The Sale of Leavened Food and Halakhic Formalism (Column 132)
The dialogue with Hussein Jabber exposes confusion between the validity of the deal and the attitude toward it
The essay opens by praising Hussein Jabber, whom the rabbi sees as understanding perfectly well that this is a real contract, more so than the journalist who presents it as a ridiculous ritual. From there the rabbi separates two different questions: whether the sale is legally and halakhically valid, and even if it is, whether it is proper to use it or whether it bypasses the Torah’s will.
Why a private or commercial chametz sale is valid even when everyone expects to buy it back
The main answer is yes: two parties signed a valid contract, and in halakha inward thoughts do not override a formal act. The rabbi adds that even on the level of intention there is no reason to assume lack of resolve: a private person wants to avoid the prohibition of owning chametz, and a factory in any case wants to sell its merchandise, so there the resolve is even clearer. The fact that both sides expect the chametz to return after Pesach does not undermine the gentile’s temporary ownership during Pesach. Therefore, the custom not to sell absolute chametz for an individual stems, in the rabbi’s view, not from doubt about the sale’s validity but from reluctance to use arama with respect to a severe prohibition; for businesses, where the desire to sell is obvious, the permission is even broader.
Under either reading of tashbitu, the sale does not bypass the Torah’s will
The rabbi examines the commandment in two familiar formulations. If tashbitu is a result-oriented mitzvah, it is enough that during Pesach I not own chametz, and that is exactly the case after a valid sale. If it is an action-oriented mitzvah, the obligation applies only when I have chametz; there is no duty to acquire chametz in order to destroy it, so one may also sell it beforehand. At most there is a conditional prohibition not to retain chametz without eliminating it, and that too does not exist after the sale. The conclusion is that there is no basis for assuming that the Torah specifically wanted burning or a personal act of destruction, since it could have said so explicitly and did not.
Here arama is mainly an educational problem for laypeople, not a substantive halakhic flaw
The essay distinguishes between a real halakhic problem and the feeling of kosher but unpleasant. In the case of chametz sale, according to the rabbi, no prohibition remains unaddressed and no mitzvah has been nullified; what remains is the worry that living in a mindset of arama will train people to belittle halakha or to try devices that really do not work. That is why the Sages limit arama mainly for educational reasons, and why we also find that under certain conditions a Torah scholar may use it. Chametz sale belongs to the type of arama that actually solves the problem and leaves only subjective discomfort. Precisely because there usually is no great need or weighty purpose here, the fact that the practice remains accepted shows, in the rabbi’s view, that no special dispensation is needed at all.
The gap between attitudes toward heter mechira in shevi’it and toward chametz sale exposes a political rather than halakhic factor
From there the rabbi moves to a polemical comparison: whoever fiercely opposes heter mechira in the sabbatical year while easily accepting chametz sale holds an inconsistent position. In shevi’it there is major economic and national need, the prohibition nowadays is rabbinic, and the sale is conducted institutionally by Torah scholars; in ordinary chametz sale one is seemingly bypassing a Torah prohibition, sometimes with no real need, and sometimes through people who do not even understand the meaning of the transaction. True, shevi’it also raises the issue of lo techanem, but the rabbi thinks that issue too can be managed, and certainly does not explain the intensity of the opposition. His conclusion is that the different attitude is explained more by politics and slogans than by halakhic analysis.
In the state’s chametz sale there is more room to speak about arama — and perhaps no need for it at all
In the state’s case the rabbi is more cautious. Here there is not necessarily a clear commercial interest in selling, the quantities are enormous, and the Chief Rabbinate acts as the state’s agent rather than as the owners themselves; therefore the question of genuine intent is indeed sharper. On the other hand, the loss involved is very large and the sale is carried out by the Chief Rabbinate, so from the perspective of arama there is more room to be lenient. Even so, he still thinks the sale is valid, because the law recognizes it and inward reservations do not undo a formal act, and even if after Pesach the state would re-nationalize the chametz, during Pesach it belonged to the gentile. Alongside this, the rabbi raises a more principled claim: the state, and perhaps any state, is not a Jewish entity in the halakhic sense, so it is not at all clear that the prohibition of owning chametz applies to state-owned chametz in the first place. From that same premise he derives parallel positions about state lands in shevi’it and about lo techanem.
Why a rabbinic shtick sounds scandalous only when one does not know the halakhic categories
At the end the rabbi attacks the analogy to tax planning. In his view, tax planning exploits a loophole the legislator did not intend, whereas here halakha itself deliberately shaped the prohibition so that a sale works. Therefore anyone who calls this a shtick must first offer a worked-out interpretation of what the chametz prohibition and tashbitu are supposed to mean. He adds an irony: the same critics accept without mockery creative judicial readings of the chametz law and the Hours of Work and Rest Law, even though there too people use linguistic gaps for value-laden ends. The conclusion is that the ridicule directed at chametz sale often comes from halakhic ignorance or from tendentiousness, not from any real detection of fraud.
With God’s help
I see that people are a bit tired and have no energy for discussions about freedom and liberty, so here is another topical issue: the sale of leavened food.
A few days ago someone sent me an illuminating dialogue between a journalist from Haaretz and an Arab from Abu Ghosh who buys the state’s leavened food:
| Hello to Hussein Jaber from Abu Ghosh. This is Nir Gontarz, a journalist from Haaretz. How are you? Thank you. Fine. Good evening. Tell me, sir, this year too, ahead of Passover, will you buy the leavened food of the State of Israel? Correct. Do you have a moment to talk to me about it? Yes, please. How does it work from your point of view? What’s the procedure? It is an official contract in every respect. On the 29th of the month, on the eve of Passover, we meet at the Chief Rabbinate—Minister Moshe Kahlon, me, and the chief rabbis. Of course with witnesses. Then the ceremony begins. The finance minister authorizes the rabbis to sell the state’s property to Jaber Hussein—that’s me. To sell the flour. All the leavened food in the country. Yes. And the leavened food on its way to the Land of Israel, planes, ships—it’s all mine. Then he authorizes the rabbis, the rabbis sell it to me, and I have to pay a down payment with the intention of completing the entire sum by the end of Passover. Okay. And then there are appraisers who have to assess the value of the leavened food. And in practice, do you pay anything? A down payment of 50,000 shekels in cash. Then I have to complete the payment by the end of Passover. What is the total value of this transaction? How much do you need to come up with? 300 million dollars. I see. Do you get the 50,000 back? I pay it as a down payment. And when Passover is over, do you get it back? If the deal is canceled. But in the meantime I want to buy. It is an official deal in every respect. There are terms and everything. How many years have you been doing this? Twenty years already. Have you ever said to yourself, "If this is an official contract, then I buy everything and I don’t return the flour"? For that I need to raise the money. God willing, this time I’ll do it. So this time you actually are going to buy everything and not return it? Yes. I want to raise the money. Where will you get 300 million dollars? This time you really will try to arrange it, yes? Are you saying that seriously? Seriously. Certainly. Why, really, are you cooperating with this gimmick of the Jewish rabbis? If I can help with something—gladly, with pleasure. It’s just a game. Because the Israeli leavened food remains in the Jewish factory. It’s not as though you actually take it and hold it so that, heaven forbid, no Jew will touch leavened food. It’s a game. The rabbis are good at these games, but why do you take part in it? Why do you see it as a game? It really is an official transaction in every respect: terms, contract, signatures. Funny. For 20 years the state has been signing a 300-million-dollar deal with a man it knows cannot make the payment and backs out. Yes, I simply haven’t managed to raise the money, you understand? But the deal itself is perfectly fine. Everything is written down. Signatures, witnesses, as it should be. I understand. But for 20 years you haven’t managed to get the money, and every year you try? Every year I try. Of course. If some Saudi sheikh comes to you and gives you the money, 300 million dollars, so that the Jews will be stuck without food—would you do it? Each proposal on its own merits. We’ll examine it. Well, I hear that at least you’re laughing. Don’t you notice that the whole situation is ridiculous? Why? Actually it’s perfectly fine. Don’t you feel that, once again, people are making a joke of "God" here? A joke of God? Heaven forbid. Why? Because if there were a God, He surely wouldn’t be stupid. He would understand that people are pulling one over on Him. Why? In earlier times it was customary to pour out the leavened food, or burn it, or get rid of it in some way. Exactly. Today we’re talking about quantities. So they can’t pour it out or throw it away. So for that, as it were, during Passover they transfer it to someone who is not Jewish. And that’s okay from "God’s" point of view? I don’t know whether yes or no. They just do it. What do you do when you’re not trying to raise 300 million dollars? I’m a hotelier. I’m a manager at the Ramada Hotel in Jerusalem, and also the acting head of the Abu Ghosh local council. For pay? Voluntarily. Well, maybe this year you’ll manage to raise the sum and decide not to return the flour. We’ll see. We’ll check. Hussein, please send me a picture of yourself. No problem. Certainly. Have them photograph you now. Do you want a picture with Bibi? No thank you. Just you alone. He also sold the state several times as finance minister. No need. Why do they choose you every time? Because I’m a good, reliable person. Or because they trust that you won’t manage to raise the money. Could be. All right, sir, thank you very much. All the best, thank you very much. Bye. |
First, I have to say that this Hussein Jaber is an exceptionally sharp scholar. He knows exactly what he is doing and what it means, far better than most Jews I know (and it seems that includes the journalist interviewing him). So first of all, kudos.
