The Development of the Custom of Selling Chometz - Rabbi Isser Springer

00:02 Speaker 1 You’re listening to “Lemaan Yishme’u,” a podcast of Machon Halacha Chabad.

00:09 Speaker 2 Welcome to this special, festive class on the sale of chametz ahead of the approaching Pesach, with Hashem’s help. Every day, millions or billions of chametz sales take place. In supermarkets, small shops, and online, people buy wafers, cookies, and all sorts of other chametz products. But we’re going to discuss a special sale of chametz—one that happens not every day, but only in the period before Pesach. It’s different from an ordinary sale. Usually, the buyer pays for the chametz, the seller gives it to him and parts with it—“You shall never see them again”—and the buyer goes off with the chametz, forgets who sold it to him, and that’s that. The sale of chametz before Pesach is different: the chametz remains in the seller’s home the whole time. They sign a document, and that’s about it. Ownership does transfer, of course, as we’ll see, but what they mainly do is sign the document. In this class, with Hashem’s help, we’ll look at how the sale of chametz developed: what it was like in the days of Chazal, how it changed from generation to generation, what the Alter Rebbe added, how our Rebbeim conducted themselves, and what we do today. So let’s begin. In the days of Chazal, the sale before Pesach was apparently an ordinary sale each year. How was chametz sold before Pesach? Almost the same way it was sold in Adar, Shvat, or Teves. A Jew might have some chametz left at that point, but there weren’t many products that kept for a long time. Food generally spoiled. Bread they baked couldn’t be preserved with additives or frozen; it lasted a few days. Even the matzos they made were for a day or two, and then they made fresh ones. When Erev Pesach came, a Jew would sometimes have chametz left. Quite simply, he had prepared food, and he would go

02:37 Speaker 2 and sell it to a non-Jew. The non-Jew would take the chametz and eat it. There wasn’t much opportunity to keep something for a long time, so there wasn’t much reason to hold on to chametz for a long time. Selling chametz with the intention of getting it back after Pesach was not an annual practice in the days of Chazal. But occasionally, someone traveling by ship had to prepare food in advance, and Pesach would fall during the voyage. He would need to prepare chametz that would keep for a long time. He would sell it to a non-Jew traveling with him—or give it to him as a gift—and after Pesach, he would go back and take it from him. That was rare in the days of Chazal. The usual practice was an outright, complete sale, in which the seller parted with the object that had been his until then. Later—ah, sorry, still in the days of Chazal—there was also this other kind of sale, but it was relatively rare. Gradually, the ruling concerning it became an established practice. The Tur cites the ruling in the Tosefta, where it concerns people “traveling by ship.” The Tur mentions it without the ship, implying that it can be done under ordinary circumstances too. And apparently, that was the practice in the days of the Rishonim: when people had a quantity of chametz, they sold it to a non-Jew and later bought it back. Some Rishonim had a version of the Tosefta that said, “provided he does not employ a ruse”—provided he doesn’t pull a trick, or, as we’d say, cook up a scheme. What does it mean not to cook up a scheme? Some said it meant that he must not sell the chametz and then buy it back. But many authorities permitted selling it and buying it back, and that became accepted and widespread. Regularly—

