The practice of selling chametz to remove it from Jewish ownership on Pesach has gone through four historical stages, according to R. Shlomo Yosef Zevin in his remarkably accessible book, Ha-Mo’adim Ba-Halakhah (Pesach, ch.4). We may be witnessing the development of a fifth. The first stage was individuals permanently selling their chametz to gentiles; the second was selling and then repurchasing it after the holiday; the third was, additionally, selling it without removing it from the Jew’s house; and the fourth was authorizing a rabbi to conduct the entire sale and repurchase on behalf of the community. Each stage was controversial but took hold with the support of major halakhic authorities.

Cyber-Selling Chametz

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I. Four Stages of Selling Chametz

The practice of selling chametz to remove it from Jewish ownership on Pesach has gone through four historical stages, according to R. Shlomo Yosef Zevin in his remarkably accessible book, Ha-Mo’adim Ba-Halakhah (Pesach, ch.4). We may be witnessing the development of a fifth. The first stage was individuals permanently selling their chametz to gentiles; the second was selling and then repurchasing it after the holiday; the third was, additionally, selling it without removing it from the Jew’s house; and the fourth was authorizing a rabbi to conduct the entire sale and repurchase on behalf of the community. Each stage was controversial but took hold with the support of major halakhic authorities.

The fourth stage — the communal sale by the rabbi — was extremely controversial because the farther an individual Jew is removed from the sale, the more of a formality and less of a true transfer the sale can become. If you are not even selling the chametz directly to a gentile, there is a greater chance you may not really intend to sell it and are you just performing a ritual.

II. Distance and Sales

Selling one’s chametz is a loophole — a ha’aramah — which like an eruv can only function within rabbinic prohibitions, not biblically proscribed food (or carrying). Some contend that the recitation of the bitul formula, nullifying all chametz in your possession, satisifies the biblical requirement and thereby allows the sale. Others only allow the sale of chametz mixtures that are rabbinically forbidden. 

Despite the rabbinic rather than biblical context, authorities require the seller to utilize multiple forms of property transfer and specially worded contracts when food is not transferred from the Jew’s property (see Sha’arei Teshuvah 448:5). The complexity of the transaction demands expertise — hence the development of a communal sale by a rabbi. While this further distances the seller from the transaction, the benefit gained by having an expert seller conduct the procedure takes precedence.

In the fourth stage of sales, which has dominated for over a century, individuals appoint a rabbi as an agent to sell the chametz. Each individual is technically the seller but the rabbi serves as an agent for many people and conducts one communal sale on behalf of all those who appointed him.

III. Click and Sell

Over the past decade, we have witnessed a new development — internet sales of chametz. This entails the seller entering address and other information on a web form and clicking on a button to appoint a rabbi — sometimes unspecified — as an agent to sell chametz. Without seeing or even speaking to the rabbi performing the sale, the seller is even further removed from the transaction. Does this work?

Technically, one may appoint an agent merely by stating that you are appointing him (Shulchan Arukh, Choshen Mishpat 182:1). However, the Rambam (Mishneh Torah, Hilkhos Mekhirah 5:12-13) records a custom to solidify an appointment of an agent by making a kinyan sudar, performing a symbolic act of acquisition which demonstrates the transfer of authority. In this way, the Rambam says, you make clear that you truly want to appoint this agent to act on your behalf:

נהגו רוב המקומות להקנות למקצת אלו הדברים או כיוצא באלו ואומרים וקנינו מפלוני שעשה פלוני שליח… קנינו זה שנהגו להקנות באלו הדברים אינו מועיל כלום אלא להודיע שאינו אומר דברים אלו כמשחק ומהתל אלא שגמר בלבו ואחר כך אמר. לפיכך אם אמר בלב שלם אני אמרתי וגמרתי דבר זה אין צריך דבר אחר כלל.

The custom in most places is to make a kinyan from some of these things or the similar and we say he made a kinyan from this person and appointed him an agent… This kinyan that is the custom does not affect anything except making known that he is not saying it a a joke but made a firm decision and afterward said [that he appoints someone as an agent]. Therefore, if he says “I wholeheartedly said and decided this” he does not need anything else.

We normally follow this custom only when appointing a rabbi as an agent to sell chametz, not when otherwise appointing an agent. Presumably, this is because of the danger inherent in the distance of the seller from the actual sale. When it comes to chametz, even if only rabbinically forbidden, we try to strengthen the agency and minimize the risk of the sale becoming a mere ritual.

IV. Long Distance Sales

Authorities of the past have allowed appointment of a rabbi to sell chametz over the phone, when necessary (Piskei Teshuvos ch. 448 n. 72 in the name of R. Yosef Shalom Elyashiv; I have heard similar in the name of R. Yosef Eliyahu Henkin; and see further in the name of R. Soloveitchik). The custom of making a kinyan sudar can be set aside under extenuating circumstances. However, I recall hearing that R. Joseph B. Soloveitchik recommended that, in keeping with the Rambam’s words, the telephoner should state that he appoints the rabbi “wholeheartedly”. This fulfills the custom without the in-person kinyan sudar.

Sales on the internet further remove the seller from the transaction and provide convenience but no halakhic benefit. Additionally, these sales do not allow for the custom of making a kinyan sudar. For these reasons, it seems to me that these sales are not optimal. They work but should be a last resort.

If you cannot appoint a rabbi as an agent in person or over the phone, only then should you appoint a rabbi as your agent via the internet. That rabbi should preferably identify himself on the webpage and include a checkbox specifying that the seller appoints the rabbi “wholeheartedly” (while many people perfunctorily click on checkboxes, it seems to me that it will add a little to the transaction).

Is this the start of a new method? Will the internet change the sale of chametz like it has changed so much else? In this case, I think it will only be to the detriment of the user, who will increase the risk of turning a religously-motivated transaction into a perfunctory, religious ritual. When your role in selling your chametz is reduced to fifteen seconds and click, it will be a less serious exercise.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

73 comments

  1. However it might be safer than this perfunctory ritual: http://www.jpost.com/JewishWorld/JewishNews/Article.aspx?id=217495
    CK”VS

  2. “and the fourth was authorizing a rabbi to conduct the entire sale and repurchase on behalf of the community.”

    and the fourth was authorizing a rabbi to conduct the entire sale with the final price to be determined after Pesach and after Pesach asking the goy if he is ready to complete the purchase-the Rabbi does not repurchase the chametz-the non Jew backs out.

  3. MiMedinat HaYam

    an alternative, i believe, to stengthen the seriousness of this “sale” is to require a credit card (thus making it a minhag sochrim type sale.) perhaps no actual charge should be made (though ppl wont believe it; also, it defeats the purpose of a public service type offer).

    also, “The complexity of the transaction demands expertise — hence the development of a communal sale by a rabbi” (third stage) and ” Each individual is technically the seller but the rabbi serves as an agent for many people and conducts one communal sale on behalf of all those who appointed him” (fourth stage) both gloss over the fact the rabbi /agent appoints another rabb agent, etc etc , till it gets to a final rav who does the actual sale. (old joke — RMF’s janitor owns all the chometz in america. not true, i’ve seen / participated in such sales over the years.)

    also, these sales are not for rabbinic chometz (whatever that means) but for any chometz (not subject to the bitul, i’ll grant you.)

    i’ll await a post on “chometz she’avar alav hapesach.” hopefully, you’ll discuss the issue of stores / distributors that buy / take delivery of chometz on pesach (which i believe is the major issue.)

