Question: What should a person do if he realizes on Shabbos Erev Pesach that he forgot to sell his chametz to a non-Jew?
Short Answer: It should be gifted to a non-Jew on Shabbos, but if that is not an option, most poskim do not allow for the chametz to be sold on Shabbos.
Explanation:
I. Shabbos Erev Pesach
In a regular year, when Erev Pesach does not fall out on Shabbos, the Rabbi sells the chametz to the non-Jew on Erev Pesach during the hour when chametz is forbidden to be eaten but is permitted to be owned, i.e., during the fifth hour of the day. In such a year, the sale is effective immediately at the closing (i.e., the meeting between the Rabbi and the non-Jew). There is no delayed sale.
But what about when Erev Pesach falls out on Shabbos. Obviously, a sale may not be performed on Shabbos. See Beitzah (36b-37a). So, when should the closing take place and when is the sale effective?
Rav Y.D. Harfenes (Kovetz Halachos, Erev Pesach SheChal B’Shabbos, 16) notes that fundamentally, the closing could occur at any point on Friday before Shabbos. This is the opinion of many poskim, including Imrei Yosher and Divrei Malkiel. However, some poskim, including the Maharam Shick, hold that it should take place before the sixth hour, as it normally does. Just as we do the biur in the normal time (even though we can eat afterwards) so that people don’t get confused in other years, so, too, we perform the closing at the normal time. A third set of poskim, including the Arugas HaBosem, suggest that we can be a bit more lenient this year and allow the sale until chatzos.
But when should the sale be made effective in such a year? There are a few approaches in the poskim. See Piskei T’shuvos.
First, the Shoel U’Meishiv holds that the sale should be made effective at z’man isur chametz on Shabbos. According to this approach, there is no problem with a kinyan taking effect on Shabbos, as the seller is doing no act when the purchaser takes possession. Second, the Maharam Shick holds that the sale should be made effective right before Shabbos, avoiding any aspect of the kinyan from taking place on Shabbos.
Rav Mordechai Willig shlita (recording to NCYI Rabbanim, #102, Question 5) notes a few problems with these approaches. Since you are still eating chametz after you close the sale (before it takes effect), you are selling the non-Jew a non-specific quantity, plus relying on b’reirah for a d’Oraisa. Also, the some of the kinyanim (chalipin/setumta/agav) must take effect at the time of the closing to be valid; otherwise, we say “kalsah kinyano.”
Thus, the minhag of Sighet (cited in Nit’ei Gavriel), as well as the preferred method of Rav Willig, is to make the sale effective immediately upon closing on Erev Shabbos. With this approach, however, the only chametz that should be eaten is the chametz you plan on using for lechem mishneh, and it must be completely finished. [Rav Willig holds that these rolls for lechem mishneh should expressly be excluded from the sale.]
II. Forgetting
But what about if you forget to sell your chametz and it is already Shabbos. May you sell the chametz now to a non-Jew?
The Shulchan Aruch (Orach Chayim 444:4) writes that if a person has a small amount of leftover bread from his seudah on Shabbos morning on Erev Pesach, he should give it to a non-Jew (but stipulate with him that he does not carry outside). The Mishnah B’rurah (16) explains that you are permitted to give a present on Shabbos because it is for a mitzvah.
However, if you have a lot of chametz left over because you forgot to sell it before Shabbos, the Mishnah B’rurah (20) writes that you should give it as a present to a non-Jew. You may give it to a non-Jew friend who you know will return it after Pesach. The non-Jew must perform a kinyan though, either picking it up/dragging it, or by taking the key to the room from your hands.
III. Afraid of Losing It
But what if the chametz is very expensive and you are afraid that if you simply gift it to a non-Jew, you will not get it back after Pesach? May you sell it on Shabbos?
The Gemara (Eiruvin 65b-66a) cites a machlokes whether you may rent a non-Jew’s “rights” to enter a joint courtyard on Shabbos, thereby enabling the inhabitants to make an Eiruv Chatzeiros. The Gemara concludes that it is permitted and commends the amora who did so on Shabbos. Tosafos (s.v. yafeh) explains that it is not a violation of doing business on Shabbos because it is akin to a present, as you are doing it merely to permit carrying in the courtyard.
Based on this Tosafos, the Chok Yaakov (Orach Chayim 444:8) suggests that if a person forgets to sell his chametz before Shabbos, he may sell it on Shabbos, as he is only doing it to prevent himself from violating an isur of owning chametz on Pesach.
The Pri M’gadim (M”Z 444:5) challenges this Chok Yaakov, as the cases are distinguishable. By Eiruv Chatzeiros, the rental is merely a “hekeira b’alma” (a showing) that you are permitted to carry, as opposed to here, by chametz (where it is a real sale). The Beis Meir (Even HaEzer 136) says the same thing, adding that there should be no leniency by chametz, as you anyway are mevatel the chametz and there is no more d’Oraisa violation.
The Mishnah B’rurah (20) cites both opinions, without stating his own ruling on the matter. [Note that the Pri M’gadim appears to contradict himself, as he also writes (E”A 444:8) that you can sell it on Shabbos through a non-Jew agent writing in non-Hebrew, so it is shvus di’shvus b’makom mitzvah.]
Shmiras Shabbos K’Hilchasah (29:16), however, interprets the Mishnah B’rurah as ruling strictly, like his second opinion. This is how the Shmiras Shabbos K’Hilchasah himself holds, as well. See also Rav D. Ribiat (39 Melachos, p. 966).
Interestingly, the sefer Mishpat HaM’chirah (p. 211) suggests that the person perform kinyan “odisa” (admitting to the non-Jew that the chametz is really the non-Jew’s chametz). According to the K’tzos HaChoshen, this is a valid form of selling chametz, and it does not involve any physical action, making it less problematic on Shabbos.
Finally, Piskei T’shuvos cites the minhag of many shuls/rabbanim who include all chametz of Jews in town into the m’chirah via zachin l’adam. This would mean that the chametz is sold without the person’s knowledge and the chametz is permitted to him after Pesach.
Rabbi Ephraim Glatt, Esq. is the Associate Rabbi at the Young Israel of Kew Gardens Hills, and he is a Partner at McGrail & Bensinger LLP, specializing in commercial litigation. Questions? Comments? Email This email address is being protected from spambots. You need JavaScript enabled to view it..