As to the matter itself, these are questions that trouble quite a few people: what is the meaning of this sale? First, on the specific level, is such a sale actually valid at all in Jewish law and in civil law? Second, even if it is, why do it? Are we pulling one over on the Holy One, blessed be He (= what the journalist called the rabbis’ gimmicks)? What good does it do if we are not really doing His will? After all, He wanted us to remove the leavened food, and in practice we are circumventing Him. This of course opens up for discussion all the halakhic legal dodges (and there are quite a few of them), not only the sale of leavened food. The questions are interconnected, and here I will discuss both types of question one after the other. I will begin with the sale of leavened food as such, and at the end I will return to the state’s sale of leavened food.
Is the sale valid?
My answer is: absolutely yes. Two people signed a sales contract for something, and the contract is valid according to the law and according to Jewish law. Why should the sale not take effect?! People raise here the question of intention and finality of intent, but even if we assume that there is a lack of finality of intent (and in my opinion there is not; see below), unexpressed intentions have no legal standing. There is a signed and valid legal contract here, and whatever intentions there may or may not be do not change anything. Beyond that, why assume there is no intention to sell? Suppose I have a bag of leavened food that I sold to a non-Jew. Why should I care if he pays and takes it, and I buy something else in its place after Passover? Why assume I do not want to sell? On the contrary, I certainly want not to violate the prohibition of it shall not be seen, and so it is only reasonable to assume that I really did intend to sell.[1] True, both the non-Jew and I know that he will not take the leavened food but will return it to me after the holiday. So what? In the meantime it belongs to him, and in principle he can certainly come and take it if he wishes, and I have rid myself of the prohibition of it shall not be seen. And even if there are people (and there are quite a few such people—unlike this Hussein Jaber, who clearly understood the issue very well) who do not understand all this, and really think that the sale is an empty ritual rather than a valid legal contract, and even if we assume that even if you tell them that without a sale they would violate it shall not be seen they still do not want to sell (who is this lunatic?), their view is nullified. They signed a valid and binding contract, and they should have checked its meaning before signing.
It is customary in Jewish law not to sell actual leavened food but only a mixture containing it or possible leavened food. Usually this is explained by the concern that the sale is not valid. In my view there is no such concern, and if people do not sell actual leavened food, that is only because they do not want to use a halakhic legal dodge with respect to a serious prohibition (see below). And indeed, with respect to businesses and factories it is customary to permit them to sell even actual leavened food. Usually the conception is that this is a leniency because of major financial loss, but in my opinion it is permitted because specifically with respect to businesses this is an entirely unproblematic permission. In the case of a business, it is clear that there is full intent according to all views (even for those who are concerned about lack of finality of intent in the sale by an individual). After all, a factory that produces noodles or bread wants nothing more than to sell its merchandise. If it succeeds in selling all its merchandise to a non-Jew, it could not be happier. Why assume that there is any deficiency of intent in the sale here? As noted, in my opinion this is true of an individual sale as well, but with respect to a factory it seems to me that it is not even correct to see this as a legal dodge, except perhaps in some remote sense (because in practice, after all, the leavened food will return to them after the holiday).
The legal dodge and the prohibition
It seems to me that what really troubles people is not the validity of the sale but the concept. The Torah commanded us to remove the leavened food from our homes, and we outsmart it, perform some gimmick, and remain with all our leavened food after Passover. Everything that happened in between is a fiction, because in the bottom line the will of the Torah has not been fulfilled.
But it seems to me that this is mistaken thinking. The will of the Torah was fulfilled in full. As is well known, the medieval authorities (Rishonim) and later authorities (Acharonim) discuss the nature of the commandment you shall eliminate and the destruction of leavened food. Some see it as a commandment defined by its result—namely, that in the end there should be no leavened food in my possession on Passover—and some see it as a commandment of action, an obligation to perform an act of destruction on the leavened food in my possession. Let us discuss the sale according to both approaches.
On the first formulation there appears to be no problem at all, since on Passover there was no leavened food in my possession. True, after Passover it will probably come back to me, but leavened food that remained over Passover is itself prohibited only by rabbinic law. That itself shows that the Torah is not concerned that no leavened food remain with me after Passover, only during Passover itself. And during Passover I indeed had no leavened food (as noted, the sale is legally and halakhically valid. See the previous section).
On the second formulation there is an obligation to perform an act of destruction. But according to the overwhelming majority of halakhic decisors, it is clear that if I have no leavened food, I am under no obligation to buy leavened food in order to destroy it. The obligation is conditional: if I have leavened food, I must destroy it. But if I sold the leavened food and the sale took effect, then there truly is no leavened food in my possession, and so I have nothing to destroy. I am not supposed to make sure that leavened food be in my possession, so why should I not sell it to a non-Jew? It seems to me that the most plausible formulation is that we have here a kind of prohibition inferred from a positive commandment, meaning that if leavened food was in my possession and I did not destroy it, I violated the positive commandment of you shall eliminate. On this formulation there is certainly nothing to discuss, for there is no independent obligation to destroy; there is only a prohibition if I did not destroy and leavened food was in my possession. But such a situation did not occur, and therefore it is clear that even if we do not agree to say that I performed an act of destruction, I certainly did not violate the prohibition. Incidentally, some are willing to see the sale itself as an act of destruction, as in a situation where one eats the leavened food before Passover, where eating it is its destruction (is there room to forbid eating the leavened food I have on the morning of the 14th because that is an evasion of destroying it?). I remind you that in practice Jewish law does not rule like Rabbi Judah, according to whom destruction must specifically be by burning, but rather that one may even crumble it and scatter it to the wind (if indeed there is any obligation to destroy before the time of prohibition begins).
And yet, even if we have violated nothing—not a prohibition and not the neglect of a positive commandment—something here smells bad. The feeling is that we have not really fulfilled the will of the Torah but circumvented it. But that is not correct, for the will of the Torah is defined by the halakhic framework of obligations and prohibitions, and if we fulfilled that, what is missing? If I did not violate a prohibition and did not neglect a positive commandment, what is the problem? Is there some will of the Torah beyond the formal halakhic obligation? In certain cases certainly yes (that is a scoundrel with the permission of the Torah), but where do we get the right to invent such a thing here? Why assume that the Torah wants me to perform an act of destruction with my own hands and not evade it, if it itself defines the prohibitions in a way that permits this evasion? After all, it is obvious that the Torah could also have defined the commandment you shall eliminate as a full-fledged positive commandment: each person should take whatever leavened food he has and destroy it in fire, and if he has none, let him buy at least an olive-sized amount and destroy it. It is more reasonable that the Torah simply wanted us not to have leavened food, as a memorial to the Exodus from Egypt. That we fulfilled completely. The sale even leaves the prohibition of leavened food in our consciousness, since we performed an unusual action in order to rid ourselves of it (the sale). So we even remembered the Exodus from Egypt, and leavened bread and matzah—what is bad about that?!
So what, after all, is the problem with legal dodges?