  4. Gil, I think you’re being a little unfair here. Many are not noheig to do a kinyan sudar. As this article notes, the Chazon Ish never did it for mechiras chametz:
    http://www.dinonline.org/2011/04/15/biur-chametz-the-easy-way%E2%80%94-laws-of-selling-chametz-part-ii/
    Also, as R. Eliezer Ben Porat says 9http://www.ottawatorah.org/mechira/rabbi.htm), there is absolutely no issue with signing an electronic harsha’ah via the internet, and this case is no different.

  5. When I buy Lego for my son on eBay, it’s only 2 clicks and my son certainly sees it as a real transaction. Granted he is 4.5, but with most payments being electronic (NFC being the next big thing), I think that selling over the internet brings you closer to the selling rather than relying on the rabbi in Shul.

  6. I don’t understand the concern over “not really intending to sell”. If I sign a business agreement, can I later claim that I didn’t really intend it and so it’s invalid? And doesn’t everyone realize that if no sale takes place then they are violating the laws of pesach by owning chametz, so there’s no point to doing the ritual at all unless you think the sale is valid?

    Is all the concern perhaps in regard for 18th century peasants who were so ignorant that they didn’t know about the prohibition of owning chametz on pesach, who cleaned their houses before pesach for the sole reason that their parents did so before them, and who did understand business transactions because they did them all the time?

    Furthermore (though I know great rabbis have already taken both sides on this question) I don’t understand what’s wrong with haaramah, or why it should not work on a biblical level. Selling chametz temporarily is no different from the incredibly complicated transactions that businesses make all the time, for example, to avoid paying taxes. Evading taxes is wrong because the government democratically decided to tax you, it’s just that the people writing the law made a subtle mistake, and you exploit that mistake to subvert their intentions. But God made the prohibition on chametz, and if you exploit a loophole, it is a loophole that God intentionally left, knowing that people might use it. I don’t see what is wrong with that.

    True, many mitzvot have a purpose beyond the technicalities (you shouldn’t make all your possessions hefker and rejoice at no longer having to give tzedaka), but I don’t see how the purpose of pesach is subverted by keeping some chametz, owned for now by a non-Jew, in a locked room.

  7. “Over the past decade, we have witnessed a new development — internet sales of chametz. This entails the seller entering address and other information on a web form and clicking on a button to appoint a rabbi — sometimes unspecified — as an agent to sell chametz. Without seeing or even speaking to the rabbi performing the sale, the seller is even further removed from the transaction. Does this work?”

    Decades ago some Rabbis used snail mail authorizations-of course mail might reach a Rabbi after Pesach begins and appear to leave those whose mail got lost in trouble but never underestimate haaramah-many shtarei michirah if not most have in their texts that not only is the Chametz of those whose names are listed being sold but also those who intended to have their names on it but are missing!

  8. One of the biggest problems in mechiras chametz is that it is not a sale. Interesting comparison around 100 years ago there were cases in NY upholding the ketubah and people collecting in court the value of it.I omce asked a contracts law professor who had written about various non usual contracts being sustained in court about the mechiras chametz he laughed if someone would try and take it to court it would be treated as a joke it is clearly some “religious mumbo jumbo”. American law does not let a recital in a contract make something true that is clearly false. Thus, a janitor no matter what the recitals in a contract did not intend to buy the chametz.The “sale” is clearly not a sale in secular law-ever see sales tax collected on the sale. BTW that issue caused great consternation among Rabbonim in Europe-someone reported to the king that Jews aren’t collecting taxes on this sale-the king who was friendly to Jews said no tax is needed its not a sale its some religious game they are playing-of course not being a valid sale in secular law caused much despair.
    Since I don’t own any whiskey-a reason to question my yiddishkeit-I don’t “sell chametz”-I get rid of it.

  9. “If I sign a business agreement, can I later claim that I didn’t really intend it and so it’s invalid?”
    If clearly not intended by both sides-its a joke and no cntract no matter the recitals in the document.
    ” And doesn’t everyone realize that if no sale takes place then they are violating the laws of pesach by owning chametz, so there’s no point to doing the ritual at all unless you think the sale is valid?”
    A reason for those who only sell chmaetz drabbonan hem shehechmeru hem shehitiru-really don’t think sale is valid but for Rabbinic decrees ,Rabbis can alleviate the decree by any means.

  10. mycroft: and the fourth was authorizing a rabbi to conduct the entire sale with the final price to be determined after Pesach and after Pesach asking the goy if he is ready to complete the purchase-the Rabbi does not repurchase the chametz-the non Jew backs out.

    I believe that started in the early 1800s.

    MMHY: The requirement of a credit card is a great idea.

    gloss over the fact the rabbi /agent appoints another rabb agent, etc etc , till it gets to a final rav who does the actual sale

    True. I’m not sure it makes any difference.

    also, these sales are not for rabbinic chometz (whatever that means) but for any chometz (not subject to the bitul, i’ll grant you.)

    After bitul, which according to many is derabbanan.

    J: Many are not noheig to do a kinyan sudar.

    Could be but I’ll stick with it.

    Raphael: When I buy Lego for my son on eBay, it’s only 2 clicks and my son certainly sees it as a real transaction.

    Yes, but money changes hands at that point.

    Shlomo: If I sign a business agreement, can I later claim that I didn’t really intend it and so it’s invalid?

    Certainly in halakhah you can and I’m pretty sure there are cases in American law when you can.

    And doesn’t everyone realize that if no sale takes place then they are violating the laws of pesach by owning chametz, so there’s no point to doing the ritual at all unless you think the sale is valid?

    You’d think so but talk to people and many will tell you that they see it as a joke.

    Furthermore (though I know great rabbis have already taken both sides on this question) I don’t understand what’s wrong with haaramah, or why it should not work on a biblical level.

    You are not allowed to circumvent God’s word. It might work but it isn’t what religious people are supposed to do.

    Mycroft: I omce asked a contracts law professor who had written about various non usual contracts being sustained in court about the mechiras chametz he laughed if someone would try and take it to court it would be treated as a joke it is clearly some “religious mumbo jumbo”.

    It depends what contract they are using. Most MO rabbis use contracts written by lawyers.

    The “sale” is clearly not a sale in secular law-ever see sales tax collected on the sale.

    That is why they commute the contract. I don’t know why you think that no one has thought this through in the past.

  11. Furthermore (though I know great rabbis have already taken both sides on this question) I don’t understand what’s wrong with haaramah, or why it should not work on a biblical level.

    You are not allowed to circumvent God’s word. It might work but it isn’t what religious people are supposed to do.