05:03 Speaker 2 not rarely, but regularly—people sold chametz to a non-Jew and then bought it back from him. It wasn’t only someone stranded on a ship; even someone sitting securely under his vine and fig tree sold his chametz to a non-Jew and bought it back afterward. That was one change in the days of the Rishonim: a rare sale followed by a repurchase became a regular practice. Another development came toward the end of the period of the Rishonim. There is an interesting responsum in Terumas Hadeshen that marks a milestone in the history of selling chametz. Its author asks: What is the ruling when it’s hard to find a non-Jew who will buy the chametz? It’s hard to find someone who will pay the full amount. The Jew has a large quantity of chametz, and if he tries to sell it for its full price, intending to buy it back afterward, he won’t find a non-Jew willing to buy it. What should he do? Terumas Hadeshen says he can make a complete sale for a small sum. To take an extreme example, let’s put it this way: you have chametz in your home worth a hundred thousand shekels. You can agree with the non-Jew that he will buy it from you for ten shekels. Hey, that’s not its real price! Fine. True, it isn’t, but I can decide to sell to the non-Jew for whatever price I want. I can set the price as I choose; I’m not bound by the usual prices. That is the permission Terumas Hadeshen gives. Of course, he is speaking of a non-Jew whom, as he writes, the Jew knows and is certain will not touch the chametz at all, but will keep it for him until after Pesach. If it were an ordinary non-Jew, he would jump at the bargain: “I bought chametz worth a hundred thousand shekels and paid ten shekels for it. Now you want to buy it back after Pesach? No problem. Now I’m going by its actual value, the normal market price. You’ll pay the full hundred thousand shekels it’s worth.” So those were the changes during the period of the Rishonim: from a rare sale to a regular one, and a sale that was no longer for the full price. I don’t know exactly whether the responsum of Terumas Hadeshen immediately became widespread, but it began a shift from selling for the full price to selling for what we would now call a token price. Before we move to the next stage, let me mention in passing that Terumas Hadeshen is a book of responsa, one of the important responsa works from the end of the period of the Rishonim. It is called Terumas Hadeshen because it contains 354 topics—354 answers. It’s important to know that the Alter Rebbe calls its author “the greatest of the Acharonim” several times. And in our context, we’ll soon see that the Alter Rebbe’s great and well-known innovation in the laws of selling chametz rests in large part on these words of Terumas Hadeshen, because of his great authority. Let’s continue tracing the development of the sale of chametz. Although we’ve discussed a sale for a token price, the chametz still left the Jew’s home. The Jew didn’t merely sell it to the non-Jew on paper; the non-Jew had to take the chametz into his own home. It couldn’t remain in the Jew’s home. That was how things stood for a time. But for a number of economic and political reasons, Jews in Poland became heavily involved in producing liquor. That liquor is chametz—actual chametz—but it also keeps for a long time. We know liquor doesn’t spoil, and for the Jews

07:03 Speaker 2 Want to buy it back? No problem. Now I’m going by its real value, the regular market price. For this chametz, you’ll pay the full 100,000 shekels it’s worth. So these are the changes that took place in the time of the Rishonim: from an occasional sale to a regular one, and the sale was no longer for the full price. I don’t know exactly whether the ruling of Terumas Hadeshen spread automatically, but this marked the beginning of a change: instead of selling it for its full price, we sell it for what we would now call a nominal price. Before we move on to the next stage, let me mention in passing that Terumas Hadeshen is a collection of responsa, one of the important works of questions and answers from the end of the Rishonim period. It is called Terumas Hadeshen because it contains 354 matters—354 topics, 354 answers. It’s important to know that the Alter Rebbe calls its author “the greatest of the Acharonim” several times. And in our context, we’ll soon see that a large part of the Alter Rebbe’s great and well-known innovation in the laws of selling chametz is based on these words of Terumas Hadeshen, in light of his great authority. Let’s continue with the history of how the sale of chametz developed. We’re still talking about an occasional sale, and admittedly a sale for a nominal price, but the chametz leaves the house. The Jew doesn’t merely sell the chametz to the non-Jew on paper; the non-Jew has to take the chametz into his own home. The chametz cannot remain in the Jew’s home. That was how things stood for a time, but because of various economic and political factors, Jews in Poland became heavily involved in producing liquor. This liquor of ours is chametz—outright chametz—but it also keeps for a long time. We know that liquor doesn’t spoil, and for the Jews

