Monday, April 04, 2011


One of the rules for Passover (Pesach) is that we must not own chametz (or chometz)--leavened materials that are forbidden for the holiday period. We sell our chametz to a Gentile before Passover, usually using a rabbi as our agent. We sign a document giving the rabbi permission to sell the chametz; we ourselves don't get the money. After Passover is over, the rabbi arranges for the gentile to sell the chametz back.

This is a legal sale under the laws of the civil authorities; the document says so. During Passover, we keep the sold chametz locked away in designated storage areas (like cabinets); the gentile owner has the right to inspect the chametz and to take it away. The owner is under no obligation to sell it back after the holiday is over. Nevertheless, we assume they'll sell it back. We're told to keep away from the sold chametz for some period after Passover--usually an hour or so--to give the rabbi time to buy it back on our behalf.

There is a halachic ruling--halachah is Jewish law--about this that I believe is extremely ill-considered. I have heard it before, attributed to Rabbi Moshe Feinstein, one of the most prominent halachic decisors of the twentieth century. I've now seen it written down for the first time, in a list of Passover laws compiled by Rabbi Shmuel Fuerst of Agudath Israel of Illinois. It appears on p. 16 of AI of I's 2011 Passover guide:

Every Jew must sell their chometz before Pesach. If one knows that he will be eating by relatives after Pesach who do not sell their chometz, one is permitted to sell their chometz without their knowledge or permission. You are able to do this because of the rule that one is permitted to perform beneficial acts for others even without their awareness. After Pesach it will be permitted to eat in their home.
The point of this isn't to pick on either R' Fuerst or AI. R' Feinstein's rulings are considered authoritative. I believe that he was mistaken, and that you should not attempt to "sell" other people's chametz.

Why did I put "sell" in quotation marks? We claim that such a sale is legal under the laws of the civil jurisdiction where it takes place. It seems very unlikely that these clandestine sales are legal. A person who is not legally incompetent and hasn't given you power of attorney owns some property; you sell this property without the owner's knowledge or consent. Just to make it interesting, the owner doesn't get any money from the supposed sale. You've arranged this sale because you don't approve of the owner's religious practices or lack thereof. I doubt that this is a legal sale under the laws of most states. I don't understand why this isn't obvious. I ask any lawyers who might be reading this to comment.

Some Orthodox Jews--a minority, I believe--don't generally consider this an important matter; we have our own laws. But in this case, civil law is religious law; under halachah, this sale has to be binding under civil law. If the Orthodox rabbinate allows or encourages such extralegal sales, it's undermining the rationale for the whole procedure.

Another problem is that it can lead to misunderstandings that may turn violent. It's very unusual for the non-Jew who bought the chametz to visit his purchases, but it does happen. The sale document explicitly allows it. We sometimes share moving stories--stories that may even be true--about a gentiles who visit their chametz because they feel so good about helping Jews observe Passover. So what happens if the gentile shows up at Dad's place--I assume most of those who sell other people's chametz are from non-Orthodox families and decided to sign up for this zany lifestyle--anyhow, the gentile shows up at Dad's place to have a look at the oatmeal that he bought but that Dad didn't sell. Since neither the gentile nor Dad is in on the secret, it could get ugly. Dad might call the police; if one of them has a short fuse, it could get violent.

And what about the gentile who participates in this transaction? Presumably they are well disposed toward Jews; at any rate, they probably don't have any negative stereotypes about the business practices of Orthodox Jews. This Jewish-friendly gentile is in effect made into a receiver of stolen property--Dad isn't the only victim of this deception. If Dad or the gentile found out about the game this rabbi is playing, they would probably surmise that he's either an amoral charlatan or an unwise fool. Maybe both. And who are we to disagree? At worst, the gentile might decide that the stereotypes about Jewish business practices have an uncomfortable amount of truth to them.

Finally, if you want to sell your relative's chametz, it's possible you should examine your own motives. Let's look back at what Rabbi Fuerst wrote: If you know you're going to be eating with relatives who don't sell their chametz, it's halachically permitted to sell it for them without their knowledge because you're doing them a good turn. After Passover, you can eat in their house. The obvious question that arises is "Huh?" If it's for their benefit, why limit yourself to those you know you'll be eating by after Passover? In Judaism, the highest kindness is that which you expect no human reward for. And one of the things we get a divine reward for is for making peace between people. So why not secretly sell the chametz of your worst non-observant Jewish enemy, at whose table you have no expectation of eating in the near future?

You should ask whether arranging this fake purchase shows a certain contempt for the beneficiaries of your supposed kindness. If so, maybe you should consider whether you want contempt to be the basis for your relationship with your family. I hope the answer is no; I assume that's the answer in most cases. If the answer is yes, maybe you should find an honest way of expressing your contempt.