    ======================================
    daughters inheritance?
    KT

  12. Isn’t that way poskim insist you leave a substantial portion that gows through regular yerushah?

  13. Gil,
    I am sure you are aware that RHS thinks haarama is permitted even on a doraysa as long as it is avoiding a lo saasei but not an asei. see beikvei hatzon…

  14. MiMedinat HaYam

    “Mycroft: I omce asked a contracts law professor who had written about various non usual contracts being sustained in court about the mechiras chametz he laughed if someone would try and take it to court it would be treated as a joke it is clearly some “religious mumbo jumbo”.”

    i once saw the contract the badatz makes with their “goy” (from abu ghosh — its a yerusha from father to son several generations to sellhim their chametz) and it had tax stamps on it ( = they paid recording taxes / fees on the sale. for what value i dont know.)

    2. i was thinking of this ha’aramah this morning, and realized we have the sha”tz do a ha’aramah before slichot with the talit. and its an accepted ha’aramah.

  15. The extent to which the authorization and sale must conform to applicable local, civil law is also a question of some concern. In Rav Zevin’s book, he reports an incident where a contract stamp tax claim was made against a rabbi who took the authorizations from his householders. The defense in the civil suit was that these were not real contracts, but next year, Rav Zevin reports, they paid the tax.
    Similarly, Rav Sternbuch deals with a question of a South African householder who sold his chametz to his black housekeeper, thereby technically violating the law against such sales in “white” areas. Rav Sternbuch ruled that the violation did not vitiate the sale.
    This all became pertinent two years ago in New York when the law was changed to put strict limitations on execution of forms of power of attorney. Thus, any document taken by a rabbi in New York which was labelled a “power of attorney” was presumptively invalid under New York law. The statute was amended (or corrected) later and probably now would exempt the chametz sale authorizations.
    Conversely, if civil law is any guide, both federal and state statutes now make electronic signatures and contractual writings binding and might thus be argued to cover chametz disposition authorizations.
    Chag sameach.

  16. R’ Gil-see R’ Willig shiur reviewed here: https://www.torahmusings.com/2011/03/audio-roundup-cxxxviii-2/
    Moadim Lsimcha

  17. MiMedinat HaYam

    to l kobrin:

    dont know about such laws re rabbi power of atty, but i previously commented about the pre nup notarization by a rabbi / marriage officiant being too coercive (let alone the signer not knowing / realizing / understding it will be notarized.) though you bring up an intersting pblm — a power of atty must be notarized, thus increasing its “mportance”. and i dont believe a notarization can be performed over the internet (though i’ve seen it done by fax — legally questionable, of course.)

    and electronic signatures require an affirmative act (not unchecking / checking a box) or even more.

  18. MiMedinat HaYam

    also — these stories (legends) crop up every year, but see http://www.kikarhashabat.co.il/%D7%94%D7%92%D7%95%D7%99-%D7%9C%D7%A7%D7%97-%D7%90%D7%AA-%D7%94%D7%97%D7%9E%D7%A5.html

    moral of the story — dont be too machmir. (though the ending indicates an unhappiness with the situation, that i dont see. perhaps they werent too “complete” (in their minds) with the sale.

  19. Yi’yasher kochakha to our Rosh Yeshiva R. Student. I agree that one should not appoint a shali’ach by e-mail or by an internet website. It cannot be compared to the telephone, in my opinion. On the telephone, there is at least “tevi’ut ayin” on the voice of the Jew (as per the gemara in Chullin 95b). In other words, the rabbi knows it’s me who is appointing him because he recognizes my distinctive voice. But on the internet, who is to stop someone else from impersonating Shalom Spira and authorizing the rabbi to sell Shalom Spira’s chametz (without Shalom Spira’s permission)? I don’t think there is any halakhic consensus on this matter, and so it can’t be compared to the previous four developments in the evolution of mekhirat chametz described by R. Zevin, where a consensus of poskim was reached to validate each stage.

    [Parenthetically, I would even question – kitalmid ha’yoshev bakarka vidan lifnei Rabbotav – why appointing an agent over the telephone should work, when there is no signature and no witnesses to confirm that the appointment ever occurred. What will happen in the hypothetical case that I turn around in a court of law (-Orthodox Jewish, bien sur) and I deny that I ever authorized the rabbi to sell my chametz? It will be my word against the rabbi’s word. Tzarikh iyun… (Piskei Teshuvot alludes to this problem in footnote 69, where he writes that “a person’s agent is like himself, and so long as the dispatcher does not deny that he appointed the agent, we don’t care that he didn’t sign on the contract”. And what if the dispatcher suddenly denies that he appointed the agent?)]

  20. Indeed, my teacher R. Joshua Shmidman of blessed memory once delivered a sermon on Pesach describing how one of his devoted congregants arduously trekked on skis through a major snowstorm (which is not uncommon in the Canadian climate in the weeks before Pesach) to R. Shmidman’s home to appoint R. Shmidman to sell his chametz. R. Shmidman compared this to the story of the Berditchever rabbi who praised his townspeople for their righteousness in comprehensively eliminating their chametz before Pesach.

    Although R. Shmidman did not specifically say so, the implication of his words (to my ear) is that he was praising his congregant for refusing to rely on the telephone as a means of appointing R. Shmidman as an agent.

  21. I consider it inappropriate to cast aspersions at this point in time on the traditional practice of selling proper chametz to a Gentile through a rav. What should people do now who have such chametz, i.e., bottles of liquor, and sold them through their rav? If the sale is valid, then they have no right to open the storage compartment and flush the liquor down the toilet. In fact, maintaining that such sales are invalid goes counter to the views and practices of many great poskim over the generations.

    Perhaps next year, however, people will be more careful about their liquor purchases and not have bottles left over (make a prePesach party, if you have to) so as not to run into such questions. I would question, specifically, the presumed need to save chametz leftovers or to stock up on beer before Pesach so as to enjoy real chametz immediately after the chag. Those of us who don’t leave chametz around, cheerfully trot off to the local Gentile-owned supermarket to buy these goods. Of course, you can also buy chametz in stores that had sold theirs.

    The problem with attempting to “improve” upon traditional practices is illustrated by the linked story of the debacle in Ramat Shlomo (I believe that the English version in is in the J’lem Post). A rav there encouraged his congregants to leave their liquor in a storage place in the shul so that he could arrange the halachic transfer to a Gentile’s possession via a gift. The understanding was that if the Gentile, as expected, didn’t claim the gift by the end of the chag, it would revert to the original owners. It seems that the Gentile showed up later erev Pesach with a truck and hauled off all the stored material. That rabbi merits the anger of congregants who suffered financially from his “improved” chametz transfer by making it too easy to effect the carting off of people’s chametz, and dealing with an untrustworthy Gentile.