09:23 Speaker 2 There were enormous kettles and barrels. When you’re producing liquor, there’s a great deal of chametz that has to be sold to a non-Jew, and it has to be sold in a way that it will return to the Jew after Pesach. That’s his whole business, his entire livelihood. And there was no way—no way—for the non-Jew to take all those enormous barrels, all the liquor, the hundreds or thousands of liters of liquor the Jew had, and bring them home. It wasn’t practical. They had to find another solution, and here we come to the next stage in the history of selling chametz, on the way to the sale of chametz practiced today. The Bach writes—the Bach, in section 448. The Bach is one of the commentators on the Tur, a foundational work of halachah written by Rabbi Yaakov, the son of the Rosh, Rabbeinu Asher. The commentators printed on either side of it are the Beis Yosef, author of the Shulchan Aruch, on the inner side, and on the outer right side—or left side, sorry—is the Bach, Rabbi Yoel Sirkis, who lived after the Beis Yosef. He often responds to the Beis Yosef, and perhaps that’s why he called his work Bayis Chadash. In any case, the Bach considered the situation and writes as follows. I’m quoting him: “In this country, where most commerce is in spirits, in liquor, and they cannot sell them to a non-Jew outside the house”—they can’t. As we said, these are large quantities of products that keep. “Especially those who hold an arenda lease. Therefore, in this matter, one should permit selling the non-Jew all the chametz in the room, and selling the room itself to the non-Jew as well.” Here the Bach introduces something new: you can sell the non-Jew all the chametz in the room; you don’t have to remove the chametz from the house. But the Bach adds that the room itself must also be sold to the non-Jew—not just the chametz in the room, but the room itself. And that change

11:42 Speaker 2 led to another change later on. Beginning with the Noda BiYehudah, the renowned rabbi of Prague, Rabbi Yechezkel Segal Landau, they began drawing up a document. That document resulted from the Bach’s ruling: the chametz is sold not by handing it over to the non-Jew, but by leaving it in the house and transferring only its ownership to him. There are two reasons why, following the Bach’s ruling, the sale must also be made with a document, and payment alone—a monetary act of acquisition—is not enough. One reason we need the document is that when something is sold without passing into the buyer’s possession, the sale has no legal force under the laws of that country. In the Alter Rebbe’s Seder Mechiras Chametz, the procedure for selling a firstborn-bearing animal is attached to the procedure for selling chametz. This is an animal about to give birth to a firstborn, which might be male. If a firstborn male is born, then, now that there is no Beis Hamikdash, it creates a number of problems until the animal develops a blemish. So the practice is to give a non-Jew a share in it, to sell him a share in the animal before the offspring is born. There, the Alter Rebbe says a document is not needed. But in the sale of chametz, when the buyer does not receive it immediately, the sale has no legal force without a document. So that is one reason for drawing up a document: to give the sale legal force. When you make a sale and the item being purchased does not change hands, you need a document. Another reason comes from the Bach’s ruling that the room itself must be sold. The room must be sold so the chametz will be on premises belonging to the non-Jew, and the non-Jew’s chametz won’t be on premises belonging to me. We won’t go into the reason for that, but selling the room specifically requires a document. Land cannot be transferred to a non-Jew without a document, and since

14:02 Speaker 2 land cannot be transferred to a non-Jew without a document, a document is necessary. In practice, we do not sell the non-Jew the room, the premises where the chametz is located; we only rent it to him. We won’t go into the differences between selling and renting, but in any case, these are the two reasons that led to the requirement that chametz not be sold simply through payment, but specifically with a document: a sale has no legal force when the item does not change hands, and the room must be sold—and selling land to a non-Jew specifically requires a document. So we’ve seen another development after the third development, in which the chametz is not removed from the Jew’s premises but remains in his home. There is a fourth development: the sale of chametz is made with a document; a document is added to the sale. And here we come to something else. The Alter Rebbe says in his Seder Mechiras Chametz, printed at the end of volume three of the Alter Rebbe’s Shulchan Aruch: “Recently, some have come along.” Some people came along and instituted a new practice. What was it? There was a problem. The author of Terumas HaDeshen said, as we saw earlier, that the chametz may be sold for a small sum, for a token price. But we’ve already seen that when you sell someone something for a token price and also want him to sell it back to you afterward, that person has to be very trustworthy. Apparently, over the generations, they found that there weren’t enough trustworthy non-Jews to whom they could sell the chametz for a token price and feel confident that after Pesach they would sell it back for a token price. On the other hand, they couldn’t find non-Jews who would pay the full price. So there was a problem. They could find non-Jews who would pay a small sum, but they couldn’t count on them wanting to sell it back afterward for a small sum. And at the full price, it was hard