I think that the concept of a legal dodge in our context expresses only a subjective feeling on the part of a person, especially a layman, as if there were here some circumvention of the will of God or of Jewish law. That is why the Sages prohibited resorting to legal dodges. There is no real problem here, since no prohibition was violated and no commandment nullified, and there is not even any indication of injury to the will of the Torah beyond the law itself. What there is, is an educational problem: a person becomes accustomed to living with an attitude of evading Jewish law. A layman may also come to do things that do not really help, and then he will actually stumble into prohibition. Therefore the Sages prohibited legal dodges. But this prohibition is accompanied by many qualifications. There are quite a few cases in which we do employ legal dodges, already in Talmudic law. Beyond that, the Talmud itself says that a Torah scholar may employ legal dodges. The reason is that the legal dodge really does solve the problem, and the whole issue is only educational. A Torah scholar knows that there is no real problem here, and therefore no damage will result. Only unlearned people think there is some problem here, that we are tricking the Holy One, blessed be He, and therefore they were forbidden to use legal dodges.
This is not the place to enter in detail into the topic of legal dodges in Jewish law, but briefly I will say that Jewish law contains several quite different kinds of legal dodges. There are cases in which the legal dodge is like ours: an action that solves the problem and leaves only the feeling of "kosher, but it stinks." There are cases in which the legal dodge does not really solve the problem, and yet in some cases it is permitted to use it. Usually this is where there is justification for transgressing the prohibition but people do not want to do so bluntly because of educational considerations (somewhat like the obligation to give a get (a Jewish bill of divorce) to a woman who in fact, according to the law, is not married at all and does not need a get. There it is done only so that people will not say that a woman leaves without a get). It seems to me that from the discussion above it is evident that the sale of leavened food plainly belongs to the first type.
Incidentally, the permission to use a legal dodge is usually conditional on the matter being done for a worthy purpose or substantial need. In the case of selling land during the Sabbatical year, there is a substantial need that permits it. But notice that in the sale of leavened food there is no worthy purpose and no need at all. Anyone can forgo a bag of a leavened-food mixture that costs 10 shekels at the grocery store. Nothing significant depends on our selling it rather than burning it. So why is this really permitted? Simply because here there is no problem at all, and therefore no special permission is needed. Hussein Jaber understands what the reporter Nir Gontarz does not manage (and apparently does not want) to understand.
And Beit Yosef already wrote in sec. 448, s.v. And so it appears, regarding the words of Rabbenu Yeruham, who opposed the sale of leavened food:
And I do not understand his words, for after all it is permitted to give it to a gentile as a gift and then take it back after Passover, and there is no greater legal fiction than this—yet it is still permitted, since he removes it entirely from his possession! It is possible that when he says ‘that one should not resort to legal fiction,’ he means to say that one should not sell or give it to him conditionally..
A comparative note
I am utterly astonished by those who fight fiercely against the sale permit (heter mekhira) in the Sabbatical year but happily practice the sale of leavened food on Passover. In the Sabbatical year there is a very great economic need on the part of the farmers, and there is a worthy purpose (preserving settlement and our hold on the land), and the prohibition is only rabbinic (the Sabbatical year in our time), and the sale is carried out in an organized way by rabbis who understand the significance of the matter (a legal dodge of a Torah scholar), yet despite all this it is of course heresy, lack of commitment to Jewish law, raising a hand against the Torah of Moses, and lack of faith and trust in the Holy One, blessed be He (and many more phrases of that sort that I will spare you). By contrast, the sale of leavened food is done in order to circumvent a Torah-level prohibition, it is done without need and without a worthy purpose, and it is done by laypeople (or many local rabbis) who do not always know what it is about and that it is not really a gimmick, and yet there, for some reason, everything is perfectly fine. It is a venerable Jewish custom, pure and pristine.
True, in the sale during the Sabbatical year there is also an aspect of Do not show them favor, since it is forbidden to grant a foothold in land in the Land of Israel and to sell land there to a non-Jew. By contrast, in the sale of leavened food the sale is not bound up with any prohibition concerning the sale itself. But even in the Sabbatical year people circumvent the prohibition of Do not show them favor in a thousand ways; and in general the sale there is carried out in a way that does not really give him land and certainly does not leave it with him forever. Moreover, the sale there is done in order to strengthen our hold on the land (because the disintegration of agriculture is itself a far more severe blow to our hold on the land). But none of these arguments can stand up to the political consideration.
The state’s sale of leavened food
In the case with which Gontarz was dealing, it was the sale of the state’s leavened food. There the situation is a bit more problematic. There it is not a business, and so there is no clear interest in selling the merchandise. Beyond that, it is not a private individual, and the leavened food is in great quantity, so it is likely that the state does not really want to part with it. Therefore, there really can arise there a problem of lack of finality of intent.
On the other hand, even if in that case this is a legal dodge, the loss there is substantial, and so there is more room to permit it. Moreover, there the sale is carried out by the Chief Rabbinate and not by a private individual, so it is likely that they understand what this is about and do it properly (although I am not sure I would stake my head on that). We have already seen that a Torah scholar is permitted to use legal dodges (?!).
True, there is another problem as well, for the owner of the leavened food is not the Rabbinate but the state. The Rabbinate is only the agent for this matter. I am not at all sure to what extent the leaders of the state understand what this is about and seriously intend to sell the leavened food (especially in light of what I wrote above). But as noted above, the sale is valid if the law recognizes it, and even if the owner does not really mean it, unexpressed intentions have no legal standing. Moreover, even if after Passover the non-Jew wanted to take the leavened food and pay for it, and that would create a problem in the state’s reserves, or any other problem, the state could decide to nationalize the non-Jew’s leavened food and return it to itself. And in my opinion, even if it is clear in advance that this is what would happen if the non-Jew wanted to realize his purchase, the sale would still be valid. During Passover itself it belonged to the non-Jew. But in truth, with the state’s sale one can at least say clearly that it is indeed a legal dodge.
Beyond all that, I have already written several times in the past that our state (and perhaps a state in general) is not a Jewish entity. Therefore, with respect to its leavened food, I do not think anyone violates it shall not be seen. This is even more far-reaching than the discussions about the responsibility of shareholders for the leavened food of corporations, because in the present case this is not even a corporation but a collective body. There is no defined owner here, and the entity that owns it is not Jewish. Not only because it is a state, but mainly because it is our state, in which there is nothing Jewish in the halakhic sense (except for the prime minister’s mother and most of the citizens). For the same reason, in my opinion there is no problem with selling the state’s lands to a non-Jew in the Sabbatical year, but there is also no need for it. The state does not violate Do not show them favor, but with respect to its lands the prohibitions of the Sabbatical year do not apply either. And likewise regarding handing over territory in a peace agreement: the collective body of citizens of the State of Israel does not violate Do not show them favor.[2]
Back to the "gimmick" of selling leavened food
What the Haaretz reporter did not understand, and his Muslim interlocutor understood very well, is that even in a case where this is a legal dodge (such as the state’s sale of leavened food), there still is no gimmick here. If the sale is valid, then one truly does not violate the prohibition of leavened food. It seems that Gontarz treats this as a legal dodge for the sake of tax avoidance, where one finds a loophole in the law and acts improperly because one is circumventing the purpose of the law as set by the legislator. As we have seen, in the context of the sale of leavened food there is no legal dodge here but rather observance of the law according to its very terms, which cannot be said of the dodges called "tax planning." In the case of taxes, the legislator certainly did not think of every possibility, and therefore the crafty businessman can find holes and loopholes in the law and circumvent the legislator’s intention. There it is a legal dodge par excellence, a real gimmick, since it is an action against the intention of the legislator and the law.
Incidentally, precisely in the matter of "tax planning" there are court rulings that a legal dodge is permitted so long as it remains within the law. There everything is fine because there is a loophole, even though it is clear that it was created inadvertently. Whereas in our case, when it is clear that Jewish law itself intentionally opened this "loophole" (for as I wrote, it could have defined you shall eliminate as a positive commandment), here it is "the rabbis’ gimmick."