  22. What I didn’t understand is why doesn’t the as expected in “The understanding was that if the Gentile, as expected, didn’t claim the gift by the end of the chag, it would revert to the original owners” make this a case of asmachta lo kania (as in gambling when you freely put your money into the pot)?
    KT

  23. R’ Joel Rich,
    Excellent question. Here, the sale is a full-fledged sale of chametz to the Noahide before Pesach. But the Noahide only makes a down payment, and for the rest of the purchase price, the Jew lends him the money. After Pesach, the rabbi confronts the Noahide and says “Time for you to pay your loan”. The Noahide says “Sorry, I don’t have the money.” The rabbi counters “Sorry, but if you do not pay me now, I will have to sue you in a court of law”. Th Noahide then begs for mercy, and says “I don’t have enough money; please buy the chametz back from me”. The rabbi sighs and says “Okay, I’m a congenial individual, why don’t we do that?” And the rabbi buys the chametz back from the Noahide at a generous price, effectively paying off the loan, and adding some extra cash in the Noahide’s treasury. [Obviously, this is all a shpiel; everyone knows in advance that this is how the dialogue will unfold. But still it’s perfectly valid, a shpiel transaction is still a transaction.] In this manner, the Jew never owns any chametz over Pesach.

  24. R’SS,
    I agree on the sale issue, but on the gift issue there never is any possible demand for the sale price-in essence the Jew is saying, I’m making a gift of this with no intention of really doing so, in the sale case he may hope your scenario will take place but knows in the end he will either get his chametz or cash so it’s imho less an asmachta case.
    KT

  25. MiMedinat HaYam

    round tripping in the commodities market.

    i.e., your broker charges you two commssions when buying commodity futures. one commission for the the purchase of the put (or call). and another commission to reverse the sale. of course, it is possible (and has happen) that you accept delivery. (but that was idaho potatoes; and the exchange waived (redefined, post facto would be more exact, but i believe they called it something like a waiver) the contract terms and allowed maine potatoes. a whole other issue.)

    a secular “ha’aramah”. in the “ultimate” (secular) market.

  26. Joel, I’m glad you’re so medakdek on my words. I only know what was reported in the linked site. That report didn’t provide any detail on what the rav told the Gentile or what, if anything, was written. It’s possible that the Gentile was told explicitly that the items in question would revert to the original owners if he didn’t claim them by then end of Pesach, and they shook hands on the deal. Of course, such a procedure would provide a good incentive for the Gentile to make a nice profit by taking the “gift” located in a central and accessible storage area and then selling the liquor. It’s also possible that the Gentile was from the neighboring Arab community who, presumably, did not look favorably on the encroachment of Jews into the area they regarded as theirs. If so, then he could have just dumped the liquor out of spite. In any case, the rav was overly trusting and rather careless about other people’s property.

  27. R’YA,
    Actually I had that question from the original reports.
    moadim Lsimcha

  28. “When your role in selling your chametz is reduced to fifteen seconds and click, it will be a less serious exercise”
    When stores advertise on Pesach they’ll be open 30 minutes etc after Pesach to sell Pizza, bagels etc-they are stating they don’t believe the sale is a sale. It would be tough to make it less serious than it is treated now.

  29. “It depends what contract they are using. Most MO rabbis use contracts written by lawyers”

    All the recitals in the world doesn’t make it a valid contract. One would reform the contract to what the parties believed and NO ONE believes it is a contract that would be upheld in a civil court.
    I believe the question is what is the halachik status of a contract that would not be binding on the goy-no enforcement.
    Does anyone argue that the Rabbi could demand enforcement from the goy after Pesach and win in court?

  30. “I consider it inappropriate to cast aspersions at this point in time on the traditional practice of selling proper chametz to a Gentile through a rav.”
    Traditional? debate essentially between Gra and Chasam Sofer if what is done today is even valid.

  31. I’m mystified why it is considered the “frum” thing to question the use of haaramot on theoretical rather than practical grounds. As I explained above, this questioning indicates a lack of faith in God’s omniscience and the wisdom of the Torah.

    BTW, how is giving away your lulav al menat lehachzir less of a haaramah than mechirat chametz? That’s a deoraita mitzvah. It’s even worse according to RHS’s logic as presented above, since it’s a mitzvah aseh.

    You are not allowed to circumvent God’s word. It might work but it isn’t what religious people are supposed to do.

    By not qualifying that statement, you are showing a greater and more intentional ignorance of taamei hamitzvot, and their practical implications, than I would ever have expected from anyone outside the charedi camp.

    he laughed if someone would try and take it to court it would be treated as a joke it is clearly some “religious mumbo jumbo”.”

    Shouldn’t you be going to beit din rather than secular court, and wouldn’t a beit din treat the sale as valid?

  32. Shlomo: By not qualifying that statement, you are showing a greater and more intentional ignorance of taamei hamitzvot, and their practical implications, than I would ever have expected from anyone outside the charedi camp.

    By writing that you are sadly displaying an unexpected ignorance of commentaries.

  33. “he laughed if someone would try and take it to court it would be treated as a joke it is clearly some “religious mumbo jumbo”.”

    Shouldn’t you be going to beit din rather than secular court, and wouldn’t a beit din treat the sale as valid?”

    Going to a beis din even for a Jew is a matter of jurisdiction-not choice of law.-

  34. MiMedinat HaYam

    myc: if you mean “matter of jurisdiction” in the sense of the bet din has noo jurisdiction cause everyone ignores batei din, well, thats one of the pblms of our society today.

    on the otyer hand, of course, the shtar must be enforceable under civillaw to be halachically valifd. (dina de’malchuta dinah). also, enforcenment (from a practical point of view) is through secular courts. (what if the beneficiary of the rav’s shtar demanded his whiskey, and the rav / others refused to let him in to that room?)

  35. MiMedinat HaYam

    interesting related “shayla”:

    what if the whiskey warehouse burned downn? who makes the insurance claim?

    i was told the jew can file the claim, etc., as part of the enforcement of the “return” part of the rav’s sale.

    however, the insurance contract provides that only the named insured, and only on his insurable interest, can make that claim. here, he is NOT the owner, and has no insurable interest short of an unusual (as far as the insurance co is concerned) situation. perhaps some endorsement or other modification of the insurance policy is in order. note that this will reinforce the seriousness of the “mechira” to those who have doubts on the whole “mechira”.

    shall i call my friend in the iso?

  36. R’ Shlomo,
    You’re right; thank you for raising the important issue of there being a problem with a Jew taking a Noahide to secular court. RJDB addresses this in Contemporary Halakhic Problems V, pp. 35-37. He is ultimately lenient on this point, but the issue is still an important one.

    R’ Mycroft,
    I agree with you; one cannot eat the chametz on the night of Isru Chag (or even subsequently for that matter) until one has discovered with certainty that the Noahide has officially sold back the chametz to the rabbi. Until one has been apprised of such information with certainty, there is a chazakah that the chametz belongs to the Noahide, and therefore no one else may eat the chametz, pursuant to the gemara in Bava Kamma 113a which prohibits theft from a Noahide. For this reason, when Acharon Shel Pesach falls on Shabbat (-only possible in our current calendrical system for those who are not privileged to observe Yom Tov Sheni), Lu’ach Eretz Yisra’el (by R. Yechiel Michal Tukatchinsky) prohibits Jews from using the chametz on Shabbat (which is Isru Chag), since it would constitute theft from a Noahide.