16:06 Speaker 2 to find non-Jews who would pay the full price. There was a problem. So those who had recently come along—the Noda BiYehudah and others, and the Pri Megadim—instituted the practice of saying, “I have made the balance a debt owed by him.” They said: you sell it for the full price. You sell it for the full price, but you don’t demand that he pay you the entire amount right there at the time of the sale; he pays only part of it. He pays for the chametz. Earlier, we spoke about chametz worth 100,000 shekels. The non-Jew wants to pay ten shekels? No problem. Make this arrangement with him, said those great Acharonim who lived shortly before the Alter Rebbe’s time: agree with him on 100,000 shekels, but in practice he pays ten shekels and remains obligated to pay you the rest. He still owes you the entire 99,990 shekels. That remains a debt, and he will have to pay it. So on the one hand, we’ve found a non-Jew willing to pay ten shekels; and on the other hand, we’ve found a way to encourage him to sell it back to me. If he doesn’t sell it back, he will have to pay the entire debt, the whole balance up to 100,000 shekels. That solves the problem. We’re having it both ways: the non-Jew pays a small amount, while the sale is for a large sum. This practice helped, but then the Alter Rebbe came and said: it casts doubt on the validity of the acquisition. It is not effective according to the great Rishonim, of blessed memory, as is plainly evident from what was written on this matter, including what Mahari z"l wrote in Terumas HaDeshen, whom we mentioned earlier. At the beginning of his laws of selling chametz, the Alter Rebbe is very, very brief, or does not explain, or does not elaborate on why this is such a problem,

18:09 Speaker 2 He hints at it. Let’s explain the hint concerning the Terumas Hadeshen. The Terumas Hadeshen wrote that the chametz can be sold for a token price. The Alter Rebbe says: Surely the author of the Terumas Hadeshen thought of the possibility later authorities proposed: to say, “I’m selling it to you for the full price, but for now I’m taking a small amount, and I’m putting the balance on your account as a loan.” The Alter Rebbe says that since the author of the Terumas Hadeshen did not offer this explanation, we learn that he did not accept it. So the Alter Rebbe offers a solution. We won’t go into all the details. Entire books have been written to explain the Alter Rebbe’s position, the earlier authorities on whom he bases it, and how his innovation works. We’ll cover it briefly, focusing on how the practice developed, without discussing the advantages and disadvantages of the Alter Rebbe’s approach and of this method. What did the Alter Rebbe institute? The appointment of an arev kablan, a guarantor who assumes direct liability. That is, the sale is not a transaction involving only two people, the Jew who sells and the non-Jew who buys. It involves two Jews: one Jew sells, and the non-Jew buys, with the balance indeed recorded as a loan. He pays a small amount, and owes the Jew the entire remaining sum, payable at a much later date. But there is another Jew who serves as an arev kablan. He guarantees payment of the debt, and he is not an ordinary guarantor: he assumes liability for the debt. He can be approached from the outset, even before approaching the borrower, the non-Jew. Once that arrangement is in place, the seller is confident that he will receive the money, and the potential problems—which, as we said, we won’t go into—are avoided. There is a book

20:26 Speaker 2 called Seder Mechiras Chametz, uh, of the Alter Rebbe, and Arev Kablan, by Rabbi Belinov of Bnei Brak. There is also one by Rabbi Levin of the Rebbe’s library, the library’s librarian, and all the details are there. This enactment of the Alter Rebbe spread to many places. Even with the heter mechirah, when farmland is sold to a non-Jew for Shemitah—the Chief Rabbinate uses it; we do not follow that heter, but the sale does take place—they also use an arev kablan. Another thing we’ve seen is an addition resulting from the practice of recording the balance as a loan. That means a small amount is paid, but the rest is considered a loan that the non-Jew must repay, though he does not have to pay it now; he can pay it later. This led to the Alter Rebbe’s enactment of an arev kablan, which was accepted in many communities, not only in Chabad. It led to something else as well. The normal way for a non-Jew to acquire something is through a combination of two forms of acquisition: payment of money and meshichah, physically taking possession. Since the Bach, we have wanted the non-Jew to acquire the chametz without meshichah. But relying on payment alone, without meshichah, is impossible. Why? Some opinions hold that a non-Jew acquires only through meshichah, not through payment. So if we sell to the non-Jew through payment alone, there’s a problem: we cannot be sure he has acquired it, and he certainly has not acquired it according to all opinions. There is a solution for that opinion too: we perform additional forms of acquisition. When we sell the chametz to the non-Jew—we’ll soon discuss the rabbi’s role in the transaction—we don’t sell it to him through payment alone, but through several forms of acquisition. To the best of my knowledge, usually between five and ten are performed. When the rabbi and the non-Jew sit down together, they

