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.