If there's no buy-back, may we eat our sold chametz?
I originally posted this question in the comments to my own post here, but I think it's a sufficiently serious question to warrant its own post.
Shira Salamone said...
I heard of a situation in which a rabbi who had acted as agent for the sale of chametz somehow never got around to buying it back. (His congregants didn't find out about this until years later.) Is the sale halachically valid if the agent fails to buy back the chametz?
Sun Apr 27, 11:36:00 PM 2008
In my am-haaretzdik/Jewishly-undereducated opinion, this is a classic case of a michshol (stumbling block) placed before the "blind" (a person who might not know better). We trust those through whose agency we sell our chametz to buy it back as soon as possible so that it becomes permissible for our consumption and/or other use. If they don't do so, does that cause us to sin unknowingly?
Shira Salamone said...
I heard of a situation in which a rabbi who had acted as agent for the sale of chametz somehow never got around to buying it back. (His congregants didn't find out about this until years later.) Is the sale halachically valid if the agent fails to buy back the chametz?
Sun Apr 27, 11:36:00 PM 2008
In my am-haaretzdik/Jewishly-undereducated opinion, this is a classic case of a michshol (stumbling block) placed before the "blind" (a person who might not know better). We trust those through whose agency we sell our chametz to buy it back as soon as possible so that it becomes permissible for our consumption and/or other use. If they don't do so, does that cause us to sin unknowingly?
posted by Shira Salamone at 3:42 PM
8 Comments:
So they accidentally stole chometz from a poor unsuspecting gentile? :)
Normally the contracts are a two stage contract and if the second stage doesn't happen, the deal is automatically unwound. You probably aren't guilty of stealing... :)
Ah, you mean that, because the gentile paid only a deposit (down payment?), s/he reserved the chametz and owned it temporarily (stage one), but forfeited ownership by never paying the rest of the purchase price (stage two)?
Normally the contracts are a two stage contract and if the second stage doesn't happen, the deal is automatically unwound.
I don't think that's exactly true because if so, we would have ended up owning the chametz over Pesach retroactively, which is in violation of a Biblical prohibition.
As I understand it, when the sale is effected on erev Pesach, the gentile pays a token deposit and contractually takes complete and full ownership of the chametz (as well as renting the space in which it's stored in each house) for the duration of Pesach. He is given until the evening after Pesach to pay the balance. Then that night, he meets with the Rabbi (or other seller) again and is given two options:
1) Selling back the chametz for the same deposit amount he paid when he bought it before Pesach, or
2) Paying the rest of a fair sale price and taking possession of the chametz.
In practice, of course, option 1 is always selected. I really don't know what would actually happen if the gentile selected option 2; it seems too far fetched to even contemplate seriously. But theoretically, if that did happen each person whose chametz the Rabbi sold would have to deliver it to the gentile. Any chametz they made use of meanwhile would have been the gentile's property and they would have been "stealing" it. Presumably it's value would simply be deducted from the sale price.
However, in any event, the sellers will not have owned the chametz over Pesach and therefore not have violated the Biblical ban on doing so.
So, retroactively, the congregants in question did not violate the prohibition against eating and/or using chametz that they'd owned over Pesach, because the non-Jew had, in fact, legally owned the chametz during Pesach.
On the other hand, that still leaves two questions:
(a) Did the gentile still own the chametz *after* Pesach, and was the congregants' use of it g'neivah (theft)?
(b) Is the fact that the gentile never got his/her deposit back g'neivah? Unless the contract specifies that the gentile forfeits her/his deposit by not going through with the sale, I don't see how it could *not* be g'neivah. The best that can be said is that the rabbi forgot. The worst that can be said is that he robbed the gentile of the deposit money.
Elie-
I would just add one note: When I do the sale, I have a clause in the contract saying that if the purchaser defaults on the post-Passover balloon payment, the sale is still valid.
Shira-
Sounds like theft to me, although:
a) The deposit money is usually given to the non-Jew in advance, as a gift.
b) The non-Jew likely forgives it; in over a decade of doing this, I've never known one who took it as a real business opportunity.
But, yes, there should be a re-purchase.
Actually, I have heard of cases in which the nonJew does take some of the chametz in order to show that it is indeed a valid sale.
At http://yutopia.yucs.org/archives/2008/04/r_moshe_tendler_on_mechirat_hametz.html the article actually points out that Rav Moshe Tendler ensures that the sale is valid in civil law as well as halacha and that the nonJew does take possession of the chametz.
I always wanted to have the non-Jew come into homes, at least a few, to take some chametz. I always warn all of the people who delegate me to sell their chametz that this may well happen; everyone must give me information on where I can get a key, if they will be away, etc.
On the other hand, the purchasers have always been most reluctant to do this.
Separate note: The contract does note that the sale is binding under the laws of the Commonwealth of Pennsylvania.
Rebbetzin's Husband, I guess if it looks like theft and it sounds like theft . . .
Sabba Hillel, I'm surprised--I thought that mechirat chametz (sale of chametz [food forbidden during Passover]) contracts were *always* legally binding by civil law. I took a quick look at that link, and it certainly appears to me (speaking as a non-lawyer) that Rabbi Tendler makes his mechirat chametz contracts watertight.
Years ago, there was an article in the New York Jewish Week about mechirat chametz. When Rabbi Shlomo Riskin was still rabbi of Lincoln Square Synagogue in Manhattan, before he made aliyah and become Chief Rabbi of Efrat, he wrote of getting phone calls from panicked congregants: The non-Jew to whom he had sold chametz was showing up at random congregants' doors and asking to complete the sale on some of their chametz! Rabbi Riskin informed his congregants that that non-Jew's request was absolutely legitimate, and that the congregants were halachically required to accept the balance of the purchase price for the requested item and sell that item to that non-Jew. Every now and then, we get a buyer who insists on testing the sincerity of the sale. And as you said, Rebbetzin's Husband, that's as it should be.
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