    Admittedly, R. Ovadiah Yosef disagrees with R. Tukatchinsky in Shu”t Yechaveh Da’at 2:64. However, there is no consensus on this point (-see Piskei Teshuvot, OC 448 footnote 118), and so in my opinion this goes beyond the fourth stage of evolution described by R. Zevin, and is forbidden. I.e., the Vilna Ga’on’s opposition to the entire institution of mekhirat chametz has been overridden by the consensus of poskim (with all due respect to the Vilna Ga’on), but R. Tukatchinky’s opposition to using the chametz until the rabbi has officially bought it back strikes me as entirely cogent and as possessing very credible standing, without opposition by a consensus. Therefore, we should be strict like R. Tukatchinksy. I don’t think we should be more lenient about mekhirat chametz than the guidelines established by R. Zevin.

    Therefore, in my opinion, the rabbi should appear before a public gathering of Jews sometime on Isru Chag (perhaps at Shacharit services in synagogue on Isru Chag) and give a klap on the bimah, and announce whether or not the Noahide has agreed to sell back the chametz. Before this announcement is made, no Jew may eat the chametz.

  37. Sorry… I forgot to sign… Mo’adim Lisimchah.

  38. Sorry for another typographical error.. I should have written “When Acharon Shel Pesach falls on Friday” [not Shabbat]… I guess I write with a shinui on Chol Hamo’ed…

  39. “myc: if you mean “matter of jurisdiction” in the sense of the bet din has noo jurisdiction cause everyone ignores batei din, well, thats one of the pblms of our society today”
    What i MEANT IS THAT THE ISSUR TO BRING A CASE TO NONjEWISH COURTS is one of JURISDICTION -there is no issur on a civil matter for BD to apply the law agreed to by the parties or implied agreement. Thus BD will often have to look at what non Halachickl aw is in determining the result of a dispute

  40. “what if the whiskey warehouse burned downn? who makes the insurance claim?

    i was told the jew can file the claim, etc., as part of the enforcement of the “return” part of the rav’s sale.

    however, the insurance contract provides that only the named insured, and only on his insurable interest, can make that claim. here, he is NOT the owner, and has no insurable interest short of an unusual (as far as the insurance co is concerned) situation. perhaps some endorsement or other modification of the insurance policy is in order. note that this will reinforce the seriousness of the “mechira” to those who have doubts on the whole “mechira”.”

    Essentially no one believes that the transaction is a sale in secular law-the question is what is the impact in halacha. Naturally the food industry has gravitated to Rabbonim who take the mechira as serious vs those who have problems with it.

  41. “. Naturally the food industry has gravitated to Rabbonim who take the mechira as serious vs those who have problems with it.”

    Which of course is not unique to the food industry-certain professions have gravitated to Rabbonim who give them the psak they would want.

  42. MiMedinat HaYam

    what i am proposing is having the iso (= the insurance industry panel that (essentially) writes all that fine print on our insurance policies) write a special endorsement to be added to our policies, further reinforcing the seriousness of the mechira.

    (of course, we’ll end up with rabbonim who nitpick details of the iso endorsement that willnot stand up to their visions of whatthe shtar does / does not say.)

    graviate towards rabbonim — for very practical reasons. otherwise, we will have many many pblms (e. g., RMF’s psak not recognizing reform chupa vekiddushin; otherwise we will have big pblms with mamzerim, etc. just one practical example.)

  43. I used to work at ISO, albeit 15 years ago.

    In case anyone is taking this discussion seriously, let me state for the record that I disagree with all this ill-informed skepticism.

  44. “., RMF’s psak not recognizing reform chupa vekiddushin; otherwise we will have big pblms with mamzerim, etc. just one practical example.)”
    A classic example of a pesak that was followed by very few-for starters Rav Henkin, Rav Kotler, RYBS, R Kamenetsky. Frankly IMHO the psak smelled of emotional politics-RMF if I can trust R E Bluth who decades ago I often attended a daf yomi at the Agudah headquarters by-used to quote RMF as referring to non Orthodox Rabbis as Rashayim not mistaken.
    A case where if RMF is wrong we will have additional mamzerim due to RMF. A mamzer is a question of fact not of good faith-even if R Moshe in good faith believed it was not a mazer but if it was a mamzer it is a mamzer as opposed to Shabbos if one follows Rav Moshe and if hypothetically he were wrong when one gets to shamayim and brought to the carpet IMHO it would be a perfect defense to say one followed RMF.

  45. “let me state for the record that I disagree with all this ill-informed skepticism.”

    Maybe it is well formed skepticism-selling chametz to someone who wouldn’t have the assets to purchase the chametz even if he wanted to!
    Of course, it is easy for me to be skeptical as I wrote I don’t have whiskey and thus get rid of the chametz.

  46. “Therefore, in my opinion, the rabbi should appear before a public gathering of Jews sometime on Isru Chag (perhaps at Shacharit services in synagogue on Isru Chag) and give a klap on the bimah, and announce whether or not the Noahide has agreed to sell back the chametz.”

    And all of a sudden people are so concerned about gezelas akkum-especially in a case where the akkum doesn’t believe he ever owned anything!

  47. I disagree with R’ Spira’s argument that one must wait for a public announcement by the rav who sold the chametz that the resale was completed before being able to access it. If the Gentile has sold back the chametz multiple times in the past, then there is no chazaka that it is still his after the time announced by the rav during Pesach. Au contraire, the chazaka is that he did resell it. After all, the Gentile never had physical possession of the chametz. If anything, it is the rav’s responsibility to call all the people for whom he sold chametz should there be a problem with the resale. It is not the responsibility of the householder to wait on the next day for some official announcement that the deed was done.

  48. R’ Mycroft,
    Yes, you are correct; if the Noahide doesn’t think he owns the chametz there is no problem of gezeilat akum for the Jew to eat it right after Pesach. But, in that case, the entire sale of chametz has no validity altogether, because there was gemirat da’at between the buyer and the seller, and all the chametz will be forbidden after Pesach as chametz shel Yisra’el she’avar alav ha-Pesach. Thus, mimah nafshakh: if the sale is a real sale, the Jew cannot eat it after Pesach until we know for sure that the Noahide has sold it back, because it would be gezeilat akum; whereas if the sale is not a real sale, the Jew cannot eat it after Pesach period because it is chametz shel Yisra’el she’avar alav ha-Pesach. Basically, our Rosh Yeshiva R. Student is going with the first option (that the sale is a real sale) because that’s what R. Zevin writes, and I agree with that school of thought as well, since that’s the tradition I have received from my teacher R. Joshua Shmidman (-who, as mentioned, would sell hundreds of people’s chametz to a single Noahide every Erev Pesach). To take the opposite approach of the Vilna Ga’on, and to overturn the entire validity of today’s mekhirat chametz (contra R. Zevin), would be quite revolutionary (-not that being revolutionary is necessarily negative, as per the gemara in Chullin 7a that “makom hinichu li avotai lihitgader bo”, but one has to have a lot of Oral Torah proof to be a revolutionary).

