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Flug, Author of the Yutorah Weekly Halacha Overview Yutorah.Org/Halacha PE SACH TO GO 5766 Con temporary Halachic Matters By Rabbi Joshua Flug, author of the YUTorah Weekly Halacha Overview Yutorah.org/Halacha · Mechirat Chametz: Theory and Practice · The Mitzvah of Eiruv Tavshilin · The Mitzvah of Sippur Yetziat Mitzraim · The Mitzvah of Achilat Matzah · The Mitzvah of Haseibah · Understanding Yom Tov Sheini Shel Galuyot · The Mitzvah of Sefirat Ha'Omer · Writing on Chol HaMoed For thousands of shiurim, and to sign up for regular Halacha Overview and Daf Yomi Insight emails, visit WWW.YUTORAH.ORG Max Stern Division of Communal Services Center for the Jewish Future YESHIVA UNIVERSITY PESACH TO GO – Halacha Overview by Rabbi Joshua Flug 1 Mechirat Chametz: Theory and Practice The Torah (Shemot 12:19 and 13:7) prohibits in to the transaction that serve to control the possession of chametz on Pesach. As such, there is transaction and protect both parties from the in- a biblical requirement to dispose of all chametz in herent risk normally associated with such a trans- one's possession. As an alternative to the disposal action. The second type of loophole is one where of chametz, many people sell their chametz to a the transaction is carried out normally with no non-Jew (mechirat chametz) as a means of removing special terms and both parties subject themselves the chametz from their possession. They then re- to a certain element of risk. The first type of acquire the chametz after Pesach from the non-Jew. transaction is fictitious and is prohibited if the This article will explore the basis for mechirat purpose is to prevent violation of a biblical prohi- chametz and the method of acquisition that is used bition. The second type of transaction is permitted both in the sale and the reacquisition. because there are no false clauses in the transac- tion. Is Mechirat Chametz an Inappropriate Loop- hole? One can now suggest that the reason why Te- rumat HaDeshen permits mechirat chametz is because A cursory examination of the mechirat chametz it belongs to the second category of transactions. practice may lead one to the conclusion that Mechirat chametz (if done properly) is a transaction mechirat chametz is merely a legal loophole. R. Yis- devoid of any false terms of sale. If the non-Jew rael Isserlin, Terumat HaDeshen 1:302, rules regard- decides to retain possession of the chametz after ing the prohibition of charging interest on a loan Pesach, he is legally entitled to do so. Similarly, if (ribbit), that one should not seek out loopholes the seller of the chametz decides not to reacquire that avoid violation of a biblical prohibition. Os- the chametz after Pesach, the non-Jew is legally tensibly, one should apply the same logic to mechi- bound to the sale and he has no legal claim to the rat chametz and conclude that since the purpose of money that is used for purchase of the chametz. mechirat chametz is to avoid the biblical prohibition Since both parties subject themselves to the nor- of owning chametz, mechirat chametz should be mal risks associated with a transaction, the transac- prohibited. tion is similar to the second category of loopholes and is permitted. However, the comments of Terumat HaDeshen cannot possibly serve as the basis for prohibiting Terumat HaDeshen's opinion notwithstanding, mechirat chametz because Terumat HaDeshen au- some Acharonim prohibit all forms of legal loop- thored another responsum (1:120) which explicitly holes when their purpose is to prevent violation of permits mechirat chametz, and this responsum serves a biblical prohibition. R. Yosef D. Soloveitchik as the basis for modern-day mechirat chametz (See urged his followers to refrain from mechirat chametz Beit Yosef, Orach Chaim 448, and Shulchan Aruch, on all types of chametz whose possession on Pesach Orach Chaim 448:3). One must then ask: why isn't entails a biblical prohibition (see Nefesh HaRav pg. mechirat chametz a violation of the prohibition to 177). R. Alexander S. Shor, B'chor Shor, Pesachim create a legal loophole in order to avoid a biblical 21a, agrees that one should not rely on any type of prohibition? loophole to avoid a biblical prohibition. However, he suggests that since one can actually accomplish Perhaps the answer is based on the comments the biblical requirement to dispose of one's of Shach, Yoreh Deah 157:20. Shach explains that chametz by nullifying the chametz (bittul chametz), there are two types of legal loopholes. The first mechirat chametz is only necessary to accomplish type of loophole is one where there are terms built the rabbinic requirement of totally removing chametz from one's possession. Since the loophole Pesach 5766 / 2006 • YUTorah.org PESACH TO GO – Halacha Overview by Rabbi Joshua Flug 2 of mechirat