Monday, February 25, 2013

Why I am in favor of selling Chametz

Warren Buffet buying chametz
It is almost Pesach, and every year I promise myself I'll write this up, and every year I don't get the chance.

There are neo-Karaites in our midst. They shun leniencies which have been developed by Rishonim and Acharonim based on interpretations of gemaras, because they say such leniencies do not reflect the original intent of the Biblical law, or of the Biblical law as envisioned by Chazal. Thus, they save, shaving with an electric shaver is a corruption of this original intent; as is using an eruv to carry on Shabbos; as is selling your chametz for Pesach.

One way I like to counter such a position is by turning neo-Karaite myself. You want the peshat? You can't handle the peshat! The peshat in the pesukim is nothing like you imagine. However, Chazal give us midrash halacha. And once you are willing to live and die by Chazal, hem amru ve'hem amru. If by the same halachic principles a ha'arama (legitimate halachic "trickery") is available such that you are working within the bounds of halacha; and sociologically, there is an ethic by which the approach fulfills halachic principles, then please stop complaining.

To focus on selling chametz:

According to the simple peshat in the pesukim, there is no prohibition of owning chametz (leavened bread) on Pesach. There is possibly a prohibition of owning sourdough (se'or), which is used to manufacture chametz. And there is a prohibition of eating chametz on Pesach.

Let us examine the pesukim:

שמות פרק יב
  • פסוק ט"ו: שִׁבְעַת יָמִים, מַצּוֹת תֹּאכֵלוּ--אַךְ בַּיּוֹם הָרִאשׁוֹן, תַּשְׁבִּיתוּ שְּׂאֹר מִבָּתֵּיכֶם:  כִּי כָּל-אֹכֵל חָמֵץ, וְנִכְרְתָה הַנֶּפֶשׁ הַהִוא מִיִּשְׂרָאֵל--מִיּוֹם הָרִאשֹׁן, עַד-יוֹם הַשְּׁבִעִי. 
The pasuk above states that you should eat unleavened bread for seven days. Therefore, from the first day, אַךְ בַּיּוֹם הָרִאשׁוֹן -- which means the actual first of the seven days, rather than the midrashic day before Pesach -- sourdough, שְּׂאֹר, used in the manufacture of chametz, leavened bread, shall take a rest, תַּשְׁבִּיתוּ , from being used in your houses, מִבָּתֵּיכֶם. Why shouldn't you be using that sourdough to make chametzכִּי כָּל-אֹכֵל חָמֵץ, for anyone who eats chametz, leavened bread, during those seven days, from the first to the seventh day, וְנִכְרְתָה, shall be cut off.

[Update: Sorry, I should have been more precise. What I mean by תַּשְׁבִּיתוּ is that you shall cause it to rest. This is how I intended it, but not how I wrote it. Better? :) ]

So it is a prohibition on eating chametz and using, or perhaps owning, sourdough. I would say "using", meaning that there is no reason to use sourdough, since you will not be eating chametz.

A few pesukim later, the same idea is repeated:

שמות פרק יב
  • פסוק י"ט: שִׁבְעַת יָמִים--שְׂאֹר, לֹא יִמָּצֵא בְּבָתֵּיכֶם:  כִּי כָּל-אֹכֵל מַחְמֶצֶת, וְנִכְרְתָה הַנֶּפֶשׁ הַהִוא מֵעֲדַת יִשְׂרָאֵל--בַּגֵּר, וּבְאֶזְרַח הָאָרֶץ. 

For seven days, if one were to look for sourdough, שְׂאֹר, in your houses, it would not be found, לֹא יִמָּצֵא בְּבָתֵּיכֶם. Perhaps this is idiomatic, or perhaps it is the actual definition of the prohibition above of תַּשְׁבִּיתוּ. Why wouldn't it be found? Because the only use for it is to make chametz, which one is prohibited to eat. Thus, what is the reason it would be found? כִּי, because, whoever eats something that has leavened, כָּל-אֹכֵל מַחְמֶצֶת, he shall be cut off, וְנִכְרְתָה. Don't think that machmetzet somehow means se'or, sourdough, on the level of peshat. The word machmetzet means anything that has become chametz, just as the pashtan Ibn Ezra says on this pasuk:

[יב, יט]
שאור -
שהוא מחמיץ והוא הידוע. ואחר כן אמר: כל אוכל מחמצת כל דבר שיחמץ. 
ודע כי מיום הראשון עד יום השביעי אינו דבק בקרוב אליו שהוא ונכרתה רק עם אוכל מחמצת, כמו: למלוך שלמה על ישראל. 