22:41 Speaker 2 perform between five and ten forms of acquisition. Why? Because no single form definitely works according to every opinion. Some of our authorities accept each form as a way for a non-Jew to acquire something, while others hold that it does not work. So we perform several, to be confident that the non-Jew really has acquired the chametz. What forms do we use? Let’s mention several that the Alter Rebbe cites in his Seder Mechiras Chametz. Some are halachic forms of acquisition in their own right, while others are classified as situmta. Situmta is the name for a form of acquisition that is not explicitly mentioned by our authorities as a halachic form of acquisition, but is customary among merchants. Once merchants customarily use it, that gives it validity. So in his Seder, the Alter Rebbe discusses both halachic forms of acquisition and forms based on merchants’ custom. As we said, we perform several to be sure the non-Jew has acquired the chametz, because once we leave out meshichah, we have to make an effort to cover all opinions. One form the Alter Rebbe discusses is a handshake between seller and buyer, expressing their firm intent and the transfer of the item from seller to buyer. The Alter Rebbe also discusses handing over the key, another form customary among merchants, through which the buyer acquires the contents of the room. Another is acquisition through land, known as agav. We rent or sell the non-Jew the area where the chametz is located; in practice, we rent it to him. Along with that—there is a form of acquisition called agav: when someone acquires land, movable property can be transferred to him along with the land. So along with the land, we transfer the movable property to the non-Jew as well, which works according to some opinions. Another thing is for the non-Jew to stand

24:56 Speaker 2 beside the place he is acquiring, the courtyard where the chametz is located. When he stands beside the place containing the chametz he is about to buy, this involves acquisition through a courtyard. Those are some of the forms of acquisition in general. There is also a form called odisah, and others used in different places, each community according to its custom. In any case, this is another development that resulted from the Bach’s words. Besides the development of writing a contract, several forms of acquisition were added because meshichah was missing. That is the structure of the sale of chametz so far, but we still haven’t reached a dramatic development that took place in the Alter Rebbe’s generation. Let’s sum up the developments up to this point and move on to the dramatic development that today is an integral part of the atmosphere of Erev Pesach. We’ve learned that at first, the sale of chametz was generally an outright sale: “Here’s the chametz; give me the money. Give me the money, and take the food.” That was it, end of story. There were rare cases of selling it and then buying it back. Gradually, this became common. Then came the token price in the ruling of the Terumas Hadeshen. The Bach allowed the chametz to remain in the home. So now we have a token price and chametz in the home. The Noda BiYehudah added a written contract. Around that time, the practice of recording the balance as a loan was added: not a token price as in the Terumas Hadeshen, but a full price, with a token amount paid for now. During that period, the number of forms of acquisition increased because, following the Bach’s ruling, there was no meshichah. And the Alter Rebbe added the form of acquisition—no, not the form of acquisition, sorry—the Alter Rebbe instituted the arev kablan, an enactment that, as we said, spread to many communities. In everything we’ve discussed so far, each individual goes to a non-Jew he knows and sells him his chametz. Mendy goes

27:10 Speaker 2 Ivan goes to the neighbor across the street; Yossi goes to Mahmoud, whom he knows [unclear]. Each person goes to someone he knows and sells him his chametz. In the Alter Rebbe’s generation, we find a question addressed to him in his responsa, and to the best of my knowledge, this is the first source for a communal sale—not every Jew going to a Bedouin or Druze he knows and selling him his chametz. Not everyone conducts the sale of chametz separately. Instead, one person, usually the rabbi, conducts it for the whole community. That is how it appears in the Alter Rebbe’s responsa. In section 4, a question comes from the leaders of the community of Lilet [unclear]. I hope I’m reading that correctly. The leaders of the community of Lilet [unclear] write: “In our city, the custom every year before Pesach is for one designated man to go around.” So at that point it was not yet customary for the rabbi to do it. Rather, it was a young married scholar, a Torah scholar, who apparently received this responsibility from the rabbi. There was another difference, probably because he was not the rabbi. Today, whoever needs the rabbi comes to him. But back then, when it was one of the Torah scholars, he went from house to house and bought all the chametz in the city, then sold it to a non-Jew according to the regulations of His Holiness—that is, according to the rabbi’s enactment—and using the wording provided to him by His Holiness. They then describe the problem that occurred that year. In any case, this is our first source for a communal sale: instead of each Jew going to a non-Jew on his own, one person from the community, one person from the city, or one person from several cities comes and sells it to the non-Jew. But notice something distinctive here. Besides the fact that it was not the rabbi but one of the Torah scholars, and besides the fact that people did not come to his home,