chametz only serves to avoid violation chalipin (barter transaction) as a means of transfer- of a rabbinic prohibition, B'chor Shor permits ring the chametz. This is accomplished by the mechirat chametz. non-Jew giving an item of his in exchange for the chametz. The Method of Transaction The Reacquisition of the Chametz In order to properly execute mechirat chametz, the transaction must be a halachically sig- Mishna Berurah, Biur Halacha 448:3, s.v. B'Da- nificant transaction. The Mishna, Kiddushin 26a, var, notes that common practice demands that the states that transactions of movable items must be sale price of the chametz should reflect the value performed by physically transferring possession of of the chametz. However, he adds that there is no the item (meshicha or hagba'ah). A transaction can- requirement for the non-Jew to pay in full at the not be completed by merely transferring money time of the sale. It is sufficient if he pays a down- from the buyer to the seller. There is a dispute in payment at the time of the purchase and incurs the Gemara, Bechorot 13b, whether this is true for the balance as debt. transactions between Jews and non-Jews. According to R. Yochanan the proper method of transaction While this solution is very practical in execut- between a Jew and a non-Jew is through physical ing the initial transaction, it does complicate the transfer of possession of the item. However, ac- reacquisition of the chametz after Pesach. If the cording to Reish Lakish, the transaction is per- non-Jew were to pay in full prior to Pesach, that formed through monetary transfer. Tosafot, Avo- money could be used to repurchase the chametz dah Zarah 71a, s.v. Rav Ashi, note that the final after Pesach. However, since common practice is ruling is a matter of dispute. Rashi sides with the that the non-Jew only pays a down-payment, there opinion of Reish Lakish and Rabbeinu Tam sides are insufficient funds in the down-payment to re- with the opinion of R. Yochanan. Tosafot add that purchase the chametz. It is also not possible to in order to fulfill both opinions, one should per- nullify the sale on grounds that the non-Jew failed form both physical transfer of the item and mone- to pay in full because nullification of the sale tary transfer when performing a transaction with a would retroactively place the chametz in posses- non-Jew that has ritual significance. sion of the Jew for the entirety of Pesach. As such, Mishna Berurah 448:17, rules that Therefore, there are two possible methods of when selling one's chametz, one should not only reacquiring the chametz. The first option is to insist that the non-Jew pay for the chametz, but he initiate a new sale that reacquires the chametz. The should also take physical possession of the balance that the non-Jew owes is factored into this chametz. However, due to the large volume of new sale. The second option is to seize the chametz involved in a single sale, it is highly im- chametz in lieu of the debt incurred by the non- practical to insist that the non-Jew take actual Jew. The advantage of this second option is that it physical possession of all of the chametz. There- doesn't require a new sale after Pesach. However, fore, Mishna Berurah 448:19, recommends combin- R. Shlomo Kluger, HaElef Lecha Shlomo, Orach ing monetary transfer with other forms of transac- Chaim no. 221, doesn't recommend such a prac- tion. There are a few possible forms of transaction tice. He suggests that seizure of property for de- that may be used. First, the Gemara, Bava Metzia faulting on a payment is something that is nor- 74a, states that there are situations where one can mally done through beit din. Therefore, seizure of enact a transaction by performing an action that the chametz without a beit din would cast asper- local businessmen use to close a deal. One modern sions on the original sale. This view is also re- example is a handshake. Second, the Mishna, Kid- flected in Mishna Berurah, Biur Halacha 448:3 s.v. dushin 26a, states that one can transfer movable Mechira. R. Kluger notes that if the non-Jew is not items as part of a real estate transaction. Regarding available after Pesach for the reacquisition of the mechirat chametz, Mishna Berurah, ibid, suggests sell- chametz, a beit din may authorize seizure of the ing or renting land as part of the sale, and includ- chametz as payment for the balance of the original ing the chametz in the package. Third, Mishna sale. Berurah 448:17 also recommends including kinyan Pesach 5766 / 2006 • YUTorah.org PESACH TO GO – Halacha Overview by Rabbi Joshua Flug 3 The Mitzvah of Eiruv Tavshilin It is well known that if Yom Tov occurs on a there is no possibility of actually eating the food Friday, there is an obligation to establish an eiruv on Yom Tov.
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