People don't eat sourdough, for it is not ra'uy le'achila. As Rashi says, citing Mechilta and Beitza 7b, אלא שלא תאמר חמץ שראוי לאכילה ענש עליו שאור שאינו ראוי לאכילה לא יענש עליו. See from here that is not fit for eating, so on the peshat level, the Torah wouldn't bother to forbid it. Plus, we have the earlier pasuk to show us the relationship between the seor to own and the chametz to eat. The same is true here.

שמות פרק יג
  • פסוק ג: וַיֹּאמֶר מֹשֶׁה אֶל-הָעָם, זָכוֹר אֶת-הַיּוֹם הַזֶּה אֲשֶׁר יְצָאתֶם מִמִּצְרַיִם מִבֵּית עֲבָדִים, כִּי בְּחֹזֶק יָד, הוֹצִיא יְהוָה אֶתְכֶם מִזֶּה; וְלֹא יֵאָכֵל, חָמֵץ. 
  • פסוק ז: מַצּוֹת, יֵאָכֵל, אֵת, שִׁבְעַת הַיָּמִים; וְלֹא-יֵרָאֶה לְךָ חָמֵץ, וְלֹא-יֵרָאֶה לְךָ שְׂאֹר--בְּכָל-גְּבֻלֶךָ. 

In pasuk 13:3, we are command not to each chametz.

In pasuk 13:7, this all falls apart. Because it states that neither chametz nor sourdough shall be seen. Doesn't this then introduce a prohibition on owning chametz, and contradict everything that was specified above?

No, it is describing the same state of affairs as above. You aren't consuming chametz, so you would not be producing chametz. Thus, it is a time for matzah, such that chametz and se'or are not going to be seen in use throughout the Jewish community and the borders of Israel, which is בְּכָל-גְּבֻלֶךָ. This is not the same as the earlier מִבָּתֵּיכֶם, which might convey ownership. This is not a new prohibition on ownership of chametz (or se'or) in the boundaries of your personal property. It is describing the lack-of-chametz-consumption-and-creation within the boundaries of Eretz Yisrael, in line with the mitzvot established earlier on.

So let us say we wanted to be Karaites, and we sold our chametz. Did we use sourdough (or yeast) to make chametz on Pesach? Did we eat chametz? Does anyone own sourdough nowadays? From the letter and spirit of the law, we are fine.

Now, we follow the Oral Law. That means we interpret the pesukim in accordance with the midrash halacha, and so owning chametz and eating se'or are now Biblically prohibited.

But the same Oral Law that sets up a prohibition of owning chametz also defines ownership. The Mishna in Pesachim talks about how one can sell to a non-Jew.

ב,א  כל שעה שהוא מותר לאכול--מאכיל לבהמה לחיה ולעופות, ומוכרו לנוכרי, ומותר בהנאתו

They may have envisioned the non-Jew taking physical possession.

Another Mishna states that chametz in possession of a non-Jew is permitted after Pesach:
ב,ב  חמץ של נוכרי שעבר עליו הפסח, מותר בהנאה;

Though this was not (necessarily) envisioning a sale from a Jew first.

And another Mishna talks about a non-Jew taking the chametz as a mashkon, a pledge for a loan, or a Jew taking it as a mashkon for a loan:

ב,ג  נוכרי שהלווה את ישראל על חמצו, לאחר הפסח מותר בהנאה; וישראל שהלווה את הנוכרי על חמצו, לאחר הפסח אסור בהנאה.  חמץ שנפלה עליו מפולת, הרי הוא כמבוער; רבן גמליאל אומר, כל שאין הכלב יכול לחפש אחריו.

The correct interpretation of this Mishna is that if it the chametz is a pledge from the Jew for the loan and then the Jew fails to repay the money, the pledge has belonged to the non-Jew from the time the Jew gave it over, and so the chametz is permitted in benefit. And in the reverse situation, where the non-Jew gave the chametz as a pledge and failed to repay, the Jew was in both physical and legal possession of the chametz throughout Pesach, and so the chametz in prohibited in benefit, for something wrong was done by the Jew.

But one can envision that if the chametz was in the Jew's physical possession but not legal possession, then nothing was technically violated.