Moreover, with respect to the prohibition regarding the sale of leavened food—which here in the Holy Land is circumvented at every turn—the judges themselves engage in evasive interpretations. Thus a court can determine that since the prohibition in the law is "to display leavened food in a public place," a restaurant is not a public place, nor does it "display" leavened food. But in an article in that same newspaper (Haaretz), this of course is not presented as a gimmick of judges, but as a reasonable and self-evident interpretation of the law. As is well known, here we do not ask the legislator what he intended (guess what he would answer), so we are completely covered. After all, this is not Jewish law but the law of the state. Moreover, this is the leavened-food law, not international law concerning the treatment of occupied territory (on which, of course, one may not use legal dodges under any circumstances whatsoever).[3]
What the reporters of Haaretz and their helpers (!) do not understand is that they cannot claim that this is a gimmick of rabbis without giving an interpretation of the prohibition of leavened food. Does the Haaretz reporter have a worked-out view regarding the prohibition of you shall eliminate? Does he understand what this prohibition is meant to achieve and what its halakhic contours are? If so, I would be happy for him to share it with me (and with his readers). But if not, then his conclusion about the gimmickry is itself a gimmick of populist and tendentious journalism.
Even with respect to the argument I mentioned above—that the state, and perhaps a state in general, is not Jewish—this itself was determined in a ruling of an Israeli court which publicly declared that a kibbutz and a cooperative association are persons without religion, and therefore the Hours of Work and Rest Law, which forbids a Jewish business to open its gates on the Sabbath, does not apply to a kibbutz. What do you think the legislator intended in that law? Yes, you were right.[4] But without even checking I can promise you that you will not find an article in Haaretz mocking the judge’s gimmick. Why? Perhaps because in the legal context they understand the material, and in Jewish law they do not? But anyone who understands the legal material knows that there too this is a gimmick! Well then, perhaps it is simply tendentiousness? Impossible…
[1] This is no worse than They coerced him, and he sold (Bava Batra 47b), that is, someone who is forced to sell by coercion, whose sale is nevertheless considered halakhically valid. The explanation is that in the end he did want to sell, even if only in order to avoid the threat. So long as, in the bottom line, that was what he wanted, the sale takes effect, regardless of why he wants it (even someone who sells something because of difficult financial circumstances does so sorrowfully because of constraints beyond his control). It seems to me that the desire to avoid a prohibition is no less good a reason to want to sell.
[2] True, with respect to Passover we find (Pesachim 78b) that All Israel can fulfill their obligation with a single Paschal offering. But there all Israel are jointly registered for it (like any group of registered participants). The Passover offering does not belong to the collective body but to the totality of the individuals. As for All Israel can fulfill their obligation with a single sukkah (Sukkah 27b), the meaning there is different, and only homilists connect it to our topic. By contrast, here we are speaking of ownership by the collective and not by the totality of the individuals.
[3] True, in the case of the leavened-food law or the Hours of Work and Rest Law, these are laws to which a significant part of the public objects, and therefore people see for themselves a legitimacy in using legal dodges against them. It seems to me that this is the only reason courts and various critics allow themselves such interpretive dodges, for in their view this is done for a worthy purpose. But what exactly does Nir Gontarz have against the purpose of the legal dodge involved in the state’s sale of leavened food? Is he so zealous for God and His Torah and the prohibition of leavened food? Then why does he not attack the court rulings that permit selling it on Passover, and the fact that the leavened-food law is not enforced even against those who do so unlawfully? I wonder where his deep fear of Heaven has gone in those contexts.
[4] Let me just clarify that my intention here is not to discuss whether this is a correct and reasonable interpretation of the law or not (I personally think not). My claim here is that even if it is a reasonable interpretation, it hangs on a lacuna and on the wording, and enters through a loophole left by the legislator. And I ask, assuming this is indeed reasonable and legitimate: why, when this is done in Jewish law, is it a gimmick? Especially since in the legal context it is quite clear what the legislator meant, except that the imperfect wording allows such a creative interpretation to be inserted, whereas in Jewish law it is clear that this loophole is not the result of inattention but was left intentionally. And yet specifically here this is a gimmick. Astonishing!
Discussion
The gentile has no ability whatsoever to get to my chametz (or chametz mixture) during Passover. He does not know where the chametz is, nor where or how he could find me in order to realize his ownership. That is why I do not rely on, and do not do, the sale of chametz.
As if Judaism were lacking things like this — eruvin, pruzbul, heter iska. I don’t understand why every year people latch דווקא onto the sale of chametz, which is actually perfectly logical.
Theoretically, if the state were a halakhic state all of whose citizens were Jews who observe Torah and mitzvot, would a halakhic obligation then apply to the state just as it does to every Jew?
Ofer, why does the gentile need to get to anything? Besides, he certainly can get to everything. There are orderly lists held by the body that sells it to him.
As I wrote, I’m not sure. I am inclined to think that a state does not have any religion at all, and mitzvot do not apply to it except for mitzvot that are defined from the outset as applying to the public. But perhaps they do; and then my argument is only about the state as it currently exists. Not for nothing did I mention these two possibilities in my remarks.
All true. The remaining question is what would happen if somehow the gentile paid those 300 million. Then a huge uproar would break out because there would be a shortage of basic products in the country, which had not prepared for this in advance, and the matter would reach a civil court. Wouldn’t the court invalidate the entire sale on the grounds that this is a religious procedure and not a legal one (*)? And if such a court invalidated the sale, would that have halakhic significance (a sale not recognized by the laws of the state)?
(*) As is well known, Justice Haim Cohen argued that heter iska is a ceremony performed for religious reasons and has no legal validity.
Regarding heter iska, it seems to me that this was addressed in a ruling much later than Haim Cohen — about ten years ago, I think — and the matter has already been corrected. They also already corrected the sale of land in the Sabbatical year by legislation. As for the sale of chametz, as I wrote in the post itself, the state can expropriate the chametz from the gentile if a problem arises (or at least delay his taking it until more products are procured), and in my opinion even so there is no flaw whatsoever in the sale.
From “We make glad the festivals” to joy,
I did not understand the following sentence:
“There are cases in which the legal fiction does not really solve the problem, and yet in some cases it is permitted to use it. Usually this is when there is justification for violating the prohibition, but they do not want to do so bluntly because of educational considerations (similar to the obligation to give a get to a woman who in fact is not married according to the law and does not need a get. There they do it only so that people will not say: a woman leaves without a get).”
What legal fiction is there here? This is not a ‘trick’ that we invented in order to be lenient, but an added stringency, a safeguard, so that she should not leave without a get. What does that have to do with legal fiction?
When there is a legal fiction that does not solve the problem, as with the legal fiction concerning cooking on a festival in the case of “it and its offspring” (Shabbat 117b). It is a case of an animal and its young that are in a pit, and according to one view he brings up the young ostensibly in order to slaughter it, and then “changes his mind” and brings up the mother (and so too the halakhah was ruled, in Rambam, Laws of Yom Tov 2:4). But from the outset he intends to bring up both in order to save them from the pit, so this is a legal fiction that is of no use whatsoever in solving the halakhic problem.
So in what way does the legal fiction help in such a case, if the problem remains as it was? Why not just violate the prohibition outright since there is a great need involved (preventing animal suffering), or for some other worthy reason? My claim was that the legal fiction helps because of appearances, so that people will not say the prohibition has been permitted. For this principle I brought the example of giving a get so that people will not say a woman leaves without a get.
By the way, there are quite a few legal fictions in which it is not even clear whether the problem is solved or not, but this is not the place.
As for the comparison between selling chametz and the ‘heter mechirah’ of the Sabbatical year: I really do not agree. With selling chametz there is a sense that the purpose of the commandment is preserved, although we do not derive law from the reason of the verse and we do not know with one hundred percent certainty what that purpose was. In shemittah — the feeling is that the purpose has not been achieved.
With the sale of chametz, the command is that chametz not be in our possession. A person who sold his chametz properly, and treats it as chametz that has been sold, fulfills the spirit of the law. He does not wander around the chametz storeroom and rummage through the chametz cupboards; he has completely removed the chametz from his possession, and as far as he is concerned the chametz is not his but Hussein Jaber’s from Abu Ghosh. In this I fully share your view.
In the commandment of shemittah, the purpose of the commandment is clear from a simple reading of the Torah: cessation of work by the farmers and the land (“a sabbath of the land”), and a social purpose — “that the poor of your people may eat.” When the farmer sells his land, he does not really cease, and the poor person cannot support himself.
Therefore, when the shemittah commandment is circumvented, it feels like a legal fiction, because the humane goals that were required have not been fulfilled (and similarly with the legal fiction of a “sheitel,” and so on).