    R. Y’ Aharon,
    Thank you for the important rejoinder. I wonder, though: is that really a chazakah? Just because the Noahide sold it back for the last few years, does it mean he will sell it to the rabbi this year as well? People make new decisions and new calculations every year of what suits their fancy.

    In all fairness, however, RJDB (and probably almost every other moreh hora’ah bi-Yisra’el) agrees with you. I tried to “sell” him my stringency last year on the telephone (no pun intended), and he felt it wasn’t necessary. He said that if the Noahide hasn’t yet sold the chametz back to the rabbi, then the Noahide can sue in court the Jews who jump the gun and eat the chametz too early. Still, I stand by my opinion… it seems to me that for the sale to appear credible, there needs to be a perception of respect for the Noahide’s property, and we need to avoid eating it until it is well publicized that the Noahide has sold it back.

  49. Shachar Ha'amim

    A few general comments to the thread:

    The internet sale I utilize has a “confirmation” feature – i.e. you are first sent an email before you continue with the process. This alleviates the “anyone can sign for you concerns” raised above. Basically this replicates the features of many commercial secure websites

    Many of the comments display a complete ignorance of commercial transactions and law – bith Jewish and commercial. Kinyan sudar is nice – but it is not the only way to effect agency halachically. Frankly, kinyan chalipin as the effector of an agency has it origins in chazal as being based on the accepted custom of traders in the market place at that time (i.e. babylonia 4-6th century). This should give one great pause for thought when dconsidering modern day forms of an agency transaction

    the progression of internet sales is also coupled with a trend to actually not having any actual chametz which is either given away or burnt. Most people I know don’t sell chametz. They sell things which might have been used for chametz, or have some chametz derived ingredients (such as oils) but which are not chametz
    Frankly whiskey is not Chametz. as everyone knows in kashrut, when a cooked item vaporizes it loses it’s status as meat or milk (or chametz) so when it condenses it does not have this status. This is why you can cook a pot of chicken soup and then boil a pot of milk without kashering the range top – even though the range top had chicken soup vapors which condensed and landed on the range top. This is elementary. ALL whiskey is distilled – the beer wort is distilled into steam and the vapors condens back to a liquid containing a higher proportion of alcohol. The solids that remain behind in the kettle – i.e. don;t get condensed – get fed to cattle (in the case of bourbon it gets mixed into the next batch as “backwash” – in any event bourbon is made mostly of corn whiskey and taking dinnei bittul account is almost certainly not chamezt barley and rye or wheat grains notwithstanding)

  50. MiMedinat HaYam

    and in halacha, the witnesses sign the shtar, not the obligee. and shouldnt the agent (rav) sign the shtar (before the party signs, and / or simultaneous) (and / or his witnesses.)

  51. “Frankly whiskey is not Chametz.”

    Probably a dispute in halacha. I was once discussing the Rav and mechiras chametz. As is well known the Rav did not believe in selling chamets gamur except for the original heter of whiskey. I was once discussing this with someone and asked the Ravs logic for the whiskey permission-the person said-conversation after the Rav was niftar- he had never asked the Rav why he allowed whiskey- my recollection is that the persons guess was either that the Rav allowed sale of whiskey because that was the original heter and mesorah beats logic or that there are viewpoints that whiskey is not chametz gamur and thus combining a safek that not chametz gamur with hefsed merubah would allow the sale. I can’t follow up my discussion with the person because that person is also now in olam haemet. But at least the person who I discussed the whiskey and sale with was not as dogmatic about the theoretical status of whiskey as many bloggers here on both sides.

  52. Shachar Ha'amim

    wasn’t the original heter for whiskey b/c of hefsed m’ruba rather than it might not be considered chametz at all? or was it both?

  53. Thank you, R’ Shachar Ha’amim, for raising the important consideration of confirmation by sending an e-mail. Indeed, this is standard commercial practice for *purchasing* from a secure website, but not for selling (or for authorizing a rabbi to sell).

    In other words, suppose I want to buy a buy an item online from a company (e.g. the Artscroll website or the Feldheim website). I will use my credit card number, and an e-mail will be dispatched to me as confirmation, exactly as you say. This is standard commercial practice today and should clearly be upheld in any Beth Din as binding as a matter of Torah law.

    But suppose I want to *sell* my house online (or authorize an agent to sell my house for me). I send out an e-mail, or post a message on a pre-existing website, annoucing “Shalom Spira’s house is now for sale”. It seems to me that such an announcement can be granted no halakhic credence, as anyone could impersonate me and make such a specious announcement. If I am correct in my assumption, I do not think that the sale of chametz online is effective according to Halakhah.

    Regarding whiskey: Yi’yasher kochakhem R’ Shachar Ha’amim and R’ Mycroft for the valuable sources on this topic. Given these sources, it may very well be that mekhirat chametz in the times of the Rishonim was only intented for non-chametz gammur. However, it is my perception that the reality today (at least in the city of Montreal where I reside) is that the majority of Jews sell chametz gammur to a Noahide every Erev Pesach, like R. Zevin concludes, and as my teacher R. Shmidman would routinely arrange. Thus, I believe it is appropriate to ensure the stringencies I mentioned earlier are implemented into every mekhirat chametz: no use of internet to effectuate the authorization to sell, no use of telephone to effectuate the authorization to sell, and no consumption of chametz after Pesach until the rabbi has officially testified that the Noahide has sold it back.

  54. To elaborate further why employment of the telephone to effectuate authorization to sell is unacceptable in my opinion:

    Yes, it is true, as our Rosh Yeshiva R. Student points out, that Shulchan Arukh Choshen Mishpat 182:1 entitles a person to verbally appoint a commercial shali’ach without witnesses and without the signature on a document written by the dispatcher. However, the commercial shelichut will fail as soon as as either the dispatcher or the agent contests the facts surrounding the appointment of the agent. Under such circumstances, it will be the dispatcher’s word against the agent’s word, and “hamotzi mechaveiro alav hare’ayah” (BK 46B) will become the operative principle in court. Accordingly, in our era of mekhirat chametz, where the chametz remains completely in the home of the dispatcher, no Noahide can seriously expect to walk into the dispatcher’s home on Pesach unopposed, for the dispatcher can always claim “I never authorized Rabbi X to sell my chametz. You have no right to tresspass my house”. The Noahide realizes this in advance, and so there is never any gemirut da’at between the Noahide and the rabbi, and the entire sale is disqualified from its inception as a joke.

    By contradistinction, when there is real legal proof that the dispatcher appointed the rabbi – either in the form of a document which the dispatcher personally signed, or in the form of two kosher witnesses who saw the dispatcher verablly appoint the rabbi – then the Noahide knows he can walk unopposed into the dispatcher’s home on Pesach, and there is gemirut da’at between the Noahide and the rabbi, and the sale is a kosher sale. Ergo, it seems to me that a telephone cannot be used to appoint the rabbi to sell the chametz in our era.

  55. “of hefsed m’ruba rather than it might not be considered chametz at all? or was it both?”