Finally, if something will physically remove your ability from accessing the chametz, it is as if destroyed. Think about this and see how it is somewhat significant.

There is also this Tosefta in the second perek of Pesachim, allowing for the "temporary" sale of chametz to a non-Jew:
ב,ו  נכרי שבא לביתו של ישראל [וחמץ] בידו אין זקוק לבער הפקידו אצלו חייב לבער ייחד לו בית בפני עצמו אין זקוק לו ישראל ונכרי שהיו באין בספינה וחמץ ביד ישראל ה"ז מוכרו לנכרי ונותנו במתנה וחוזר ולוקח ממנו [לאחר] הפסח ובלבד שיתנו לו במתנה גמורה.
    “A Jew and a non-Jew who are on a ship and the Jew has chametz in his possession. The Jew should sell it or give it as a present to the non-Jew and then take it back after the Passover with the stipulation that it be given as a real gift.”

Chazal elsewhere say that bittul be'alma sagi, mere nullification is enough. This nullification is either declaring it hefker, ownerless, according to some, and according to others, distancing it from your mind, such that you do not consider it anything more than the dust of the earth. The latter interpretation is (IMHO) the correct one. Thus, small amounts of chametz in a wall or in a vessel are nullified.

And this "technical" bittul is sufficient. However, perhaps as a fulfillment of one interpretation of tashbitu or as a geder to prevent you from finding a tasty loaf (gluska yefifya) and then taking possession of it, or perhaps as a geder to prevent you from eating it, you are supposed to search out the chametz and dispose of it.

Due to historical developments, the practice of selling chametz arose. People who owned massive amounts of whiskey would no longer have to dispose of their entire inventory at a loss before each Pesach. They could sell it to a non-Jew. And it worked, even though it was perhaps a haarama, that is, halachic 'trickery'. Just like the Talmud allows or recommends halachic loopholes in other situations, such as bringing produce into the house through the window or roof so as to exempt it from terumah and maaser.

Then, the practice spread, and people sold chametz which were part of the ingredients of a larger mixture, or even sold chametz gamur. And maybe some would say that this is a mere ritual, and the people don't really believe it is a real sale. And this is not in such dire circumstances as the ones which prompted the initial permit to sell whiskey. This may not be the same circumstances in which the various Rishonim and Acharonim allowed one to sell chametz. (See here for a better discussion of the history of it.)

Big deal. Society changed, from the time of the Rishonim and early Acharonim. Baruch Hashem, most Jews do not stock their pantries with the bare minimum of food, which is all we can afford, and which could (in all instances) be easily finished before Pesach. We have full shelves, and refrigerators, and freezers. Halacha and its application develops over time, and now it is an accepted practice in some communities. Just as the Rishonim worked within the bounds of the halachic system to allow for a changed situation that was common in medieval Europe, later Acharonim (see e.g. the Chasam Sofer) worked within the bounds of the halachic system to allow for our changed situation.

Meanwhile, what do people do? They fence off their chametz, by placing them in specific cupboards and taping those shut. Biblically, there is no sourdough to speak of; the chametz cannot be "seen" (though even this is an overly literal requirement), and the chametz is not going to be eaten. From a peshat perspective, the letter and spirit of the law is being fulfilled.

From a halachic perspective, the letter of the law is fulfilled by these machinations. And haarama is not cheating, but is part of the same halachic system. Don't be an inconsistent Karaite, by accepting Chazal's interpretation of the pesukim and rejecting the idea of haarama. The spirit of the law is also fulfilled, as described above. And just like bittul by itself is sufficient, because of technical rules and because one is removing his mind from the possibility of eating it, so does technically selling it remove from one's mind the possibility of eating it. And the geder against coming to eat chametz is also fulfilled. Since the people know that the chametz is not theirs, and they physically cut off their access to it, they will not come to eat it.


Rabbi Joshua Maroof said...

Nice attempt at justifying an improper leniency. The reality is that it is not a matana gemura, period.

joshwaxman said...

those poskim who maintain that one can sell chametz might well argue whether it is, or whether such is required.

but this isn't an attempt to justify an improper leniency. rather, it is just what i said at the outset of the post. hashkafically, does opposing this leniency as inauthentic ring true? most oppose it viscerally due to haarama being a "cheat".

kol tuv,

Shimon S said...


"most oppose it viscerally due to haarama being a "cheat"."

