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10 Nissan 5767 - March 29, 2007 | Mordecai Plaut, director Published Weekly










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Opinion & Comment
The Sale of Chometz by Nonobservant Jews

By HaRav Yosef Efrati

This topic has come under repeated discussion in recent years. We present a synopsis of Rav Efrati's article explaining HaRav Eliashiv's opinion on the subject in the Hebrew Yated Ne'eman of 4 Nisan.

Many manufacturing plants and stores that are owned by non- religious Jews make the customary sale of their chometz before Pesach. The problem is that they do not regard it as a sale in any actual sense. They are just carrying out the instructions of the Rabbinate or other kashrus supervisory body so that they can retain their kashrus certification. Is such a sale effective?

The source for selling chometz to a non-Jew and acquiring it back again after Pesach is a Tosefta ( Pesochim 2:6). "If a Jew and non-Jew were at sea together and the Jew has chometz, he should sell it to the non- Jew or give it to him as a gift and then buy it back from him after Pesach, so long as he gives it to him unconditionally."

This is how the Shulchan Oruch rules (Orach Chaim 448:3): "If he sold it or gave it to a non-Jew who lives outside the Jew's house from before Pesach, even though he is acquainted with the non-Jew and knows that he won't touch it and will keep it for him until after Pesach and then give it back to him, it is permitted."

The accepted custom nowadays is that the chometz is sold without it leaving the seller's house, by renting the place where it is kept to the non-Jew; the non-Jew acquires the chometz with the rental of its place.

HaRav Eliashiv told us that the sale of chometz by a nonobservant Jew who signed on the commonly-used document empowering an agent to sell his chometz for him to a non-Jew, cannot be relied upon. Such a document has no validity whatsoever and is worth no more than the paper on which it is printed. The chometz must be regarded as having remained the Jew's property over Pesach and its consumption or any other form of benefit is forbidden. The proof that there has been no sale is that if the buyer wanted to actualize the transaction, the nonobservant seller would object that he only signed the document for religious purposes, not to be carried out. The document must therefore be written in a way that makes it legally binding. When the signatory knows that its terms can be enforced legally, the transaction can be regarded as valid.

Indeed, in the course of a court hearing an Israeli judge once remarked that if a gentile who had purchased chometz using the [previously used] standard form were to come before him seeking to realize the sale, he would not endorse it. If however, certain specific conditions were to appear in the document, he said that he would regard it as legally binding.

A similar situation emerged with regard to the formerly standard heter iska document for monetary "interest" that was drawn up with the banks. In the course of a court case between customers who wanted to adhere to the terms of the iska, the bank responded that they had signed a religious document and had no intention of upholding the financial terms of the agreement. Here too, HaRav Eliashiv concluded that such an iska is void and that the bank was thus lending money on interest.

Although I have seen it argued that even a non-religious Jew's sale of chometz is valid, citing Igros Moshe (Vol. I Orach Chaim siman 149) as proof, a careful study of this source will show that where the non-Jew has no way whatsoever of actualizing the sale and the document has no legal standing, even Reb Moshe agrees that the sale is invalid.

After discussions with a number of legal experts, four paragraphs were added to the standard document which establish that any further discussion of the transaction will be conducted before beis din only, and that the seller is aware at the time of signing that beis din will not accept the argument that he only signed for religious purposes. In addition, he forgoes the right to claim that the document is "merely for religious purposes." This renders his signature binding, thereby giving it halachic validity as well.

An additional point is that according to our information, a faxed document is legally unacceptable. Therefore the original document signed by the nonobservant seller must be in the possession of the rabbi or mashgiach at the time he makes the sale. If the seller has only submitted his signature by fax, even on the amended form, since he knows that a fax is not legally binding and that the terms of the sale cannot be enforced, this again undermines the transaction's validity.

Here are the paragraphs that have been added to the standard form for the sale of chometz. (What follows is an informal translation of the original Hebrew wording. It should not be relied upon without confirmation with a competent rabbinical authority.)

1. The authorizer [i.e. seller] understands that no argument of the transaction being appearance's sake and/or for it's being just for religious purposes, will be acceptable with regard to either this authorization or to the document of sale drawn up by the beis din with the non- Jew based on this authorization.

2. Any further discussion surrounding this authorization will take place in beis din . . . according to Torah law.

3. The seller is aware that since sincerely religious Jews rely on this sale in order to avoid benefiting from forbidden chometz, any claim he may advance questioning the validity of the sale and/or of the seriousness of his intention when entering into it, apart from being null and void, will oblige him to pay a penalty of one hundred thousand shekels, that the beis din will enforce . . . and he accepts this provision.

4. Signing this document amounts to signing a document of arbitration, whereby the arbitrator is the beis din . . .


I myself am witness that many companies who in the past signed the authorization to sell chometz automatically, without giving it a moment's thought, now conducted thorough deliberations before they signed in a halachically acceptable manner. They now realize that this is no mere "religious document," but a fully binding transaction.

In the merit of ridding ourselves of every trace of chometz according to halochoh may we soon merit sacrificing the korbon Pesach and the other offerings of Yom Tov.

HaRav Yosef Efrati is the secretary of Maran HaRav Eliashiv shlita and head of the Beis Hamedrash for Settlement According to Halochoh.

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