoid another of the potential pitfalls involved in selling Chametz. In the past a rough  estimate of the total value of the sale would be guessed at, often deliberately high to dissuade the non-Jew from following through of the purchase. However, a sale for an excessive price, generally 20% more than the market value, can potentially be ruled invalid due to Ona’ah. This could possibly derail many a sale. Often now, a clause will be included in the contract of sale providing for a professional assessment of the Chametz to be carried out after Pesach if the purchaser wishes to follow through with the sale. A specific percentage under the fair retail price will be specified to enable the theoretical possibility that the items could be sold at a profit, proving the sale more than a fictional document. Also, care has been taken to consult with lawyers regarding the language of the sale to insure it complies with accepted legal precedents.

In conclusion, our Mechiras Chometz today is a very different procedure than the one that was criticized by the Poskim in previous centuries. Nevertheless, many maintain the custom of not selling true Chometz even today, and each person should follow his family’s Minhag and his Rav’s Psak Halacha.

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