    Certainly hefsed mrubah-the question is combined with question of is whiskey truly chametz.
    Lack of hefsed mrubah-I don’t own whiskey is one reason why I don’t sell my chametz.

  56. Shachar Ha'amim

    R’ Mycroft – thank your for the clarification.

    R” Shpira – a few comments:
    In E”Y it is not common for private individuals to sell chamtez gamur. Most people do not keep chamtez gamur in their home – they eaither eat it before Pesach, make arrangment to give it away prior to Pesach (either to goyim or to charity organizations that sell chamtez gamur) or burn it.
    I think you are incorrect about online sales. There is a already a body of law regarding contracts completed online, and what you secribe may very well be considered a valid offer and the burden of proof, depending on the circumstances and what type of market overt took place subseqently, could very well fall on the seller to show that it was not a valid offer that was then accepted.
    Furthermore your comments about the agency (shelichut) just falling apart as soon as one side (either appointer or agent) denies it does not bear out according to secular agency law – and I believe neither under the Jewish law as well. For example see sections 6 and 7 of the Israeli Agency Law (Hok Ha’Shlichut) http://www.israelinsurancelaw.com/contract-laws/agency-law-5725-1965.html
    also note reisha of section 3a of the law regarding the oral or written conferring of agency, which will cover telephone and email/internet. I don’t believe that the Jewish Law is any different in this respect

  57. Shachar Ha'amim

    R’ Spira – if I can “translate” my somewhat legalistic comments into your terms: in our era of mekhirat chametz, even where the chametz remains completely in the home of the dispatcher, if the Noahide walks into the dispatcher’s home on Pesach and the dispatcher claims “I never authorized Rabbi X to sell my chametz. You have no right to tresspass my house” (presumably he will add to the claim that he appointed a different rabbi to sell to a different Noahide – otherwise he is admitting to committing a cardinal offesne of “ba’al yeraeh – veyan adam masim atzmo rasha, but that is beside the point), the Noahide is afforded by the law avenues of legal redress to the Rabbi/Agent with whom he dealt and the Noahide realizes this in advance, and so there is indeed gemirut da’at between the Noahide and the rabbi/agent, and thus the entire sale by such agency is deemed legitimate in accordance with the law. Thus, pursuant to the law, there is no need for legal proof that the dispatcher appointed the rabbi that is limited either in the form of a document which the dispatcher personally signed, or in the form of two kosher witnesses who saw the dispatcher verablly appoint the rabbi, and even in the instance of verbal appintment or written appointment via email/internet, the Noahide knows he can walk unopposed into the dispatcher’s home on Pesach, and either effect the complete sale or return to the “false” agent for damages, and thus there is gemirut da’at between the Noahide and the rabbi, and the sale is a kosher sale. Ergo, it seems that a telephone and/or the email/internet can be used to appoint the rabbi as an agent to sell the chametz in our era.

  58. R’ Shachar Ha’amim,
    Thank you for your detailed and erudite response. In counter-response, I submit:

    (1) Regarding the sociological reality in Eretz Yisra’el, I concede to you. I can only speak for what I see here in (lihavdil) Montreal.

    (2) You say there is a body of law regarding online sales (as distinct from online purchases). May I ask for evidence to this effect? I certainly believe in online purchases from a secure corporate website, but I was unaware of the existence of online sales (as in: a person posts on the internet “you are officially appointed as Shalom Spira’s agent to sell his home”, and this post is actually granted credence).

    (3) Regarding appointment of a rabbi by telephone: You correctly assert that if the dispatcher will refuse the Noahide entry to the home on Pesach, the Noahide could sue the rabbi for being a false agent. However, I think that the rabbi can successfully say in his own defense “I am the true agent. It is the dispatcher who is mistaken”. And then when the plaintiff turns to the dispatcher, the dispatcher can successfully say in his own defense “I am telling the truth. It is the rabbi who is mistaken”. [Deja vu from Adam, Eve and the serpent on trial in Gan Eden.] Thus, both the rabbi and the dispatcher will be successfully exonerated, because each one will be able to invoke “hamotzi mechaveiro alav hare’ayah”, and the Noahide emerges with nothing. It seems to me that the Noahide realizes this in advance and therefore there is no gemirut da’at between the Noahide and the rabbi, and the sale is void from its inception.

    In all fairness, however, R. Eliashiv eminently albeit reportedly agrees with you (as quoted second-hand in the Sefer Piskei Teshuvot indicated by R. Student). He does (according to that second-hand report) allow appointing a rabbi over the telephone. Thus, really I should write a letter to R. Eliashiv presenting him my question. But I do think my sentiments are echoed by R. Yehudah Herzl Henkin, who objects to the scenario where the dispatcher does not properly sign a shetar harsha’ah:

    http://www.hebrewbooks.org/pdfpager.aspx?req=21282&st=&pgnum=56

    Clearly, R. Henkin would not agree to appointing the rabbi over the telephone.

    R’ Joel Rich,
    Thank you for the clarification last week. I apologize for misunderstanding the question.

  59. shachar ha'amim

    R’ Spira – I don’ really see your diustinction between online purchases and sales. Real Estate agents show homes on the internet on behalf o sellers. Amazon processes transactions on behalf of a myriad of shops and sellers – do I know that each one has a valid agency with Amazon??

    FRankly I don’t see how the agent will be left holding the bag. If the rabbi is deemed false then the buyer will transact with the depatcher. if the despatcher is deemed false then the buyer will transact with the false agent (or seek damages). Reda the law I posted once again.

  60. R’ Shachar Ha’amim,
    Yi’yasher kochakha for your important rejoinder, which brings the issues into superior focus.
    In the case of the real estate agent, it is true that the real estate agents showcases Shalom Spira’s home on a website. However, the real estate agent only knows that he is empowered to sell Shalom Spira’s home because the agent previously met personally with Shalom Spira, and Shalom Spira signed a contract empowering the agent to sell Shalom Spira’s home. As far as I am aware, no real estate agent would ever attempt to sell Shalom Spira’s home just because the agent received an e-mail or an internet post from Shalom Spira authorizing the agent to do so. Such an e-mail or internet post would be entirely unreliable.
    I believe the same is true with Amazon. Amazon will indeed sell its books online through its secure corporate website. But Amazon will not buy books through its website.

    Regarding the use of telephone (which is better than the internet since it at least reportedly has R. Eliashiv’s endorsement, but as mentioned I find R. Henkin’s countervailing approach more compelling, with all due reverence manifest before R. Eliashiv): Thank you for the reference to the Chok Hashelichut. From what I see in the Chok Hashelichut, it is consistent with my thesis. You are correct that one can sue a false agent for damages. But my thesis is that both the agent and the dispatcher will be immune from prosecution when there is no evidence which one of them is telling the truth. Since their entire conversation took place on the telephone without witnesses, what human court can prove which one is telling the truth? Thus, the Noahide knows in advance he cannot win, and he does not seriously agree to the sale with a full heart.

