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.