It should be noted that today there is no alternative for observing shemittah strictly for several reasons. Among other things, the social goal will not be achieved. Even if the farmers leave their fields fallow, Ms. Saada from Sderot will not ride buses once a week in order to gather wheat from the north and cucumbers from the south. The produce will simply wither in the fields, and no one will benefit from it.
A nice analysis of the purposes of shemittah and their implementation through the various means (ownerless release, sale) can be found in a halakhic responsum of the Conservative movement here: http://www.responsafortoday.com/ and then click “Responsa of the Law Committee, Volume I,” and afterward “The Sabbatical Year.”
There they recommended at the end of the responsum, despite the halakhic permission, establishing a financial fund that would donate the profits of shemittah produce to the poor, thus preserving the spirit of the commandment.
In conclusion, it seems to me that it would have been worthwhile in the article to address the question whether the legal fiction violates the purpose of the commandment or not.
With God’s help I will later deal with legal fictions in general. Regarding shemittah, I do not think its purpose is social (and I seem to recall that Rabbi Rosen of blessed memory already made this point).
One possible explanation for the purpose of the commandment of “it shall not be seen” is to avoid the prohibition of eating it (this can be seen from the fact that many laws are derived by analogy from the prohibition of eating to the prohibition of keeping it, and also from the juxtaposition of the commandment “you shall remove leaven” to the prohibition of eating chametz with the Passover sacrifice). If this is the purpose, it may be somewhat compromised by such a sale, since if it is not taken seriously, the seller may feel that the chametz is still his in some sense and may come to eat it on Passover.
It seems to me that the straightforward plain meaning is as I said, both in Exodus 23:11, in Leviticus 25:6, and also in the Guide for the Perplexed (“As for all the commandments we listed in the laws of Shemittah and Yovel, some of them are out of compassion for people and generosity toward all people, as it says, ‘that the poor of your people may eat, and what they leave the beasts shall eat,’ etc., and that the land may increase its produce and grow stronger by lying fallow” [III:39]). And the Sefer HaChinukh wrote similarly.
In any case, even according to other reasons, one can discuss each one on its own terms whether it is fulfilled in today’s modern economy. Is there a reason for the commandment that you clearly endorse, and that is also fulfilled when one uses ‘heter mechirah’?
Rabbi, even if from a halakhic perspective this is entirely fine, I think the contempt people feel toward it is completely understandable. Even in the Mishnah, when the Sages write that annulment in one’s heart is an option, they give that option only after they write of the obligation to destroy it — scattering it to the wind or throwing it into the sea. In chapter 3, mishnah 7 of tractate Pesachim, annulment in one’s heart also appears to be something that happens only after the fact (“If he is able to return and destroy it, and then return to his mitzvah — he should return and destroy it. But if not — he annuls it in his heart”).
One can learn from this that the Sages wanted us to perform some practical act for the purpose of eliminating the chametz, and not merely to annul it in one’s heart. And so too regarding today — it seems odd to put fully-fledged chametz in a cupboard for a week, and thus enter Passover without having to perform any practical action at all to eliminate the chametz.
And what is the practical upshot of this contempt? It seems to me that for a private individual, who has no great loss from destroying his actual chametz, it is preferable to eliminate the chametz (whether by burning it or by organizing oneself so that one will no longer have chametz when the holiday begins), but above all not to reach a situation in which one does not do any practical act personally.
Again, you are right that from a halakhic standpoint this is entirely fine, but from the language of the Sages and the Torah it seems to me that the more correct thing is truly to destroy it (or perform some other practical act), the main thing being that no actual chametz remain in your possession.
— This comment is directed toward ordinary people, householders, and not toward large companies that would sustain major financial loss from destroying it.
Aviad, there is a big difference between annulment in one’s heart and the sale of chametz. Annulment in one’s heart works only on the Torah level (it is not merely a looked-down-upon option; it is not really an option at all. Rabbinically one must destroy it). Selling chametz is itself a form of destruction/elimination.
See also Gershoni’s characteristically extreme and dismissive position: http://bloggershuni.blogspot.co.il/2014/10/shmita.html
Aviad, when one examines the parameters of halakhah, one does not find what you wrote. Recommendations are another matter, and about that one can argue.
Annulment in one’s heart is entirely fine from the standpoint of eliminating the chametz (even rabbinically). Simply speaking, the obligation to eliminate it and not suffice with annulment is only because of the concern that one may come to eat it. If you sell it to a gentile and mark the items, there is no such concern, and I see no problem in that. But even if there were — again, this is not a problem of legal fiction but a renewed rabbinic concern lest one come to eat it. From the standpoint of elimination and “it shall not be seen,” everything is fine.
Even if you are right, there is still no problem of legal fiction here, only a renewed concern lest one come to eat it. Making “it shall not be seen” depend on that concern is an innovation (found in Ran, and brought by Atvan DeOraita in the section dealing with a Torah safeguard), but simply speaking there is no Torah-level safeguard and we do not derive law from the reason of the verse.
By the way, in Beitzah 7b there is a possibility of distinguishing between the minimum quantity for “it shall not be seen” and the minimum quantity for the prohibition of eating; see there, where the Gemara explains that they disagreed whether we derive elimination from eating or not.
See an explanation in my article here: https://mikyab.net/%D7%9B%D7%AA%D7%91%D7%99%D7%9D/%D7%9E%D7%90%D7%9E%D7%A8%D7%99%D7%9D/%D7%9E%D7%94-%D7%9C%D7%92%D7%99%D7%93-%D7%94%D7%A0%D7%A9%D7%94-%D7%95%D7%9C%D7%97%D7%9E%D7%A5-%D7%91%D7%A4%D7%A1%D7%97-%D7%9E%D7%A7%D7%95%D7%A8%D7%9D-%D7%94%D7%94%D7%99%D7%A1%D7%98%D7%95%D7%A8%D7%99/
A.H., annulment in one’s heart is entirely fine from the standpoint of eliminating the chametz (even rabbinically). Simply speaking, the obligation to eliminate it and not suffice with annulment is only because of the concern that one may come to eat it. If you sell it to a gentile and mark the items, there is no such concern, and I see no problem in that. But even if there were — again, this is not a problem of legal fiction but a renewed rabbinic concern lest one come to eat it. From the standpoint of elimination and “it shall not be seen,” everything is fine.
Rabbi, did you see my comment (the second one) here?
I went back and reviewed what Yisrael Rosen wrote, thanks to the link Shlomi sent (many thanks!).
I still think that insofar as a commandment has a purpose, a legal fiction ought to create discomfort if the fiction does not bring about that purpose.
I do not know what the purpose of shemittah is, but even if we assume the goal is to show that “the earth is Mine and all that fills it,” as Rabbi Rosen says, then when the land is sold to a gentile the goal is not achieved.
By the way, here is a sentence Rabbi Rosen writes there in the article; I do not know whether you would agree with it:
“Moreover, the institution of pruzbul testifies that the commandment of releasing debts is between man and God and not between man and his fellow. Its content is a kind of declaration of loyalty toward the Holy One, blessed be He, proclaiming: ‘The silver is Mine and the gold is Mine.’ Had the commandment been rooted in the realm of between man and his fellow, there would have been no place for the evasive device of pruzbul, for all solutions of the nature of legal fiction can be considered only in commandments between man and God, in the sense that ‘the mouth that prohibited is the mouth that permitted,’ as in the sale of chametz, eruvin, sale of a firstborn animal, renting out animals to a gentile for Shabbat, and many more of the same kind.
One who uses legal fiction in matters between man and his fellow is called ‘wicked,’ even if formally he is ‘exempt in human law’ (see on this my article ‘Halakhic Legal Fictions as Public Ordinances,’ Techumin 21). The legal fictions of ‘heter mechirah’ and ‘otzar beit din’ for commerce in shemittah produce also prove that shemittah is a commandment between man and God and not between man and his fellow,” end quote.
I do not know what the purpose of shemittah is, and in any case we do not derive law from the reason of the verse. If you want to improve the condition of the poor, there are far better ways to do so. As Rabbi Rosen notes, Maimonides’ reasons in the Guide are generally not persuasive, and it is hard to take them too seriously.
But even if, in your opinion, the reasons for shemittah are not fulfilled in today’s economy, that is not a reason to prevent legal fiction; on the contrary: to use legal fiction and achieve the goals in the way suitable for our times.