Do they? I was under the impression that most oppose it for the reasons stated by the GRA. Who are the people you are talking about (SSNs, or at least an example, please).

joshwaxman said...

Shimon S:
How about this, as one example?

I suspect that other people will officially latch on to official reasons, but there is an unstated motivation there. That is what I meant by "viscerally".

Shimon S said...

Frum Satire? About selling chametz via online form few minutes before Pesach?

C'mon, I do believe most opponents in the frum circles do so for strictly halachic reasons. Creating a straw-man and then killing it counts at best as some sort of mental exercise. This is a Choshen Mishpat (and Orach Chaim) question.

joshwaxman said...

hey, i said as ONE example. and that we disagree as to the background motivation does not mean that i created a straw-man.

here is another example, more rabbinic than frum satire, which was going to be my prompt to post last year (check the comment section):

Let's face it though - selling hametz MAY "work" on a technical level, but in terms of the spirit of the law it fails miserably. Psychologically, we never fully disconnect from our hametz, knowing that it is safe and sound in our cabinets. We never experience the absolute dissociation from hametz we were meant to experience on Passover. "Sure, we sold our hametz" we say - wink wink - as we anxiously await reopening those cabinets at nightfall when the holiday draws to a close and we can once again partake of the hametz we possessed all along...

do you see what might prompt me to talk about the spirit of the law? haarama is just one facet of this, which is an underlying sense of the integrity and authenticity of the practice, or lack thereof. if you think that this is inauthentic and against the spirit of the law, then i think it is just human nature to see the technical halachic objections to the practice as more convincing than you otherwise would.

joshwaxman said...

and here are others who think it is fake.

Shimon S said...

Aah, now the circle is complete. The last comment should have been part of the original post. Now I can fit it into the big picture.

Just wondering: where do you stop? Are all the poskim who connect ha'arama and the spirit of the law also neo-karaites? Are there any true Scotsmen left in the non-selling-chametz camp?

joshwaxman said...

i wasn't trying to make it seem like an attack on any one individual. because it isn't.

i would also point out that Sefardim do not traditionally sell their chametz. there is then traditional halachic positions, which they follow, which in turn could lead to doubting the legitimacy of the practice. rather than it being the other way around.

i don't know where it ends.

but when someone starts spouting to me about shaving, and how Biblically removing beards was entirely forbidden, and relying on interpretations by Rishonim of gemaras to permit in some way is against the spirit of the law... well, i have the urge to point them to Ibn Ezra's explanation of the relevant pesukim.

i don't have all the answers, as to where i would stop.

Shimon S said...

I hear. But sometimes it is better to ignore the extreme views rather than giving an answer that might embrace the opposite extreme (to the exclusion of any recognition of pluralism).

Here is an example of one possible balanced view:

Anonymous said...

Hi Josh,
I think that there is another consideration here. Don’t confuse using a heter with the way of life we should lead. Hashem created the Torah to be eternal, as part of that the halachic system was built with certain heterim that are meant to be used only in special circumstances – not as a way of life. These heterim I believe Hashem built into the Torah for humanitarian relief in terrible circumstance (agunah, mamzeirus, etc) they are not meant to be a way of life. I think R’ Amsalem is making this mistake. He questions why R’ Ovadia Yosef was opposed to his conversion leniencies, when ROY ruled similarly in the past. The explanation is simple, if there is a nice kollel family, and all of a sudden they realize that the grandmother’s gerus (who wasn’t really frum) did not have kabbalah Ol Mitzvos – so maybe ROY would rule that it is okay – he used the heter – the escape hatch – that the Torah built into the system to save this family. But it shouldn’t be used as a way of life. We are definitely not required to accept a conversion without kabbalah Ol Mitzvos – at most we are allowed to – the Rabbis will use their discretion to apply this heter in extenuating circumstances. Obviously to become a Jew means to try your best to keep the mitzvos – what else does it mean – that you like bagels and lox?! Membership in the jewish people is not a Costco membership. In your case, no one can halachically demand that you stop selling chametz – the question is – is selling chametz against the spirit of the law or not. If it is against the spirit of the law – then don’t make the heter of selling a way of life – it should be used sparingly – let’s say someone’s life would be ruined if he doesn’t sell chometz because he would lose his whole investory. etc. On the other hand in the case of chametz you might be right that it is not against the spirit of the law to sell. That is the question. I just wrote this to show why we have to be careful not to use heterim as a way of life.
One other example, if R’ Moshe Feinstein declared in a certain case that a child is not a mamzer even though there was no get by the first marriage (because the first marriage was not a real marriage), don’t as a way of life not require a get in similar circumstances. And you should require a get not just as an extra precaution – but because that is the way of life we should lead.