29:22 Speaker 2 but he went to theirs, there is another major difference. We appoint the rabbi as our agent. Our usual practice is not to sell the chametz to the rabbi so that he can sell it to the non-Jew, but to appoint him as an agent to sell it for us. Until the moment the chametz passes to the non-Jew, it still belongs to us. The rabbi simply provides the service: he acts as the intermediary connecting us. The chametz passes from me... the chametz passes from me to the non-Jew. The rabbi just handles the documents, performs the acts of acquisition on my behalf, and so on. When the communal sale was first instituted, the procedure was for the rabbi to buy the chametz from the community and sell it to the non-Jew. In the Tzemach Tzedek’s responsa—the Tzemach Tzedek’s large collection of responsa, much larger than the Alter Rebbe’s, which contains relatively few responses—there are many more responses, spanning several volumes. Among them, both methods are mentioned: the method more common at first, in which the rabbi buys everyone’s chametz, and the method more common today, in which the rabbi does not buy everyone’s chametz but serves solely as the community’s agent. The enactment did not spread immediately. In the days of the Chasam Sofer, a generation after the Alter Rebbe, he wrote guidance for rabbis. He rebuked a rabbi, saying, “Why are there all sorts of problems with the sale of chametz in your community? People have sold their chametz in various unclear ways, creating doubts about the validity of the sale.” The reason, he said, was that the rabbi was not speaking about what was needed in his Shabbos Hagadol sermon. “You,” the Chasam Sofer told that rabbi, “give all kinds of intricate Torah discussions in your Shabbos Hagadol sermon. You need to give the community practical guidance.” On what subject? The Chasam Sofer said, “In my community in Pressburg, every year, the practical guidance I

31:39 Speaker 2 give them is how to sell chametz to a non-Jew. I also give them wording I wrote for the bill of sale they use when selling to the non-Jew.” We see... we see that in the Chasam Sofer’s time, the custom of a communal sale had not yet taken hold. At least in his community in Pressburg, there was no communal sale. Sales were still private. Each person still sold his chametz individually to a nearby non-Jew—to a friend, an acquaintance, someone he trusted, and so on. But the enactment spread gradually. There were discussions and disagreements, but in practice, today we know of no community where people customarily go and sell their chametz privately to a non-Jew. Everyone uses a communal sale. Our Rebbeim followed the practice from when the enactment was first introduced. As we saw in the Alter Rebbe’s responsa, people would sell their chametz to the rabbi, and the rabbi would sell it to the non-Jew. That is how our Rebbeim conducted themselves throughout the generations: they sold their chametz to the rabbi, who then sold it to the non-Jew. Among chassidim, however, the usual custom is to sell the chametz directly to the non-Jew, with the rabbi serving only as our agent to sell it. There were chassidim who asked rabbis to do it differently. It is told that some asked the rabbi of the Rebbe’s neighborhood in Crown Heights, Reb Zalman Shimon Dworkin, to buy their chametz from them, following the custom of our Rebbeim. Just as he bought the Rebbe’s chametz and sold it to the non-Jew, they wanted him to buy theirs and sell it to the non-Jew. Reb Zalman Shimon Dworkin would not agree. He said, “For the Rebbe, I’m willing to be a non-Jew; for you, I’m not.” Reb Yaakov Landau, the rabbi of Bnei Brak, also bought the Rebbe Rashab’s chametz and sold it to a non-Jew. But when chassidim came and asked him to buy their chametz and sell it to a non-Jew, he would not agree to that.