As for legal fiction in matters between man and his fellow, others already preceded him in saying that. In my view, the more precise definition is legal fiction regarding “result-commandments.” But even the definition of a commandment as a result-commandment is not a derivation from its reasons but from its legal parameters (though, as I have written more than once, it is hard to distinguish sharply between these two).
So what if it is only a concern? It is still a rabbinic obligation. Even regarding “it shall not be seen,” the Ran writes that it is “only” a concern lest one find chametz. Therefore I wrote that merely annulling it is not really an option at all (even if it is not “by the law of elimination” but by the rule that “we are concerned that you may find chametz and therefore must eliminate it”), because one must burn it — or in this case sell it to a gentile, which will also ensure that you do not eat it.
Less well known is the Ritva’s view (at the beginning of chapter 2 of Pesachim), who forbids sale to a non-Jew because it is a legal fiction. He even forbids what was sold rabbinically after Passover. [And he likewise understood the Jerusalem Talmud as referring to Rabbi Yoḥanan’s view, that it is forbidden out of concern for legal fiction.]
In my humble opinion it is obvious that this is a legal fiction on a rabbinic law. And this is the order of things:
The Sages obligated a person not to suffice with annulment (which, according to Rambam and the Geonim, is what the Torah means by “you shall remove leaven,” or according to most Rishonim, annulment creates ownerlessness), but rather actually to eliminate the chametz. That is, the Sages wanted the chametz to be not merely annulled (and thus “removed” or ownerless) but actually eliminated from the person’s domain, and therefore, according to the Ritva, they forbade even the legal fiction of selling it to a gentile just for Passover.
This makes particular sense according to the Rishonim who say annulment is ownerlessness (whether according to Tosafot, that it is complete ownerlessness, or according to Ramban, that “his mind aligns with the Torah’s view” and it is like despair over a lost object). In essence, even with ownerlessness a person ‘bypasses’ the Torah’s intent, which commanded him by “you shall remove leaven” to destroy and eradicate the chametz, while he simply declares it ownerless, and thereby the chametz is no longer in his possession, and “your own you may not see, but you may see that of others and that of the Temple treasury.” A completely legal trick, which indeed works. Then the Sages came and did not want the person to use the ‘trick’ of ownerlessness, and required complete elimination. Therefore it makes very good sense that they would also decree against the trick of sale, even though formally it does indeed work, just like ownerlessness.
Of course, the Ritva is a lone opinion, and the halakhah was not ruled in accordance with him. But the approach itself is important.
Nowadays we are all considered to be in one large ship (the ship of the Tosefta from which this all began). Just as on a ship, if you do not rely on the sale (the transfer of ownership to a gentile), you will have nothing to eat, so too if you do not rely on the sale by the groceries and supermarkets you will have nothing to eat. And if you come trying to be clever and buy the nonsense called “baked from flour ground after Passover,” then know that the manufacturers are no suckers, and after a few months they will bring out the old merchandise from before Passover and stroll it right back onto the supermarket shelves.
As for private individuals, it really is preferable to fulfill “you shall remove leaven.”
Rabbi Michi
After all this, can you explain why there is a preference not to sell actual chametz?
Is this an educational consideration?
Rabbi, it seems to me that the matter is as follows (I wrote a bit about this in the article on the Oral Torah):
Most of us do not perceive Torah commandments as “metaphysical truths” that one must be careful not to violate, and that coincide exactly with the halakhic definitions we possess. According to such a conception, a kind of “impurity” lies upon chametz on Passover only if legally it belongs to a Jew and not to a gentile. And if legally everything is fine, then in reality that “impurity” disappears. Likewise, according to this approach the halakhic definitions are literally the revelation and definition of the commandment itself: chametz that legally belongs to a gentile has no problem whatsoever ab initio (and not merely as a definition meant to fit a commandment into a framework, because there is no other possibility), and it is not in the category of the prohibition of chametz at all, since the “impurity of chametz” rests only on chametz that legally belongs to a Jew.
If that were our natural outlook, then the rabbi would be right in saying: “But this is incorrect, for the Torah’s will is defined by the halakhic parameters of obligations and prohibitions, and if we have fulfilled those, what is missing? If I did not violate a prohibition and did not nullify a positive commandment, what is the problem? Is there some will of the Torah beyond the formal halakhic obligation? On what basis would one invent such a thing here?”
But most of us understand the commandments differently (and it seems to me this is the Torah’s original and natural conception, which recognizes that the commandments were once more flexible and more dependent on intuition, and not all the talmudic definitions were given at Sinai as the definition of the commandment). We see them as acts meant to serve the purpose written in the Torah. In the case of chametz on Passover, for example, the purpose is to remember the events of the Exodus from Egypt, including the fact that our fathers’ dough did not become leavened.
That is the conceptual basis of the chametz commandment, a conceptual basis that precedes the halakhic definitions.
On top of this comes halakhah, which puts the flexible and undefined commandment into clear boundaries, and determines that specifically a Jew’s chametz is subject to “it shall not be seen.” That boundary comes to regulate and permit the presence of chametz that truly belongs to a gentile in a Jew’s house, and in 99% of cases this fits the spirit of the Torah, for if there is chametz in my house that truly does not belong to me (my gentile neighbor put it with me and will take it in two days), then the Torah’s will is fulfilled perfectly.
But what can one do? It is impossible to give a reasonable definition that will on the one hand be sharp and practical, and on the other hand contain no loopholes. The Sages (or God?) did not give these loopholes intentionally; rather, they are a side effect of a clear-cut definition (defining the chametz prohibition as overlapping with the legal ownership of the object), which matched the Torah’s will in case A, but has a collateral implication also in case B (sale of chametz). It is impossible to give one sharp definition that permits the presence in a Jew’s house of chametz that truly belongs to a gentile, and also forbids the existence of a sale of chametz that is a practical fiction (not a legal one, of course).
The legal definition does not express the commandment and the metaphysics themselves; rather, it comes later conceptually (and perhaps chronologically as well) in order to make the vague commandments, which are meant to straighten the person, practical and defined, similar to a legal system. Add to this, of course, the possibility that the definition identifying the prohibition with the legal status of the chametz is not from Sinai, but the product of a fence created by the Sages over the generations, and then your question — “Is there some will of the Torah beyond the formal halakhic obligation? On what basis would one invent such a thing here?” — falls away, and likewise “If it itself defines the prohibitions in a way that permits this sort of evasion?” is of course irrelevant.
The formal obligation is not the commandment itself, but only the way to make it defined and practical, and therefore loopholes are a problem, not a solution.
And also regarding what you wrote: “It is more plausible that the Torah merely wanted us not to have chametz, as a remembrance of the Exodus from Egypt. This we have fully fulfilled” — how have we fully fulfilled it? After all, the chametz is ours in every sense (except the legal one). It does not seem to me that we have fulfilled it if it is obvious to us that the chametz will return to us; in our consciousness and thought it is ours in every respect. Again, you identify the halakhic definition with the conceptual reason. The Jew can begin confidently planning the Mimouna feast from the chametz sitting in his house and ‘sold’ to the gentile. I do not see here any fulfillment of the Torah’s will (unless one identifies it with the legal definition, of course).
Your following sentence really could serve as an answer: “The sale even leaves the prohibition of chametz present in our consciousness, for we performed an unusual act in order to get rid of it (the sale).” That indeed could solve the problem of fulfilling the “Torah’s will,” but without it I do not think there is really much of an answer here.
Sorry for the length.
Concerning the rabbi’s comparison between the sale of chametz and heter mechirah in the Sabbatical year, it really would seem that with regard to heter mechirah the legal fiction is contrary to the “spirit of the law” (human rest/security), unlike chametz. (I am not claiming this is a reason not to permit it, since after all this is rabbinic etc., but it is very clear that this is why people see a difference between the two.)
The question is whether the rabbi has a different understanding of shemittah, or has no understanding of it at all and therefore holds that there is no problem with the sale?
A.H., as I wrote, our discussion here is from the standpoint of the legal fiction involved. If there is a problem with the sale, it is not because it is a legal fiction but at most because one may come to eat it. Therefore annulment is a full solution to “it shall not be seen” even on the rabbinic plane (except for Ran). What remains is the concern that one may come to eat it, and I already discussed that above.
