Visit www.thehalachacenter.org/CHAMETZ to sell both personal and business-related chametz

Q. May one perform mechiras chametz online?

A. In order to answer this question, let us begin with a brief overview of the standard Mechiras Chametz procedure.

THE MINHAG OF A COMMUNAL SALE

The minhag of a communal chametz sale is quite old. The Shu”t Bigdei Yesha (2-15) tells us that he instituted the selling of chametz in his locale through the local Bais Din. Similarly, other poskim inform us of the custom of the local Rav or Bais Din supervising the sale of chametz. Due to the intricacies involved in employing many types of kinyonim – modes of acquisition – with which the average layman was not familiar, as well as the severity of the chametz prohibition, the minhag evolved that the sale is administered by the local halachic authority. This practice has been in effect for 150 years. (See more on this topic in the Sdei Chemed Ma’areches Chametz U’Matza 9:6)

There were some poskim who questioned the custom, saying that when the Rav sells the entire city’s or congregation’s chametz to one aku’m, it appears to be a ha’arama, a trick. Nevertheless, the opinion of the majority of poskim is that any competent Halachic authority will ensure that the sale is executed according to Halacha and therefore not in the Jew’s possession during Pesach. This benefit far outweighed the possibility of the sale appearing to be a ha’arama.

HOW DOES THE STANDARD MECHIRAS CHAMETZ WORK?

The mechanics of the standard mechira are as follows: The individual wishing to sell his chametz appoints the Rav as his shliach, to represent him, based on the principle of shlucho shel adam k’moso – a representative of someone has the status of the person himself. The seller now gives the authority to the Rav to sell the chametz on his behalf and signs a Shtar Harsha’ah – power of attorney – to this effect.

In order to make the sale more genuine and minimize the appearance of ha’arama, the particulars of the chametz are detailed in the shtar, including what the chametz consists of, its approximate overall value, as well as where it is located. Many shtoros include a clause that if the gentile actually executes the sale following Pesach, an appraiser will appraise the chametz for its actual worth at the time of sale.

The seller signs two documents. One, is the above-mentioned Shtar Harsha’ah and the other is a Bill of Sale, a Shtar Kinyan, which is one of the ways the sale is transacted.

The Shtar Harsha’ah is a Shtar Rayah, a document of proof that the seller has appointed the Rav to sell the chametz on his behalf. This prevents the gentile from claiming that the Rav had no authority to sell the chametz. (See Sefer Mechiras Chametz Kehilchaso 17, footnote 18 and Alon HaMishpat # 72, footnote11, for more reasons why it is preferable that a Shtar Harsha’ah be signed by the seller.)

If the seller appointed the Rav to be his shliach, for example, two weeks before Pesach, and subsequently purchased more chametz which he now wishes to sell, it is best to sign a new Shtar Harsha’ah since one cannot appoint a shliach for future purchases. In the event that this is not feasible, it is preferable to inform the Rav of the new purchases and verbally appoint him to sell the newly purchased items. In the absence of both of these options, the general consensus of the poskim is that the sale is still valid for the ‘new’ chametz. Some harsha’os include a clause to specifically include chametz that may be purchased after the harsha’ah was signed, which, according to all opinions, might validate the sale of this ‘new’ chametz. This clause is another benefit of signing a harsha’ah.

To further strengthen the Rav’s authority, and in addition to signing the Shtar Harsha’ah, the seller performs a Kinyan Sudar. The Rav gives the seller a personal item such as a yarmulke and the seller raises the personal item. By acquiring the yarmulke through this act of Hagba’ah, he helps strengthen the authority of the Rav to sell the chametz on his behalf.

This custom is based on a Rambam (Hilchos Mechira Perek 5, Hal. 11-13) and codified in Choshen Mishpat (182:1) where it states that although a Kinyan Sudar is not required when appointing a shliach, the custom is to make one, to demonstrate the seriousness of the person’s intention when appointing the shliach.

OVER THE PHONE OR ONLINE

Contemporary poskim permit a person to appoint his Rav to sell his chametz over the phone. (See Sefer Mechiras Chametz Kehilchaso 17;11.) This verbal communication is sufficient to appoint the Rav as his shliach to sell the chametz. Since the seller is not selling the chametz directly to the Rav, a formal kinyan is not absolutely required. The Rav can write down the details of the chametz as regards to the value, location etc. as reported over the phone. One concern when appointing the Rav as a shliach over the phone is the absence of a Shtar Harsha’ah. Without a signed Shtar Harsha’ah, there is no proof that the Rav was actually appointed as a representative of the seller, potentially invalidating the entire sale. One remedy would be to sign a Shtar Harsha’ah and fax it to the Rav.

Another concern when appointing the Rav as a shliach over the phone, is the absence of a kinyan sudar with the Rav. HaGaon Rav Zalman Nechemya Goldberg, shlit”a, contemplated this question and concluded that while it is preferable to make a kinyan sudar when appointing a shliach, when this proves difficult, it is not absolutely required, and the sale to the gentile is halachically binding. (Alternatively, some have proposed making a kinyan sudar between the seller and a third party.)

In closing, regarding appointing the Rav as a shliach online, the following can be said. Any electronic communication such as a web message, an email or a text would be acceptable for appointing the Rav. In fact, the web has an advantage over the phone as it offers a secure and recorded means of communication and a legal form of proof.

To sell your personal chametz visit: www.TheHalachaCenter.org/chametz

For more information regarding the specialized sale of BUSINESS-RELATED CHAMETZ or to execute a specializes business-related chametz agreement, please call Rav Shmuel Honigwachs at the Bais HaVaad office at 732.276.1309 or email [email protected]