Kol tuv,

joshwaxman said...

Shimon S:
I should point out that everything I wrote in the post I think is true. And there is a value in understanding what peshat is, as separate from derash.

But in this case, it has indeed become an entrenched part of Jewish (Ashkenazic) life. This is the minhag hamakom,and along with the minhag hamakom is a spirit of the law. We keep Pesach in a multifaceted way. Putting away our chametz and taping the shelves is part of it. Going to the rabbi to sell is part of it. Having a seder is part of it. And different Jewish communities, following halacha as it has developed in unique multifaceted ways, have their take on the spirit of the law, and the law may indeed assume new spirits.

The Mishna in Pesachim, in perek Mekom sheNahagu speaks of keeping with the minhag hamakom, and if one moves, of taking the more stringent, so as to avoid machlokes. As the meforshim ask, how is not working on the 14th before chatzos avoiding machlokes? After all, he is taking a side? The answer is he does it silently, and people assume he has no work to do.

The Mishna does NOT say there that someone coming from the place with the more stringent minhag should publicly criticize the minhag of his new place, and to delegitimize the opposing minhag, in order to induce machlokes.

Beno said...

Josh I just saw this and thought it was interesting but I needed to make a few corrections. You can read them here on my blog, which is still starting up. Thanks for giving me a little inspiration for my first in-depth post.

Gabriel M said...

I just read this link for the first time and I'll admit I was a little stung by the "Neo-Karaite" label, but I'll admit it's not entirely inaccurate.

Nevertheless, I think this jars poorly with some other opinions of your's for example those expressed here:

So it may be true that I in following the Ramabam in not using eruvim based on the (absurd in the light of present historical knowledge) concept that that a reshut harabim must have 600,000 people am a Neo-Karaite, but it seems that you are too, when it suits you. But what links your opinions except the conviction that the leniencies are always good?

Gabriel M said...

Allow me to offer a defense of the neo-Karaite position.

Before Pesah I eat matzah, if I want to, up to a day before Pesach, I don't bother to look for crumbs smaller than a kezayit, so Pesach cleaning takes about an afternoon. On Seder night I don't have to stuff huge amounts of matzah in my mouth in my mouth in three minutes; I eat some reasonably bitter chicory/lettuce instead of burning my mouth on horseradish. Throughout Pesach I freely enjoy matzah balls, kitniyot, dairy products, garlic, vegetables that are not peeled and all manner of things other people abstain from. I eat in other people's houses without guilt. I have modified the Hagada to make it more meaningful and enjoyable for those participating.

For me this not only makes for a much more pleasurable festival but one that, IMHO, is a lot closer to what the Torah portrays. The flipside of this is that by the same, broadly-speaking-Rambamist, assumptions on which I have made these decisions (under Rabbincal guidance, I should probably add), I cannot sell my hametz using the normal means. One year I actually sold some to a gentile acquaintance of mine, thinking I might buy some back, but never got round to it. Other years I just plan ahead a bit to make sure I don't have any chametz left over by Pesah. It's not really that difficult.

So maybe you're right and what I do is not required by the spirit or letter of either peshat or halacha, but if I don't follow this "humra" then all I'm doing with the rest of my decisions is kula-shopping, and that way lies Conservative Judaism. This is the real harama I'm worried about.

And then I apply the same logic to the rest of my life. I have certain stringencies that are fairly rare. Except for rare extenuating circumstances, I would never wear a tallit without Murex Tekhelet on, I don't eat Hadash from hutz la'aretz, I won't use an Eruv premised on the idea that a reshut harabim must have 600,000 in it, I won't let my wife wear a sheitel (luckily a purely hypothetical issue, since she doesn't want to), I won't use an electric razor.

In all these cases, I think I am in the right and would argue so. However, let's say I'm wrong and these are completely pointless stringencies. In that case, this is the price I pay for freeing myself from countless burdensome and/or inane practices that, in my view, are not required of me by halacha. At the same time I have conception of Judaism that is consistent and rationally defensible and which I can present to my children honestly and confidently. As deals go, that seems a no-brainer.

(I note you are not averse to a bit of Neo-Karaism yourself, when it implies leniency


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