I already mentioned in my remarks Rabbenu Yeruham, with whom the Beit Yosef disagrees. There are several decisors who held this way, and I, the small one, do not agree with them.
You are dealing with the question whether there is any point in not relying on the sale permit of businesses — that is, not buying from them except things ground after Passover. Here, in my opinion, the problem is not what they will bring out later but the very conception itself.
First, because as I explained, in my view there is no problem whatsoever with the sale by businesses. Second, if one permits them to sell, it cannot be that we are not permitted to buy from them. What is the meaning of the permission given to them if we do not buy from them? Such a permission has to be a social convention (a version of your ship argument).
People simply adopted this custom, and perhaps it also has educational benefit. In my opinion there is no essential problem with it.
As I wrote, I do not know what the purpose of the Sabbatical year is. But heter iska is certainly against the spirit of the law, and there at least sometimes it involves a Torah prohibition.
As I wrote, I can remember the Exodus from Egypt by selling no less than by destroying. As long as one treats the chametz in a special way, one remembers to the same degree. Beyond that, according to your approach, if we have no chametz at home we should have to buy chametz in order to destroy it on the 14th.
1. If so, then all is well, but from what you wrote earlier it seemed that this was only an added point in parentheses, and that even without it everything was fine in your view (“Is there some will of the Torah beyond the formal halakhic obligation?”).
2. In my opinion there is a major distinction between these cases. If the Torah gave some commandment and I cannot fulfill it substantively, then I do not need to force myself into the obligation and invent a new commandment. By contrast, in the sale of chametz the exemption is not a substantive exemption of not belonging to the commandment, but a clear side effect of a later (conceptually later) definition of it, one that in 99% of cases accords with the Torah’s will.
For example, if I cannot take the four species because I have no hands, it is difficult to say that I am commanded to go out to the field and smell fruits (and thus arrive at gratitude to God for agriculture, which is perhaps the purpose of the four species according to the Sefer HaChinukh, if I remember correctly).
Beyond that, in selling chametz I intentionally and actively place myself into the exemption, unlike a case where I never entered the obligation at all because I have no chametz.
1. Indeed, even without that it is fine. But according to your view, the sale too can cause remembrance.
2. That is a formal distinction, and if you are objecting here to halakhic formalism, it is unlikely that you of all people should make use of it. If the Torah wants us to destroy it, we should have had to destroy it in any case.
Precisely because the discussion is about legal fiction, it is important to emphasize this. Aviad said that the Sages do not like getting rid of chametz without a practical act, and brought as an example annulment in one’s heart. I noted that the “contempt” for annulment does not stem from the fact that it looks like legal fiction, but because rabbinically one must also destroy it (though not because of “it shall not be seen,” but that does not matter), as opposed to the sale, which, while it too is “not a practical act” and can look like legal fiction, gives us no reason to assume the Sages would dislike it. They dislike annulment simply because one may forget and eat it.
Most heter iska arrangements are not legal fiction, because most loans really are investments in every respect (a bank loan to buy an investment apartment), and the bank truly wants a share in the investment; it is just formally called a loan because it is not given directly on that basis, and for that a formal contract is needed.
There is a similar question regarding something that is permitted in a case of substantial loss — for example, an animal that was slaughtered and is kosher only in a case of substantial loss. Is the permission only for the butcher, because he has an entire animal that he would have to throw away, or does it also apply to the buyers? There is basically a paradox here, because if we do not permit it to the buyers, we thereby cause a loss to the butcher, and from his standpoint this is a substantial loss. The later authorities disagreed about this.
Therefore I think that according to the stringent opinions, one could say here too that the permission to sell actual chametz is for the grocery owners, but I am forbidden to buy.
Here is a survey of the issue:
http://din.org.il/2012/07/09/פסקי-דינים-גניבת-דעת-חלק-ה
I wrote at length in an earlier comment that in my opinion ‘heter mechirah’ in the Sabbatical year runs contrary to the purpose of the law, but דווקא regarding the prohibition of interest and heter iska I am more comfortable, because of a definition I got from you.
On the question of the legal fiction involved in a sheitel, you wrote: “Covering the hair is, in my opinion, a formal prohibition (at least today), and therefore it does not matter how one covers it”…
In my opinion, to a large extent the prohibition of interest today is a formal prohibition, because of economic rules that have changed, where credit is a fully marketable commodity with fixed prices, and is the basis for establishing every business and building every home.
In the time of the Torah, a loan was like lending out an object, and demanding interest was exploitation of another’s distress.
One can say similarly that the prohibition of interest today is a formal rather than substantive prohibition, and therefore legal fiction is enough for it.
What do you think?
Regarding firm intent, one should discuss the fact that the seller does not know what the consideration is.
A clarifying question, Rabbi Michi:
According to your view, are all lands of the Israel Land Administration, since they are leased from the state (the landowner) and not owned by the farmers, effectively exempt from the mitzvah of shemittah? And is it similar with regard to land leased from the JNF (a private company owned by the Zionist Organization)?
If so, why do they do “heter mechirah” on those lands at all?
Are there other land-dependent commandments that do not apply to leased land?
I do not see this as a problem. It is clear that he is selling in order to solve the halakhic problem and not for the sake of the payment. If the gentile wants to take the goods, he will pay their value. And whether it is a shekel more or less really does not matter.
First, one can discuss even land leased from a gentile. After all, it is like acquisition at a time when the Jubilee was observed, when one has bodily ownership for the fruits. Second, when the owner is the public, leasing takes on a different meaning than leasing from a private person. There is strong reason to say that even if leasing from a private gentile would not obligate one in shemittah, leasing from the Administration would. I am part of the public, and my lease is only a way to determine who the owner is for that period of time, and as long as it is with me it is my full ownership for that time.
I would only add that the practical question of why they do a sale is not really a question, because clearly those who do it do not hold as I do.
The gentile is supposed to pay the Rabbinate the money, and it is really unclear how it would distribute it. It has no mechanism either for valuation or for transferring the payments. If Prince Saudi of childish Gontage arrives and the gentile decides to go for it, it is hard for me to see how someone who sold a bottle of Johnnie Walker worth 100 shekels — and all the more so someone who sold a bag of flour — will receive his share in any sensible way. There will also be endless lawsuits among the sellers that will make it impossible to do anything for 20 years until the courts finish dealing with the issue. It may be that people are willing to take that risk so as not to have chametz on Passover, but I definitely think the fact that they have no idea what they will get, if anything, impairs their firm intent in the transaction.
And I do not think so. He will have to pay each person the value of the goods. I do not see any problem here, nor any room for argument. This is not a zero-sum amount (by the way, I think he is supposed to pay more than the listed value of the goods). And if there are disputes and they reach the courts, so what? The court will decide whatever it decides, and that will bind everyone. Is every contract that may be expected to reach court therefore invalid?
In the story I brought, did they in effect violate “it shall not be seen and it shall not be found” by filing the lawsuit?
I don’t think so. Their intention does not matter; if the sale was valid, then the chametz was not in their possession, and unexpressed intentions do not count.
Then on what basis can they sue? After all, they gave the chametz as an outright gift to the gentile, and he simply did not return it.
If they can sue, let them sue all they want, and the court will throw them down the stairs. And if not — then indeed from the outset there is no gift here, regardless of the fact that they filed a lawsuit.
Wait, does the agreement say that he pays each person the value of the goods? I don’t think so. My understanding is that the agreement says he pays a sum set in advance (as an estimate of the value), and he pays it to the agent. In Gontage’s case this is about $300M, and I assume that in the agreement done by the Jerusalem Rabbinate there is likewise some particular amount, and that it is paid in one payment and not in many payments to different sellers. Afterward the gentile will come to collect his chametz according to the addresses he received, while the seller still has not seen a shekel. This is really more like a partnership among all the sellers in the money that will be received, but without any partnership agreement and without any mechanism for distributing the money, both in terms of valuation (so that no seller has any idea how much he will get — not even an order of magnitude) and in terms of procedure (so that he also has no idea how, whether at all, and when the money will reach him). Establishing the distribution mechanism will probably cost a great deal of money, and will provoke many disputes that will require legal proceedings, which also do not come for free, so there is even more uncertainty regarding the payment that will ultimately be received. So firm intent for a direct private sale to a gentile sounds entirely plausible, but firm intent to enter into a partnership with unknown people for a sale at an unknown price and without any mechanism for receiving the money sounds to me like a real problem of firm intent, and perhaps even “what is in his heart and in every man’s heart.”