  61. To elaborate on R. Henkin’s responsum, there are really three separate points rendered by R. Henkin in his responsum, as I read it (-if I am mistaken, my apologies in advance to R. Henkin):

    1. The dispatcher must appoint the rabbi as his agent by signing a shetar harsha’ah (or – presumably – verbally appointing him with witnesses), but mere verbal appointment without witnesses is not sufficient.

    2. The dispatcher must realize he is appointing the rabbi as an agent and not mistakenly think he selling his chametz to the rabbi.

    3. Bedi’eved, even if rules (1) and/or (2) above were violated, we will not forbid the chametz after Pesach, because at least the Jew demonstrated an effort to rid himself of chametz on Pesach.

    In response, I wholeheartedly endorse R. Henkin’s point (1), for the reason explained in my previous comments in this forum. I also agree with point (2), although that is a subject beyond the scope of the present forum. However, I must respectfully disagree with R. Henkin regarding point (3). Shulchan Arukh OC 448:5 rules that even if the Jew performed bitul – which certainly demonstrates an effort to rid oneself of chametz – his chametz is forbidden after Pesach. Mishnah Berurah adds that if the Jew searched his home as best he could (in addition to performing bitul), then in a case of hefsed merubeh we will allow the Jew to sell the chametz after Pesach (but still not to eat it). Thus, if the sale of chametz fails because either rule (1) or rule (2) was violated, the most we can say is that – in a case of hefsed merubeh – the Jew will be allowed to sell the chametz after Pesach (but still not eat it). And maybe even that is not allowed, because I could see a distinction posited between cleaning one’s house as best one can (where the Sages were lenient after Pesach) and resorting to the ruse of selling the chametz (-where if the ruse works it works, but if the ruse does not work, the Sages may have completely banned the chametz after Pesach. Tzarikh iyun).

  62. Shachar Ha'amim

    R’ Spira –

    A real estate agent may not have been the best example to give b/c in many jurisdictions a real estate agency agreement must be executed in writing. But there are many. many instances of online commerce and sales contracts that do not require a signed – or even written – agreement

    with respect to the Agency Law – the law is pretty clear that the Buyer will transact with the “false” agent in an instance where the agency is proved false. You are coming up with a hypothetical case when both the agent and the despatcher are believed – and the buyer is left holding the case. The only isntance this would happen is if the buyer cannot prove that he transacted with the agent – i.e. you are suggesting that the buyer will lack gemirat da’at for a verbal agency between despatcher and agent because of a situatuion in which he conducts his purchase verbally and can’t prove that he purchased!! and this should undermine the entire verbal agency and render all the chametz as chametz sheavar al hapesach!! that’s too far fetched IMHO. The Noahide assumes that if he can prove that he transacted with the rabbi he will be able to complete his acquisition either with the despatcher – or with the Rabbi (damages are only relevant where the Rabbi can’t sell what the despatcher had to sell, but otherwise the Rabbi will step in and complete the sale instead of the despatcher, by obtianing similar goods, etc.)

  63. Shachar Ha'amim

    R’ Spira – in addition to my comments above I have 2 additional questions.
    If your sole reason for invalidating the verbal agency sale is b/c the Noahide may be concerned that the agency is not legitimate and the sale not legitimate, why doesn’t yoour reasoning apply to the ACTUAL SALE of the chametz itsefl? The Noahide surely realizes the sale is really a “fiction” and will not acheive closing and this doesn’t really have gemirat hadaat

    also, if the rabbi/agent does shtar kinyan – even with witnesses – how does the Noahide confirm this? it still leaves a litigious situation where it has to be proven.

    also, does the Noahide always check with the rabbi to see each and every individual agency agreement? I suspect not

    so in the real world (and halacha functions in the real world – not the fake lomdus world) there is no reason why a verbal or email/internet agency arrangement should affect the vaildity of the chametz agency and chametz sale

  64. R’ Shachar Ha’amim,
    Thank you for your important response and questions.
    My understanding is that the rabbi gives a copy of all the shtarei harsha’ash to the Noahide. Thus, the Noahide possesses the evidence he needs to enter a Jew’s home on Pesach at any time he needs. If there was no shetar harsha’ah but rather the verbal appointment of the rabbi by witnesses, the Noahide can always call an emergency Din Torah and subpoena the witnesses to court to testify on his behalf.
    Whether or not the Noahide checks every single shetar harsha’ah is up to the Noahide’s discretion. But he is given them, and so – in principle – at any time he can claim the chametz from the Jew’s home, and the sale is valid.

  65. Shachar Ha'amim

    R’ Shalom Spira – thank you for your reply. Were the “strict’ position limited to written documents exclusively I can see the possibility of accepting your position.
    However, kinyan sudar in front of witnesses also leads to the “uncertainty” of possible litigation – quick or not is beside the point (and I don’t know where you can assume that the trial regarding the efficacy of a kinyan suddar with witnesses will necessarily be fast tracked whilst the trial of a dispute regarding the effectiveness of a verbal agency appointment will be tied up in court for years…).
    Thus, as I noted earlier, much as kinyan sudar developed as an acceptable for of kinyan based on minhag haosherim and dina demalchusa, so too verbal and/or email/internet agency appointments. There really is no difference between them – other than when they became normative – one dates back 1500 years to Persia and Mesopotamia and the other is a relatively new – but now widely accepted – form of transactional inteface.

  66. Shachar Ha'amim

    i meant minhag hasocherim

  67. R’ Shachar Ha’amim,
    Thank you for your response and your impressive tenacity in upholding R. Eliashiv reported ruling. R. Henkin’s countervailing approach sits easier with me, because in the case of witnesses, we will be able to summon them to court as evidence. It may take time in court, but it will eventually come to fruition. In the case of verbal appointment without witnesses, we will never be able to prove anything in court if the seller simply denies he ever authorized the rabbi to serve as his agent, and thus he does not want his home trespassed for the merchandise to be retrieved. The Noahide buyer knows this in advance.

  68. Shachar Ha'amim

    R’ Spira – you know as well as I do that witnesses are not the only form of accepted evidence in beit din or court

  69. Shachar Ha'amim

    and that witnesses can be impugned

  70. Shachar Ha'amim

    R’ Spira – I don’t mean by my responses to malign any posek or gadol.
    I’m just saying that I have less of a problem of saying you need kinyan sudar and witnesses for the agency b/c that’s the way it has always been and chadash assur min hatorah and we don’t adopt any new forms of kinyan or forms of agency appointment and chadash assur min hatorah, etc.
    But once you get into a rationale of gemirat hadaat of a participant in the transaction – and what situation can lead to a lack of gemirat hadaat and what can’t – I don’t think you can say that agency via kinyan sudar and two witnesses leads to any more gemirat daat than agency appintment vuia written email or secure website

  71. Elliot Feinerman

    The Rabbis would never allow it.
    This is big time parnasa for them.

  72. R’ Shachar Ha’amim,
    Since this discussion has been revived (thank you to our Rosh Yeshiva R. Student and R’ Elliott Feinerman for doing so), allow me to thank you for the last several responses you offered me.
    Chag same’ach.

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