Mechirat Hametz (the sale of Hametz) is the Halachic mechanism whereby we avoid violating the prohibition against possessing Hametz on Pesah. The source for this practice is the Tosefta (Pesahim 2:12), which addresses the case of a Jew who is at sea before and during Pesah, and he has Hametz food with him on the ship. Since the Jew will need this food after Pesah, the Tosefta rules that he may sell or give the Hametz to a gentile on the ship, and then reacquire it after Pesah. The only condition is that he sells or gives the Hametz to the gentile wholeheartedly, as a sincere transfer of ownership. This ruling of Tosefta is brought by several Rishonim. Accordingly, the Shulhan Aruch (Orah Haim 448:3) rules that one avoids the prohibition against owning Hametz by selling or giving one’s Hametz to a gentile, as long as he does so without any conditions.
Importantly, however, the Shulhan Aruch stipulates that the Hametz must be out of the Jew’s house. The Mishna Berura (Rav Yisrael Meir Kagan of Radin, 1839-1933) brings from the later scholars different reasons why this is necessary. Some explain that in order for the transaction to be effective, the non-Jew must perform Meshicha (taking hold of the Hametz), and Meshicha as a means of effectuating a transaction must be done outside the seller’s property. According to this explanation, the gentile can be given the Hametz outside the Jew’s home, and then give it back to the Jew to keep in his home. (Of course, as the Mishna Berura writes, the sold Hametz must be behind a barrier of sorts so it is separate from the rest of the food in the home.) Others, however, explain that in order for this transaction not to appear fictitious – as it is clear that the Jew’s intent is to reclaim ownership over the Hametz after Pesah – the Hametz must be kept out of the house, which makes it clear that this is an actual transfer of ownership. Yet another explanation is that the Hametz should not be kept in the house due to the concern that it may mistakenly be eaten.
Of course, all this assumes that a small amount of Hametz is being sold, such that it can be brought to the gentile outside the home. Today, large amounts of Hametz are customarily sold, and it is kept in the Jew’s home. This is based on the position of the Bah (Rav Yoel Sirkis, 1561-1640) and the Magen Abraham (Rav Abraham Gombiner, 1633-1683), as cited by the Mishna Berura, that if one has a large amount of Hametz, then the room or rooms where the Hametz is situated is sold to the gentile. Once the gentile owns the room, he does not require Meshicha to take ownership of the Hametz.
Hacham Bension Abba Shaul (Israel, 1924-1998) notes the position of a number of Sephardic Poskim that the transaction is not valid unless the gentile is given the key to the room where the Hametz is kept. Whereas the Mishna Berura (448:12) gives the option of telling the gentile that he can come take a key whenever he wants, others, including the Ben Ish Hai (Rav Yosef Haim of Baghdad, 1833-1909), in Parashat Sav, insist that the gentile be given a key. The common practice to rely on the sale even without giving the key to the gentile is based in the position of the Peri Hadash (Rav Hizkiya Da Silva, 1659-1698) and the Noda Bi’yehuda (Rav Yehezkel Landau of Prague, 1713-1793), who maintained that the transaction is valid even if the gentile is not given a key.
Due to the various questions and uncertainties that exist surrounding Mechirat Hametz, the Elya Rabba (Rav Eliyahu Shapiro, Prague, 1660-1712) writes that one should use this solution only if he owns large amounts of Hametz, such that discarding it would entail a considerable financial loss.
The widespread custom nowadays is to rely on the sale of Hametz, though as a Midat Hasidut (measure of piety), some eliminate all actual Hametz from their homes, such as bread and cakes, and sell only food which is not actually Hametz. Those with large amounts of Hametz, such as bottles of expensive liquor, or businesses with merchandise that is Hametz, may certainly rely on the sale of Hametz in order to avoid a considerable financial loss.
It must be noted that some people mistakenly think that when they approach the Rabbi for Mechirat Hametz, they sell their Hametz to the Rabbi. This is not correct. They simply appoint the Rabbi as their agent to sell their Hametz to a gentile on their behalf. Hacham Bentzion writes that this appointment does not require any formal action, and it suffices to simply inform the Rabbi of one’s desire that he act as his agent, even by telephone.
This year (5780/2020), we find ourselves before Pesah under very difficult circumstances with the raging coronavirus pandemic. Beyond the serious medical and economic worries that weigh on our minds, there is also the concern that the pandemic will disrupt the food chain, and at some point, food might not reach the shelves in stores. Due to the uncertainty wrought by this grave crisis, people understandably want to keep their freezers and pantries filled to ensure they will have enough food. The question thus becomes whether it is permissible under current circumstances to purchase Hametz with the specific intention to sell it to a gentile before Pesah and then reclaim ownership after the holiday. This extends beyond the standard concept of Mechirat Hametz, which was instituted to allow one to keep Hametz which he already owns. Purchasing Hametz before Pesah with the intention of using it after Pesah would seemingly constitute a significant extension of the practice of Mechirat Hametz.
A similar question – though involving very different circumstances – is addressed by Rav Shmuel Wosner (1913-2015), in his Shebet Ha’levi (4:49), who was asked by a storeowner whether he could stock his warehouse with beer before Pesah. The storeowner posited that rather than relying on the manufacturer’s sale of his Hametz before Pesah (as if the manufacturer does not sell his Hametz, the Hametz is forbidden even after Pesah), it might be preferable for him to purchase the stock before Pesah, and then arrange the sale himself. Rav Wosner gives different reasons why this may or may not be permissible, and concludes that it is inappropriate to purchase Hametz before Pesah with the intention of selling it and then reacquiring it after Pesah. Nevertheless, he concedes that if this is necessary to avoid a significant financial loss, there is room to permit doing so.
The uncertainty of our situation this year would certainly qualify as extenuating circumstances, as nobody knows what conditions will be like after Pesah. Therefore, those who are concerned about the food supply after Pesah may certainly stock up on Hametz before Pesah and rely on the Mechirat Hametz. Rabbi Yisrael Bitan wrote me a letter expressing this view, given the current circumstances (listen to audio recording for precise citation).
Summary: Under normal circumstances, some people have the practice not to rely on Mechirat Hametz for actual Hametz products, unless they have a large amount of Hametz and would suffer a considerable financial loss if they eliminate it before Pesah. Others rely on Mechirat Hametz even if they do not have a large amount of Hametz, and this is acceptable. However, under normal circumstances, one should not specifically buy Hametz products before Pesah with the intention of selling it to a gentile and then reacquiring it after Pesah.
This year (5780/2020), though, due to the legitimate fears about the food supply because of the coronavirus pandemic, it is permissible to stock up on Hametz products before Pesah and then perform Mechirat Hametz, so the food will be available after Pesah.
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