As stated, in my opinion there is full firm intent here because it really does not matter to most people exactly how much they will receive. The assumption is that they will receive roughly the value of the goods, and that is enough for them in order to avoid a prohibition.
To Rabbi Michael, hello,
I thought perhaps the custom not to sell actual chametz is because people want to take into account Rabbenu Tam’s view that the gentile must perform meshikhah, and as is known that is not done. (Even though according to the overwhelming majority of opinions one can suffice with acquisition by agav and situmta, as the Bi’ur Halakhah discusses there at length in section 448.)
Another possibility: out of concern for the view of many later authorities who held that if one intends to reacquire the chametz after Passover, then one must remove the chametz from the house (Mishnah Berurah, small se’if 12).
And another possibility: the wording of the Tosefta cited by Rabbenu Yeruham (“provided that he not use legal fiction”) is also cited by Meiri on Pesachim 6 and in additional sources (one can see further references in the notes of the Tur edition Shirat Devorah in section 448). In my opinion that is worth addressing.
What does the rabbi think about the position expressed in Responsa Masa’at Binyamin 59?
There, as I understand it, there is a substantive understanding that goes beyond halakhic formalism, making a far-reaching claim regarding the nature of the prohibition of bal yera’eh u-bal yimatzeh.
Similarly, though also differently, in Bekhor Shor on Pesachim 21a — there the novelty appears in the understanding of the act of annulment.
I would be glad for the rabbi’s response despite the time that has passed..
My opinion is very positive.
And seriously, if you are asking a question I expect you to bother to describe it instead of sending me off to do homework. If there is some argument you want to discuss, kindly bring it forward.
The view of Masa’at Binyamin as it appears in sec. 59,
places the foundations of the sale of chametz on the same basis on which the validity of annulling chametz stands (“two things”),
and therefore the Masa’at Binyamin argues that even if the chametz was sold to a gentile according to Rashi’s view — by money, and not by meshikhah as according to Tosafot —
a person has fulfilled his obligation, since according to one of the views the sale takes effect, and with chametz “any minimal act of acquisition removes it from the realm of prohibition,”
the halakhic formalism that the Masa’at Binyamin employs here is due to a very fundamental reason, because in truth the Masa’at Binyamin understands that the chametz is not really in our possession at all during Passover, and therefore in order to rid ourselves of it all we need is to express the non-belonging of the chametz not only in thought but also in a formal act — even if it is a very tenuous one..
And in my opinion that is a more significant statement regarding the very nature of the prohibition of bal yera’eh u-bal yimatzeh..
That depends on the dispute between Rashi and Tosafot over what annulment is. If it is not a change of ownership (ownerlessness) but rather a devaluation of its importance for me, then perhaps a minimal sale is enough.
A religious friend sent me the article, and this is my response to it.
Reading it now on the bus on the way to Yishai, very interesting.
I’m going to analyze it from a secular perspective with a connection to Judaism as culture and tradition and less as religion.
A few issues:
A. There are terms here that I don’t fully understand, or understand only partially, but I don’t think that affects the meaning of the text very much.
B. In my opinion there are simple things that perhaps once made sense and today no longer do, or perhaps never had much logic and were in the category of tradition. Those simple things, which are mistaken from a logical point of view — to justify them takes a great deal of time, words, work… And that is religion in the modern age — working very hard to justify traditions that should long ago have been updated to fit the new reality.
C. We all work very hard in order to fulfill a commandment, and in my opinion the hard work is not worth the commandment. Really that simply. Chametz is forbidden on Passover — so let’s put it in a storeroom, in the basement, far away, and clean the house. The destruction of chametz is ceremonial, and there is no need to destroy everything; rather, it is a ritual that connects me to and obligates me not to come into contact with chametz. A kind of commitment. There is no need to throw away / burn / sell everything and deal with this for weeks in advance.
D. In my opinion Passover is an opportunity to set things in order in every sense — both the meal and the ritual, and also to set the soul and the house in order. To clean out the chametz — things that have accumulated in us and perhaps we no longer need — from character traits to all kinds of nonsense kept in the house with no need. An opportunity to cleanse ourselves. For me — that is a substantive commandment, not chametz as bread. The chametz in the soul and in the home.
G. What is the point of legal fiction? It is basically saying — there is something here that is not logical, not clear, that doesn’t work out — and instead of admitting that perhaps a mistake was made (in my humble opinion the Torah was written by human beings as a book meant to make us better people, and therefore there is no doubt there will be mistakes in it) — but no, one may not admit that. So one gets clever, exerts oneself, and turns the secondary into the main thing (fixating on wording and sophistry about how I maneuver the wording to serve my needs), while missing the main thing (understanding the meaning of the commandment and fulfilling it spiritually in full).
H. The quotation “matters of the heart are not matters” — matters of the heart are the matters! “The main thing is the intention” is a sentence we toss around right and left, but it is very significant! If I am nice to someone only because I need something from him — my intentions are not pure, and so the niceness is not entirely valid. And the same is true regarding chametz. If I put on a show as if I am really getting rid of something and then bring it back — whom am I fooling? Myself? God? Even the “gentile” — may his name be blotted out — doesn’t believe it. Certainly not year after year. And the same with the chametz in the soul — like a wayward criminal who always returns to prison — he promises to change and improve, but the moment no one is looking he reverts to his old ways.
I. He gets upset that there are other bodies that also use “legal fiction” — and that is true. We live in a bureaucratic world, in a very bureaucratic country (the number of lawyers per capita here is the highest in the world), and in a bureaucratic society. But the tax authority or the court do not present themselves as holy and pure institutions. It is well known there that this is how they work.
P.S. _*Even though it’s depressing that cases are decided by who has the better lawyers rather than who has the truth.*_
When people quibble with the law, they do not present it as though they are merely doing God’s will. They admit it. And when lawyers strain to bend the law in order to get Mr. So-and-so acquitted — it is clear to everyone that these are the rules of the game. But religion, which is supposed to be a pure thing that accompanies a person and helps him become a better person (the commandments regarding the stranger, the orphan, and the widow; charity; Yom Kippur as a time of forgiveness and remorse; Sukkot as a family and hospitable holiday) — turns into a sticky mass of thousands of laws and commandments whose time has long passed.
J. To say that if someone is forced to sell, the sale is valid? That is just religious bullying against institutions that do not hold by these beliefs. It seems absurd to me. The same issue applies to intention in the heart.
In conclusion,
I really enjoyed the reading and the intellectual challenge; there is no doubt that I still have much to learn in this world, and yet I am confident in my answer. My opinion sounds self-assured — because that is what I believe. You are welcome to raise your own view, and perhaps I will be persuaded otherwise or learn.
This is a collection of assertions with no basis whatsoever, most of which in my eyes are simply nonsense. But in any case, I do not see any arguments here for those assertions. So there is no point in my making opposing assertions here, since I have already stated what I had to state. If there is some specific argument someone wants to raise in order to support a counterclaim, please present it and then we can discuss it. Preferably one at a time.
A few years ago, an ultra-Orthodox neighborhood decided that it was not selling its chametz but rather handing it over to a gentile and getting it back after Passover. The local rabbi and all the dignitaries came out in a loud public campaign and informed everyone that a warehouse had been set aside for chametz, to which they should transfer their chametz, and after Passover they would take it back. And so it was — all the residents of the neighborhood transferred chametz to the warehouse and sat down to the Seder night joyful and merry-hearted that they had not participated in the abominable sale of chametz. On the first Sunday of Chol HaMoed, a van pulled up by the warehouse entrance. The Arab came out of the van with the key and began loading merchandise. They say he made off with several thousand shekels’ worth, quite calmly. I heard that after Passover they sued the Arab, and I still wonder how the plaintiffs were not deterred by the prohibition of “it shall not be seen and it shall not be found.”
And this story proves that the sale of chametz is entirely valid, for handing over chametz is a sale at a price of 0, and if that Arab had had the money he would not have hesitated to send vans and trucks to supermarkets to collect merchandise.
(The writer had thought of coming to Amos Oz’s defense, but was too tired from expressing his freedom through cleaning and Passover preparations.)