Ḥameẓ, Sale of

views updated


ḤAMEẒ, SALE OF (Heb. מְכִירַת חָמֵץ). No *ḥameẓ (leaven) may be present, or seen, in the house of a Jew during Passover. In addition to the prohibition against eating ḥameẓ or deriving any benefit from it, the Pentateuch explicitly states: "Seven days shall there be no leaven found in your houses" (Ex. 12: 19), "neither shall there be leaven seen with thee, in all thy borders" (Ex. 13:7). Any ḥameẓ which a Jew has kept over Passover becomes forbidden forever (Pes. 2:2 and 29a; Sh. Ar. oḤ, 448:3).

Disposal of Hamez

The disposal of all ḥameẓ which is in the possession of a Jew is carried out after the *bedikat ḥameẓ ("search for leaven") has taken place on the eve of the 14th of Nisan. According to the halakhah, the ḥameẓ may be disposed of in three ways. It may be burnt (which must be done before 10 o'clock on the morning of the 14th of Nisan). It may be annulled by declaring, "May all leaven in my possession, whether I have seen it or not, whether I have removed it or not, be annulled and considered as the dust of the earth." It may also be sold. Since the first method might involve hardship, especially where large quantities of foodstuffs are involved, or where the ḥameẓ is used for business purposes, the ḥameẓ is sold to a non-Jew. This applies only to foodstuffs; utensils which have been used for ḥameẓ need only be washed and stored separately.

The Legal Character of the Sale

The transaction by which the ḥameẓ is sold must be of a legal character, carried out by means of a bill of sale. The purchaser must both lease the place in which the ḥameẓ is stored, and buy the ḥameẓ itself. The gentile thus becomes the legal owner of the ḥameẓ which the Jew, if he so desires, may buy back after Passover. The completion of the sale is effected by the signing of the contract and by the transfer of money, usually in the form of a down payment (see Modes of *Acquisition). The rabbinic insistence that such a bill of sale be in accordance with the requirements of the halakhah, and the inconvenience which would result were every Jew to attempt to sell his own ḥameẓ gave rise to the formal sale of the ḥameẓ. The Jewish vendor merely appends his signature to a composite document which grants power of attorney to sell his ḥameẓ to an agent (usually the local rabbi) who, in turn, arranges the contract with the non-Jewish buyer. The agent buys the ḥameẓ back after Passover, and restores it to its original owners. All the contracts are written in Hebrew although it has been suggested that the vernacular be used for the bill of sale so as to ensure the Gentile's understanding of the contract.

Stages of Development of the Transaction

Four distinct stages in the evolution of the transaction whereby ḥameẓ is sold can be traced in rabbinic literature. The first sales, referred to in the Talmud (Pes. 2:1; Tosef., Pes. 1:7; Shab. 18b; Pes. 13a, 21a), were clearly of a simple nature. Although the Gemara does not discuss any details, such a sale presumably involved the physical transfer of ḥameẓ from Jew to non-Jew "in the market place" (Pes. 13a). The beginning of the second stage, by which it became common practice to sell ḥameẓ to a non-Jew with the mutual understanding that the Jew would buy it back after Passover, is hinted at in the Tosefta (Pes. 1:24, also in tj, Pes. 2:2, 28d). Although the author of Halakhot Gedolot (ed. by I. Hildesheimer (1892), 136) stipulated that there must be no suggestion of such an intention, the practice had clearly earned rabbinic consent by the time of the compilation of the Shulhan Arukh (oḤ 448:3). The condition that the ḥameẓ must be physically transferred from the property of the Jew to that of the non-Jew still remained (Magen Avraham, Sh. Ar., oḤ 448:3). It was the observation of Joel *Sirkes (Bayit Hadash, oḤ 448) – that this caused considerable inconvenience to merchants – which initiated a new chapter in the history of the sale of ḥameẓ. He suggested that such inconvenience might be avoided by selling (or later leasing) the room in which the ḥameẓ was stored to the non-Jew, a transaction which involved a small down payment and the physical transfer only of the key to the room. In later times the official nature of the transaction was stressed by the writing of a bill of sale. A copy of such a document (in Judeo-German) written by R. Ezekiel *Landau of Prague is preserved in his son Samuel Landau's responsa (Shivat Ẓiyyon 11); others were sometimes printed in Haggadot. The final stage in the evolution of the sale of ḥameẓ was introduced by R. *Shneur Zalman of Lyady. Objecting to the blatant legal fiction involved in Sirkes' method, he proposed the idea of a "general" sale, with an agent acting on behalf of the Jewish vendor. Despite the opposition of numerous rabbis, including Solomon b. Judah Aaron *Kluger of Brody and R. Joseph Saul *Nathanson, this proposal has generally been accepted as the form of the sale of ḥameẓ.


S.J. Zevin, Ha-Mo'adim ba-Halakhah (196310), 245–55.

[Harry Rabinowicz]